text:
    WILLIAM J. MISENHEIMER et al., Appellants, v. ROBERT AMOS et al.
    Division Two,
    June 8, 1909.
    1. ADVERSE POSSESSION: Cotenants: Notice. To establish title in one cotenant against another by adverse possession there must be by the one such outward acts of exclusive ownership, of an unequivocal character, as to impart notice to the other that an adverse possession is intended to be asserted against him. But it is not necessary that any positive notice should be given to the other, nor does it devolve upon the possessor to prove a positive actual knowledge by the other; it is sufficient that the act itself is overt and notorious; and even if the other is ignorant of his rights and neglects them, he is bound by such notice.
    2. -: -: -: This Case: Answer in Former Suit. Defendants and their immediate ancestors had been in actual possession for fifteen years, and that possession was open and notorious; they had paid all the taxes; plaintiff at no time made any claim thereto until, long before this suit was brought, their immediate grantors brought an action in ejectment against defendants’ ancestors to which the defendants by their answer set up adverse possession, and in which the then plaintiffs took a nonsuit. Held, that, though the defendants in the former suit were minors, defendants have shown an open and notorious notice to plaintiffs of their adverse possession, and the presumption does not lie that their possession was also the possession of plaintiffs, who are cotenants according to the paper title.

      Appeal from Cape Girardeau Court of Common Pleas. —Hon. John A. Snider, Judge.
    Aeeibmeu.

      Wilson Cramer for appellants.
    (1) The evidence tends to show that Robert W. Renfroe, who lived about one-quarter of a mile from the premises, controlled the property and collected rents; that after his death his widow, Cordelia Renfroe, did so until her marriage to Jasper N. Dudley, and that thereafter he had charge for his wife and two stepchildren, Early Renfroe and Nora Renfroe, but the evidence utterly fails to disclose an unfriendly or adverse holding as against the other cotenants. (2) The possession of one tenant in common is presumptively the possession of all. Benoist v. Rothschild, 145 Mo. 399; Stevens v. Martin, 168 Mo. 407. (3) To constitute an adverse holding by one tenant in common against another there must be outward acts of exclusive ownership of such character as to impart notice that adverse possession is intended to be asserted. Benoist v. Rothschild, supra. (4) Nothing of the kind appears in the record in the case at bar, excepting as to the two parcels claimed by Robert Amos and the one claimed by Annie E. Summerlin, and the court below erred in holding that plaintiffs had lost their right to the remainder of the property by adverse possession. The evidence shows that, with the exception of two small lots, the land was unfenced and unoccupied for many years.

      T. D. Hines and Oliver & Oliver for respondents.
    (1) Respondents contend that under the testimony they have made a perfect case of adverse possession under color of title. (2) The bringing of the ejectment suits by appellants’ grantors in 1887 and again in 1895 are solemn admissions of record that plaintiffs had notice of a denial of cotenancy on the part of the defendants in those suits; and are the most positive evidence that minor respondents’ ancestors and grantors were asserting exclusive and hostile ownership in this property at that time. The answer in the ejectment suit was a denial that appellants ’ grantors had any interest in the property as co-tenants. It was an unequivocal assertion of adverse possession. It was a direct and positive notice that the defendants’ ancestor, Robert W. Renfroe, was claiming the entire property;' it was a denial of I-Jeinrichs’ cotenancy with Robert W. Renfroe. The oral testimony of Dudley, of Amos and of Summerlin corroborate the conclusions flowing from the ejectment suits. Their testimony is uncontradicted .and unchallenged in this record. The testimony of these three witnesses shows in a clear and positive manner that there was an actual ouster of appellants’ grantors by respondents’ grantors. That respondents denied the appellants’ grantors had' any interest in or to any rents or profits flowing from this land. This oral testimony is sufficient in itself to support the judgment. Moreover, the fact that appellants took a deed for this property without paying anything for it, and was only to pay a consideration for it, in event that he won this suit, is a strong circumstance showing a want of good faith in Ms claim of ownership and in the prosecuting of this appeal. The hostile acts of defendants and their grantors towards the appellants and their grantors bring this ease clearly within the rule laid down by this court, to the effect that where one co-tenant seeks to. acquire the title of another cotenant by adverse possession, there must be such outward acts of exclusive ownership and of -such unequivocal character as to impart notice to the other cotenant that an adverse possession is intended to be asserted against him. Warfield v. Lindell, 38 Mo. 582; Benoist v. Eothschild, 145 Mo. 399; Hawk v. Senseman, 6 S. & E. (Pa.) 21; Grim v. Dyar, 3 Duer (N. Y.) 354; Zeller’s Lessee v. Eckert, 4 How. 289.
   GANTT, P. J.

This is an action under section 650, Eevised Statutes 1899; to have the title to the south half of lot one of the southwest quarter of section 31, township 30, range 12, in Cape Girardeau county, decreed to the plaintiffs as against the defendants.

The cause was heard at the April term, 1908, and an opinion rendered in which the judgment of the court of common pleas was affirmed. The learned counsel for the appellants felt that this court had misapprehended the facts in the record and a rehearing was granted. The cause has now been reheard and submitted upon argument.

The statement of the case by Judge Burgess on the former hearing comprises all that is necessary of the record for a decision of the controverted points and hence we will avail ourselves of it.

“The petition is in the usual form, alleging that plaintiffs are the owners of said land, and that the defendants claim and assert some title or interest therein adverse to plaintiffs.

“Defendants Conrad Lind, Eobert Amos, Frederick Amos and A. E. Summerlin joined in the same answer, in which they plead the ten-year Statute of Limitations. The answer then alleges, in substánce, that Eobert W. Eenfroe, at the time of his death in 1888, and for a long time prior thereto, was the owner in fee of the premises in suit, and occupied the same as a homestead, and that plaintiffs and their immediate grantors had done certain acts by which they are estopped from asserting title. The answer then proceeds as follows:

“ ‘For another and further answer to plaintiffs’ petition herein, defendants say that there is a misjoinder of parties defendant in this cause which is not disclosed by the petition, in this, that there are several defendants, to-wit, Robert Amos, Frederick Amos, Conrad Lind and A. E. Summerlin, who each own an independent and separate interest in fee in separate tracts of said land, being different portions of the south half of lot one of the southwest quarter of section 31, township 30, rang’e 12, in Gape Girardeau county, State of Missouri; that the said described land is divided up into lots and small tracts of land; that Robert Amos owns a smaH'tract of 1.37 acres of land, being a portion of the said above described land, and that not one of the other defendants has, owns or claims any interest in or title to said 1.37-acre tract so owned and possessed by Amos; that the said defendant, A. E. Summerlin, also owns a small tract or portion of the land described in plaintiffs’ petition, and that none of the other defendants has or claims any interest in or title to the tract so owned and possessed by Summerlin; that Conrad Lind also owns a small tract, a portion of the land described in plaintiffs’ petition, and that none of the other defendants has or claims any interest in or title to the tract so owned and possessed by Conrad Lind, and so with the other answering defendants; that by reason thereof there is a misjoinder of parties defendant in this cause, and pleading these facts in bar of plaintiffs’ right to proceed further in this cause, again pray judgment. ’

“The defendants Early Renfroe and Nora Renfroe filed answer, in which they deny all the allegations in the petition.

“The trial resulted in a finding and judgment for defendants, dismissing plaintiffs’ petition, and rendering judgment against plaintiffs for costs.

“In due time plaintiffs filed motion for a new trial, which was overruled, and exceptions saved. Plaintiff then prayed, and was granted, an appeal to this court.

“It appears from the record that the town limits of the town of Allenville extend into the east side of said south half of lot one, and that the several pieces of ground claimed hy defendants Robert Amos, Conrad Lind and A. E. Summerlin are small tracts or lots lying within said town limits and in the southeast corner of said south half of lot one.

“It is conceded by plaintiffs that Frederick Amos was inadvertently joined as a defendant.

“Defendants Early Renfroe and Nora Renfroe, heirs at law of Robert W. Renfroe, deceased, claim to own the balance of the land in suit.

“Upon the trial it was admitted: 1. That David Renfroe was the common source of title. 2. That he died about 1860 or 1862, leaving by his first wife, three sons, Thomas A. Renfroe, John W. Renfroe and Joel E. Renfroe, and by his second wife, one son, Robert W. Renfroe. 3. That Thomas A. Renfroe, son of David Renfroe, died intestate, leaving his widow, Medora Renfroe, and two children, Cora B. Renfroe and Thomas A. Renfroe. 4. That Cora B. Renfroe, daughter of Thomas A. Renfroe, married a man by the name of Schulz.

“Plaintiff Meisenheimer showed a regular chain of paper title to the undivided interests in the land in question of Joel E. Renfroe and Thomas A. Renfroe, being one undivided half of the south half of said lot one, and is the owner thereof unless, by reason of the Statute of Limitations, title has become vested in the defendants in this suit, or unless plaintiff and his grantors, by reason of some act of theirs, are estopped from claiming said land or any interest therein.

“Defendants contend that under the evidence they have made a perfect case of adverse possession under color of title, and as proof thereof cite: (a) The petition in ejectment of Charles F. Hinrichs and Cora Renfroe (plaintiff’s immediate grantors) against Robert W. Renfroe, father of Early and Nora Renfroe (minor defendants), to recover possession of the south half of the southwest quarter of said section 31, said suit having been filed November 9, 1887; (b) the answer of Robert W. Renfroe in said cause, claiming ownership of said land, alleging the invalidity of the deed under which Hinrichs claimed to hold said property, and setting up- the Statute of Limitations; which answer, defendants claim, was a positive repudiation of the cotenancy.

“The judgment in that case was a voluntary non-suit, and the proceedings in the case tend to show that the defendant therein, at the'time of. the institution of the suit on the 9th day of November, 1887, was in the actual possession of said land, claiming it as his own, adversely to all others and especially the plaintiffs in said suit.

“The suit of Charles P. Hinrichs, Medora Renfroe, Cora B. Schulz and - Schulz, her husband, and Thomas A. Renfroe (plaintiff’s immediate grantors) against Henry O. Hinton, L. J. Summerlin and David Iiumbrey, lessees of Jasper N. Dudley, filed in the court of common pleas of Cape Girardeau county, on March 3, 1895, was for the possession of the same land, and while the abstract does not show what the defense was or that an answer was ever filed, or show what the allegations in the petition were, it will be presumed; as it was an action in ejectment — a possessory action — that the defendants in said suit were in possession of the land at the time of its institution. ’ ’

I. As to the small tracts of land claimed by the defendants, Robert Amos, Conrad Lind and A. E. Summerlin, and particularly described in their answers, the plaintiffs now concede in their final argument and brief in this case that they cannot recover as against those defendants the said several tracts of land, and as to them, of course, the judgment of the court of common pleas must be and is affirmed.

II. The contest is narrowed down to the title to the undivided one-half of the south half of said lot one of the southwest quarter of section 31, township 30, range 12, which plaintiffs claim as grantees of the heirs of Joel E. and Thomas A. Renfroe.

Plaintiffs undertook to show that they had also acquired the title of Robert W. Renfroe by virtue of a sheriff’s deed, but they admit now that the said deed was void and they acquired no title to the undivided one-fourth originally descended to Robert W. Renfroe from his father David Renfroe, and that his heirs, Early Renfroe and Nora Renfroe, are clearly entitled to the said one-fourth of said land as the heirs of their father Robert as against plaintiffs. So far as the disclosures of the record are concerned, the one-fourth interest inherited by John W. Renfroe from his father David was unaffected by the decree of the court of common pleas, as neither he nor his heirs were made parties to the suit and there was no effort made to show that he had ever disposed of the same, or whether he was still alive or not.

The important question then is whether there was sufficient evidence to overcome the presumption that the possession of Robert Renfroe and his heirs was the possession of the other tenants in common and other grantees.

Robert Amos, one of the defendants, testified that he knew Robert Renfroe in his lifetime and that said Robert and his tenants were the only persons in possession of the land between the railroad and the White Water River on the west side of the gravel road; that Robert Renfroe’s mother was in possession of this land prior to her death and after Robert’s death, his widow, and afterwards her second husband, J. N. Dudley, as guardian of the minor defendants, Early and Nora Renfroe, was in possession of the land and that the five-acre lot owned at one .time by Lind was also held by the same parties for a like period of time.

J. N. Dudley, stepfather of the minor defendants, testified that he had been in possession of the lands between the railroad and the “White Water River, west of the gravel road, for eleven years, and that Cordelia Renfroe, his wife and the mother of the minor defendants, was in possession before that time; that he took down one of the houses on this land; that the defendants claim this property in its entirety, and that nobody but the defendants had been in possession of it. This witness also testified that he never recognized any right of plaintiffs’ grantors to any of said land, and never paid over to them any part of the rent during the eleven years that he was in possession of this property for the minor defendants.

The evidence also showed that the taxes on this land were paid, off and on, by .Elizabeth Renfroe, and after her death, by Robert W. Renfroe (father of the minor defendants), and then by his widow, Cordelia Renfroe, mother of the minor defendants, the whole covering a period of sixteen years, from 1877 to 1892 inclusive. It does not appear that plaintiffs, or any other person under whom they claim title, ever paid taxes upon this land, or exercised ownership over it.

It is the earnest contention of the plaintiffs that' the possession of Robert W. Renfroe and his widow and children was prima-facie the possession of the plaintiffs and their grantors who were the owners of the shares of Joel E. and Thomas A. Renfroe and that the evidence is not sufficient to establish adverse possession by said Robert Renfroe and his heirs as against his said cotenants.

The law is well settled in this State that to establish title in one cotenant against another by adverse possession there must be such outward acts of exclusive ownership, of an unequivocal character1, as to impart notice to the cotenant that an adverse possession is intended to be asserted against him. [Warfield v. Lindell, 30 Mo. 282; Benoist v. Rothschild, 145 Mo. 408; Hutson v. Hutson, 139 Mo. l. c. 236.] But while this is true when the act or acts are of such a nature as the law will presume to be noticed by persons of ordinary intelligence in attending to their own affairs and of such an unequivocal character as not to be easily misunderstood, it is not necessary that any positive notice should be given to the cotenant, nor does it devolve upon the possessor to prove a positive actual knowledge on the part of the cotenant. It is sufficient that the act itself is overt, notorious, and if the cotenant is ignorant of his rights and neglects them he must bear the consequences. [Dunlap v. Griffith, 146 Mo. l. c. 294; Whitaker v. Whitaker, 157 Mo. l. c. 353.] Now in view of these settled principles, the testimony of the various witnesses established that there was an actual, open and exclusive possession by the defendants, Amos and Summerlin and Lind, and by Robert Renfroe in his lifetime and by his widow and his children after his death, of these lands, and that possession was open and notorious for more than fifteen years. In addition to that Robert Renfroe and his assignees and heirs paid all the taxes upon this land and the plaintiffs never at any time made any claim thereto until, in 1887, Cora Renfroe and Charles Hinrichs brought an action of ejectment against Robert Renfroe, the grantor of some of the present defendants and the father of the others as the tenant in possession of this land. Plaintiffs now say that the amended answer of Robert Renfroe did not rely upon adverse possession, but solely upon the fact that the plaintiffs in that suit were relying upon a void sherill’s deed, but we think the plaintiffs have misapprehended the effect of that testimony, which was that Robert W. Renfroe at that date was in actual possession of this land and holding it adversely to Plinrichs and Cora Renfroe, who was suing as one of the heirs of Thomas A. Renfroe. In that ease the plaintiffs asserted the _ right of possession against the said Robert Renfroe and he denied the same and asserted that at the time he had been occupying and was occupying said land as his homestead for more than-ten years before the bringing of that suit. The other ejectment suits brought against Hinton, Summerlin et ah, were brought in 1895, in which ouster was laid as of 1890, and the plaintiffs in those cases were driven to a nonsuit. Now when the bringing of these ejectment actions in 1887 and 1895 by the grantors of the plaintiffs and the defenses interposed thereto by Robert Renfroe and his assigns and tenants are considered in connection with the testimony of the witnesses already noted, tending to show an actual ouster of said co-tenants and an adverse possession by Robert Renfroe and those claiming under him, and the payment of the taxes for so many years, the collection and appropriation of the rents, we are still of the opinion that the court of common pleas had ample -basis for finding that these acts of Robert Renfroe and those claiming under him, were so open and notorious and of such a character that they imparted notice to the plaintiffs, and those under whom they claimed, of the adverse possession and claim of title by the defendants and those under whom they claim. On this claim of adverse possession the testimony of Dudley was clear and positive, that he, as the stepfather of these minor defendants, had been in actual possession of the lands between the railroad and the "White Water River, west of the gravel road, for eleven years. And that he had taken down one of the houses on this land, and that he had at all times claimed this property in its entirety and nobody had been in possession but himself for these children. We think the evidence in this case fully brings it within the requirements of our decisions and establishes a possession in these defendants, which was utterly inconsistent with the presumption that their possession was the possession of the plaintiffs also. After a careful reconsideration of all the evidence in the case, we are still of the opinion which we reached on the first argument of the ease here, that the judgment of the court of common pleas should be and it is affirmed.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    E. H. VAN NATTA and LEWIS M. PRATT v. HARROUN REAL ESTATE COMPANY and W. A. MOSES, Appellants.
    Division Two,
    June 8, 1909.
    1. RETURN: Premature. Where there is nothing in the record or in the return showing when the sheriff’s return of a writ issued to another county was in fact returned, the presumption will be indulged that the sheriff did his duty as an officer, and made return upon the first day of the following term. The fact that the return recites service on one defendant on June 24th and non est as to the other, when the first day of the term was June 26th, does not show a premature return.
    2. ORDER OF PUBLICATION: In Vacation: Non Est Return. Upon a non est return by the sheriff, the clerk has no authority, upon the filing of an affidavit that defendant is a nonresident, to issue an order of publication in vacation. Under the statute (Sec. 577, R. S. 1899), such an order, upon such a return, can be made only by the court.
    3. -: Change in Style of Case. Where the petition styled the case “E. H. Van Natta and Lewis M. Pratt, plaintiffs, vs. Harroun Realty Company and W. A. Moses, defendants,” an order of publication in which the case is styled “E. H. Van Natta and Lewis M. Pratt, plaintiffs, against W. A. Moses, defendant,” is void.

      4. -: Affidavit. The affidavit, in addition to stating defendant is a non-resident, need not also state that the ordinary process of law cannot be served upon him in this State.
    5. CORPORATION: Not Sued as Such: Pleading. If the defendant company is a corporation, the petition should so state; and if it is a partnership, the names of the persons composing the company should he set out.
    Appeal from Douglas Circuit Court. — Hon. John T. Moore, Judge.
    Reversed and remanded.

      Burkhead & Clark for appellants.
    (1) Jurisdiction of the person of a defendant can only he required by a strict compliance with the statute. Parker v. Burton, 172 Mo'. 85; Kelly v. Murdock, 184 Mo. 377. (2) Defendant Moses was proceeded against as a resident, and the order of publication was not based upon a finding of the court, but a finding of the clerk, in vacation. Harness v. Cravens, 126 Mo. 233; Schell v. Leohe, 45 Mo. 289; secs. 566, 575, 577, R. S. 1899; Tooker v. Leake, 146 Mo. 419. (3) A sheriff has no right to return a summons not executed until the return day in the writ, and such a return will not authorize even the court to find that a defendant cannot be served in the State. In this case the sheriff so returned the summons, and the clerk was without authority to issue an order of publication. Cummings v. Brown, 183 Mo. 711. (4) Defendant Moses should have been proceeded against in his full Christian name, and not as W. A. Moses. Riffle v. Ozark Land & Lumber Co., 93 Mo. App. 41; Turner v. Gregory, 151 Mo. 100. (5) The affidavit of non-residency does not state that the ordinary process of law can not be served in this State. Hedrix v. Hedrix, 103 Mo. App. 45. (6) The service made by the sheriff on W- H. Harroun, president of Harroun Real Estate Company, was no service. Said Harroun Eeal Estate Company is not proceeded against as a corporation, and no copy of the petition was served on said Harroun, as directed by Sec. 570, E. S. 1899.
   BURGESS, J.

This suit, instituted under section 650, Eevised Statutes 1899, is for the purpose of quieting title to a tract of land described as the southeast quarter of section 15, township 27, range 11, in Douglas county, Missouri.

The petition is in the ordinary language, and was filed June 8th, 1905. Summons was issued to the sheriff of Buchanan county, Missouri, against the defendants, and was returned by said sheriff, with the following endorsement and return thereon: “Executed the within writ in the county of Buchanan and State of Missouri, on the 24th day of June, 1905, by delivering a true copy of said writ, with a petition annexed, to W. H. Harroun, president of the Harroun Eeal Estate Company, and after a diligent search failed to find W. A. Moses in my county.”

Thereafter, on the 18th day of July, 1905, plaintiffs, by their attorney, filed with the clerk of said court in vacation an affidavit in which the affiant says “that W. A. Moses is a non-resident of the State of Missouri, and as he is informed and believes, resides in the State of Colorado, and that the ordinary process of law cannot be served upon the said W. A. Moses.”

Upon this affidavit, the clerk, in vacation, issued an order of publication which styles the case at bar as “E. H. Van Natta and Lewis M. Pratt, plaintiffs, against W. A. Moses, defendant.” Among other things said order of publication contained the following: “That said defendant is a non-resident of the State of Missouri, residing outside of the State of Missouri; and said clerk being, from said petition, process and return herein, and otherwise, duly satisfied, and thereupon duly finding that process herein cannot be served on said defendant, W. A. Moses, it is therefore ordered by said clerk that said defendant, W. A. Moses, be notified by publication that plaintiff by petition herein filed of date June 8th, 1905, has commenced against said defendant an action at law, and the immediate object and general nature of which is,” etc.

On the 27th day of September, 1905, the defendants filed the following motion:

“Come the defendants, by their attorneys, and appearing for the purpose of this inotion alone, and as friend of the court, move the court to quash the service in this case for the following reasons, to-wit:
“First. W. A. Moses was at the time and long before the commencement of this suit, and still is, a resident of Kansas City, Jackson county, Missouri, and has not been served personally, and there has never been a finding of this court based on a non est return that the defendant could not be served in this State.
“Second. The order of publication is not based on an affidavit filed alleging that defendant Moses is a non-resident.
“Third. Defendant, the Harroun Real Estate Co., has not been legally served, for the reason the petition fails to allege that defendant is a corporation or a company, and the sheriff’s return is upon the president of defendant, and no copy of the petition was served upon him.”
To sustain said motion, the defendants introduced witness L. O. Hailey, an. attorney at law, who testified that he was acquainted with W. A. Moses in a business way, and had correspondence with him during the months of May, June and July, 1905, and that the letters of Mr. Moses were all dated at Kansas City, Jackson county, Missouri. He produced one letter addressed to him, dated “Kansas City, Mo., Aug. 31, 1905,” and signed by “W. A. Moses.”

Defendants also introduced in evidence Eecord Book 29, of the office of the recorder of deeds of Douglas county, showing the record of the deed from Harronn to W. A. Moses, dated April 6, 1904, and recorded October 22, 1904, which deed, it was conceded, showed that the residence of W. A. Moses, on April 6, 1904, was in Jackson county, Missouri.

After hearing said evidence, the court overruled the motion to quash the service, the defendants excepting. The defendants declined to further appear in the case, whereupon the court rendered judgment in favor of the plaintiffs, and divesting the defendants of all claims to or interest in said land, from which judgment, after unsuccessful motions for a new trial and in arrest of judgment, the defendants appealed.

The defendants contend that the court erred in overruling their motion to quash.

The first ground of said motion is that “W. A. Moses was at the time and long before the commencement of this suit, and still is, a resident of Kansas City, Jackson county, Missouri, and has not been served personally, and there has never been a finding of this court based on a non est return that the defendant could not be served in this State.”

The record discloses that, upon the filing of the petition, summons was issued to the sheriff of Buchanan county, Missouri, against the defendants, which was returned executed on the 24th day of June, 1905, “by delivering a true copy of said writ, with a petition annexed, to W. H. Harronn, president of the Harroun Eeal Estate Company, and after a diligent search, failed to find W. A. Moses in my county.” Signed: “J. M. Sampson, sheriff of Buchanan county, Missouri; by J. H. Martin, Deputy.”

While the defendants claim that the return was made prematurely, there is nothing in the return nor in the record to show when the writ was in fact re-turned to the clerk’s office from which it was issued, in the absence of which the presumption must be indulged that the sheriff did his duty as an officer, and made return upon the first day of the following term of court, which was on the 26th day of June, 1905.

It is insisted by the defendants that the order of publication issued in this case was unauthorized, it not having been based upon a finding of the court, but upon a finding of the clerk, in vacation.

Section 575, Revised Statutes 1899, declares that in suits of the kind therein mentioned, “if the plaintiff or other person for him shall allege in his petition, or at the time of filing same, or at any time thereafter shall file an affidavit stating that part or all of the defendants are non-residents of the State, or is a corporation of another State, kingdom or country, and cannot be served in this State in the manner prescribed in this chapter, or have abandoned or absented themselves from their usual place of abode in this State, or that they have concealed themselves so that the ordinary process of law cannot be served upon them, the court in Which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the non-residents or absentees, notifying them of the commencement of the suit,” etc.

Section 577 provides as follows: “When, in any of the cases contained in section 575, summons shall be issued against any defendant, and the sheriff to whom it is directed shall make return that the defendant or defendants cannot be found, the court, being first satisfied that process cannot be served, shall make an order as is required in said section. ’ ’

With reference to these two provisions of our statutes, Valliant, J., speaking for this court in the case of Cummings v. Brown, 181 Mo. 711, said: “We first observe that under section 577, unlike section 575, the order of publication can be made by the court only; it cannot be made by the clerk; second, it can be made by the court only after it has become satisfied that process cannot be served. There is a judicial investigation required and the finding of a fact, which fact is an essential foundation of the order. And preliminary to the judicial investigation there must be the return of the sheriff on the summons that the defendant cannot be found. The court may be satisfied of the fact from the sheriff’s return, but is not confined to that. An order of publication reciting that, whereas the sheriff has returned the summons saying that the defendant cannot be found, therefore it is ordered by the court that publication be made, would not satisfy the requirements of that section, but in addition thereto it must show that the court has become satisfied that the process cannot be served. [Tooker v. Leake, 146 Mo. 419.] ”

In the case at bar, the order of publication issued by the clerk of the court was without authority, and void. It was also void for the further reason that it did not properly style the case, the name of 'the Harroun Real Estate Company, one of the parties defendant, having been omitted, and represented that W. A. Moses was the only party defendant. The order of publication being void, and there being no personal service on defendant Moses, the court had no jurisdiction as to him.

Defendants also contend that the affidavit of the non-residency of W. A. Moses, in addition to stating that he was a non-resident, should also have stated that the ordinary process of law could not be served upon him in this State, and rely upon the case of Hedrix v. Hedrix, 103 Mo. App. 40, as sustaining that contention. But said case was overruled by the same court in Harbert v. Durden, 116 Mo. App. 512; and in Paddock v. Paddock, 91 S. W. 398; also by this court, in the recent case of Keaton v. Jorndt, 220 Mo. 117. If the Harroun Real Estate Company is a corporation, it should have been sued as such; but if the Real Estate Company is a partnership firm, then the names of the persons composing snch company should he set ont, and each individual member thereof served with process in the manner provided by section 570, Revised Statutes 1899.

The motion to quash should have been sustained. The judgment is reversed, and the cause remanded.

All concur.


author: GANTT, P. J.

text:
    MOLLIE LAPPIN et al. v. A. B. CRAWFORD et al., Appellants.
    Division Two,
    June 8, 1909.
    1. CANCELLING NOTES AND MORTGAGE: Extortion. Where an agent for a money lender is fully apprised of the necessities of debtors and that speedy action must be taken by .them in order to redeem their land, and knowing these facts takes advantage of them and, without consideration, extorts notes and a deed of trust from them for himself, the notes will be cancelled and the conveyance set aside.
    2. -: -: Knowledge. And under such circumstances, the fact that the makers of the notes and deed of trust knew they were executing them when they signed and acknowledged them will not prevent their cancellation.
    3. -: -: This Case. O’Day held a mortgage of $7,420 on plaintiffs’ land, and had foreclosed the same and bought in the land. Prior thereto they applied to Crawford for a loan of $7,000 saying O’Day had agreed to throw off the $420 interest due. Crawford undertook to get the money from D.,. but D. refused to loan more than $6,000, and thereupon O’Day agreed to throw off $1,420 and to convey the land to plaintiffs if they would pay him $6,000 by March 17th, and Crawford neglected to close the deal until late in the afternoon of that day. They paid him his agreed commission of $300, and executed the deed of trust to D., and thereupon Crawford required of them to execute two notes to him of $500 each and secure them by a junior deed of trust, but they protested and refused, whereupon Crawford declared that unless they did so the loan of $6,000 would not go through and they could not redeem their land, and under those conditions they signed the two $500 notes and signed and acknowledged the deed of trust to secure the same. Held, that the notes and deed of trust were not only without consideration, hut their execution was extortion of the most flagrant character, and a court of equity should cancel them.
    Appeal from Greene Circuit Court. — Hon. G. W. Goad, Special Judge.
    ArmitMEn.

      Hamlin & Seawell for appellants.
    (1) When the question as to the sufficiency of the petition upon demurrer was determined by this court, the principles of law applicable to such transactions were clearly declared in the opinion, and our contention is that the evidence in this cause falls far short of bringing it within the principles so declared as to entitle plaintiffs to the relief demanded. (2) Plaintiffs must show that they exercised due diligence, for courts of equity will not grant relief from a transaction based on neglect. Brown v. Pagan, 71 Mo. 568; Mateer v. Railroad, 105 Mo. 352; Bryan v. Hitchcock, 43 Mo. 527. (3) The evidence in this case Joes not come up to the standard necessary to grant the relief demanded. Jackson v. Wood, 88 Mo. 78; Davis v. Pox, 59 Mo. 125; Bryan v. Hitchcock, supra. (4) Plaintiffs are not entitled to any relief on account of their delay and conduct after the transaction. Hart v. Hamblin, 43 Mo. 171; Este v. Reynolds, 75 Mo. 563; Taylor v. Short, 107 Mo. 384; Lewis v. Land Co., 124 Mo. 688; Williams v. Railroad, 153 Mo. 487.

      Hamlin & Hawkins for respondents.
    (1) This case was before this court on demurrer, and is reported in 186 Mo. 462. (2) The execution of the notes and deed of trust was procured under conditions which show their procurement was by a fraudulent advantage or imposition and equity will afford relief. Story’s Equity Jurisprudence (13 Ed.), 239. That the execution of these notes and deed of trust was fraudulently procured, there can scarcely be a doubt. (3) The contract made was undoubtedly a nuclum pactum and can not be enforced. Lingenfelder v. Brewing Co., 103 Mo. 578. (4) Contracts made under extreme necessity and distress of the parties will not be enforced, but will be set aside by the courts. Turley v. Edwards, 18 Mo. App. 676; Font v. Giraldin, 64 Mo. App, 165.
   GANTT, P. J.

This is the second appeal in this cause. The first appeal was from a judgment sustaining a demurrer to the bill, and that judgment was reversed by this court. [Lappin v. Crawford, 186 Mo. 462.]

After the. cause was remanded the defendants filed their answer and the plaintiffs their reply, and the cause was tried and a decree rendered in favor of the plaintiffs, canceling the notes described in plaintiffs’ petition and setting aside the deed of trust securing the same. Within due time the defendants took the proper steps to perfect an appeal to this court. The petition is set.forth in full in the report of this case on the former appeal in 186 Mo. 462, and it is therefore unnecessary to reproduce it in full at this time. After the cause was reversed the defendants filed their joint ans“wer, in which they stated that for a long time prior to March 3, 1900', plaintiffs were the owners of the real estate described in their petition, subject, however, to a certain deed of trust payable to one John O’Day, and that on the 3rd day of March, 1900, said O’Day foreclosed said deed of trust and at said sale John O’Day, junior, became the purchaser of said real estate for the sum of one thousand dollars; that sometime after the date of the foréelosure plaintiffs came to the defendant Crawford and told him that the place had been sold and that they had lost it and requested the defendant to purchase said land from the said O’Day, or procure the title for them, and stated at the time that said farm was reasonably worth $12,000; that afterwards the said Crawford told them that he could procure a deed from the said O’Day for the sum of seven thousand dollars and could procure a loan on said farm for them of $5,760, and if they would negotiate said loan and give him, the said Crawford, their note for one thousand dollars, divided into two payments of five hundred dollars each, and would secure the same by a deed of trust on the land, he would procure the title to the said land for them. That they agreed to do so and did on the 17th day of March, 19001, execute to one Sprague a note for $5,760, and secured the same by a deed of trust on.said real estate, said note was to bear interest at the rate of five per cent; and that they also executed another note to Jerome Dickerson for $576 for the commission to the said Dickerson for making the Sprague loan and secured said note by a second deed of trust ,on said real estate, and executed two notes to this defendant Crawford for $500 each to mature six and seven years respectively, and secured said notes by the third deed of trust on said real estate ;. that the entire transaction was fully explained to the plaintiffs and that they agreed to the same and executed said notes and deed of trust to defendant, Crawford, with full knowledge of their contents. Defendants aver that plaintiffs have no interest in this action and are not the owners of the real estate or the real parties in interest.

In their reply the defendants denied that they agreed to execute to the defendant, Crawford, the two notes of $500 each, but say that the said notes were executed because said Crawford refused to permit said loan to be made until they were executed and that no consideration passed from the defendants to the plaintiffs for the same. Wherefore plaintiffs pray judgment as stated in their petition.

At the conclusion of all of the evidence, at the request of both parties the court made a special finding of facts, which is in the following words:

“That on or about February 26th, 1896, plaintiff, George Lappin, purchased of J. R. Willyard the following described land situated in Greene county, Missouri, to-wit: The east half of the east half of section 16, and the west half of section 15, all in township 28, range 22, containing 320' acres, subject to a deed of trust executed by said Willyard in favor of John O’Day to secure notes payable to John O’Day, amounting to $7,000, which sum grantee and plaintiff, Georg’e Lappin, assumed and agreed to pay. Said deed to Lappin for consideration of about $9',000, and was recorded March 17, 1900'.

“That on or about March 3, 1900, plaintiff, having defaulted in the payment of the notes and interest thereon, amounting at that time to about $7,420', secured by the deed of trust executed by said Will-yard to John O’Day, the above described land was sold at trustee’s sale and bid in by said John 0'’Day, or for him.

“That prior to said trustee’s sale, and by virtue of the O’Day deed of trust, plaintiffs applied to defendant Crawford for a loan of $7,000, with which to pay off and satisfy said O’Day deed of trust, O’Day having at that time agreed with plaintiffs to thro'w off $420 of the debt.

“That in pursuance of said application, defendant Crawford had Jerome Dickerson examine said land above described with the view of procuring a loan of $7,000 from said Jerome Dickerson for plaintiffs. That said Dickerson, after examining said land, refused to make a loan of $7,000 and agreed to make a loan of $6,000 on said farm.

“That about, or a short time prior to the time of said trustee’s sale foreclosure of the O’Day deed of trust (on March 3, 1900) plaintiffs, having been informed that Dickerson refused to make a $7,000 loan, but that he, Dickerson, would loan $6,000 on said land, went to Dickerson and informed him that O’Day would carry $1,000 if he, Dickerson, would loan the $6,000 on said land. That Dickerson, at that time, refused to make the $6,000 loan, if there was to be any other incumbrance on said land, but did agree to make the $6,000 loan if there were no other incumbrance, plaintiffs being advised of such agreement.

“I find that at some time near the date of said trustee’s sale on March 3rd, 1900, said O’Day agreed with plaintiffs that he, O ’Day, would throw off $1,420 of his debt against plaintiffs and agreed that they might redeem said land on the payment to him of the sum of $6,000 on or before March 17, 1900. I find that prior to March 17, 1900-. defendant Crawford had knowledge of the fact that John O’Day had agreed with plaintiffs to throw off said $1,420, and permit plaintiffs to redeem said land on the payment to him, O’Day, of the sum of $6,000, on or before March 17, 1900.

“I find that prior to March 17, 1900, defendant Crawford agreed with plaintiffs to procure for them a loan of $6,000 for the sum of $300 commission, which said commission of $300 was -thereafter paid to defendant in full.

“I find that it was agreed upon, or at least understood, by all parties interested in the procurement of said loan that said loan was to be made and the transaction consummated on March 17, 1900; that on said date plaintiffs came to the office of defendant Crawford, in Springfield, Greene county!, Missouri, in the morning of said day; that defendant Crawford informed plaintiffs that Dickerson would not be ready to attend to the matter until the afternoon of that day, and requested plaintiffs to come to his, Crawford’s, office at one o’clock, at which time plaintiffs returned to defendant Crawford’s office and remained in said office until the defendant Crawford came, which was about the hour of two p. m. of said March 17, 1900. That about the time mentioned defendant presented to plaintiffs the following instrument in writing— which instrument I find had been drafted the day before — for execution by plaintiffs, to-wit: A deed of trust on the land hereinbefore described from plaintiffs to Gr. A. Watson, trustee for R. W. Sprague, beneficiary, to secure a note for $5,760, due five years after date, and drawing five per cent interest from date. Also a deed of trust on said land from plaintiffs to Gr. A. Watson, trustee for Jerome Dickerson, beneficiary, to secure anote for$576, due three years after date, drawing seven per cent interest from date, and subject to a deed of trust first mentioned to Sprague. Also a deed of trust on said land from plaintiffs to Gr. A. Watson, trustee for defendant A. B. Crawford, beneficiary, to secure two notes of $500 each, payable to defendant A. B. Crawford, one due six years after date, and one seven years after date, with five per cent interest from maturity, subject to the two former deeds of trust to Sprague and to Dickerson, which last mentioned deed of trust and notes are the subject-matters of this suit.

“That at'the time last mentioned plaintiffs signed the first two notes and deeds of trust, to-wit, the note and deed of trust to Sprague and the note and deed of trust to Dickerson, but protested to defendant Crawford against signing the two $500 notes to defendant Crawford, and the deed of trust to secure same, and at the time refused to sign said last mentioned notes and deed of trust, whereupon defendant Crawford notified plaintiffs at the time that if plaintiffs refused to execute to him said last mentioned notes and deed of trust, said $6,000 loan would not be made.

“I find that plaintiffs had no knowledge that defendant Crawford would require them to execute to him said deed of trust and said two $500 notes, as a condition to securing by him said $6,000 loan or for redeeming said land from O’Day, prior to the time said deed of trust and said notes were presented by defendant Crawford to plaintiffs for their execution on said March 17, 1900.

“I further find that plaintiffs, at the last mentioned time, and after defendant Crawford told them that the loan would "not be made if they refused to execute said deed of trust and notes to him, did sign said notes and deed of trust, and at once proceeded with defendant Crawford to the office of a notary public, before whom, in the presence of defendant Crawford, they acknowledged each of the three deeds of trust hereinbefore mentioned; that said deeds and notes were then taken by defendant Crawford to the office of defendant G. A. Watson, who was the attorney for said Dickerson; that said Dickerson, through his attorney, Gk A. Watson, then paid to said O’Day a check for $6,000 and received from O’Day the trustee’s deed made by virtue of the foreclosure of the O’Day deed of trust, said trustee’s deed conveying said land to plaintiff Mollie Lappin. That soon after all three of said deeds of trust and said trustee’s deed were filed in the office of the recorder of deeds in Greene county, Missouri.

“I further find that at the time plaintiffs executed the notes and deeds of trust in controversy to defendant Crawford, they believed that defendant Crawford would prevent the procuring of said $6,000 loan from Dickerson, and that plaintiffs further believed that unless said loan was procured on that day they would be unable to redeem said land from O’Day, and that defendant was aware of this state of mind of plaintiffs.

“I find that at the time last mentioned, defendant Crawford owned no interest, either legal or equitable, in said land and that no consideration passed from defendant Crawford to plaintiffs for said notes and deed of trust executed by plaintiffs to him.

“That at the time this suit was had, and thereafter, plaintiffs had no interest in said land, the same having been conveyed by trustee’s deed to E. C. Nichols, said conveyance being made by virtue of a foreclosure of a deed of trust executed July 14, 1900, by plaintiffs to secure to Nichols & Shepherd notes amounting to $2,175:

“That defendant Crawford is the owner and holder of said deed of trust and two $500 notes, the subject of this action.”

The court thereupon rendered its judgment and decree cancelling said notes and setting aside said deed of trust as prayed in plaintiffs’ petition.

I. The law in this case was settled in the opinion of this court on the former appeal in the 186 Mo. 462.

After a careful review of the testimony on both sides of this case, we think that the circuit court was fully justified in finding that John O’Day, who held a mortgage for $7,420' on the land owned by the plaintiff, had foreclosed the same and bought it in through his son John O’Day, junior. Prior to this foreclosure, tbe plaintiffs, the Lappins, had applied to the defendant, Crawford, to procure them a loan on the said lands for $7,000, stating to him that Mr. O’Day had agreed to throw off the $420 interest then due. Negotiations between the defendant Crawford and Jerome Dickerson were entered into, but Dickerson, after examining the farm, refused to lend more than $6,000. After the foreclosure the Lappins again applied to Mr. O’Day to redeem the land and he agreed with them that if they would pay him $6,000 by Saturday, March 17, 1900, he would convey the land to them. This proposition of Mr. O’Day was made known to the defendant, Crawford, and he undertook and agreed for a commission of five per cent or $300, which the evidence shows he received from the plaintiffs, to get a loan for the Lappins of $6,000 by Saturday, March 17, 1900. Crawford neglected to close up the loan until late in the afternoon of the 17th of March, and then after the Lappins had signed the notes payable to Sprague and Dickerson and secured the same by deed of trust on their land, the defendant Crawford required the Lappins to sign the two notes and deed of trust which are the subject of this suit, but they protested and refused, whereupon defendant Crawford declared that unless, they did so the $6,000 loan would not go through and they could not redeem their land, and it was under these conditions that plaintiffs executed the notes and deed of trust on their lands, which they seek to have cancelled by the court.

In other words, the testimony now establishes what the demurrer confessed on the former appeal, to-wit, that -the defendant was fully apprised of the necessities of the plaintiffs and that speedy action must be taken by them in order to redeem their lands, and knowing this, took advantage of plaintiffs and without consideration extorted the two notes and deed of trust from them, in excess of the $300' commission which they had agreed to pay and did pay him to procure the loan of $6,000 from Sprague, through Dickerson. Counsel for defendant argue at great length upon the discrepancies in the testimony of the plaintiffs but the fact remains undisputed in the record that Mr. O’Day voluntarily gave Mrs. Lappin $1,420 of the debt due him, as the writing in evidence fully attests, and that the Lappins then only had $6,000 to raise to redeem tlieir lands. They' were willing to execute the Sprague and Dickerson notes in order to procure the $6,000 and also to pay $300 to defendant for procuring that loan, and it needs little corroborative testimony to establish that the exaction of notes for another $1,000 and a deed of trust to secure the same, was extortion of the most flagrant character. But it is argued that the Lappins knew they were executing these notes and this deed of trust when they sighed them and that a court of equity 'will not relieve them in such circumstances. This contention was answered when this cause was here on the former appeal, and it was said, in the language of this court in Bell v. Campbell, 123 Mo. l. c. 14 and 15, as follows: “The circumstances of this case clearly bring it within the operation of the principle that condemns and avoids a. contract entered into where the obligor is not a free agent; where he stands in vinculis; where he is not equal to the task of protecting himself; where the circumstances which surround him at the time are of such extreme necessity or of distress that his will is overcome, his free agency destroyed by some oppression or fraudulent advantage or imposition incident to the transaction; in such case a court of equity will protect him, by setting aside the contract thus made.” [1 Story, Eq. Juris. (13 Ed.), sec. 239.]

Moreover having agreed to procure the loan for five per cent, or $300, the exaction of the promise of the additional $1,000 was clearly without consideration and nudwm pactum and the courts will not enforce such an unconscionable claim. As to the credibility of these parties, their evidence was heard by a judge who resided in the same county with all of them. He saw them and had opportunity to observe their manner of testifying and he believed the evidence of the plaintiffs and we think there is much internal evidence which corroborates them. The circuit court having applied the principles announced by this court for his guidance and there being ample testimony to support his findings, the judgment and decree of the circuit court is affirmed.

Burgess and Fox, JJ., concur.


text:
    THE STATE v. EDWARD F. CLARK, alias FRANCIS, Appellant.
    Division Two,
    June 8, 1909.
    INSTRUCTION: Completed Crime: Instruction for Attempt. Where the evidence very clearly shows that the offense with which defendant is charged, namely, sodomy with a hoy, was completed, and there is nothing in the evidence which tends to show an incomplete attempt to commit said offense, it is error to give an instruction for attempted sodomy.
    Appeal from St. Louis City Circuit Court. — Mon. Wm. M. Kinsey, Judge.
    Reversed and remanded.

      Willis H. Clark for appellant.
    The instruction authorizing the conviction of defendant of the offense of attempted sodomy was not warranted by the evidence and the verdict finding him guilty of attempted sodomy was contrary to the evidence and not responsive to the issues under the evidence. A careful analysis of the evidence will disclose that whatever proof was made under the information tended to show that the completed offense had been perpetrated. We request special attention be given to the testimony of the victim, Ruby Alfend, showing his repeated assertions that the offense had been actually perpetrated upon him. There can be no conviction for an alleged attempt to commit an offense upon proof which shows that if anything the completed offense was committed. State v. Scott, 172 Mo. 543; State v. Bell, 194 Mo. 267; State v. Plarris, 199 Mo. 724.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The court properly overruled the demurrer offered hy appellant at the close of all the testimony. The crime as charged, or an attempt to commit the crime as charged, was proved beyond a reasonable doubt, and the insanity defense of appellant was one of fact to be submitted to the jury, as the court properly'did in this cause. Insanity is a question of fact to be proved like any other fact. State y. Klinger, 43 Mo. 131; .Kelley’s Crim. Law (2 Ed.), sec. 38; Sherwood’s Crim. Law, p. 777. (2) The question of insanity being one of fact for the jury, and the crime being proven, it then became a question of fact for the jury to determine, under proper instructions, whether appellant was sane or insane. State v. George, 113 S. W. 1118; State v. Dilts, 191 Mo. 665; State v. Miller, 191 Mo. 587; State v. Dusenberry, 112 Mo. 293; State v. Macks, 140 Mo. 656. (3) The court fully and correctly instructed the jury. Appellant was proven guilty.
   BURGESS, J.

On June 28, 1906, the assistant circuit attorney of the city of St. Louis filed an information in the circuit court of said city, charging the defendant with having committed the crime of sodomy with one Ruby Alfend, a boy of the age of twelve years. Thereafter, upon trial had, he was found guilty of an attempt to commit said crime, and his punishment assessed at imprisonment in the penitentiary for a term of five years. Timely motions for a new trial and in arrest of judgment were filed by the defendant, and the same having been overruled, an appeal was taken to this court.

The facts, briefly stated, are as follows: Defendant met the Alfend boy, who was engaged in selling newspapers, at the corner of Sixth and Olive streets, in the city of St. Louis, on the evening of June 27, 1906, and directed him to go into the alley between Lucas and St. Charles streets, and Broadway and Sixth street, and to wait there for him. The boy did as directed, and the defendant soon followed him, and, as the evidence shows, the crime was committed in said alley. A private watchman discovered the pair in the commission of the act, and immediately notified two policemen, who came to the scene of the crime and placed the defendant and the boy under arrest. The defendant appeared to be drunk at the time. He at first protested that he did not do anything, and then said there were “two sides to the case.” At the trial it was shown that he had been drinking for a day or two prior to the date of the commission of the offense. The crime was not denied, and the only defense interposed was that of insanity.

It developed at the trial that the defendant was 'one of eleven children, only four of whom were then living; that his father, who died a few years previously at the age of sixty-°four, was incapable of attending to his affairs for several years prior to his death, and was considered an imbecile; that an actor brother of the defendant became violently insane at the age of thirty-eight, and died soon afterwards in an insane asylum; that a sister of his also became insane at about the same age, and was still an inmate of the City Insane Asylum in St. Louis, having been there some eight years; that the defendant bore a striking resemblance to his father, as did also the insane brother and sister; that he had a living brother who was then manager of a shoe factory, and a sister, who was a music teacher. The latter testified at the trial as a witness for the defendant.

Dr. John J. Ryan, a non-expert witness, testified that he had known the defendant twelve or fourteen years, and considered him weak intellectually. He further testified that from his knowledge of and acquaintance with the defendant he would not say that he was an insane man, hut that he appeared to he really insane when under the influence of intoxicants, and was then entirely incapable of discharging his duties and obligations to himself or his fellows.

Dr. Jóhn H. Simon, an expert witness introduced on the part of the defendant, testified that he had examined the defendant once, and he gave it as his opinion that he was not then insane. However, in answer to a hypothetical question based upon the facts in evidence, including those in relation to the dementia of three of the defendant’s near relatives and his own peculiar traits of character, the. expert stated that in his opinion the defendant was irresponsible and incapable of distinguishing between right and wrong at the time of the commission of the offense.

The testimony further showed that the defendant was a house painter and had been working at his trade since the time of the alleged offense, and that nothing unusual had been observed in his conduct.

There is but one point presented by this appeal, and that is as to the correctness of instruction numbered 3, given by the court over the objection of the defendant. Said instruction reads as follows:

“If, under the first and second instructions given you above, you acquit the defendant of the completed offense charged in the information as defined in said instructions, then you will consider whether or not, under the evidence in this case, of which you are the sole judges, the defendant is guilty of an attempt to commit said offense, and in this connection the court instructs you as follows:

“If you believe and find from the evidence in this case, in the light of the court’s instructions, that at the city of St. Louis, in the State of Missouri, on or about the 27th day of June, 1906, or at any time .within three years next before the filing of said information, the defendant, Edward F. Clark,' alias Francis, did then and there wilfully, that is to say, intentionally, feloniously, and against the laws of nature, attempt to copulate or to have intercourse with the body of the said Ruby Alfend, in the manner defined in instruction one and two, given above, and in such attempt did any act or acts towards the commission of said offense, but failed in the perpetration thereof, or was prevented or intercepted in executing the same, then you will find the defendant guilty of an attempt to commit said detestable and abominable crime against nature, and so state in your verdict, and assess his punishment at imprisonment in the penitentiary for a term of not less than two years, and unless you so believe and find, you will acquit the defendant altogether. In this connection the court instructs you that acts done on the part of the defendant to constitute an attempt to commit the detestable and abominable crime against nature must have been such as was suited and adopted to carry into execution a purpose and design to accomplish the alleged crime. Whether such acts were committed by the defendant, and whether the acts testified to by the witnesses were as a matter of fact done by him, and if so done by him, what purpose he had in doing them, must be determined by the jury, and determining his intent or purpose, the jury should take into consideration what if anything the defendant may have said or done at the time, as well as all the surroundings, facts and circumstances shown by the evidence in this case.”

It is contended that this instruction was not warranted hy the evidence, and that, the verdict, finding the defendant guilty of attempted sodomy, is contrary to the evidence and not responsive to the issue.

The evidence shows very conclusively that the offense with which the defendant stands charged was completed hy him, and there is nothing in the evidence which tends in the slightest degree to show anything to the contrary. The instruction in question was foreign to any issue in the case, was unwarranted hy the evidence, and should not have been given. [State v. Scott, 172 Mo. 536; State v. Bell, 194 Mo. 264; State v. Harris, 199 Mo. 716.] As the evidence did not justify an instruction for attempted sodomy, hut did prove that the offense charged in the information was completed, the court erred in giving said instruction. The judgment is reversed, and the cause remanded.

All concur.


text:
    THE STATE v. HARRY HARMON, Appellant.
    Division Two,
    June 8, 1909.
    NO BILL OF EXCEPTIONS. Where no hill of exceptions was filed hy defendant in his appeal from a judgment adjudging him guilty of manslaughter in the fourth degree, under an indictment charging him with murder in the second degree, and the record proper is free from error, the judgment will he affirmed.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The information, which was duly verified, is sufficient in form and substance. Sherwood’s Crim. Law, p. 34; Kelley’s Crim. Law (2 Ed.), sec. 474; State v. Bradford, 156 Mo. 95; State v. McGinnis, 158 Mo. 116. (2) The arraignment, verdict and the sentence and judgment are shown by the record proper. There is nothing before this court, except the record proper, and no error appearing therein, the judgment should be affirmed. State v. Nicholas, 193 Mo. 214; State v. Sparks, 191 Mo. 162.
   BURGESS, J.

On May 3, 1906, the assistant circuit attorney of .the .city of St. Louis filed an information charging the defendant with murder in the first degree for the killing of one John Mitchell, with a pistol, on the 26th day of April, 1906. Thereafter, on January 16, 1907, upon trial had, the defendant was found guilty of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the penitentiary for a term of two years. In due time he filed motions for a new trial and in arrest of judgment, which were overruled, whereupon he appealed.

No bill of exceptions having been filed in this case, there is nothing before the court for review save the record proper.

The defendant is not represented in this court. We have, however, carefully examined the record proper, and find it free from error. The judgment should be affirmed. It is so ordered.

All concur.