text:
    D. J. HUTCHINSON v. R. A. PATTERSON, Appellant.
    Division One,
    March 1, 1910.
    1. .ABSTRACT: Motion for New Trial: Exception. The motion for a new trial and an exception to the overruling of the same, are a part of the bill of exceptions; the filing of the motion and the order of the court overruling it should be shown by the record proper. The record proper should not show the motion itself or the exception to the ruling thereon.
    2. -: -: Filing Buring the Term. Where the abstract shows that the judgment was rendered on June 14th, and that the motion for a new trial was filed on the same day and by agreement of parties was taken up, considered and overruled, as “appears by record entries made at the term,” it sufficiently shows that the motion was filed during the same term the judgment was entered. It is not necessary that tbe abstract state it was filed at “the same term,” if that fact can be deduced from the other recitals.
    •3. -: -: Affidavit. Where the abstract sets out the record entry showing an affidavit for an appeal was filed, it will be presumed that the trial court examined it and found it sufficient, unless respondent brings it up for inspection by an additional abstract.

      4. Ejectment: Equitable Defense: Res Adjudicata. If defendant in ejectment sets up an equitable cross-defense, praying afirma-, tive relief, and the court makes a decree sustaining that defense, the judgment will bar another ejectment by the same parties or their privies, and the matter becomes res adjudicata and cannot again be litigated by another ejectment.
    5. -: -: -: Suit to Quiet Title. And where the suit is in the usual form, to ascertain, adjudge and determine the title, under Sec. 650, R. S. 1899, and the judgment is for defendant, it is a bar to an action of ejectment by the same plaintiff or his. privies. In such case it is the pleadings that determine the issues, and if they seek to have the title determined, the matter is res adjudicata, though the judgment is not in good form, yet it is responsive to the pleadings in finding “that plaintiff is not entitled to the relief sought and finds the issues for the defendant,” and is final, and is sufficient to bar a subsequent ejectment.
    6. -:-:-:-: Calling a Jury: Converting Suit Into Ejectment. A suit to quiet title is to be tried like an equity suit, though it is not strictly speaking of equitable origin; but as in other equity suits, the chancellor can call a jury, if he so choose, but he is not bound by their verdict, and can set it aside and render judgment for the opposite party. But the calling of a jury does not convert the suit into an action in ejectment.
    ■7. EVIDENCE: Deed By Receiver. The recitals in a receiver’s deed are not prima facie true.
    8. -: -: Approval By Court: Appointed By Comptroller. A sale purporting to have been made by an order of a circuit court of this State is a judicial sale, and is not complete until approved by the court; and where a deed recites that the receiver of the bank was appointed by the comptroller of the currency, and he claims in making the sale of land to be acting under an order of a circuit court of this State, he must conform to the laws of this State, and his deed in order to be admissible in evidence must be approved by the said court; and that should be the ruling, though the laws of Congress do not expressly require a receiver’s deed to be approved, and whether or not he is a public officer.
    Appeal from Macon Circuit Court. — Mon. Nat. M. Shelton, Judge.
    Reversed and remanded.

      H. J. West, Fred Lamb and Gilbert Lamb for appellant.
    (1) The judgment of the Saline Circuit Court adjudging’ this title in appellant and not in J ames Barry, was final and concluded Barry and his grantee, the respondent, who had absolute notice of the judgment. The court erred in striking this special plea from appellant’s answer and in refusing to permit him to show the facts under the general denial contained in his answer. Johnson v. Realty Co., 167 Mo. 339; Edmondston v. Carter, 180‘ Mo. 515; Darnell v. Wright, 147 Mo. 639; Jamison v. Martin, 184 Mo. 426; Ball v. Wolfolk, 175 Mo. 285; Garrison v. Frazier, 165 Mo. 44; Lumber Co. v. Jones, 220' Mo. 197. (2) The proceeding under sec. 650; R. S. 1899; 'was designed to settle and determine titles, whether in possession of either party or not. Whatever may be adjudicated in this proceeding is final. The exception to the general rule, that “one ejectment between the same parties for the same land and upon the same state of facts is no bar to a further action in ejectment” has no application to the facts in this eas„e. If Barry’s title, if any he had, had been adjudicated out of him he could convey none to this respondent. See cases cited under point one. (3) The judgment of the Saline Circuit Court, whatever may be the state of appellant’s title, concludes the respondent from making a further claim to the land as against appellant. Utter v. Sidman, 170' Mo. 301; Lane v. Dowel, 172 Mo. 167. (4) The recitals in the deed from Walter Johnson, receiver of the First National Bank of Kansas City, were not evidence that Johnson was receiver for the bank, that he was acting under the orders of the court in making the sale, or that the sale was approved by the court. Its admission in evidence over the objection of appellant was error. 23 Am. and Eng. Ency. Law (2 Ed.), pp. 1082,1083; Lawless v. Stamp, 108 la. 601; International and G. N. R. Co. v. Moore, 32 S. W. '379 (Tex. Civ. App.); 10 Ency. of Ev., 659; 12 lb. '550; Cook v. Hockelman, 45 Mo. 317; Reeds v. Marton, 9 Mo. 879; Abbott’s Trial Brief (2 Ed.), p. 505; Taylor v. Railroad, 45 Minn. 66; Ward v. Lumber Co., 70 Wis. 445; Hill v. Draper, 10' Barb. 454; McKinnon v. Bliss, 21 N. V. 206. (5) The deed from James Barry to Dan. Hutchinson does not pass title to D. J. Hutchinson, the respondent, and the judgment of the court should have been for the appellant. Turner v. Gregory, 151 Mo. 100; Vincent v. Means, 184 Mo. 327. (6) The plaintiff in an ejectment suit must stand on the strength of his own title. Snuffer v. Howerton, 124 Mo. 637; Marvin v. Elliott, 99 Mo. 616; Harwood v. Tracy, 118 Mo. 631.

      G. G. Hammond and J. A. Collet for respondent.
    (1) No error was committed by the court in striking out the portion of defendant’s answer. The part so stricken out showed it was tried as an ordinary suit in ejectment and was so treated hy both plaintiff and defendant and the court before whom same was tried, (a) If not a suit in ejectment then there was no final judgment under the pleadings in the case. The judgment must conform to and be justified by the pleadings. Schneider v. Patton, 175 Mo. 690. (2) Where parties treat an action as being of a certain character, and other parties acquire rights thereafter, relying on the judgment so rendered, they are estopped from changing front in further litigation. Clark v. Bettelheim, 144 Mo. 258, (3) One judgment in ejectment is not a bar to another with ouster laid at different times, even between the same parties. Clark v. Bettelheim, 144 Mo. 258. (4) The court committed no error in permitting plaintiff to read the deed from Johnson as receiver, especially under the objection that was made. The fact that Johnson was receiver was not questioned, and the only objection as appears by the record, is as " follows: “We object to the introduction of that deed, because there is no proof of the authority of Walter Johnson, the receiver, to make the deed.” (5) No question about Johnson being receiver of the First National Bank having' been raised on trial, it leaves the record admitting he is such receiver, and being so, he was an officer of the United States. Case v. Terrell, 11 Wall. 199; Cockrill v. Cooper, 86 Fed. 205; Cockrill v. Cooper, 30' C. C, A. 223; Austen v. Bank, 174 U. S. 125; Gilbert v. McNulta, 96 Fed. 83; Armstrong v. Ettlesohn, 36 Fed. 209. (6) Johnson being receiver of the First National Bank, being an officer of the United States, all the usual intendments and presumptions that apply to official acts apply to all his acts within the purview of his authority. Hence he is presumed to have obtained the order of the circuit court to make the sale of the land in question. Ivy v. Yancey, 129 Mo. 509; Lord Halifax Case, Bull N. P. 298a; Long v. Joplin Co., 68 Mo. 431; State ex rel. v. Mastín, 103 Mo. 508. (a) Under the National Banking Act there is nothing requiring the circuit court to do more than make the order of sale. The sale does not have to be approved after it is made. Besides no objection was made to this deed on the ground that the sale was not approved by the circuit court, (b) Furthermore, the recitals in the deed are prima facie true and in the absence of any countervailing evidence, are sufficient to support the deed. Birge v. Bock, 44 Mo. App. 77; Wharton’s Ev., sec. 210. (7) The-attempted point that the deed from James Barry to Danl. Hutchinson does not pass title to D. J. Hutchinson was not raised when the deed was read, but the bill of exceptions shows the deed was read without objection.
   VALLIANT, J.

Ejectment for 120 acres of land in Chariton county. There was a judgment for the plaintiff and defendant appealed. The petition is in the usual form. The answer admits possession, asserts title and denies other allegations in the petition; then it pleads that in 1905 one James Barry, then claiming to own the land in question in fee simple, filed a suit in the circuit court of Chariton county against this defendant to quiet title under section 650, Revised Statutes 1899; that defendant answered, denying title in Barry, asserting it in himself, and praying judgment that he go and recover his costs, which suit resulted in a judgment in favor of defendant, from which judgment no appeal was taken; that that suit was instituted at the instance of the plaintiff .in this suit to clear the title to enable Barry to consummate a sale of the land which this plaintiff had already negotiated, and he was fully cognizant of the proceedings and result therein; that after that judgment he took from Barry a deed conveying all the title Barry had to the land. The pleadings and proceeding in the Barry suit are fully set forth in the answer and the judgment is pleaded as res adjudicata in bar of this suit. Plaintiff filed a motion to strike out all that part of the answer relating to the Barry suit, and the court having sustained the motion, defendant saved his exceptions. The point w;as also well preserved in the motion for a new trial.

At the trial the plaintiff traced title from the State to Chariton county and thence to the First National Bank of Kansas City. Then plaintiff offered a deed purporting to be a conveyance of the land from “Walter Johnson, receiver of the First National Bank of Kansas City, Missouri,” to John Ross. To this offer defendant objected “because there is no proof of the authority of Walter Johnson, receiver, to make the deed.” Plaintiff’s counsel replied, “The deed recites the appointment, I think that, is prima facie.” The court overruled the objection and defendant excepted. Plaintiff then read the deed and introduced other deeds bringing the title of Ross down to plaintiff and rested.

. Defendant offered the record in the Barry case already mentioned, with proof as to the plaintiff’s knowledge of it, which, on objection of plaintiff, was excluded and defendant excepted. Defendant then introduced evidence tracing his title from one Thomas Ferguson and wife and parol testimony tending to show adverse possession for thirty years, and plaintiff in rebuttal offered evidence contra to the adverse possession.

I. We will first consider certain objections respondent makes to appellant’s abstract.

a. The motion for new trial and the exception to the overruling of the same are fully set put in the .bill of exceptions; the filing of the motion and the order of the court overruling the same are shown by the record proper. That is just as it should be. Respondent is mistaken in supposing that the record proper should contain the motion or the exception. [Harding v. Bedoll, 202 Mo. l. c. 630.]

b. Respondent also thinks that the abstract does not show that the motion for new trial was filed during the same term the judgment was rendered, but in this also he is mistaken. The abstract shows that the judgment was rendered 14th June, 1907, and it also shows that on the same day the motion for new trial was filed, and by agreement of parties was taken up and considered and was by the court overruled as “appears by record entries made at the term.”

The abstract does not say in so many words that that was the same term, but it does say it was done by the court on the same day and so entered of record. That is quite sufficient. The same is true in regard to the objection that the abstract does not show that leave to file a bill of exceptions was given by the court during the same term. The abstract does show it.

c. The point is also made that the abstract does not set out the contents of the affidavit for appeal. The abstract does set out the record entry showing that an affidavit for appeal was filed and $10 docket fee deposited on the 14th June, and at the same term of court, and the appeal was granted and leave to file appeal bond within ten days was granted. If respondent thought the affidavit was not sufficient he could have called the attention of the trial court to it or he could have brought it here by an additional abstract for our inspection. As it is we will presume that the trial court examined the affidavit and found it sufficient before making the order allowing the appeal. [State ex rel. Brown v. Broaddus, 216 Mo. 336; Elliott v. Delaney, 217 Mo. l. c. 26.] The abstract is sufficient.

II. Was it error to strike out all that part of the defendant’s answer relating to the Barry case and sustain plaintiff’s objection to the introduction of that record in evidence? That is the question of chief importance in the case. Respondent contends that the Barry suit amounted only to an action in ejectment and therefore the judgment was no bar to another ejectment suit between the same parties for the same land. It is true a judgment in a mere ejectment suit is not a bar to another suit in ejectment, because ejectment is an action for possession, and a party might not be entitled to possession at one time, yet so entitled at another time. A judgment in an ejectment suit, if for the plaintiff, is simply that he recover possession of the land and damages and rents; if for the defendant, it is that the plaintiff take nothing by his writ and the defendant go free and recover his costs. But if the defendant in ejectment sets up an equitable cross-defense, praying affirmative relief which would bar the plaintiff’s action at law, and the court makes a decree sustaining the equitable defense, that becomes res adjudicada and cannot be litigated again between the same parties or their privies in another suit. For example, if a defendant, when sued in ejectment, knows that his adversary has a deed which, at law, would entitle him to recover, but knows also that the deed was the result of fraud, accident or mistake, he may file an answer containing what would amount to a bill in equity attacking the validity of the deed and praying its cancellation, and if the decree should be in his favor cancelling the deed and decreeing it to be thenceforth of no effect, that matter would be, res adjuMoata and could not be litigated again under the shield of another ejectment suit. At the common law a defendant in such case would have to go into a court of chancery with an original bill to obtain the relief, while under our code system he may litigate his equitable claim in the ejectment suit, but the result reached is the same- in both systems, and the decree puts the question at rest in the one as well as in the other. [Jamison v. Martin, 184 Mo. 422; Bierman v. Crecelius, 135 Mo. 386; Sampson v. Mitchell, 125 Mo. 217 1. c. 230 ; St. Louis v. Schulenburg, 98 Mo. 613; Preston v. Rickets, 91 Mo. 320.] "We do not see anything in Clark v. Bettelheim, 144 Mo. 258, to which we are referred, in conflict with what we have above said.

The Act of 1897, now section 650, Revised Statutes 1899, is a statute^ designed especially to quiet titles, to put them at rest, to end all controversy about them. It is in the same spirit as the ancient chancery bill to quiet title, it only enlarges the scope of that bill. In Ball v. Woolfolk, 175 Mo. 278 1. c. 285, the court said: “The proceeding is provided to settle just such adverse claims in order that the parties may have their rights judicially ascertained and set at rest.” There is nothing more adverse to the purpose of that statute than that the parties should be allowed to litigate again the matters that were to be adjudged in that proceeding. Whilst the suit authorized by section 650, Revised Statutes 1899, is a statutory proceeding and therefore cannot, strictly speaking, be called a snit in equity, yet the nature of the proceeding is such that it often involves matters that a court of equity is alone qualified to consider: to examine titles and determine questions of law that affect their validity, just the character of judicial work that led to the establishment in English jurisprudence of courts of chancery. When such is the case it must be treated as we would treat a suit in equity, and such was the Barry case and so the trial court treated it. In that case the pleadings were closely in conformity with the requirements of the statute; the petition stated that the plaintiff (Barry) claimed to own the fee simple title to the land (describing it), that defendant claimed some interest or estate in it adverse to that of the plaintiff; “Wherefore plaintiff prays the court to try, ascertain and determine the interest and title of the plaintiff and defendant respectively, in and to said property, and by its decree adjudge, settle and define whatever interest the several parties plaintiff and defendant herein may have in and to said real estate, and for all proper relief. ’ ’ The answer of the defendant denied that plaintiff had any title and asserted that defendant owned the fee simple title and was in possession. The final judgment was: “And the court finds that plaintiff is not entitled to the relief sought for and finds the issues for the defendant. It is therefore considered and adjudged by the court that the plaintiff take nothing by his action herein, and that defendant have and recover of plaintiff his costs herein expended and have execution therefor.”

The judgment was not in good form, but it responded to the pleadings, saying it “finds the issues for the defendant” and adjudges that the plaintiff take nothing by his action. What were the issues? The pleadings show. Those issues are found for the defendant. What did the plaintiff seek at the hands of the court? To have the title decreed to be in him; yet the court said he could take nothing and should pay tlie cost. Both parties seemed satisfied with the judgment as no appeal was taken. Respondent now says there was no final judgment in that case. Suppose at the next term of court he had asked for a retrial of the same issues or had asked an entry of a different judgment, was it in the power of the court to have granted the request! Or suppose at the next term he had brought another suit, on a duplicate of that petition, could he have maintained it? Suppose a plaintiff should file a suit in equity charging that defendant had in his possession a deed which he had obtained by fraud and which clouded the plaintiff’s title and praying to have it surrendered and cancelled, and defendant answered-admitting his possession of the deed, but denying the fraud, and suppose after a trial the court should enter a judgment simply reciting a finding of the issues for the defendant and dismissing the plaintiff’s bill and adjudging- the costs for defendant, could the plaintiff afterwards contend that the question of the validity of the deed was not adjudged because there was no express mention of it in the judgment? .We hold that the judgment in the Barry case was a final one and that its effect was to settle the title in favor of the defendant, and it cannot now be litigated, by Barry or by one in privity of estate with him.

Plaintiff also contends that the parties tried the Barry case as if it were an action in ejectment and therefore it became an action in ejectment. In support of this contention attention is called to the fact that the parties called for a jnry and the court so ordered, that the verdict of the jury was in favor of the plaintiff, Barry, but the court set the verdict aside, or refused to be governed by it and rendered its own finding and judgment as above stated. It being as we have already said a cause to be tried like an equity suit, the court could call a jury if it so chose, but was not bound by the jury’s finding. But how could that proceeding have the effect to convert a suit in which the pleadings unquestionably presented a cause for quieting title, into an action of ejectment? If pleadings leave a case in so much doubt that it is difficult to determine whether it is one thing or another, we may yield to the interpretation put on it by the parties as shown by their manner of trying it, but where the petition and answer leave no room to doubt the character of the suit or the nature of the issues to be tried it cannot be changed by the manner of trial. We see nothing, however, in the proceedings in the Barry case to indicate that the parties treated it as an action in ejectment; the mere fact that a jury was called is hot a very unusual course in an equity suit, and the chancellor in that case showed very clearly by his action in reference to the jury’s verdict that he treated the suit as one in equity. We hold that defendant had a right to introduce the record in that case in evidence and show if he could that the plaintiff was in privity of estate with Barry.

III. It was error to allow the plaintiff to read in evidence the deed from Walter Johnson, receiver, without first showing his authority to make the deed. Respondent contends that there was no objection on that ground when the deed was offered, but he is mistaken on that point. The objection was: “because there is no proof of authority of Walter Johnson, receiver, to make the deed.” The deed was admitted on'the ground that its recitals were prima facie true. Our statute makes the ’recitals in a sheriff’s deed primafacie evidence of their truth, but the statute does not extend to receivers. • The deed recites that he was appointed receiver of the bank by the comptroller of the currency of the United States; if so, the fact is easy of proof, but the court could not take judicial cognizance of that fact. The sale purports to have been made by order of the circuit court of Jackson county; if so it is a judicial sale and is not complete until approved by the court. [23 Am. and Eng. Ency. Law (2 Ed.), pp. 1083-4.] In respondent’s brief it is said that the laws of the United States do not require a receiver’s sale to be approved; that may be, but here is a receiver claiming to be acting under an order of a circuit court of this State, and he must conform to the laws of this State in so acting. A State court derives its law of procedure and its rules of evidence not from an act of Congress, but from the law of the State. The learned counsel say the receiver was an officer of the United States and his acts are entitled to the same presumption of regularity as those of other public officers. Without deciding whether or not a receiver appointed by the comptroller of the currency is a public officer it is enough to say that in this instance his act in question is not offered to rest on the presumption that he acted in conformity with the law prescribing the duties of his office, if it were, and if his act were covered by that presumption, no recitals would be necessary, he could just make the deed without reference to his authority, but here the offer is based on the supposed presumption that his recitals are true. Our sheriffs are public officers and the presumption of regularity and conformity to law applies as well to their acts as to the acts of other public officers, yet the recitals in a sheriff’s deed are received as primafaeie evidence of their truth only by force of our statute. This receiver (assuming that he was receiver) did not claim to have made this deed solely by virtue of his authority as receiver under appointment by the comptroller of the currency, but by order of the circuit court of Jackson county. If that is so then the record of that court will show the order; the contents of the court’s record cannot be proven by such recitals or even by oral testimony.

The point is made that the Danl. Hutchinson mentioned in the deed cannot without proof be presumed to be D. J. Hutchinson the plaintiff. As the cause is to be retried it is unnecessary to consider that point.

The judgment is reversed and the cause remanded to be retried according to the law as herein expressed.

All concur.


source: Caselaw Access Project

author: CRAVES, J.

license: Public Domain

text:
    CLAY JENKINS v. SHANNON COUNTY, Appellant.
    Division One,
    March 1, 1910.
    1. APPEAL: County a Party. An appeal from a judgment in a case to which a county is a party, is to the Supreme Court.
    2. -: -: Abstract: What Rules Govern. Where the case should have been appealed in the first instance to the Supreme Court, but was wrongfully sent to the Court of Appeals, and by that court rightly transferred to this, and the abstract and brief were prepared for this court after the cause reached it, the rules governing their sufficiency and filing are the rules of this court, and not those of the Court of Appeals.
    3. -: No Abstract of Evidence. The court will not go to the transcript filed in this court for the evidence in a civil case. Unless it is abstracted in a printed abstract it will not be con- . sidered on appeal. References to the transcript in the briefs are not sufficient.
    4. -: -: Affirmance. Where the record proper is properly abstracted, and shows a claim upon .which a judgment for plaintiff, such as was entered, might have been properly entered, had there been proof to sustain it, and the evidence cannot be considered because locked up in a transcript which has not been abstracted, the judgment will be affirmed.
    Appeal from Sbannon Circuit Court. — Hon. IF. N. Evans, Judge.
    Aebtemed.

      James Orchard for appellant.
   CRAVES, J.

This case reaches us under a mandate of tbe St. Louis Court of Appeals. A county- is the party defendant and tbe appeal should, have been to this court and not the court of appeals. The case, therefore, was rightfully transferred here. Abstract of record and brief for the appellant were prepared after the cause reached this court. That being true, our rules must govern as to what must be contained in the abstract of record. It is true that in cases first presented to the St. Louis Court of Appeals, their rules being different from ours, and afterwards certified to this court, we have held that inasmuch as the abstract was sufficient under the rules of the St. Louis Court of Appeals, the same would he held sufficient here. But that is not this case. Here the appeal should have been granted to this court in the first instance, and no abstract of the record was made or filed in.the St. Louis Court of Appeals. It is made for the first time in this court and therefore must he under the rules of this court.

From the abstract of the record proper it appears that Clay Jenkins, ex-treasurer of the county of Shannon, presented to the county court of said county an account for the allowance of $60' as balance of his salary as county treasurer. The account was not allowed and an appeal was taken to the circuit court. There the case appears to have been tried de novo, and a bill of exceptions duly filed. The circuit court found for the plaintiff and its judgment is set forth in the abstract of record. The case reaches this court on what we know as a long transcript. The contents of the bill of exceptions and the proceedings of the trial are not abstracted. The evidence upon trial is not abstracted, and we are referred to the hill of exceptions, as contained in the transcript, for all such matters. In view of the very recent and numerous holdings of this court, this is not sufficient. We shall not reiterate points heretofore d'ecided, nor cite the cases, because to us it would seem a matter uncalled for in view of the very recent as well as the long continued discussion of them. The record proper, which is properly abstracted, shows a claim upon which a judgment, such as was entered, could have been entered properly, had there been proof to sustain it. This proof is locked up in the bill of exceptions which has not been abstracted. We have repeatedly held that the printed abstract must cover the evidence, and that we- will not go to the transcript for such evidence. Under these holdings there is nothing to do except to affirm the judgment below, which is accordingly done.

All concur.


author: VALLIANT, J.

text:
    IRA S. MILLIGAN v. J. RULE FRITTS, Appellant.
    Division One,
    March 1, 1910.
    1. EJECTMENT: Adverse Possession: Theory Submitted by Instructions: Against Defendant’s Objection. Where plaintiff claimed that defendant’s claim of ownership based upon his adverse possession for more than ten years, was conditional upon and subject to the ascertainment of the true line between their adjoining lots, and the defendant asked a peremptory instruction, which the court should have given under the evidence, unless there was evidence that defendant’s claim of title by use and occupancy was conditional upon the subsequent ascertainment of title, and defendant objected to an instruction submitting that issue, and the court gave instructions for plaintiff upon that theory, defendant had a right to meet that issue, and is not chargeable with having induced the error, and the court on appeal will still decide whether or not that issue should have been submitted, notwithstanding defendant, after his peremptory instruction was refused and his objection to submitting that issue was overruled, asked a proper instruction on the subject.
    2. -: -: True Line. If defendant entered upon the lot and located the fence and barn'by mistake and in ignorance of the location of the true boundary line, yet if he had no intention of taking what did not belong to him, the fact that he may have inclosed a larger area than his deed called for would not destroy the adverse character of his possession, if his intention was to elhim and hold all that the fence inclosed. But if he located the fence on what he supposed was the true line and intended to claim only to the true line whenever and wherever it might be located, his possession was not adverse.

      3. -: -: -: Facts Showing Intention. Defendant bought lots 1 and 2 fourteen years before the suit was brought and had occupied them ever since. When he took possession there was a fence and barn where they were at the trial, the fence inclosing a strip of Jot 3 from two and one-half feet wide at one end to four feet at the other, and the harn projecting that much over the line into lot 3, and the strip had been cultivated. More than ten years before suit was brought defendant had been requested by the owner of lot 3 to move his fence back, and refused and told the owner he claimed everything within the inclosure as his own, and at the trial he testified that he had always so claimed. His contract of purchase called for lots 1 and 2, and he testified that he bought the inclosure, never had the lots surveyed, never measured it, and did not know the fence was not on the true line. Beld, that it being admitted the defendant had been in actual possession for more than ten years, the court should have given a peremptory instruction for him.
    Appeal frora Audrain Circuit Court. — Eon. James D. Barnett, Judge.
    Reversed and remanded (with directions).

      Barclay, Fauntleroy & Cullen for appellant.
    (1) Occupancy by one coterminous owner is adverse wben the evidence shows that he claimed and continuously asserted a line.to be the true line, and has held the premises up to it, claiming them as his own. Bisso v. Casper, 14 Tex. Civ. App. 19; Brock v. Bear, 42 S. E. (Va.) 307; Batner v. Baker, 108 Mo. 341; McWilliams v. Samuel, 123 Mo. 659; Brummel v. Harris, 148 Mo. 430. (2) Land is held adversely within the meaning of the law, where a landowner, by mistake, incloses and holds beyond, his true boundaries, claiming the premises as his own. Brown v. Lette, 2 Fed. 440; Cole v. Parker, 70 Mo. 372; Mather v. Walsh, 107 Mo. 121; Hamilton v. West, 63 Mo. 93. (3) The uncoutradicted testimony in this case shows that the attitude of defendant during the entire statutory period was of such nature as to render his possession adverse to the true owner; and the court should have directed a verdict for the defendant.

      Fry & Rodgers for respondent.
    There was evidence in the case tending to show that defendant claimed to the fence on the erroneous presumption it was the true line, but with no intention of claiming beyond the true line. In that event, the Statute of Limitations did not run in his favor. McWilliams v. Samuel, 123 Mo. 659; Keen v. Schlendler, 92 Mo. 526 ; Krider v. Milner, 99 Mo. 149; Stinker v. Haagsma, 99 Mo. 215.
   VALLIANT, J.

This is a suit in ejectment filed April 7, 1906, for a strip of land four feet wide at the east end, two and a half feet wide at the west end and 128 feet long, off of the north side of lot 3 in block 5 of Clark’s Addition to the city of Mexico in Audrain county; the petition is in the usual form and the answer a general denial.

There seems to. have been no dispute about the récord title, it being conceded that defendant held the record title to lots 1 and 2 and that the plaintiff held the record title to lot 3, but the plaintiff’s contention was that the strip of land in suit was a part of his lot 3, while the defendant’s contention was that without regard to what the respective deeds called for the strip in dispute was his bv adverse possession for more than ten years. Plaintiff introduced in evidence the plat of Clark’s Addition to the town of Mexico laid out in 1855, by which it appeared that lots 1, 2, 3 and 4, block 5, were each sixty feet wide and 128 feet long; the lots run in their numerical order from north to south, all fronting east on Washington avenue; the north line of lot 1 is the sonth line of Clay street, which intersects Washington avenue at that point. The following diagram conveys an idea of the situation:

The dotted lines indicate the strip of land in dispute.

Plaintiff introduced the testimony of a witness, the county surveyor, which tended to show that by a recent survey made by him, starting in the south line ■ of Clay street at the northeast corner of lot 1, running south along the west line of Washington avenue 120 feet (assuming sixty feet as the correct front measure of lots 1 and 2), the fence of defendant at its front point was four feet south of the south line of lot 2 and therefore encroached that much on lot 3. Plaintiff’s testimony also tended to show that plaintiff and those under whom he claimed had for many years paid the taxes assessed on lot 3, and that defendant and those under whom he claimed had paid the taxes assessed on lots 1 and 2. Plaintiff introduced the record of deeds showing a warranty deed from Warren B. Mclntire and wife to defendant, dated February 23, 1898, conveying lots 1 and 2, block 5, Clark’s Addition. It came out in the plaintiff’s testimony also that defendant’s south fence had stood where it was at the beginning of this suit for more than ten years, and that a building of defendant’s, which the witnesses called a barn, had for the same length of time stood at the rear of lot 2 obtruding over what plaintiff claims to be the south line of defendant’s property, the south wall of the building being on a line with defendant’s fence, and that defendant and those under whom he claims had been in open occupation of the land up to his fence for more than ten years.

Defendant’s testimony tended to show that the fence, where it was at the beginning of this suit, had stood there for a period of more than fifteen years and the building likewise; that during all that time defendant and those under whom he claims had been in the open occupation of the land included in the enclosure, exercising acts of ownership .over it and claiming it as his own; the land except where the building stood was used and cultivated as a garden. Defendant introduced in evidence a contract for the purchase of the property under which he went into possession, dated February 20, 1892. The contract was to the effect that in consideration of $2200, of which $100 was paid and. the balance in deferred installments, Mclntire and wife, then the owners, agreed to sell and convey the property to defendant as soon as he should pay the several installments into which the purchase money was divided; that on the date of the contract he went into possession and subsequently paid the deferred installments and received the deed called for. The property is described in the contract as lots 1 and 2, block 5, Clark’s Addition. Plaintiff does not question the fact that defendant has been in open possession of the strip of land in suit for a period of more than ten years exercising acts of o’wnership over it, but he contends that during all that time defendant’s claim of ownership was conditional, that is, that he claimed it subject to the ascertainment of the true line between lots 2 and 3 whenever that line should be ascertained, and the case, against defendant’s objection, was submitted to the jury on the theory that that was the issue in the case.

When we say that the case was submitted to the jury on that theory against defendant’s objection we are not overlooking the fact that in one of the instructions given at the request of the defendant that issue" was presented, but the defendant had previously asked a peremptory instruction for a verdict in his favor, which the court should have given, even under the plaintiff’s evidence, if there was no evidence that defendant’s claim of title was conditional on the subsequent ascertainment of the true line. After the court had refused the defendant’s instruction and had given instructions for the plaintiff on that theory, thus forcing the defendant to meet that issue, he had a right to meet it and make the best fight he could, without being'chargeable with having induced the error if error there was. This case differs in this respect from the case of Keen v. Schnedler, 92 Mo. 516, l. c. 526, where a similar instruction 'was given and it was contended there was no evidence to support it. The court said: “We do not see how the defendants can well take this position, for they asked, and had given, an instruction involving the same proposition. . . . But there was evidence to support the finding of the jury upon this issue, whichever way they should find.”

The first question we have to decide is whether there was any evidence to justify the submission of that question to the jury. Before taking up the evidence on which the plaintiff relies as supporting his claim that there wa.s such evidence, we will look at the law on the subject of a claim of ownership conditioned on the ascertainment of the true boundary lino as it has been pronounced by this court.

In Hamilton v. West, 63 Mo. 93, the defense was adverse possession; the evidence showed that their house Vas three or four feet over their boundary line and they had occupied it and claimed it as their own for more than ten years. The plaintiff requested the court to instruct the jury that if defendant’s ancestor, when he built the house, did not know where the true boundary line was and by mistake and ignorance located the wall on plaintiff’s land, then, although he and those under him occupied and claimed land up to the wall, their occupation was not adverse. The trial court refused to so instruct and this court affirmed that ruling. The court said that if defendant in ignorance of the true line goes beyond it and holds it intending only to hold up to the true line, wherever it might be, the holding is not adverse, but in such case, though he went over his line in ignorance of its true location, yet if he took and held possession claiming up to his wall or fence his possession was adverse, and the court said that to render the possession adverse it was not neces'sary that they should know that they occupied a part of the lot adjoining their own.

In Walbrunn v. Bailen, 68 Mo. 161, the court after referring to previous decisions, said: “The doctrine deducible from these utterances of this court is, that if one by mistake inclose the land of another, and claim it as his own, his actual possession Vill work a disseisin; but if, ignorant of the boundary line, he makes a mistake in laying his fence, making no claim, however, to the land up to the fence, but only to the true line as it may be subsequently ascertained, and it turns out that he has inclosed the land, of the adjoining proprietor, his possession of that land is not adverse.” That language was quoted and approved in Cole v. Parker, 70 Mo. 372, in which case the defendant who was claiming by adverse possession had by mistake gone over his line, and he testified that he had not intended tó inclose any as his beyond the true line, but he did claim what was inclosed. The court said: “It may have been a mistake, it is true, but honest men always inclose land not their own by mistake or with the consent of the owner, and if the law on this subject were not as this court has held, the Statute of Limitations in such cases would never run in favor of an honest man, because he would never avow his purpose to have been to take the land of another. ’ ’

In Skinker v. Haagsma, 99 Mo. 208, it was held that the possession of defendants, though continuing more than ten years, was not adverse because, the court said, “the uncontradicted evidence is that they so occupied and claimed it under the belief that those fences were on the true line, and without any intention to claim beyond the true line as called for in the deeds.”

In Mather v. Walsh, 107 Mo. 121, the court said: “The fact that a proprietor of land has taken possession (under a deed) of more land than its description calls for will not prevent his asserting, later, an adverse possession of, or title to, the excess beyond his paper title. Though his original taking may have been the outgrowth of mistake, or in ignorance of the true line, he may, notwithstanding, afterwards begin an adverse holding which the law will recognize when sufficiently long continued.”

In McWilliams v. Samuel, 123 Mo. 659, the defense was adverse possession, but the evidence for defendant was that the fences were set on what was believed to be the true line and the land was occupied up to thé fences, but it Was occupied with no intention of claiming anything but the right number of acres.-

There are other Missouri cases on this subject but those cited above are sufficient to show what the law is. Applying the rules of law as in those cases declared to the case at bar, we may say that the fact that the defendant or those under whom he claims may have entered upon the land and located the fence and barn by mistake and in ignorance of the location of the true boundary line, the fact that they had no intention of taking what did not belong to them, the fact that within their fences they may have inclosed a larger area than what they might have found out their deed called for if they had consulted the plat and had surveyed the lots, would not destroy the adverse character of their possession, if that possession was with the intention to hold and claim all that the fence inclosed. On the other hand, if they located the fence on what they supposed was the true line and intended to claim only to the true line whenever and wherever it might be located the possession would not be adverse.

The testimony shows that the defendant went into possession of the land in February, 1892, and has occupied it as his residence ever since. This suit was begun in April, 1906, more than fourteen years after defendant’s possession began. He testified that when he took possession the fence and barn were where they now are, that they were, old structures then, and he has since from time to time repaired the fence. The fence and barn were there when the premises were owned and occupied by Mclntire from whom defendant bought; how much longer they had been there the evidence does not show with accuracy although one witness said he had seen them there, for fifteen or twenty years. The strip in question was embraced in defendant’s garden and' had been cultivated as such.

Mrs. Crawford, a witness for plaintiff, owned lot 3 in 1891, she conveyed it to her husband, Dr. Crawford, in 1892, and they lived on it until his death in 1898, when it passed by his will to his daughter, who lived there until she died, leaving it to her daughter, Mrs. Groves, who lived there until 1903, when she sold it and moved to Kansas City. Mrs. Crawford testified that in 1892 a question arose between Mr. Nichols, who owned lot 4, and her husband, about the boundary line between lots 3 and 4; the result wag they had a survey made and then discovered that the fence between those lots was three feet south of the true line, whereupon Dr. Crawford moved his fence three feet north to correct the error; then Dr. Crawford went to this defendant and requested him to move his fence the same distance north to conform to the survey, but defendant refused to do so, he refused to have the lots surveyed or to move his fence. That was in 1892, more than ten years before this suit was brought.

Mrs. Groves, a granddaughter of Dr. Crawford, lived with him at the time and knew of the controversy. Her deposition was taken by the plaintiff, but was read in evidence by the defendant. She testified to the same incident that Mrs. Crawford mentioned, but she went more into detail; she said that when Dr. Crawford asked defendant to move his fence, he answered that he had no more ground than he should have and he would not move the fence. “Grandpa claimed three feet from Dr. Fritts, and he asked Dr. Fritts for it, but Dr. Fritts refused to move the fence.” Witness heard her grandfather say at sometime he would make Dr. Fritts move his fence. After the death of Dr. Crawford witness heard her mother ask defendant to move his fence, but he told her he claimed it as his own and would not give possession of it.

Thus we see that more than ten years before this suit was brought Dr. Crawford, the then owner of lot 3, made a demand for the strip of land now in suit and was positively refused. And we notice also that the refusal was not put on the ground that the fence was on the true line, he made no reference to the true line, he just refused to yield possession of the strip. So the matter rested until 1905 when Mr. Brown, who was then the owner of lot 3, again brought the subject to the defendant’s attention and demanded the three feet, but defendant refused, then Brown proposed to have the lots surveyed but defendant again refused, “he wouldn’t agree to it at all, wouldn’t agree to survey it, have nothing to do with it, and he said all the land inside the inclosure was his and he wouldn’t have anything to do with it, and finally I went and had it surveyed myself. . . . Q. And' he claimed the fence was the south line of lots one and two? A. I don’t think he said that to me; he claimed all the land inside the inclosure.” That was plaintiff’s own witness.

Defendant in his own behalf testified: “I have always claimed it as mine, all that is inside the fence there, the way I bought it. ... I bought the property from Mr. Mclntire just as it was fenced, north, south, east and west; that was the understanding between us; that was the line and it has remained fenced ever since. ’ ’

There is nothing in the testimony up to the time of the cross-examination of the defendant himself that gives any support to the contention that it was defendant’s purpose to claim only up to the true line wherever and whenever that may be ascertained; but respondent contends that that fact was developed on the cross-examination of defendant himself; it therefore becomes necessary to quote literally so much of the cross-examination as bears on that point:

“Q. You never bought or got a deed for any part of lot three? A. Not that I know of, no, sir. Q. And you have never paid any taxes on lot three? A. No, sir, not that I know of. Q. And you have never claimed lot three? A. No, sir, never have. Q. Nor any part of it? A. No, sir, no part of it; I simply claimed my inelosure as I bought it.' Q. You never had your lots surveyed?' A. Never have. Q. Then'when you went in possession of your land théíe, when yon bought that land and went in possession of lots one and two you didn’t know where vonr north or south line was? A. Yes, sir, I knew it by the fencing on it. Q. Yon know now the fence is not on the south line do you not? A. No, sir, I do not; I know it is on the line of the premises I bought. Q. You know the fence is not on the true line between lots two and three, don’t you? A. I do not. Q'. Don’t yon know yon have more than a hundred and. twenty feet north and south there ? A. I do not; I never measured it in my life and never had it measured. . . . Q'. Well, a hundred and twenty feet is all you bought? A. No, sir. Q. All you have a deed for? A. I bought the inclosure there simply as it was inclosed. Q. You knew your deed didn’t call for that inclosure? A. It calls for two lots. Q. Sixty feet across? A. I don’t know whether it says sixty feet across. Q. I believe the first thing you got from Mr. Mclntire was this contract of February 20, 1892? A. Yes, sir. Q. And you held possession under this contract of the land described until you got your deed? A. Yes, sir. Q1. And since that time you have held under your deed? A. Yes, sir. . . . Q. When you bought this land: you didn’t know where the true line was between lots two and three, did you? A. I didn’t know anything about the lines; the fence was considered as the line and that’s the way I bought it. Q. But you never — when you bought the land and took possession you never intended to claim more than you bought, did you? A. No, sir, and never have yet either. Q. And you bought what? A. I bought what was in the inclosure. ’ ’ The last question and answer were on redirect-examination.

The evident aim of the cross-examination was to force the defendant to take the position before the jury of either admitting that he never intended to claim ownership further than to the true line wherever and whenever it might he located or else to confess that he intended to claim what did not belong to him. Counsel for respondent in their brief say: “It is evident that Dr. Fritts (the defendant), before going on the witness stand, had informed himself as to the law of adverse possession, and it looks as though he had intended to give no evidence that could be used against him. ’ ’ If the witness had technical knowledge of the subject of adverse possession, he had, in that respect, no advantage of the learned counsel who conducted the cross-examination. His answers were not evasive or equivocal and on the face of the record we see no cause to question his honesty. Under a skillful cross-examination a less enlightened witness not fully comprehending the real purport of the question might, by merely answering yes or no, convey an erroneous idea. It was attempted to put a construction on the testimony of the defendant in the case of Cole v. Parker above cited, who had testified that he intended to claim only to the Government line but claimed that the middle of the road was the Government line, which is now sought to be put on the testimony of this defendant, but the court said if such an effect was to be given to the testimony “the Statute of Limitations in such cases would'never run in favor of an honest man, because he would never avow his purpose to have taken the land of another.” In the case at bar the defendant said he claimed only the lots he bought, but he claimed that those lots embraced all that was within his inelosure. The defendant’s deed (or the contract of purchase rather, the full deed not ap-' pearing in the record) calls for lots one and two, it does not give the width or length of the lots, one would have to go to the plat to find that information, but even if the deed had said the lots were sixty feet front, if the -defendant bought, as he says he did, understanding that the fences marked his boundary lines and he claimed to the fences regardless of whether they were correctly located, and has so held for more than ten years, his holding would not be cut down now because it. might turn out on measurement that he had more front feet than his deed called for, It was so decided' in the case of Mather v. Walsh above cited, where the deed called for so many acres and the defendant had by mistake taken possession of a larger area. There is nothing in the cross-examination of defendant to indicate that he ever intended to limit his claim of ownership to the true boundary line when discovered; all the testimony is to the effect that he claimed as his own all that was inclosed by his fences. Even the testimony^ on the part of the plaintiff showed the adverse character of defendant’s possession. More than ten years before this suit was filed the then owner of lot three complained to defendant that his fence was three feet over the true line and asked him to join in a survey and move the fence, but defendant refused, and asserted claim to all within his inclosure.

' Defendant’s title by adverse possession being clearly established- the trial court ought to have given a peremptory instruction for a verdict in his favor.

The judgment is reversed and the cause remanded with directions to the circuit court to enter judgment in defendant’s favor.

All concur.


author: LAMM, P. J.

text:
    F. A. ORDELHEIDE, Administrator of Estate of WALTER L. LEEK, v. MODERN BROTHERHOOD OF AMERICA, Appellant.
    Division One,
    March 1, 1910.
    APPELLATE JURISDICTION: Constitutional Question: Raised Only By Injured Party. An act of the Legislature will he assumed to he valid until someone whose rights are injuriously affected and specially invaded attacks its validity. An insurance company cannot complain that the statute providing that a policy “issued by any company dQing business in this State, to a citizen of this State” is not avoided by the suicide of the insured* discriminates in favor of policyholders who are citizens of this State and against those who are not citizens, and for that reason is unconstitutional and void; nor by such an attack on the statute give the Supreme Court jurisdiction of an appeal from a judgment on a $1000 policy. As the company is in no wise prejudiced by the statute, it cannot raise the point of discrimination for either the citizens of this or another State and assume to champion their wrongs, and cannot be heard to complain that the statute is unconstitutional because it discriminates against certain policyholders.
    Appeal from Warren Qircuit Court. — Hon. James D. Barnett, Judge.
    Transferred to St. Louis Court of Appeals.

      Ball & Sparrow for appellant.

      Emil Roehrig for respondent.
   LAMM, P. J.

Walter L. Leek died by his own hand, unmarried and intestate, on June 14, 1905, then (and always since his birth) a citizen of Warren county, Missouri. Ordelheide was appointed administrator of his estate, qualified and took upon himself the burden of administration.

The defendant is a corporation domiciled in Iowa and for ten or twelve years last past did a life insuranee business in Missouri under a license from tbe. Insurance Department permitting it to insure its members as a fraternal, beneficiary association; it having a lodge system, ritual and the other prerequisites of that form of insurance.

In 1903 Leek made written application for membership and a benefit certificate in defendant, in which application he agreed that in the event of his death by suicide, whether sane or insane, any benefit certificate issued by said fraternity should be void. Presently his application was accepted and he became a member of the local lodge and defendant issued to him a beneficiary certificate for $1000’.

He remained a member in good standing to the day of his death.

The policy, inter alia, contained this provision: “If the holder of this certificate shall be expelled or suspended by the lodge ... or shall die in consequence of a duel, or by his own hand, whether sane ' or insane . . . then this certificate shall be null and void,” etc.

The provision designating the beneficiary, in case of death, is in part as follows: “The Modern Brotherhood of America issues to Walter L. Leek of Warren-ton, county of Warren, State of Missouri, this membership certificate, which entitles him to membership in said fraternity, and in case of the death of said member while in good standing, permits his beneficiary to participate in the mortuary fund to the amount of one full assessment on all members in good standing in the fraternity not to exceed one thousand dollars, which shall be paid to legal representatives, related to the member as---within ninety days after said satisfactory proofs of such member’s death shall have been furnished by the beneficiary to the board of directors at Mason City, Iowa.”

Due death proofs were made, defendant refused to pay and. Ordelheide, as administrator, sued on the policy in the Warren Circuit Court. Judgment going for $1076.25, defendant appeals here.

The question of jurisdiction confronts us in limine and therefore bespeaks preliminary disposition. Attending to that question, we observe:

The theory of the petition is that defendant is an old-line life insurance company. It is contended in plaintiff’s brief that by the omission to name a beneficiary in the policy of the class of blood kin or relationship by marriage, etc., as provided in sections 1408 and. 1410, Revised Statutes 1899, and. by the use of the term “legal representatives” in the policy, defendant thereby is put outside of the pale of fraternal beneficiary associations, although it complies in other respects with the statutory designation of such associations.

'Contra, defendant, by answer, defends on the theory it is a fraternal benefit association; that by virtue of such fact it may contract against liability in cases of felo de se; and therefore is not amenable to the statutory limitations on the powers of old-line companies to contract against self-destruction — that statute reading (Sec. 7896, R. S. 1899): “In all suits upon policies of insurance on life hereafter issued by any company doing business in this State, to a citizen of this State, it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that th'e insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.”

However, there is another defense interposed, by way of casting an anchor to the windward, vis., the unconstitutionality of section 7896. The cause was tried without a jury or instructions. By briefs the constitutional point is developed as follows: Assuming (for argument’s sake) that defendant is not a fraternal beneficiary association, but is an old-line life insurance company, yet as the policy contains a provision making the insurance void in case of suicide, such, policy provision should he enforced in spite of the statute, because that statute is void in that it discriminates in favor of policy-holders and beneficiaries who are citizens of this State and against those who are not citizens (although within the jurisdiction of the State), thereby violating named provisions of the State and Federal Constitutions. On this contention hinges our jurisdiction and we think we have none. This because :

A grave provision of the Constitution may not be invoked by every litigant at every turn to cause an act of the Legislature to perish by judicial construction, or to take away or confer jurisdiction. Not only may the right to raise a constitutional point be waived, but such point may be injected untimely, and (what is more to the point) it may be raised by a litigant not entitled to raise it at all or invoke a given constitutional safeguard on the record presented to the court. Said Owen G-lendower (sweepingly):

“I can call spirits from the vasty deep.”

' Retorted young Henry Percy, surnamed Hotspur (full of critical doubt):

“Why, so can I, and so can any man;
But will they come when you do call for them?”

Somewhat as it was of old in the days of Henry IV., Falstaff, Mortimer, Glendower, Poins, Bardolph and Hotspur et al., with spirits, so is it now with constitutional points. A litigant may call on the Constitution but will it come? Whether it will or no depends not a little on whether the litigant has the right to make the call. In deciding that delicate and turning question stress must he-laid on the comity that should exist between the judicial and the legislative department.

Says Cooley (Cooley’s Const. Lim. [7 Ed.], p. 228): “The task,” i. e., the task of declaring a statute unconstitutional) “is therefore a delicate one, and only to be entered upon with reluctance and hesitation. It is a solemn act in any c'ase to declare that that body of men to whom the people have committed the sovereign function of making the laws for the commonwealth, have deliberately disregarded the limitations imposed upon this delicate authority, and usurped power which the people have been careful to withhold.” “Neither will a court” (continues that author, p. 231), “as a general rule, pass upon a constitutional' question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause.” Adopting the language of Stuart, J., in Hoover v. Wood, 9 Ind. 1. c. 287, our author goes on to say: “While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to ffraw in’ such weighty matters collaterally, nor on trivial occasions. It is both more proper and more respectful to a co-ordinate department, to discuss constitutional questions only where that is the very lis mota. . . . Nor (p. 232), will a court listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it. On this ground it has been held that the objection that a legislative act was unconstitutional, because divesting the rights of remaindermen against their will, could not be successfully urged by the owner of the particular estate, and could only be made on behalf of the remaindermen themselves. And a party who has assented to his property being taken under a statute cannot afterwards object that the statute is in violation of a provision in the Constitution designed for the protection of private property. The statute is assumed to he valid, until some one complains whose rights it invades.”

In Brown v. Ry. Co., 79 Fed. 176, a statute of Indiana relating to railway corporations providing “that a citizen of the State shall have a lien upon all the personal property of said corporations, to the amount of $100, for all debts originally contracted •within this State; which, after said lien of the State, shall take precedence of all other debts, demands, judgments or decrees, liens or mortgages against such corporation,” was under exposition. Under that- statute certain citizens of the State of Indiana filed an intervening petition claiming $100 for services rendered the railway company prior to the appointment of the receiver. The receiver of the railway company, holding appointment in the principal case, defended on the ground that the statute was unconstitutional in that it discriminated against citizens of other. States, In deciding the point Baker, J., said: “The precise constitutional objection is not, and cannot be, that the Legislature is not possessed of the power to provide for the payment of all small ‘debts of the corporation by giving them a preference and priority over liens and mortgages subsequently originating, for such power is undoubted. The objection must be that the statute in question is unconstitutional because it limits the right to citizens of this State, and to debts originally contracted therein, and thus discriminates injuriously against the citizens of other States. If it should be granted that non-residents of this State have equal constitutional rights in respect to enforcing the collection of small debts with the citizens of this State, it might follow that as to those who were injuriously affected, or as to those against whom the statute discriminates, it would be invalid, while as to those to whom it assumes to grant a special privilege it would be valid. When a non-resident of the State assails the constitutionality of the statute' on the ground that it injuriously affects him, or on the ground that it denies him a privilege granted to the citizens of this State, it will be time to consider the constitutional question suggested. Courts will not listen to those who are not aggrieved by an invalid law. The railway company and its receiver are not aggrieved by the law. The only ground of complaint open to them is that the statute limits their liability within too narrow bounds. If it granted the right to sue for debts amounting to $100 to every one, it would confessedly be a valid enactment. Can the receiver object that the statute is unconstitutional because it is less burdensome to railway corporations than it might and ought to have been?” (Here certain cases are cited). . . . “These cases are agreeable to the principle that only those who are injuriously affected by an unconstitutional act will be heard to complain of it (citing other cases). The receiver, having admitted the rights of the complainants unless the statute in question should be held unconstitutional, is in no situation to object to the allowance of the demand of the intervening petitioners as a preferential claim.”

In Wellington et al. v. Petitioners, 16 Pick. 96, it was said in substance by no less an oracle of the law than Chief Justice Shaw, that- it was quite clear that when an act of the Legislature was alleged to be void on the ground that it exceeded the limits of legislative power, and thus injuriously affected the rights of others, such act was to be deemed void only in respect to those particulars and as against those persons whose rights are thus affected and that it is only when some person attempts to resist its operation and calls in the aid of the judicial power to pronounce it void as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained.

In State v. Seebold, 192 Mo. l. c. 730, the propositions announced by Judge Shaw, supra, are indorsed by this court. Jones v. Black, 48 Ala. 540, also is in-point. It was there held in substance that an act of the Legislature will be assumed to be valid until someoue whose rights are injuriously affected and specially invaded complains. To the same effect are Shehane v. Bailey, 110 Ala. 308; Com. v. Wright, 79 Ky. 22; State ex rel. Kellogg v. Currens, 111 Wis. 431; State v. Barr, 78 Vt. 97; In re O’Brien, 29 Mont. 530; Davidson v. Von Detten, 139 Cal. 467.

In Supervisors v. Stanley, 105 U. S. 305, the question came before the Supreme Court of the United States in the form of a charge of an unconstitutional discrimination in the method of assessing shares of stock in banks for taxation purposes. The complaining shareholder in that case did not belong to the class affected by the law. In speaking to the point, Mr. Justice Miller delivered the opinion of the court and said (p. 311): “YThat is there to render it void as to a shareholder in a national bank,-who owes no debts which he can deduct from the assessed value of his shares? The denial of this right does not affect him. He pays the same amount of tax that he would if the law gave him the right of deduction. He would be in no better condition if the law expressly authorized him to make the deduction. Whát legal interest has he in a question which only affects others? Why should he invoke the protection of the act of Congress in a case where he has no rights to protect? Is a court to sit and decide abstract questions of law in which the parties before it show no interest, and which, if decided either way, affect no right of theirs ? ’ ’

The question was also up and ruled in State ex rel. McIntosh, 205 Mo. l. c. 601-605. In that case it is said (p. 605): “The sum of the matter is, not that his neighbor is hurt, but that a litigant himself must be hurt by the unconstitutional exercise of power before he may vex the judicial ear with complaints. No one may demand judicial consideration of a question not singular to his individual rights of person or property as contradistinguished from his neighbor’s. ‘We cannot,’ said the Supreme Court of Wisconsin (State ex rel. Kellogg v. Currens, 111 Wis. l. c. 442), ‘set aside the acts of the Legislature at the suit of one who, suffering no wrong himself, merely assumes to champion the wrongs of others.’ ”

As defendant is in no way prejudiced by the statute in question it cannot complain of it as unconstitutional, because it discriminates against certain policyholders.

It will be time enough for üs to consider and determine its constitutionality or Unconstitutionality when a citizen of another State who claims to be discriminated against calls in the aid of the judicial powers in this State to pronounce it void, as to him, his property or his rights. The defendant does not claim that the Legislature had no power to put limitations on insurance contracts in this State. That power is unquestioned. The defendant claims that the citizens of other States are. discriminated against by the statute. In doing so it does not speak for itgelf but speaks for policy-holders it claims are injuriously affected. It has no right to speak for then! in the way of raising the'constitutionality of'.the law. As put by Baker, J., in the BroWn case, supra: Could defendant object that the statute is unconstitutional because it is less burdensome to insurance companies than it might and ought to have been?

As defendant cannot raise the question, it is the same as if not raised at all. Since without it we have no jurisdiction, the case does not belong here. Let it be .transferred to the St. Louis Court of Appeals. It, is so ordered.

All concur.