text:
    W. E. LACKS, KATIE LACKS, HENRY LACKS and JOHN N. LACKS, Appellants, v. BUTLER COUNTY BANK, WILLIAM FERGUSON and HENRY TURNER.
    Division One,
    May 29, 1907.
    1. DURESS: Notes for Stolen Money: Admissions of Thief: Res Gestae. In a suit by a bank cashier to have cancelled certain notes executed by himself and others to the bank in payment of money stolen from the bank, on the ground that they were obtained by duress and threats of prosecution, evidence that a negro janitor, ten days afterwards, admitted to others that he stole money from the bank, is not competent as res gestae. And the fact that the janitor could not be compelled to testify if he chose to claim his privilege, does not change the rule of law as to the competency of such testimony. But all the testimony tending to show that the janitor stole the money, such as his immediate flight, the large amounts he expended soon thereafter and that were found on him when arrested, are competent.
    2. -: -: -: Interest Unaccounted For. The testimony of bank officers as to what interest should have been received by the cashier and was not credited upon the books, being matters which were not considered or mentioned at the time the cashier executed the duress note, is not competent in the suit to cancel the note.
    3. -: -: Chancellor’s Finding. The appellate court is not bound by the chancellor’s findings, nor is the chancellor bound by the jury’s findings in an equity case. But due consideration is given to the chancellor’s conclusions on appeal, and it, therefore, is sometimes necessary to get his course of reasoning, if that can be done.
    4. -: -: Facts in Evidence: Sufficient. The cashier went to the bank early in the morning and found the assistant cashier and the negro janitor there; the assistant cashier had opened the vault. The cashier went to the post office and on his return $1,000 was gone from the vault, and the janitor was • gone. He hunted up the bank officers, and told them that either he, the assistant cashier, or the janitor had stolen the money, and that he was innocent, and he asked that the janitor be arrested. The officers did nothing to arrest the janitor, but in a day or two began to talk of prosecuting the cashier, and threatened that unless the matter was fixed up he would be prosecuted. The cashier owed the bank $700, and had made a false entry on the books by giving a time depositor a certificate for a deposit of $1,000 and carrying the account on the books for $1,000 less. Protesting his innocence, he and his brothers, in the mercantile business, were induced, as they testify, by threats of prosecution, and by the almost crazed condition of the cashier, to execute a note and deed of trust for $3,000 to the bank. The bank officers admit thát they talked of prosecution, but claim they had in mind prosecution at the instance of the cashier’s bondsman, a surety company, but they did not mention that fact to him or it. They made no effort to arrest the janitor, and he was arrested in St. Louis at the instance of the cashier, and when arrested he had $137 in money, a lot of silk clothing and diamond earrings, and had just lost $100 in gambling. Held, first, that it can make no difference whether the threat was to prosecute directly or indirectly through the surety company; second, the threats and actions of the bank officials superinduced the execution of the note, and it and the securities should be cancelled.
    5. NEGLIGENCE; Bank Cashier: Open Vault. It was not negligence for the cashier to leave the bank with the vault open and to go to the postoffice, when the assistant cashier, who had opened the vault, was present in the bank when he left.
    Appeal from Butler Circuit Court. — No». J. L. Fort, Judge.
    Reversed and- remanded (with directions).

      J. M. Atkinson for appellants.
    (1) The court should have entered its decree cancelling the note, deed of trust and chattel mortgage as the evidence clearly shows the same to have been obtained by reason of the threatened criminal prosecution by the directors and officials of respondent bank, of William E. Lacks, on the charge that he had embezzled the one thousand dollars which was stolen on the morning of the 10th day of July, 1902, by the negro janitor, from respondent bank. Hensinger v. Dyer, 147 Mo. 226; Bell v. Campbell, 123 Mo. 16; Earle v. Norfolk, etc., 36 N. J. Eq. 132. (2) (a) The court erred in permitting witness Edward L. Abbington to testify over tbe objections and exceptions of appellants as to a “ theoretical ” shortage be claimed to exist in tbe respondent bank at tbe date appellant William E. Lacks was discharged. Such testimony was only offered for tbe purpose of prejudicing tbe minds of tbe jurors and tbe court against appellants, (b) Tbe court further erred in permitting witness M. 0. Cook to testify as to a supposed shortage in tbe earnings of respondent bank, over tbe objections and exceptions of appellants. Such testimony was only offered for tbe . purpose of prejudicing tbe minds of tbe jurors and tbe court against appellants. Such testimony did not disprove tbe fact that- tbe execution of tbe note, deed of trust and chattel mortgage was obtained through fear of a prosecution of said William E. Lacks by tbe officers and directors of tbe respondent bank .on tbe charge <?f embezzling said one thousand dollars. (3) Tbe court further erred in refusing to permit appellants to prove by witness James H. Smith that tbe negro janitor admitted to said Smith, when arrested in St. Louis, that be bad stolen the said one thousand dollars. While such testimony was hearsay, yet tbe fact that Bollinger bad stolen tbe one thousand dollars and bad admitted that fact to be true to said witness Smith, and for which sum appellants bad been required to execute their note, deed of trust and chattel mortgage, such admission constituted a. part of the res gestae and was competent to have been proven by said witness, although made by a third person and not a party to tbe suit. Greenleaf on Ev. (15 Ed.), sec. 108; 24 Am. and Eng. Ency. of Law (2 Ed.), 666; Foster v. Nowlin, 4 Mo. 18; Turner v. Belden, 9 Mo. 797; State v. Schneider, 35 Mo. 533; Thomas v. Wheeler, 47 Mo. 363; Burgert v.' Borcbert, 59 Mo. 80; Redmon v. Railroad, 185 Mo. 1. (4) Tbe court further erred in not granting an accounting and giving appellants credits on their note for the sum of four hundred dollars, which was shown to either have been stolen or a clerical mistake on the hooks of respondent hank; the sum of five hundred dollars which was burglarized and of which respondent bank had full notice; the sum of one hundred dollars, the same being the loss to the bank on the forged note purported to have been signed by H. H. Hart and L. P. Nickey; the sum of one thousand dollars stolen by the negro janitor, Bollinger, on the morning of July 10,1902; and the further sum of three hundred dollars which was included in said three thousand dollar note without consideration, all of which was shown by the evidence to have been included in said three thousand dollar note and which items were without any consideration on the part of appellants, and to that amount the consideration in said note wholly failed. R. S. 1899, see. 776; Woodard v. Martin, 106 Mo. 362; St. Louis v. Crow, 171 Mo. 279; State ex rel. v. Hearing, 180 Mo. 63; Biddle v. Ramsey, 52 Mo. 158; Crosby v. Bank, 107 Mo. 442; Liese v. Meyer, 143 Mo. 555; Hickey v. Life Assn., 82 Mo. App. 376.-

      L. F. Dinning and L. Ii. Thomason for respondents.
    (1) The court committed no error in the trial of this cause. Its judgment is for the right party and is supported by the greater weight of the testimony taken upon the trial thereof. (2) We do not question that the law of duress is correctly stated by this court in the case of Hensinger v. Hyer, 147 Mo. 219, but aver that the testimony adduced upon the trial of the case at bar does not establish the fact that the note and mortgages were signed under duress. (3) So far as the issues made by the pleadings in this cause are concerned, the declarations of Bollinger sought to be introduced were nothing but a narrative of past events, were not res gestae, and not admissible. Black’s Law Die., p. 1068; Redmon v. Railroad, 185 Mo. 11. (4) The proposition contained in the fourth .clause of appellants’ brief is in our opinion incorrect; in fact, we challenge the production of a single authority that supports the position therein taken, viz., that upon a bill in equity to cancel a note and mortgage executed to secure the payment thereof, because the same was executed under duress, a court of equity has jurisdiction to go behind the execution of the note and mortgage and have an accounting between the parties or to grant any relief not consistent with the averments of the petition or the proof in support thereof. Liese v. Meyer, 143 Mo. 555. Appellants will not be permitted to try the cause upon a theory wholly different from the one upon which they tried the cause in the circuit court. The instructions asked by appellants and the proof introduced establish that they tried the cause upon the theory of cancellation upon the ground of duress.
   GRAVES, J.

Plaintiffs brought suit in the circuit court of Butler county, to cancel a promissory note for three thousand dollars, as well as a deed of trust and chattel mortgage given to secure the same, on the ground that they were procured by duress. From a decree dismissing their bill, they appealed.

Defendant Butler County Bank is a banking corporation under the laws of this State. Defendant Henry Turner is the trustee in the deed of trust and chattel mortgage, and defendant William Ferguson the beneficiary therein, but as trustee for the defendant bank, as stated in the petition. Plaintiff Katie Lacks is the wife of the principal plaintiff, W. E. Lacks, and signed the written instruments with him. The other plaintiffs are brothers, who signed the note as sureties.

W. E. Lacks had for some years been the cashier of defendant bank Prior to July 10, 1902, the date around which clusters the story of this case, W. El Lacks owed the bank upon notes and overdrawn account in the aggregate sum of seven hundred dollars, unsecured as far as the record shows. On July 16, 1902, said W. E. Lacks and the other plaintiffs executed the instruments involved in this. suit. A day or two after that his resignation as cashier was requested and by him given. W. E. Lacks claims that on or about July 10 he went to the bank in the morning; that Mr. Cook, the assistant cashier, was there and opened the safe and cashed a check for some one; that one "William Bollinger, a gentleman of color, and janitor of the building, was there sweeping out the bank; that he, Lacks, went to the postoffice for the mail; that they were found short one thousand dollars in cash, which must have been taken out at that time; that he at once reported it to the president of the bank, stating that one of three persons must have gotten the money, viz., Cook, himself, or the negro; that he knew he did not get it, and did not think Cook got it, but believed the negro did, inasmuch as he had gone, and suggested that they take steps to have him apprehended; that the officers of the bank declined to take such steps, saying that they did not want the notoriety of a loss of this character; that in a day or two thereafter the officers began to threaten him with prosecution for the theft of this money and he then on his own account began a search for Bollinger, the negro janitor, but did not succeed in having him arrested until after the officers of the bank, through these threats but against his protests of innocence and liability, procured the execution of these papers. It also appears from the petition and the evidence of this witness, that prior to this time, he, the cashier, had cashed a note, paying therefor one hundred dollars, which note turned out to be a forgery, and this sum was charged to him in the note of three thousand dollars in suit. That in 1900, while one Turner was assistant cashier and he was cashier, five hundred dollars was stolen from the hank without fault upon his ptirt, and this was included; that at another time prior to July 10, 1902, the bank was burglarized and four hundred dollars in silver taken therefrom without fault upon his part; that on July 15, 1902, one of the bank customers, Chester A. Detrich, overdrew his account in the sum of seventy-seven dollars, which was likewise wrongfully charged to the witness in the three.thousand dollar note. The petition sets out fully and particularly all these matters, as well as the fact that the officers of the bank threatened W. E. Lacks with prosecution if the note and other instruments were not executed, and that by reason of said threats they were executed by W. E. Lacks, and the' other parties thereto. The petition, after pleading in detail all these transactions and averring that none of the losses of the bank were through the knowlédge, consent, fault, negligence or wrongdoing of W. E. Lacks, closes with this prayer:

“Wherefore, the premises considered, the plaintiffs pray that the said note, the said deed of trust, and the said chattel mortgage be canceled and held for naught and for such other and further relief as to the court may seem meet and just in the premises.”

The answer of the bank admits the corporate capacity of the defendant bank and denies generally all other things pleaded in the petition. The record before us shows no answer as to the other defendants. The judgment after making the formal recitations, closes thus:

.“And being fully advised of and concerning said evidence, doth find the issues herein for the defendant, the Butler County Bank.
“Wherefore it is ordered and adjudged by the court that plaintiffs’ bill be, and the same is hereby ■dismissed. It is further ordered and adjudged that plaintiffs take nothing by reason of said hill and that defendants go hence thereof, without day.
“It is further ordered and adjudged by the court that defendants recover of and from the plaintiffs their costs in this behalf expended and that execution issue therefor. ’ ’

In addition to the testimony of W. E. Lacks as to the threats of prosecution, Henry Lacks, one of the plaintiffs, testified in part thus:

“Q. I will ask you to state to the jury now why you signed that note for three thousand dollars? A. Through threats that was made of a criminal prosecution of my brother — he was just about crazed at the time, and I was very uneasy about him — he was just as near crazed as you ever see a man.
“Q. You say you signed it on account of .threats being made to prosecute him through these shortages, and you did not know then how these shortages came about — you say that you signed that note because of threats to prosecute him? A. Yes, sir.
“Q. Who made any threats, Mr. Lacks? A. The hank officials.
“Q. Who was it? A. It was general talk among them.
“Mr. Dinning: Give us names.
“A. Jesse Reynolds and George Begley were two of the men.
‘ ‘ Q. What did they say with reference to prosecuting Will E. Lacks ? A. George Begley said'that W. E. Lacks had stole the money, that is, that one thousand dollars, and that that matter had to he fixed up, and Jesse Reynolds was agreeing in what Begley said— they said the matter had to he fixed up.
“Q. They said that matter had to he fixed up immediately? A. Well, at that time, I do not know that they said immediately.
“Q. Were they negotiating with you at that time to sign that note? A. Yes, sir. -
“Q. Where were you when this conversation occurred? A. It occurred in the hack of the office of Jesse Reynolds.
“Q. He, at that time, you say, was president of the Butler County Bank? A. Yes, sir.
“Q. Who else was present besides George Begley and Jesse Reynolds at the time this conversation occurred? A. I do not remember of any one else at that time. Myself and those two men.
“Q. Was the note signed by you at that time? A. No, sir; the note was not signed until perhaps two days after that.
“Q. Well, what did you say when George Begley said that Will Lacks had stolen that money, and the matter had to be fixed up? A. I said, ‘Gentlemen, I am satisfied as well as I am of anything that Will Lacks never got one cent of this money, but he is crazed over the matter, and you gentlemen have no way on earth of knowing anything else but that he did get it; but I believe that right will come out sometime, and that you gentlemen will know that he never got the money; but I am, at present, willing to fix it up in order to relieve his mind. ’
“Q. Why did you sign that note? A. To keep them from prosecuting Will Lacks.
“Q. Were you present when Will Lacks signed it? A. I am not sure, I suppose I was.
“Q. Were you present when your brother, John N. Lacks, signed it; were you together when the note was signed. A. Yes, sir; I think so.
“Q. Where was it signed? A. Down in the office at the bank.
‘ ‘Q. Who was present of the bank officials, if any one? A. I think they were all present — I remember that Mr. William Ferguson was present/and Mr. Ed. Abington, and Mr. Jesse Reynolds — I am not sure abont Begley; and John N. Lacks, W. Ei. Lacks and myself; and there may have been others.
■ “Q. At the time of signing this note, yon say this was about two days after you had the conversation with Reynolds and Begley at Reynolds’s office ? A. Yes, sir; I think it was about two days.
“Q. At that time was there any conversation about the prosecution of Will Lacks, unless this note was signed up, down at the bank at the time you signed it? A. It was the general talk, but I do not recollect any words used at the time we signed it; the reason we made the note was for that purpose.
Q. The whole talk and conversation had been prior to that, and you had all. come to the point where you were going to sign the note? A. Yes, sir.
££Q. Did Will Lacks refuse to sign this note in the presence of any of the hank officials, and in your presence? A. Yes, sir. Will Lacks did not want to sign it at all, and did not want me and my brother to sign it; that he would abide by the consequences; but we agreed to help him out. I think W. E. Lacks said in the back office over Mr. Cameron’s store to Col. Phillips, and I believe Mr. Sam Phillips was present and myself.”

And on cross-examination, among other things, he said:

££Q. Now, Mr. Lacks, you say that Mr. Begley said that Will Lacks had stolen the money? A. Yes, sir; I said that.
£ Q. Did he intimate for a second that he intended to have him prosecuted for this criminally? A. Yes, sir; he did.
££Q. What did he say? A. He said, ‘Will Lacks stole the money and he would be prosecuted unless the matter was fixed up.’ ”

And furtker on the same witness said:

“Q. You say that George Begley said that he had stolen it, and that he would prosecute him if he didn’t fix it up? A. Yes, sir.
“Q. Now, what did Jesse Reynolds say about it? A. I don’t remember that Jesse used — he concurred in the expressions.
“Q. Now, what did he say? A. I don’t remember.
“Q. I want to know and the jury want to- know, now, just what he said? A. He heard the conversation, to say the least of it, and he never objected to it.
“Q. That is the reason you think he was agreeing in what Begley said — did you object? A. I will tell you something, I did —
“Q. I am not asking you that — I want to know if you objected at the time. A. I to,Id them that I knew W. E. Lacks never got one cent of the money, but they wasn’t satisfied at the time, and we had no means of knowing; and I said: ‘Gentlemen, sometime you will find out to your satisfaction that W. E. Lacks never got a cent of this money, but under the pressure brought to bear at present, we will fix it up. ’
“Q. I will ask you if you would have signed that n,ote at all — this three-thousand-dollar note — except for the threats made of prosecuting Will Lacks? . . . A. I undoubtedly would not have signed that note except for the threats.”
John N. Lacks, one of the plaintiffs, testified, among other things, as follows:
‘ ‘ Q. Where were you when you signed that three-thousand-dollar note? A. At the Butler. County Bank.
“Q. Who was present? A. Will Ferguson, Jesse Reynolds, Ed. Abington, Henry Lacks, myself and Will Lacks — that is all I remember.
‘1Q. 'Was Katy Lacks present at the time the note was signed? A. No, sir.
‘ ‘ Q. What was the conversation between the bank officials and you folks leading up to the signing of this note, if you remember? A. Well, I did not talk much about it — I did not say much about it; they talked among themselves, and the talk was, if it was not straightened up, he would be prosecuted — they found about two thousand seven hundred dollars deficiency— the amount they held him accountable for was two thousand seven hundred dollars, and they made the remark they did-not know whether or not it was all, and they wanted him to agree to make it three thousand dollars to cover all; and we agreed to sign the three-thousand-dollar note.
' “Q. If it had not been for the threatened prosecution of 3mur brother, Will Lacks, and the threatening demeanor of the bank officials, would you have signed that note? A. No, sir.
“Q. Answer the question. A. No> sir; I would not have done it.”

By James H. Smith, then secretary for R. C. Kerens, but formerly assistant chief of detectives in St. Louis, it was shown that on request of W. E. Lacks, he had caused the apprehension of Willis Bollinger, colored, on charge of stealing money from the Butler County Bank; that they found that just previous to his arrest he had been shooting craps (faithful to predilections of the race) in Will Ray’s saloon on Market and Nineteenth streets, where he had just lost one hundred dollars; that he had been riding in carriages with a colored woman and generally going a pretty fast gait; that when he was arrested, he, the witness, stripped him and found one hundred and thirty five dollars or one hundred and thirty-seven dollars in cash on his person, a lot of silk clothes, silk stockings, diamond earrings, and a pair of high heeled shoes, that he had bought for the negro woman. At this point, the following occurred:

“Q. Further than that you don’t know how much money he had spent in St. Louis, only what he told you? A. No, sir; only what he told me, and how he got it.
“Q. I will ask you if he stated to you that he got that money, together with the other amount he spent, out of the Butler County Bank while he was porter there?
“Mr. Dinning: We object to that if the court please, because it is calling for hearsay, incompetent and improper testimony, and is not admissible.
“The Court: Objection sustained.
“Mr. Raney: We except.”

We set this out for the reason that a point is made as to the ruling of the court.

The witness further testified that the rings were worth seventy-five dollars.

The verbatim statement of Will E. Lacks, as to the threats and his reason for signing the papers, follows:

“Q. Well, what was done before? A. Well, along about the 10th I missed the one thousand dollars.
“Q. Did you report it? A. Yes, sir!
“Q. To whom? A. To Mr. Reynolds, the first one, the president of the bank — I told him there was one thousand dollars short out of the cash, and I told him there was one of three things, that either I had it, or the assistant cashier, or Willis Bollinger, and I told him I knew I did not have it, and that Willis Bollinger had gone to St. Louis, and that I wanted to send a message to Mr. Smith to look him up, and see if he could find the money on him, and so we talked around, and Mr. Abington and Mr. Reynolds and Mr. Begley refused to let me do it, stating that they did not want it to get out here, and it went along for several days until they’ began to threaten me —
“Q. Threaten you with what? A. With a prosecution —
“Q. For what? A. Getting this money, and so I went and wrote the letter myself to Smith without their knowledge to see if I could find him.
‘ ‘ Q. With the results that Mr. Smith stated awhile ago with reference to Bollinger? A. Yes, sir.
“Q. What else was done next? A. Well, the first I knew, Mr. Reynolds had gone— I learned afterwards —had gone to Mr. Thomason, a lawyer here, and prepared some papers to he executed for this one thousand dollars and a forged note and four hundred dollars burglarized out of the hank and five hundred dollars that Mr. Turner and I missed at one time and could never account for, and my notes, which amounted —which all amounted to something like two thousand seven hundred dollars.
“Q. How much were your notes? A. About seven hundred dollars — one hundred and fifty-four dollars, two hundred and thirty-five dollars and two hundred and ninety-five dollars; together with those notes, and these other items they built on, I had to execute a note with Henry and John as security.
“Q. What did they tell you would happen, if you did not, if anything? A. They said they would have to prosecute me for the one thousand dollars shortage.
“Q. Who told you that? A.* They all told me— Mr. Ferguson told me two or three times, they were talking of prosecuting me and were going to on two or three different occasions. „
“Q. Mr. Ferguson was one of the directors? A. Yes, sir, and Mr. Ahington came and told me something, that Mr. Begley said I got it, and that I had to fix it np. ...
“Q. I will ask you whether or not your brothers, John and Henry Lacks, knew of these fellows threatening to prosecute you for this amount of money, if you did not make this note? A. Yes, sir, they both knew it.....
“Q. I will ask you if you would have signed the note at all, except on account of their threats of prosecuting you. A. No, sir, I would not.”

William Ferguson, one of the defendants, placed on the stand by plaintiffs, in his examination in chief, made the following admission:

“Q. You say you never heard of any of these bank officials talking about prosecuting him? A. Incidentally it was mentioned, of course; I was only at about one meeting after this thing took place.
“Q. Did you tell Will Lacks so? A. Yes, sir; I told him he was liable to be prosecuted.
“Q. Didn’t you tell him that Mr. Begley and these people were talking about prosecuting him? A. Yes, sir; that he was liable to be prosecuted.”
On cross-examination, counsel for the defendant succeeded in getting’ the witness to say:
“Q. Did any member of that bank directly or indirectly say that they, as officials, would prosecute Will Lacks for the shortage ? A. I believe the general impression of the directors was that the Surety Company would prosecute him.”

And further the testimony of this- witness is as follows:

“Redirect examination by Mr. Raney:
“Q. In the conversation you had with Mr. Lacks, in which he stated he was anxious to get it settled up, I will ask you if it wasn’t in the same conversation, that he told you he did not take a dollar of the money, and that time would dig it up and show where the money went? A. Yes, sir; he told me that.
“Q. Did you not tell Will Lacks down there on the sidewalk of Ben Howlett’s saloon, that all he could do was to fix it up to keep those fellows from prosecuting him? A. I do not know in what words I put it in, whatever I had to say to him was along those lines, that it would keep him from being prosecuted.
“Re-cross-examination by Mr. Dinning:
“Q. Being prosecuted by the bond company, and not by the bank? A. I never had anything in my mind, except the surety company — I never said that in words.
“Q. You never intended to convey the idea or the impression that the directors were going to prosecute him. A. Np, sir; I never had the bank directors in my mind.
“Redirect examination by Mr. Raney:
“Q. You had not talked about the bond company prosecuting him? A. No, sir.
“Q. You were talking about him being prosecuted and that was all? A. Yes, sir.
“Q. Didn’t you say in that conversation that it .was all you could do to keep Begley down, from prosecuting him? A. I told him that Mr. Begley, among others, was pushing for a settlement, and that it was best for him to do it.”

This witness was the payee in the note and beneficiary in the deed of trust and chattel mortgage, and testifies that he was acting for the bank in taking the papers in his name, and held them for the bank.

It might be well to note here that on the cross-examination of Henry Lacks, the defendants succeeded in bringing out the following:

“ Q. Now, Mr. Lacks, is it not a fact that you were there trying to get this shortage fixed up with a note to prevent the company that went on Will Lack’s bond from finding it out; is not that true? A. No, sir.
“Q. You knew there was a bond, and that it was signed by a company that did not live here, did you not? A. Yes, sir; I knew there was a bond — a man in that position always gives bond.
“Q. Now then, when was it dated, that you signed that note ? A. I think it was in July, 1902.
“Q. Then you said awhile ago, that there was seven hundred dollars of that note was owed by Mr. Lacks? A. Yes, sir.
“Q. And one thousand dollars stolen by Willis Bollinger; you said you. heard Bollinger admit that, where did he admit that? A. He admitted it in court.
“Q. Do you know why it was that he came into court and pleaded guilty to that? A. No, sir.
“Q. Do you know what the arrangements were between the attorneys? A. No, sir.
* ‘ Q. You know as a matter of fact he was not to go to the pen, if the thing worked? A. No, sir.”

Just what is meant by this is hard to determine, for it appears from another witness in behalf of the defendant, Ed. L. Abington, that Bollinger, at the time of this hearing, had not been tried. It was' stated in argument that he was in the penitentiary for this crime, but this is not in the record. This is substantially the case of the plaintiffs.

For defendants, it was shown by Jesse Reynolds,’ George Begley and Edward L. Abington, directors and officers of defendant bank, that they did not threaten a prosecution of Will E. Lacks, if he did not have the papers in suit executed; that they were opposed to taking the note at the time it was given, because they were not certain what the shortage would be; that Henry Lacks insisted upon having it closed and settled at that time because it was worrying his brother Will, and they did not want the matter reported to the surety company, which had made the bond for Will E. Lacks, as 'cashier. These witnesses denied specifically the threats and conversations detailed by plantiffs’ witnesses. The witness Begley admitted that he stated at the previous trial of this case that he thought Will E. Lacks stole the money (the $1,000), and further admitted that he might have told others that he so thought, but stoutly denied that he had any idea of prosecuting.

On cross-examinaton, the witness Abington made this statement as to what talk was had among the directors and officers of the*bank:

“Q. You say you never talked about prosecuting Will Lacks. A. No, sir.
“Q. And you never heard such conversation? A. All I heard wag,, a conversation about notifying .the surety company — and of course they knew what that would mean, they seemed to from the way they were acting— —
“Mr. Dinning: Who do you mean by they? A. The Lackses.
“Q. You were talking about- the surety company-notifying it? A. Yes,' sir.
“Q. Did you see Will Ferguson in there any time the talk was going on about Will Lacks and this shortage? A. I don’t believe I did.
“Q. He was one of the directors at the time? A. Yes, sir.
“Q. You don’t know whether or not he heard you people talking about prosecuting Will Lacks? A. No, sir, he never heard us say that — he said on the stand awhile ago that he never heard us.
“Q. You heard him say that he told Will Lacks down by Ben Howlett’s saloon, that they were going to prosecute him, if they didn’t — if he didn’t straighten this up? A. That the surety company would prosecute him — that is what they were talking about.”

Defendants also introduced the original petition, which in snhstance pleads all the facts as the petition upon which the case was tried, except that there is an allegation stating that, after the note in suit was given due in twelve months, at the request of the bank officers he executed a note for a like amount due in three months, which was to be in payment of the twelve months’ note; that he gave this second note because the officers said that the State Bank Examiner would not permit them to carry the twelve months ’ note as a part of the assets of the bank. The prayer was to have said twelve months’ note, the note here in dispute, canceled, and for further relief. This petition pleads the duress and all attending circumstances as fully as the petition constituting a part of the record proper, and practically in the same language.

It was also shown by defendants, and practically admitted by plantiffs, that Will E. Lacks had been carrying the items of five hundred dollars, four hundred dollars and one hundred dollars hereinabove set out, by a false entry on the books, or rather he made the books show one thousand dollars more cash than there actually was1 in the bank. This was done by giving a depositor (as we take it a time depositor) a certificate for the full deposit, but carrying the account on the books for one thousand dollars less.

Over the objections of the plaintiffs, the defendants were permitted to show by one M. Gr. Cook, the then cashier of the Butler County Bank, that he had examined the books, and that the books showed an average of ninety thousand dollars of cash loaned by the bank for the last year of Lacks ’ administration, which would make, at eight per cent, the interest earned seven thousand, two hundred dollars, and that the earnings turned in were 'only four thousand, four hundred dollars. Over proper objection the witness was likewise permitted to testify to an alleged deposit of one hundred and ninety-seven dollars made the last day Mr. Lacks was in the bank, and that the books did not show it.

On this question in the examination of Mr. Abington the following appears:

‘ ‘ Q. Now, Mr. Abington, have you looked over and examined the books of the bank thoroughly to see what they show? . A. Well, I have made a thorough examinination — I am not an expert book-keeper.
“Q. Mr. Lacks kept the books ? A. Tes, sir.
“Q. What do these books show the shortage to be?
“Mr. Raney: We object to that, if the court please, as irrelevant, immaterial and incompetent, and because he has not shown himself to be an expert bookkeeper — he has not qualified himself.
“The Court: Answer the question.
“Q. Mr. Raney: We except.
“Q. How much? A. About six thousand, two . hundred dollars.
‘ ‘ Q. That was while he was cashier ? A. Yes, sir.
“Cross-examination by Mr. Raney:
“Q. In that you included this loaning of ninety thousand dollars at eight per cent to amount up to what was short. A. Yes, sir.
“Q. That is part you counted? A. Yes, sir.”

Defendants also introduced clause five of Lacks’ cashier’s bond, which provided that notice must be given by the bank of any default within so many days. This bond appears to be lost and the exact wording of the clause offered in evidence is not given.

Will E. Lacks, in rebuttal, testified that if he had the books he could show every cent of interest earned, that the net amount earned-was properly kept on the books; that certain note's of the directors and some of their kinsmen, included in the ninety thousand dollars mentioned by witness Cook, were carried without interest and certain other notes of the St. Francis Lumber Company, also carried in the ninety thousand- dollars, were forgeries and no interest was collected; that the bank carried the county money and paid for the use thereof $1,335.26, which money was loaned and included in the ninety thousand dollars, and instead of charging on the books the full amount of interest earned and charging this $1,334.26 to expenses, he deducted it fr'om the gross amount of interest collected, entered the remainder as the interest collected and made no charge of the $1,334.26 in the expense account.

This sufficiently states the evidence.

The court submitted to the jury the question as to whether or not the written instruments were procured by duress. The jury failed to agree, seven answering that they were not so procured and five that they were. Such is the record of this case.

I. It is urged that the trial court erred in refusing to allow witness Smith to testify that Willis Bollinger had admitted to him that he, Bollinger, had stolen the one thousand dollars from the bank. All proper evidence tending to show that Bollinger had in fact stolen the money was admissible upon the theory, if upon no other, that it tended to show whether or not the instruments sought to be canceled were voluntary acts, or were superinduced by threats, and thereby the product of duress, rather than the free will of the parties. Proof of that fact would be a circumstance, and a strong circumstance, tending to show duress. We can readily see that if Will E. Lacks knew that he himself got this one thousand dollars, he would in all probability execute the instruments voluntarily- and without threats, but on the other hand, if he was conscious of no wrong, and fully believed that Bollinger or some other party got the money, it might be that he would not so willingly execute and deliver the note and deed of trust and the chattel mortgage. Such proof tends to show the surroundings and conditions at the time as to the commission of a crime upon his part from which an inference may be drawn as to whether or not the papers were voluntary acts. So that the evidence of the flight of Bollinger and the money and property in his hands when arrested, as well as the competent portion of the testimony as to what money he expended in St. Louis, was proper, as tending to show Bollinger’s guilt, and as tending to show that Lacks did not get the money, and would not voluntarily be paying it back, or securing its payment. The evidence all shows that this one thousand dollars went into the makeup of the instruments sought to be canceled. However, this evidence went in without, objection, so that defendants in effect concede its competency. But could plaintiffs go further and want to prove the statements of Bollinger some ten days afterwards? Plaintiffs urge the testimony upon the ground that it constitutes a part of the res gestae. In our judgment the admission upon that theory would be doing violence to the reasonably well-settled doctrine of res gestae. To our minds it would be hearsay, pure and simple. Bollinger was a competent witness upon the question, and the mere fact that he could not be compelled to testify if he chose to claim his privilege, does not change the theory of the law as to the character of this testimony. We see no error in the exclusion of this testimony. The cases cited by counsel for plaintiffs do not sustain their contention upon this point.

II. All of the testimony of Cook and Abington as to what interest should have been received by the bank and was not credited upon the books, was incompetent under the circumstances of this ease. These matters did not enter into consideration at the execution of the $3,000 note. They were not mentioned by either party. They were considered by neither party when the instruments were executed. So far as the evidence shows, they were not thought of by either party at that time. It may be that if these items had been discussed at that time, then proof of them might tend to prove that Will Lacks recognized this shortage and an inference drawn from it all that the execution so far as he was concerned was voluntary. But at this time we do not go as far as to so hold. It would certainly not affect the other plaintiffs. Under the record herein this evidence was erroneously admitted. On application of the plaintiffs the court gave the following instruction to .the jury, which withdrew all of this evidence:

‘ ‘ The court instructs the jury that it is immaterial to the issues in this case whether or not William E. Lacks owed the defendant bank three thousand dollars, or any other sum; and it is also immaterial whether or not Lacks was short in his accounts with said bank and whether or not he was guilty of the crime of embezzling the bank’s funds, and in passing upon this case you will not take into consideration evidence as to the above facts.”

What effect this instruction and this erroneous evidence had in procuring a hung jury we cannot say, nor can we say what influence was brought to bear upon the court by the fact that seven jurors gave their opinions to the court to the effect that the note was not signed under duress and five jurors their opinion that it was signed under duress. The record recites that they so expressed themselves, and presumably it was done under the direction of the court. It was charged in the argument that the trial court stated that he would follow the seven or majority of the jury, but we fail to find that in the record. The inference might be drawn that the judgment of the seven aided the court in determining a close question of fact. However, chancellors are not bound by even unanimous verdicts and the presumption is that this judgment is the independent judgment of the chancellor.

This instruction in our judgment is wrong, hut as the error was invited by the plaintiffs, we do not know that they can complain. Nor in a ease of this character is the error very material. The question for the jury was whether the execution of these papers was the voluntary acts of the parties, or were superinduced by a species of duress, i. e., threats of prosecution. Of course, if no threats were made there was no duress and that would end the case. But even if threats were made, they might not have been the superinducing cause of the execution of the note and securities, and further what items and the character thereof, whether disputed or otherwise, were very material in tending to show whether or not these written instruments in suit were voluntarily executed. If the items were admitted liabilities, it would be more reasonable to draw the inference that the acts were voluntary rather than under duress, and vice versa. We mention this, not that it seriously affects the merits of this, and equity case, but as tending to show the bent of the chancellor’s mind, in the final judgment given by the court. For while we are not bound by the conclusions of a trial court in an equity case, due consideration is given thereto, and it thus becomes necessary to get his course of reasoning, if it can be done.

III. This is peculiarly a case of facts rather than of law. The law of this case is succinctly stated by Burgess, J., in the case of Hensinger v. Dyer, 147 Mo. l. c. 226: ‘ ‘ Duress may be said to exist when one person is, by threats of a criminal prosecution of such a character as to deprive him of his own free will and agency, induced to make a contract or perform some act that he would not otherwise make or perform. And if Dyer reasonably believed that M. H. Hensinger had committed the crime of embezzlement, and by threats of prosecution and imprisonment for the crime, overcame the will of plaintiffs and induced them to execute the note and deed of trust, and they would not have executed them voluntarily, then they were obtained by duress.”

Counsel seem to concede the law and further citations would be superfluous. The question then is, do the facts sustain the judgment of the lower court? Being an equity case, we can sift the relevant from the irrelevant, the competent from the incompetent, the wheat from the chaff, and pass judgment here. [Waddington v. Lane, 202 Mo. 387.] This case does not strike us as it did the judge nisi. We are thoroughly impressed from the record that Bollinger got this one thousand dollars. If he did, Will E. Lacks was conscious of his own innocence, and non-liability therefor. All of the evidence, even from the defendants, shows that he protested his innocence. Nor can it be said to be negligence for a cashier to leave a bank with the vault open, to go to the postoffice, when the assistant cashier, who had evidently, under this evidence, opened the vault, was present in the bank when he left. Neither can we say that «there was sufficient evidence of civ-, il liability on the three items making another thousand of this note, save and except by the act of carrying it upon the books as he did. The plaintiffs all testify to threats. Ferguson, a defendant, admits threats, but says that he had in mind the surety company when he said that Lacks had better fix it up or that he would be prosecuted. The surety company was "not mentioned. Begley’s testimony was not all it should be to justify the defendants ’ position in- the ease. He admits that he desired and requested that they notify the surety company, and Abington says, “They (the Laekses) knew what that meant. ’ ’ Abington heard the directors discuss the matter of notifying the company. It can make no difference whether the threat was for the bank officials to directly prosecute or indirectly prosecute through the agency of the surety company. They admit that they made no effort to get the negro, although he had immediately changed his place of abode, and, as later developed, there was nó doubt of-his manner of living. From an humble janitor in a country town he became a colored “swell” in a metropolitan city, with carriages, ladyloves, diamonds, silks and cash. Lacks protesting his innocence and urging that the negro be arrested, that he might establish it, is met with no response in his call for assistance in overtaking and bringing back this janitor. Lacks was no doubt conscious of his wrong-doing in the one false entry upon his books, and this action of the directors in failing to make an effort to arrest Bollinger, could but impress him with the idea that they thought him guilty. One of the directors, Begley, so stated and does not deny his statements. Following all this are the threats and significant innuendoes of prosecution. The negro is gone, and the assistant cashier no doubt proclaiming his innocence. Lacks, a young man; of family, with two brothers in the mercantile business. Did these threats and these actions of the bank officials su-perinduce the execution of these papers? We are inclined to think so. We think the weight of the evidence and the facts and circumstances in evidence so shows. In our way of looking at these facts the judgment is for the wrong party and the cause will be reversed and remanded with directions to enter judgment for the plaintiffs in accordance with the prayer of their petition.

All concur.


source: Caselaw Access Project

author: VALLIANT, P. J. GRAVES, J.

license: Public Domain

text:
    MRS. W. J. POWELL, Appellant, v. CROW et al.
    Division One,
    May 29, 1907.
    1. SUIT TO QUIET TITLE: Scope of Decree: Deed as Mortgage: Homestead. There is no authority under the statute to quiet title (Kevised Statutes 1899, sec. 650) for the court to do more than to ascertain and determine, define and adjudge the title, interest and estate of the parties severally in and to the real estate. Where defendant bought at execution sale land which had previously been conveyed to plaintiff, and the real controversy in the case is whether or not that conveyance was a mortgage for the security of plaintiff’s debt or an absolute deed, the court, on finding it to be a mortgage, can go no further than adjudge plaintiff’s title to be that of a mortgagee to the extent of the debt due, and that defendant’s title is that of the owner of the equity of redemption. It cannot go further and adjudge that the mortgagor has a homestead in the land, decree the foreclosure of the mortgage, and divide up the proceeds among the plaintiff, defendant, and the homesteader.
    2. -: -: Interest of Persons Not Parties. A decree in a suit to quiet title cannot dispose of the interests of persons not parties. And where the common source of title asked leave to file answer, but did not do so, and the pleadings tendered no issue to him, an adjudication as to him is without any juridictional chasis.
    3. MORTGAGE OR DEED: Evidence or Conclusions. Where the whole issue is whether a deed absolute on its face was in fact an absolute conveyance in payment of the debt, or was in fact a mortgage to secure the payment of the debt, the intention of the parties is to be derived from what the parties did and said at the time, the circumstances, and who retained the notes evidencing the debt, and not from the conclusions of the witnesses as to what was done and said.
    4. -: Burden: Doubt Resolved in Favor of Mortgage. The burden of showing that the deed absolute on its face which plaintiff holds, was in fact a mortgage given to secure plaintiff’s debt, is on the defendant who bought the property at execution sale after the deed to plaintiff was executed.

      Held, by Graves, J., in a separate concurring opinion, that, if there is a doubt, from -all the facts developed, as to whether the transaction was a mortgage or a conditional sale, such doubt should be resolved in favor of its being a mortgage.

      Appeal from Crawford Circuit Court. — Now. L. B. Woodside, Judge.
    Reversed and remanded.

      J. B. Harrison for appellant.
    (1) The evidence was wholly insufficient to warrant the court as a court of equity to declare a deed absolute on its face to be a mortgage. The evidence is not clear, cogent and convincing, and the facts and circumstances surrounding the transaction will not support the finding of the court. (2) Even though the evidence warranted the court m finding that the warranty deed was only a mortgage, the court erred in not making an equitable accounting between the grantor and grantee upon the consideration of said warranty deed, the consideration of said deed being $3,446 and drawing interest at the rate of eight per cent, and wherein there had been one year’s rental, amounting to $206 and accrued interest from 1898 thereon, which appellant was certainly entitled to under an equitable accounting' between the grantor and the grantee. (3) The court erred in adjudging and ordering that the equity of redemption in and to said land should be foreclosed, in this, that the court failed to provide that all costs and expenses of the foreclosure should be paid, and that the sum of $3446, together with all accrued interest thereon from the date of the redemption, should be paid out of the residue of the sale of said lands before any distribution should be made to either of the defendants, Martin or Crow. (4) The court had no jurisdiction to order the foreclosure and sale of the land in a suit to quiet title. The court must deal with the record title, or such equity as may arise out of the record title. But in a suit to quiet title it cannot order partition, or order a foreclosure all in the same judgment. (5) The court erred in undertaking to appropriate a part of the residue arising from the sale of the homestead in paying off the indebtedness of appellant, as Francis Martin, if he was entitled to a homestead interest in and to said lands, had the right to claim before the sale of the same, his homestead, and if the same could not be set out in kind he had the right to have all the residue appropriated to the payment of his $1,500 without having the same prorated on the amount which he had mortgaged. Book v. Beasley, 138 Mo. 455; Bobb v. Wolff, 148 Mo. 335; Jones v. Rush, 156 Mo. 367; Reilly v. Cullen, 159 Mo. 322; Chance v. Jennings, 159 Mo. 544.

      Frank H. Farris for respondents.
    A deed absolute in form may be shown by parol testimony to be a mortgage. Book v. Beasley, 138 Mo. 455; Bobb v. Wolff, 148 Mo. 335; Reilly v. Cullen, 159 Mo. 322. Every conveyance of land which is in fact, whatsoever may be its form, a security for a debt, contemporaneous or antecedent, is in equity a mortgage. Turner v. Kerr, 44 Mo. 429; Armour Packing Co. v. Wolff, 59 Mo. App. 665; O’Neill v. Capelle, 62 Mo. 202; Hargadine v. Henderson, 97 Mo. 375; Book v. Beasley, 138 Mo. 455; Bobb v. Wolff, 148 Mo. 335; Jones v. Hubbard, 193 Mo. 163. The character of the conveyance is determined by the clear and certain intention of the parties; and any agreement showing that the parties intended that the conveyance should operate as security for the payment of money, will make it such, and give to the mortgagor the right of redemption. Reilly v. Cullen, 159 Mo. 330; Hargadine v. Henderson, 97 Mo. 386; Bobb v. Wolff, supra; 1 Jones on Mort., sec. 162; Turner v. Kerr, 44 Mo. 429; Book v. Beasley, supra; O’Neill v. Capelle, 62 Mo. 202.
   VALLIANT, P. J.

This is a suit under section 650, Revised Statutes 18991, to quiet title to 319 acres of land in Crawford county. In the petition the plaintiff states that she is the owner of the land in fee simple, that she is informed and believes that the defendant W. N. Crow claims title to the land adverse to her claim and prays that he be summoned to come in and show what he claims, and that the court will ascertain and determine the estate of plaintiff and defendant respectively and by its decree adjudge who has the title, and general relief.

Defendant Crow answered that he bought the land at the sheriff’s sale under execution against one Francis Martin and believes he thereby acquired perfect title to the same; he also says that the plaintiff’s interest is derived from a deed from Francis’ Martin to her which, though absolute in form, was in equity only a mortgage to secure a debt Martin owed her. Defendant also prays that the court will determine the respective interests of the parties to the land.

After the evidence was all in Martin, under whom both parties claim, asked the court to make him a party defendant and the court so ordered, but he filed no pleading of any kind and took no part in the proceéding.

On the trial the plaintiff introduced in evidence a warranty deed from Francis Martin to herself, conveying the land in fee, dated September 6,1898. Then the plaintiff rested. Defendant introduced a judgment of the circuit court in his own favor against Martin for $1,679, and a deed from the sheriff under execution on that judgment, conveying all of.Martin’s right, title and interest in the land to defendant, dated February 21, 1901, and then introduced testimony tending to show that the plaintiff’s deed from Martin, though absolute on its face, was really designed by-the parties to be only a security for a debt Martin owed her. That was. the main controversy in the case.

The court found that issue for the defendant and adjudged that the plaintiff’s deed was an equitable mortgage, that there was due her on the mortgage debt from Martin $3,449 and interest, that Martin had a homestead in the land to the extent of $1500 value, decreed that the mortgage be foreclosed by ' sale of the land, that out of the proceeds, after payment of costs, fifteen hundred dollars be set apart as representing the homestead and that the plaintiff’s debt be paid pro rata out of the $1500 and the residue of the proceeds and what was left of the $1500 was to be paid to Martin and what was left of the residue was to be paid to defendant. . Prom that judgment the plaintiff appealed.

I. The decree went beyond the scope of the statute under which it was brought. When a court of equity acquires jurisdiction of a cause for any reason peculiar to original equity jurisprudence it will retain the cause for all purposes, do full justice between the parties instead of relegating them to another forum. But this is not the ancient equity suit to quiet title; the only authority for its institution or maintenance is contained in section. 65Ü-, Revised Statutes 1899, which prescribes who may bring the suit, the purpose for which it may be brought and the extent to which the decree may go in adjusting the rights of the parties. That section is in these words:

“Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons, having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to snch real property.”

There is no authority in that section for the court to do more than to ascertain and determine, define and adjudge the title, interest and estate of the parties severally in and to such real estate. [Seidel v. Cornwell, 166 Mo. 51; Howard v. Brown, 197 Mo. 36, l. c. 50.]

If on a retrial of the cause the chancellor should find that the transaction between the plaintiff and her father, Francis Martin, which resulted in the deed she offered in evidence, was really intended as security for the debt her father owed her, that the debt was not extinguished, but remained, after the delivery of the deed, a personal obligation upon which she could maintain an action at law, then the court would be within the scope of the statute if it should adjudge that her title was that of a mortgagee to the extent of the debt found due, and that the defendant’s title was that of the owner of the equity of redemption, and, except a judgment as to costs, that is the extent to which the judgment could go.

II. The decree undertakes to dispose of Martin’s interest in the land, but he is not in this case. The record shows that at the close of the trial he asked to be made a party defendant and his request was granted, but it would seem that he afterwards thought better of it and concluded not to avail himself of the privilege granted but to remain out; at all events he filed no pleading of any kind, and there is nothing in the record on which a judgment either for or against him could rest. There is no issue tendered to him either in the plaintiff’s petition or in the defendant’s answer, therefore there is nothing on which to base a default against him, and as he filed nothing asserting any claim or tendering any issue to either of the parties, the decree as to him is without any jurisdictional basis.

TTT. As to the main question of fact involved we think that before a final review of the evidence by this court justice will be better served by sending the cause back to the learned trial judge that he may hear the evidence that may be adduced on a retrial with the issues limited to the scope indicated in this opinion.

The question is one of fact. In the execution of the deed of September 6, 1898, by Francis Martin to the plaintiff, Mrs. Powell, was it the intention of the parties that the deed should be taken as payment of or only as security for the debt the grantor owed the grantee? If it was intended as a payment then the absolute title passed to Mrs. Powell and therefore the defendant acquired no title under his sheriff’s deed. But if it was intended as security only then Mrs. Powell became thereby the equitable mortgagee, and when the defendant bought at the sheriff’s sale if, in the face of Martin’s homestead right, he acquired any title at all, (as to which the case at this time does not call for a decision), it was only the equity of redemption.

There seems to have been an oral agreement between the parties to the deed to the effect that at any time thereafter, if Martin so desired, the plaintiff would reconvey the land to him on his paying her a sum equivalent to the amount of the then existing debt.

According to the plaintiff’s theory her purchase was absolute and the oral agreement was outide of the deed; it contemplated only a repurchase by Martin at an indefinite period in the future, if he should ever so desire. According to the defendant the agreement entered into the consideration of the deed itself and reduced the transaction from an absolute sale to an equitable mortgage for the security of the debt.

In our effort to arrive at the real intention of the parties we must consider what they did and said at the time, the circumstances surrounding them and their close relation to each other — father and daughter. If there is no suspicion or suggestion of fraud in the case, and no great disproportion, if any, between the value of the property at the time of the sale and the amount of the debt, there is no reason appearing on the face of the transaction for the execution of a deed absolute in form if the parties really intended to execute a mortgage. The burden of proof therefore is on the defendant.

The parties, in adducing their evidence, ought to try to show the court what in fact was said and done rather than a statement now as to what each understood was the legal effect of the transaction. When the court is informed of the facts it will adjudge the legal effect. The parties may not now be able to remember the exact words that were used, but they can remember substantially what was said and what was done.

In the trial of a case of this hind we easily fall into the error of eliciting from the party who is a witness his or her conclusion from the facts rather than the facts themselves. This is illustrated by the evidence as it was adduced at the trial in this case; the plaintiff as a witness in her own behalf having stated that the agreement was that Martin would deed the farm to her for the consideration of five hundred dollars and the mortgage she held, which she had bought from the St. Louis party who held it, and she agreed to permit him to live on it as long as he lived with the payment of certain rent, and thereupon the deed was executed, and contemporaneously a lease from her to him, on cross-examination she was asked: “At the time you got the’ deed from your father it was the understanding between you and him if he wanted to-and would repay you the amount of money that you had loaned him that you would deed him the land back? Yes, sir. And when your brother came to you with the proposition to buy the land you consulted your father? Ves, sir; as I stated before that I merely wanted to hold the land so that my father could live there. As security for your money? Yes, sir; that is always the first consideration.” By that cross-examination we learn more of what was in the daughter’s mind and heart than we-do of what was said and done and whilst it was competent cross-examination yet it did not quite probe to the facts.

Martin was a witness for defendant, he was asked by defendant’s attorney: “At the time you made the deed to her you had an understanding with her by which if you repaid her this money she was to deed the land back to you? If I ever wanted it. Then you had the right if you wanted to pay her back those notes? No, sir, not to pay her back those notes. To pay her the same amount she paid to you? Yes, sir. And if you did and wanted the land back she was to deed it back to you? Yes, sir, that was the understanding; if I ever wanted it back she was to deed it back to me.” These answers of the two witnesses show no disposition to conceal or prevaricate, but they state conclusions not facts. There was one fact in the case that the evidence leaves somewhat in doubt, that is the disposition that was made of the notes when the deed was executed.- Were they delivered to the debtor or were they retained by the creditor? Neither side offered direct proof on that point. The notes were in evidence and were respectively marked “cancelled” and “paid,” the mortgage note was cancelled on the record.

When the vital question before the court was, was this deed executed as payment of the debt or only as security for it, the disposal made of the notes at the time was one of some importance, we do not say conclusive, but one of substantial significance to be weighed by the trier of the facts with the other facts in the case.

Without intending by what has been said to intimate any opinion on the question of fact, we think that justice will be better served by a re-trial; therefore, the judgment is reversed and the cause remanded to be tried de novo.

All concur.

SEPARATE CONCURRING OPINION.

GRAVES, J.

Upon consideration, I think that, for the errors on the face of the judgment, pointed out by Judg'e Valltant, the ease should be reversed and remanded. I am of the opinion, however, that the present record shows sufficient facts for a finding that the deed is in fact a mortgage, but as suggested by my brother, the evidence could be much more fully and satisfactorily developed, and when so developed a clearer conception of the point would be possible. There are certain facts in the record which would tend to indicate that plaintiff might have simply paid her father’s debt to the St. Louis creditor, and afterwards agreed with her father that as between him and her there was a new debt of $3446, made up- of the amount which she had so' paid the St. Louis party and the $500 note and interest loaned by her directly to him, which sum as a whole should run at six per cent interest, the deed to the farm being taken as security therefor. The rent specified in the lease is $206.76, which is exactly six per cent on the aggregate debt of $3446. But these facts are not fully developed and a new trial might add new light. If there is a doubt, from all the facts developed, as to whether the transaction between the parties was a mortgage or a conditional sale, such doubt should be resolved in favor of the mortgage.

That the exact facts may be brought out more fully and. satisfactorily, I concur in the reversal and remanding of the cause.


author: LAMM, J.

text:
    WAIT v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al., Appellants; CROSS, Intervening by Motion.
    In Banc,
    May 30, 1907.
    1. ATTORNEY’S LIEN. The Attorneys’ Lien Act is constitutional. It is remedial, and will he liberally construed.
    2. -: Without Notice. If an attorney has a percentage contract with a client to collect a claim from another, then, after suit brought and service of summons on such other, whether the attorney gave notice in writing as provided by section 2 of the Attorneys’ Lien Act or not, he has a lien upon his client’s cause of action which cannot be affected by any settlement between the parties before or after judgment. And if the settlement he made without the attorney’s consent before judgment, he need not press the suit forward to establish his lien, hut an independent action lies against the settling defendant, not strictly to enforce the lien, but against him who deforced the lien, for the value thereof.
    3. -: With Notice. If such percentage contract exist and written notice he given as provided by section 2 of the act, then such agreement operates from the date of the service of such notice as a lien upon the claim or cause of action and upon the proceeds of any settlement without his consent, for such percentage, which lien cannot be destroyed or impaired by any settlement between the parties, either before or after suit, or before or after judgment.
    4. -: Equity. Where the circumstances are such that the law affords no adequate remedy, then the attorney’s lien may be established in equity against any resulting fund (the fruits of the litigation) which may he within reach.
    5. ¿-: Judgment: Final and Not Final: Proceeding: Amount. If a percentage contract exist and a judgment has been obtained which has not become a finality (for instance, where a motion for a new trial is pending or an appeal has been taken), a compromise settlement and release in which plaintiff’s attorney is ignored and to which he does not assent, does not destroy his lien. But the release of the judgment may he opened up, on motion, in the nature of a special proceeding, and the discharge be set aside pro tanto, so as to let in his lien; and it may he enforced in the original case by an execution for the amount thereof, to avoid circuity of action. In such case, the settlement being honest, the amount or value of the lien is controlled by the settlement made by the client, and is not necessarily controlled by the amount of the judgment itself; but otherwise, if the judgment had become a finality. And the same remedy is open to the attorney where the judgment is compromised and settled without his consent after it has become final.
    6. -: After Appeal: Motion to Affirm: Remedy. Where defendant has after appeal taken settled with plaintiff who authorized a satisfaction of the judgment, ignoring his attorney with whom he had a percentage contract, notice of which had been served on the defendant, who has abandoned the appeal, the appellate court will not, upon motion or intervening petition of the attorney, engraft on the cause a special proceeding involving issues of fact (such as the existing of the agreement, the amount the attorney should recover, etc.) and afterwards set aside the release of the judgment made subsequent tO' the appeal, affirm the judgment to the extent of the lawyer’s lien and enforce such lien by awarding execution. The attorney’s course, if he does not wish to abide a determination of the appeal when the case is reached on the docket, is to move to dismiss the appeal, which will be sustained in case the judgment has been satisfied, and then pursue his remedy in the trial court.
    7. -:-: Failure to File Bill of Exceptions within the time allowed is not indispensable to an appeal, nor does it authorize an advancement of the cause upon the docket. The record proper is still before the court for examination.
    8. -: -: Supreme Court: Original Jurisdiction. The Supreme Court is, for most causes, a court of appellate jurisdiction. It has original jurisdiction in some matters, but it will not under its powers to issue and try certain original or extraordinary writs, entertain every motion or proceeding calling for a settlement of issues of fact, though they be both original and the remedy asked unusual.
    9. -: -: Appellate Jurisdiction. If the judgment was for $8,000, and was compromised, and the only issue before the court is the one engrafted on to the case by the attorney’s motion to affirm the judgment to the extent of the attorney’s percentage part thereof, amounting to .one-half or less, the amount in dispute does not, in any event, exceed four thousand dollars, and the Supreme Court is without appellate jurisdiction to try that motion.
    Intervening Motion to* Establish Attorney’s Lien.
    Motion denied.
   LAMM, J.

At the June term of the Clay Circuit Court, 1906, plaintiff recovered against the defendant railway company and one Slater a judgment for eight thousand dollars for personal injuries. Thereat defendants, unsuccessfully moving for a new trial'and in arrest, filed their affidavit for appeal and an appeal was granted in due time.

Thereafter, on August 24, 1906, defendants filed in this court a certified copy of the judgment appealed from and of the order granting an appeal, hut the cause yet rests on the general docket and has not been reached for assignment to a trial docket.

Thereafter, on April 9, 1907, at the April term of this court, there was filed by Pross T. Cross, the attorney of record for respondent Wait, a motion or intervening petition (hereinafter called a motion), on his own behalf, wherein the matters aforesaid were narrated ; and it was further alleged that at the June term, 1906, of the Clay Circuit Court defendants obtained an order allowing them during the November term, 1906, to settle and file their bill of exceptions; that said term passed without a bill filed or leave extended; that on the 15th day of September, 1906, without the knowledge or consent of plaintiff’s said attorney of record, plaintiff and defendants by their written agreement compromised and settled said judgment, and plaintiff'authorized defendants’ attorney of record to enter satisfaction of record. Said written agreement is set forth in said motion in haec verba and evidences a compromise settlement and discharge of said eight thousand dollars judgment for the sum of three thousand dollars in hand paid to plaintiff — its last clause .running thus: “It is further expressly understood in making this settlement that said The Atchison, Topeka & Santa Fe Railway Company and its codefendant will pay all costs incurred in said suit aforesaid, and that they will further protect and hold the undersigned (the plaintiff Wait) free from any attorney’s liens which may exist against said judgment or against him in favor of the undersigned’s (sic) attorneys in said suit.” Movent further alleges that he was plaintiff’s sole attorney in said suit and had a prior contract with plaintiff whereby he was to receive fifty per cent of whatever sum or sums might be collected from said claim or. suit — which said contract is also set out in haec verba, bears date of 29th of January, 1904, and sets forth that Wait employs Cross to take charge of and collect said claim for personal injuries against Slater and said railway company; that Cross accepts the employment and pledges-his best endeavors to collect said claim, and it is mutally agreed that for services to be rendered by him, he is to receive fifty per cent, as said, on the basis of no results to Wait, then, no' fee to Cross — i. e., that they were to be equal partakers of the joys as well as sorrows (the sweet as well as the bitter) of the contemplated venture — Cross being authorized to collect said claim by suit or otherwise as it appear best to him; that in December, 1903, he served notice in writing upon both said defendants, notifying them that he had been employed as Wait’s attorney, and of the terms of his employment, etc.; and that on the 20th day of March, 1906, another written notice was served upon defendant railway company, setting forth the terms of the contract of employment by Wait and identifying the claim.

The motion goes on to state that the settlement between plaintiff and defendants was in violation of the rights of Mr. Cross. That under the terms of the aforesaid release, the contract between client and attorney, the notices served upon defendants and the Act of the Legislature of the State of Missouri, Laws 1901 p. 46 (the Attorneys’ Lien Act), he, Cross, had a valid lien against said judgment and against the defendant railway company for the amount of one-half of said judgment; that movent stands ready and asks leave to make proof of the foregoing allegations of fact, and he prays this court to take such steps as may he meet and proper to 'prevent a perpetration of a fraud upon his rights, and, if necessary, to appoint a commissioner to hear and take testimony, and that said judgment of the circuit court of Clay county he affirmed to the extent of Cross’s interest therein, that he he allowed execution therefor against both defendants and for such other orders as the court may deem proper in the premises.

We are not favored with brief or suggestion by learned counsel in aid of, or in opposition to, the motion in hand; but, the Attorneys ’ Lien Act being silent on the remedy for the enforcement of the lien, and silent on the remedy “against him who deforced the lien, for the value thereof,” and the legislation being new and remedial, moreover being of live interest to our brethren at the bar, it is deemed best to hand down our views in writing so that (peradventure) in course of time by a process of inclusion and exclusion, as points arise in judgment, the path of correct procedure may be blazed out.

It was said in Young v. Renshaw, 102 Mo. App. 173, by the St. Louis Court of Appeals, at its October term, 1903, that where a cause had advanced to judgment and the judgment was compromised over the head or behind the back of the attorney holding a contract with the judgment creditor for a percentage, then, in the absence of a statutory remedy for the enforcement of his lien, his remedy was not in equity but at common law; and that where the judgment is paid or discharged of his rights, one of his remedies was to move the court in which the judgment was entered to set aside the satisfaction pro tanto and to award execution to the extent of his lien; and that “where the judgment or its proceeds are yet under the control of the court, it is the duty of the court, on motion of the attorney, to control the judgment or its proceeds until he has [heen] paid his fee.” Having so written, it was discovered that the contract was entered into in May, 1900, that the judgment was entered in April, 1901; and it was pointed out that the Attorneys’ Lien Act Imd no retrospective operation and was not in existence on the date of the contract or the date of the judgment; and, therefore, the attorney in that case had no remedy except the ancient one of a suit on the contract against his client. The point actually adjudged was that the Attorneys ’ Lien Act did not apply in that case, hence what was said by Bland, P. J., on other questions became obiter, valuable alone as the formulation of the views of a learned jurist, fortified by the concurrence of his brethren on that bench. However, in O’Connor v. Transit Co., 198 Mo. l. c. 644-5, this court, through Fox, J., approved of the reasoning in Young v. Renshaw.

In Conkling v. Austin, 111 Mo. App. 292 (1905), the Kansas City Court of Appeals had before it for review a case in equity in which attorneys sought to enforce their statutory, lien against their client by impressing the lien on the fund resulting from successful litigation and which had been deposited in a bank by said client, and it was held by Ellison, J., Smith, P. J., and Broaddus, J., concurring, that a bill in equity was a proper remedy in that particular case. But the law of that case must be read in the light of the peculiar facts there in judgment. Those facts are uncommonly complicated and not fully disclosed. One fact of controlling importance was that plaintiffs, as attorneys, had brought a suit at the instance of the defendant, Austin, a real estate agent, in the name of- Peltier (a purchaser that Austin had procured) against certain ■executors for specific performance of a contract to convey their testator’s real estate. The right to a conveyance being afterwards conceded, one was made and the suit dismissed. Not all but the lion’s share of the fees claimed by tbe attorneys arose in said suit to specifically perform, because the conveyance enabled Austin to consummate a deal then pending between Peltier and one Fisher for tbe same real estate in wbicb there was a large profit accruing to Austin and in wbicb profit tbe attorneys were beld to have a percentage and to be entitled to share. A close reading of tbe case will show that (possibly) tbe only remedy the attorneys bad, under tbe peculiar circumstances existing, was by a bill in equity to fasten a lien upon tbe fruits, of their successful litigation, wbicb, in that particular instance, bad passed to their client, Austin, in a roundabout way and ultimately took form and substance as a bank deposit. Conkling v. Austin is not authority for tbe proposition that equity affords tbe only remedy nor is it authority for tbe proposition that it affords tbe usual remedy in cases predicated upon tbe Attorneys’ Lien Act.

At its October Term, 1904, tbe St. Louis Court of Appeals again bad tbe Attorneys’ Lien Act under exposition in Yonge v. Transit Co., 109 Mo. App. 235. In that case Yonge bad a contract with Mrs. Hagan to collect, on a percentage, a claim for personal injuries received at tbe bands of tbe Transit Company. Notice in writing of this contract was duly served. Yonge brought suit in pursuance of bis employment and shortly thereafter tbe Transit Company settled with bis client for $900. Thereupon Yonge sued tbe Transit Company for bis percentage. It is there beld that tbe attorney’s lien under such circumstances attaches to tbe claim or subject-matter in dispute before, as well as after, a verdict or judgment, where tbe case arose under tbe second section of tbe Attorneys’ Lien Act. It was further beld that tbe action would lie notwithstanding tbe attorneys bad not carried forward tbe original suit to a judgment for tbe amount of bis percentage demand. Goode, J., in deciding the case held that: “ The statute'in hand says in plain words that a defendant who settles with an attorney [with an attorney’s client?] under the circumstances given, shall be liable to the attorney for that percentage of the proceeds which his contract with his client entitled him to receive. An express statutory liability of a legal character was thereby created, and as no particular or exclusive remedy was provided for its 'enforcement, it is enforceable by the usual common law remedy; that is, by an action at law corresponding to trespass on the case.” Citing Sedg. Stat. & Const. Law (2 Ed.), p. 74, et seq., and cases cited in the footnotes.

In Curtis v. Railroad, 118 Mo. App. 341, decided on April 2nd, 1906, the Kansas City Court of Appeals again had the Attorneys’ Lien Act under review. In that case Miss Curtis made a contract with the law firm of Madden & Scholer to prosecute her claim for damages sounding in tort against the railway company on ..the halves — nothing won for her, no fee for them. Thereupon Madden & Scholer served a written notice upon defendant as provided by section 2 of the Attorneys ’ Lien Act; and thereafter successfully prosecuted a suit for her which culminated in a judgment for one thousand dollars. Thereupon, defendant interposing a motion for a new trial and in arrest, said motions were continued from February to October, 1904, and when they came on for hearing defendant introduced in evidence two written agreements signed by Miss Curtis. One stipulated that defendant’s motion for a new trial should be sustained, that the judgment should be set aside and the cause dismissed. This agreement, drawn by defendant’s attorneys, was based on a prior one drawn by defendant’s claim agent and signed by Miss Curtis, in which she in terms dismissed the cause and directed “my attorney at law to appear for me and have order of dismissal made of record;” and the court was thereby requested to dismiss the cause with or without the appearance of an attorney, she releasing the judgment in her favor. It seems Miss Ourtis received a check for two hundred dollars in full release and discharge of the judgment, which check she cashed. All this was done without the consent or knowledge of Madden & Scholer; but the settlement was pursued and consummated by Miss Curtis on her own initiative and not on that of defendant; and the court, nisi, distinctly finding that defendant was not guilty of fraud, misrepresentation, concealment or deceit in procuring or inducing plaintiff to execute the stipulation and release, Refused to sustain the motions for a new trial and in arrest, but overruled them. Thereupon defendant appealed to the Kansas City Court of Appeals, and the action of the court, nisi, in refusing to grant a new trial under the facts disclosed was approved and the judgment affirmed. In that case Johnson, J., reviewed the New York cases expounding a statute similar to the first section of our Attorneys ’ Lien Act. It was held that the motion for a new trial being pending and undisposed of, the judgment had not become a finality, and that under such circumstances the attorneys were not the equitable owners of one-half of the judgment; that the litigation being pending the plaintiff had the right to compromise her suit under the doctrine of Fischer-Hansen v. Railroad, 173 N. Y. l. c. 500, and so long as the settlement was an honest settlement, the statute did not deprive her of the control over her lawsuit, nor did it put in her attorneys’ hands the power to block an honest settlement. It was held, further, that the acceptance of an honest settlement, by the client, liquidated the amount of the attorneys’ fees. And further that: “When the parties make a settlement without obtaining this consent [the consent of plaintiff’s attorney holding the percentage contract] and the full proceeds thereof are paid over to the client of such attorney, three courses are open to the attorney: (a) He may follow the proceeds into the hands of his client or any other person who may have received them, or (b), he may recover his share of them from the defendant in a separate proceeding; ... or lastly, (,c) when the client’s cause of action has merged into a judgment, the attorney may enforce a lien again the judgment itself — the res to which it attached — in order that he may have the benefit of the liens and remedies belonging to his security.” And under the authority of the New York cases and the doctrine announced obiter in Young v. Renshaw, supra, it was held that one remedy open to the attorneys in that case was to move the court to set aside the satisfaction pro tanto and to award an execution to the extent of their lien. It was accordingly said in the Curtis case that plaintiff’s attorneys may thereafter file their motion in the circuit court for the foreclosure of their lien, and, upon proof of the facts under consideration, they will become entitled to have an execution issued in their favor for the enforcement of the judgment in an amount sufficient to satisfy such lien. That as an action in equity for the foreclosure of the lien could go no further than to substitute the attorneys for their client as owners of the judgment to the extent required for the satisfaction of the lien, and as the final remedial process in such case would be an execution for the enforcement of the judgment, such proceedings would be unnecessarily clumsy and circuitous and therefore the remedy afforded by the common law to move to set aside the satisfaction pro tanto and award execution was a proper remedy.

Such'was the state of the case law in Missouri expounding the Attorneys’ Lien Act up to October, 1906, when two opinions were handed down by this court: O’Connor v. Transit Co., 198 Mo. 622; Taylor v. Transit Co., Ibid, 715. In both these cases the constitutionality of the Attorneys’ Lien Act was attacked and upheld by this court. Both cases were based on percentage contracts. Both of them were independent actions by the attorneys against a defendant who had settled pending suits, not yet merged into judgment, without the consent of plaintiff’s attorneys. In one case (O’Connor’s) notice had been given to the defendant of the existing percentage contract. In the other case no such notice had been given. In the O’Connor case, as said, Pox, J., approved the reasoning in Young v. Renshaw; in the Taylor case Young v. Renshaw is referred to, but the case was not reviewed; and both cases are authority for the proposition that before a case is merged into judgment so that the attorney’s lien may leap over or attach to the judgment itself, said lien is to be taken as attached to the claim or cause of action, and that if the defendant settles such claim with the plaintiff, pending litigation, the non-consenting attorney who has been ignored and injured, has an action by his independent suit against such settling defendant. In the O’Connor case it was said that: “It will be observed that this action is not strictly to enforce the lien provided by the statute, but is to recover the amount of such lien by reason of the failure of defendant to recognize the lien in its settlement with the plaintiff. ’ ’ [p. 642.] So in the Taylor case it was said that: “Such an action would not be, strictly speaking, an action to enforce the lien, but an action against him who deforced the lien, for the value thereof.” [p. 730.]

Prom these adjudications the following propositions (at least) may be considered settled:

(1) The Attorneys’ Lien Act is constitutional. It is remedial and will be liberally construed.

(2) If an attorney has a percentage contract with A (“which is not restricted by law”) to collect a claim from B, then, after suit brought and service of summons on B, whether the attorney give notice in writing as provided by section 2 of tbe act or not, be bas a lien upon bis client’s canse of action wbicb cannot be affected by any settlement between tbe parties “before or after judgment.” [Taylor v. Transit Co., supra.] And if sucb settlement be made without tbe attorney’s consent before judgment, b'e need not press tbe suit-forward to establish bis lien, but an independent action lies against tbe settling defendant, not, possibly, strictly to enforce tbe lien, but against him who deforced tbe lien, for tbe value thereof. [Yonge v. Transit Co., supra; O’Connor v. Transit Co., supra; Taylor v. Transit Co., supra.] (Whether an independent action can be maintained against a settling judgment defendant, bas not been decided and this case does not call for sucb decision.)

(3) . And if sucb percentage contract exist and written notice be given as provided by section 2, then sucb agreement operates from tbe date of tbe service of sucb notice as a lien upon tbe claim or cause of action and upon tbe proceeds of any settlement, for sucb percentage, wbicb lien cannot be destroyed or impaired by any settlement between tbe parties, either before suit or after suit, or before or after judgment.

(4) Where tbe circumstances are sucb that tbe law (possibly) affords no adequate remedy, then m attorney’s lien may be established in equity against a resulting fund (tbe fruitage of tbe litigation) wbicb may be within reach. [Conkling v. Austin, supra.]

(5) And if a percentage contract exist and a judgment bas been obtained wbicb bas not become a finality (for instance, where a motion for a new trial is. pending and undisposed of or where an appeal bas been granted) then a compromise settlement and release in wbicb plaintiff’s attorney is ignored and to wbicb be does not assent does not destroy bis lien. But tbe release of tbe judgment may be opened up on motion in tbe nature of a special proceeding and the discharge -be set aside pm tanto so as to let in his lien; and it may be enforced in the original case by an execution for the amount thereof to avoid circuity of action. [Curtis v. Railroad, supra.] In such case, however, the amount or value of the lien is controlled by the settlement made by the client, given an honest settlement, and is not necessarily controlled by the amount of the judgment itself. Otherwise, if the judgment had become a finality. [Curtis v. Railroad, supra.]

(6) If the reasoning of Young v. Renshaw, supra, as approved by Fox, J., in O’Connor v. Transit Co., supra, is to be followed (and no reason is apparent to us why it should not be followed when a case in point arises) then the same remedy set forth in the fifth hypothesis above, is open to an attorney where the judgment is compromised and satisfied without his consent after it has become a finality. See authorities cited, arguendo by Bland, P. J., in Young v. Renshaw, supra; by Brace, P. J., in Taylor v. Transit Co., supra; and by Johnson, J., in Curtis v. Railroad, supra.

It will thus be seen that, absent any statutory remedy, the courts have been most industrious in giving way to a benevolent inclination to seek and apply every remedy in point, even by the way of analogy, found in the common law; but we are now asked to engraft upon a cause appealed here a special proceeding involving issues of fact and try out those issues and afterwards set aside a release of a judgment made subsequent to the appeal, affirm the judgment to the extent of the attorney’s lien and enforce such lien in this court by awarding- execution. In our opinion, this is going a step too far and would be a vexing precedent to establish. Because:

(a) In the first place, defendants bring the ease here by appeal. It has not been assigned to a trial docket and is, therefore, not before us for hearing and final determination. .Conceding, as the motion states, that no bill of exceptions was settled and filed, yet a bill of exceptions is not indispensable to an appeal, because error may appear on the face of the record proper; and we may not advance a cause and affirm a judgment because of the absence of a bill of exceptions. [Meier v. Hinkson, 146 Mo. 458.] Though appellant was given a time certain within which to file a bill of exceptions, the appeal is good though no bill of exceptions is ever filed (Cunningham v. Roush, 141 Mo. 640), the absence of the bill of exceptions m'erely restricting the scope of our search for error, as said, to the narrow bounds of the record proper. If then, we may not under such circumstances and for such reason affirm a judgment as an entirety, how can we affirm it pro tcmto or in parcels, because of the absence of a bill of exceptions?

(b) The Supreme Court is a court of appellate jurisdiction confined by the Constitution to the exercise of such jurisdiction only, that is, it sits as a court of errors, except in cases otherwise directed by the Constitution. [Art. 6, sec. 2, Const. of Mo.] The eases of which we have original jurisdiction are set forth in section 3 of the same article, reading: “The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same.”

In construing the foregoing section of the Constitution, this court has held that a writ of injunction, though remedial, is not another original remedial writ in the constitutional sense, but that a writ of prohibition is an original remedial writ in such sense; and, without going into the philosophy of the matter, it may be said that it is quite out of the question to hold that we have jurisdiction to hear and determine the issues raised by the motion in this case — though it cannot be denied they smack of originality as well as remedy. The phraseology of the Constitution is general and somewhat elastic; but not elastic enough to give us jurisdiction of every remedy and writ that in common parlance may be said to be original and remedial, and we deem it our bounden and obvious duty to restrict our original jurisdiction well within the wise and impassable limits of the Constitution.

Not only is there a constitutional barrier in the way of our hearing and determining the matter, but there is a statutory obstacle. For instance, if we graft onto the stock of the original appeal the new and independent issues raised in this proceeding between the attorney of record for respondent and the appellants, and if we adjudge a foreclosure of the attorney’s lien and determine the value and amount thereof, then, what is the amount in dispute? If that amount be, as movent suggests, one-half of the judgment, it will be seen at a glance to be below our jurisdiction — Laws 1901, p. 107 — a fortiori is such amount below our jurisdiction if the amount in dispute be only one-half the compromise sum; or, if it be determined that Wait collected his half of the judgment and left the attorney’s half uncollected, buttoned up in the seemingly unfriendly pockets of appellants, yet the result is no better — the amount in dispute is still below our jurisdiction.

(c) Nevertheless, if it -be true that appellant has “killed” the issues on appeal, has accepted the judgment by compromising and obtaining satisfaction thereof, and thus lost the right to assign error as to the respondent, then the case ought not to lurk and linger here — having, at first blush, only the office of a delay and denial of justice to the attorney of respondent. So that, if such attorney fears, with this court retaining jurisdiction of the appeal, he may during the interim be precluded from proceeding, nisi, to enforce his lien, we see no reason why he may not test his right to lift the hand of onr mere shell or shadow of jurisdiction now resting on the case and by an apt motion raise the question of his right to dismiss the appeal, should he be so advise'd and elect to take that course. Such course is not without precedent. In Dulaney v. Buffum, 173 Mo. 1, plaintiffs, being cast below on demurrer to the evidence, appealed. After the appeal, they settled with two of the defendants who were sued with the others as joint tortfeasors. On motion here, the appeal was dismissed as to the settling defendants. Thereupon the other defendants filed their motion to dismiss the appeal as to them, suggested they were sued as joint tortfeasors and that after the appeal plaintiffs had settled with two of the wrongdoers and that such settlement operated as a release of all the defendants. This motion was sustained on the authority of Haggerty v. Morrison, 59 Mo. 324, in which latter case it was held proper practice for a discharged bankrupt to file his discharge here in order that this court might give it effect.

So, too, in In re Hutton’s Estate, 92 Mo. App. 132, matters dehors the record were suggested in the appellate court as ground for the dismissal of an appeal. It is true that in that case the grounds were held bad and the motion was denied; but in considering the matter, Smith, P. J., made a most learned and full review of the authorities on this obscure question of practice; and those cited by him, under given conditions, abundantly show that cases may be dismissed on appeal on a showing of facts aliwnde the record; for instance, because of a settlement, because there was no longer a real controversy between the parties litigant, because the party appealing, who has adopted the judgment by taking advantage of it to settle, is not entitled to be heard on appeal to reverse the judgment he has paid off, and because courts, being eminently practical tribunals, will, take a practical course to dispose of cases out of which the life has gone. [See In re Hutton’s Estate, supra, p. 136, et seg.]

We conclude the motion, in its present form, should be denied. It is so ordered.

All concur.