author: VALLIANT, J.

text:
    V. G. FARRIS et al. v. F. B. BURCHARD et al., Appellants.
    Division One,
    March 29, 1912.
    1. WILL: Probate: Record Matter. A will cannot take effect until it is probated, and it is not probated until tbe court having jurisdiction so declares by its judgment entered upon its record. Proof of the will may be taken in vacation by the clerk or the court, and may be indorsed op the will itself, and that proof may be sufficient to justify the court, if ,it so adjudges, at the next or perhaps a subsequent term, to enter its judgment declaring the will duly probated, but the court may reject that proof and refuse to probate it, for the statute says that the proof is “subject to the conformation or rejection of the court.” That proof is not a probate,, and will not alone authorize the court to presume that it has been probated.
    2. -: -: -: No Record. If the record does not show that the will was probated, and it has never been recorded either in the probate court or the recorder’s office, and there is nothing attached to it or to be found in the papers in the case to show that it has ever been probated, except an indorsement of .proof on its back, it will not be held to have been probated, in a suit in which title to land depends upon its validity.

      Appeal from Gasconade Circuit Court. — Eon. R. 8. Ryors, Judge.
    Beversed and demanded.

      August Meyer, C. G. Baxter and Robert Walker for appellants.
    (1) A will is a muniment of title only if duly pro-' bated; and tbe probate of a will is a judicial act, which can be shown only by the record of the court. Creasy v. Alverson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Sniffer v. Howerton, 124 Mo. 637; Stowe v. Stowe, 140 Mo. 594; Cohen v. Herbert, 205 Mo. 537. (2) Probate courts, under our laws, have original jurisdiction of the probating of wills; and there is no probate of a will unless there has been a judicial pronouncement by the probate court establishing a will as legally proved. Jourden v. Meier, 31 Mo. 40; Smith v. Estes, 72 Mo. 310; Sniffer v. Howerton, 124 Mo. 637. (3) Taking evidence to pronounce a will as proved is not a judicial pronouncement of the probate of a last will. Jourden v. Meier, 31 Mo. 40; Charlton v. Brown, 49 Mo. 353; Barnard v. Bateman, 76 Mo. 414; Bothwell v. Jamison, 147 Mo. 601. (4) Although it has been held that the judicial pronouncement of probate of a will may be inferred from certain other official acts and proceedings, yet it will be found that in all these cases the presumption of probate of a will was indulged in on the sole ground that such official acts and proceedings could not have occurred except through a judicial pronouncement of probate of a will. If such official acts could have been performed legally without any probate of a last will', then such acts and proceedings prove nothing in the way of probate of a last will. 14 Ency. of Evidence, p. 489; Marcy v. Marcy, 6 Mete. (Mass.) 360; Fortheree v. Lawrence, 30 Miss. 418; Holliday v. Ward, 19 Pa. St. 489; Guthrie v. Kerr, 85 Pa. St. 303; In re Coleman, 163 Pa. St. 334; Opp v. Chess, 204 Pa. St. 401. (5) The granting of letters to Peter W. Burchard on the estate of James Johnson, deceased, did not have to proceed from a judicial pronouncement of prohate of the purported last will of James Johnson. Peter W. Burchard was 'not appointed as executor in said purported will, nor was anybody else appointed who could have renounced as executor under said purported will. Letters could have issued to Peter W. Burchard or anybody else without any probated will. Holliday v. Ward, 19 Pa. St. 489; Fotheree v. Lawrence, 30 Miss. 418; Rothwell v. Jamison, 147 Mo. 601. (6) Wills, after being probated, must be recorded, and were required to be recorded in 1865 when James Johnson died. Sec. 26, c. 167, R. S. 1855; Sec. 25, eh. 131,'R. S. 1865; Sec. 4630, R. S. 1899; Sec. 563, R. S. 1909; Kieth v. Kieth, 97 Mo. 223; Graves v. Ewart, 99 Mo. 13. (7) The purported last will of James Johnson, deceased, was neither probated nor recorded. Presented on the trial of this cause in the condition of not being recorded and certified by the clerk of the court, and attested by his seal of office, it was, against objection by defendant, no evidence of title. Sec. 27, ch. 167, R. S. 1855; Sec. 26, ch. 131, R. S. 1865; Sec. 4631, R. S. 1899; Sec. 564, R. S. 1909; Barnard v. Bateman, 76 Mo. 414. (8) •Defendant by himself, as well as grantee of persons having paid valuable consideration for said land, without notice of the purported will of James Johnson, and without means of knowing of the same, is entitled to be protected. This court has repeatedly held that outside wills, devising real estate in this State, must be recorded in this State, in order to give notice. Is there any reason why the same rule should not apply to wills in this State? Van Syckel v. Beam, 110 Mo. 589; Keith v. Keith, 97 Mo. 223'.

      J. W. Eensley for respondents.
    (1) The will of James J. Johnson was duly and legally probated, and respondents, as his devisees, thereby became vested with title to the real estate in controversy. Rothwell v. Jamison, 147 Mo. 610; Creasy v. Alverson, 43 Mo. 13; Adm’r v. Stevenson, 54 Mo. 108. Under the law of 1865, as now, the clerk may take the proof of last wills in vacation, in which event the court must confirm or reject, or the court may take the proof. In this case the proof was taken in open court, and preserved by being indorsed on the will. Here is a will proved in open court in due form, will in good form, fair upon its face, free from doubt or suspicion, followed by appointment of administrator with the will annexed, who is directed, and does not give bond as such administrator. Upon such a state of facts we have not only the presumption that the will was probated, but a record admission of it, and so it was held by this court in the case of Adm’r v. Stevenson, 54 Mo. 108. (2) In order to authorize the appointment of an administrator with the will annexed, it must appear, that there is a valid will in existence, which has been duly admitted to probate. 2 Am. & Eng. Ency. Law (2 Ed.), p. 789; 18 Oyc. 98 (b). (3) The will of James J. Johnson having been proved in open court, the proof endorsed upon the will, and as we think legally probated, found in the custody of the probate court, fair upon its face and free from alterations or suspicion, and more than forty-years old was admissible in evidence as an ancient document. 17 Cyc. 443 (d). (4) The provisions of the law of 1865 requiring clerks of county courts to record wills was for the purpose of perpetuating the will but a failure to so record in no wise affected the validity of the will. And under the laws of 1865 domestic wills were not required to be recorded in the recorder’s office, unless they devised lands situate in different counties. Sec. 28, chap. 131, Gr. S. 1865.
   VALLIANT, J.

This is a suit under section 650, Eevised Statutes 1899, to quiet title to the north half of the northwest quarter of section 8, township 41 north, range 5 west, in Gasconade county. Plaintiffs in their petition claim to he the owners of a remainder in fee of an undivided one-fourth of the land mentioned, subject to a life estate in their mother in that one-fourth, and they say that the defendant Burchard is the owner in fee of the other three-fourths. Thurman N. Matthews, brother to the other plaintiffs, was first made a party defendant, but on his motion was made a party plaintiff.

There is no dispute about the facts. James Johnson was the common source of title; he died in 1865, leaving a wife and four daughters, one of whom, Mary Elizabeth, is the mother of these plaintiffs. The wife is long since dead. The defendant now owns whatever title the four daughters acquired by descent as the heirs of their father James Johnson, which was the whole estate if their father died intestate. Plaintiffs claim that he died testate, and that his will has been duly probated; if that is correct, then the plaintiffs, as children of their mother, Mary Elizabeth, are entitled to a remainder in fee, subject to the life estate of their mother, contingent on surviving her. Plaintiffs introduced in evidence a paper writing purporting to be the last will and testament of James Johnson, deceased. The document appears to have been duly signed by the testator and attested by three subscribing witnesses. There is no date to the instrument, but what is claimed to be the evidence of its probate, indorsed on the back of it,, is dated February 13, 1865. The instrument purports to give all the estate to his widow for life and at her death one-fourth in fee to each of the daughters except Mary Elizabeth, to whom he gives one-fourth “during her natural life and at her death to go to her bodily heirs, but if she should die without bodily heirs, it is to be divided equally among the bodily heirs of my three daughters above mentioned.”

The plaintiffs are the children of Mary Elizabeth and will be her bodily heirs if - they survive her; she is till living. This suit was begun in December, 1907, and tried in May, 1908, more than thirty years after the death of plaintiffs’ grandfather. The administration of the Johnson estate was in the probate court of that county from 1865 to 1869. No evidence was offered at the trial to impeach the verity of the instrument offered, that is, to dispute its execution, but the defendant relied on the fact, as he contended, that it had never been admitted to probate as a will. The whole case turns on that point.

The evidence adduced by the plaintiffs to sustain their claim that the will had been probated was as follows: Written on the back of the instrument was the following:

“State of Missouri, County of Gasconade, ss.
“In the Gasconade County Court. This day personally appeared in open court William R. Douglas and William L. Walton, two of the subscribing witnesses to the foregoing instrument of writing, purporting to be the last will of James Johnson, deceased, who, being duly sworn, upon oath say that the said testator exhibited this instrument to them, which he declared to be his last will and testament, duly signed by him, that at the time of exhibiting said last will he was of sound mind and over the age of twenty-one years, and that they, at his request, and in his presence, signed said will as witnesses by subscribing their names thereto.
“William R. Douglas,
“W. L. Walton.
“In testimony thereof, I have hereunto set my hand and affixed the seal of county court at office, this, the 13th day of February, and the year of Our Lord eighteen hundred and sixty-five.
“James Johnson,
7
15-2-7 (Seal)
P. W. Btjbchabd.”
“Jas. Abbott, Clerk.
“By D. B. O’Neil.

The probate record of the county contains the foh lowing entry which was read in evidence: ‘ ‘ Peter W. Bur chard is by the court appointed administrator with the will annexed of James Johnson, deceased, and required to give bond as such administrator in the sum of fifteen thousand dollars. . And thereupon he files his bond as such administrator, which is by the court examined and approved.” The date of that record entry is not given in the record before us.

The will was never recorded in the office of the probate court. It seems to have been misplaced, and was not among the papers appertaining to the estate until sometime in 1894, when the then probate judge on making search among apparently unimportant papers, with a view of destroying what did not seem worthy to be kept, found this document in an "out-of-the-way pigeon hole and on examination of it placed it among the papers of the Johnson estate and at the same time madé a memorandum in the words “last will” in the index book of the probate court containing references to the papers in that estate; the memorandum was made with a pencil and was interlined. The document thereafter remained with the papers in the case and was produced from those files at the trial.

That was all the evidence adduced tending to prove that the paper writing had been probated as a will. On that evidence the trial court decided that the will had been duly probated and decreed that the plaintiffs were the owners of a remainder in fee of an undivided one-fourth of the land in question, contingent on their surviving their mother. From that judgment the defendant appealed.

In 1865 the law was: ‘ ‘ The county court, or clerk thereof in vacation, subject to the confirmation or rejection of the court, shall take proof of last wills.” [Gr. S. 1865, p. 529.] The law is substantially now as it was then, except that it is the probate court, not the county court, that now has jurisdiction. [Sec. 547, R. ' S. 1909.]

Respondents attach some importance to the fact that it is recited in the proof indorsed on the will that the witnesses appeared and the proof was taken in open court, but if that was so it should be shown by the record of the court, it could not be shown by the indorsement of the proof on the back of the will. If it was done in open court it was not done in vacation, and therefore it was not the act of the clerk but the act of the court, and the court record should show it. But whether it was done in open court or before the clerk in vacation, it was sufficient to have justified the court, if it had so adjudged, at the next or perhaps at a subsequent term, to have entered its judgment declaring the will duly probated, but that has not been done. A will cannot take effect until it is probated, and it is not probated until the court having probate jurisdiction so declares by its judgment. The proof of the execution of the will which the statute authorizes to be taken in vacation, whether by the judge or the clerk, is not conclusive until it has been confirmed by the court, and is not so binding on the court that it may not be rejected if the court should so adjudge. [Creasy v. Alverson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310.] Therefore the proof which was indorsed by the clerk on the back of this document, which seems To be in due form and substance, would have been sufficient to have justified the court in adjudging the will duly probated, or if for any good reason appearing to the court it had seen fit to reject it, it would have had jurisdiction to do so.

A probate court is a court of record and it speaks only through its record. But it has been held by this court that a presumption that a will was duly admitted to probate should be indulged under certain circumstances. Creasy v. Alverson, above referred to, was a suit for partition; on the trial one of the parties introduced in evidence a duly certified transcript of the record of the will from the office of the clerk of the county court. The transcript so offered did not contain a copy of the record of the county court showing that the will had been admitted to probate. This court, passing on that case, referred to the statute which authorized a copy of the record of'the will to be read in evidence and held that the trial court under the circumstances had the right to presume, from the fact that the will had been recorded, that it had been duly probated, because the law only authorized the recording of it after it had been duly probated.

In Lackland v. Stevenson, 54 Mo. 108, the court assumed that the will in question had been duly probated, although the records of the probate court did not show that fact. The record in that case showed that the depositions of the subscribing witnesses had been taken under a commission that had issued from the county court and returned into court; an administrator with the will annexed had been appointed; the will was recorded; the administration continued several years during which the land was sold to pay debts. The records of the court in that case showed that, in the order appointing the administrator with the will annexed, it was recited that the will had been duly pro-' bated, and in the letters of administration it was recited that the will had been duly probated. There we have the proof of the execution of the will, the' record entry of the appointment of the administrator with the will annexed reciting that the will had been duly executed, and the record of the will; the court held that that was a sufficient showing that the will had been duly probated.

In Rothwell v. Jamison, 147 Mo. 601, also cited by respondents, there was no record in evidence that the will had been admitted to probate, but the will had been recorded and there was a transcript of that record in evidence with the proof of the execution. It did not appear in that case that there was in fact no record of the probate of the will, but the evidence offered did not show that there was such a record. The court attached importance to the fact that the will was recorded, which act it was said the clerk could not have lawfully done until it was probated and therefore the court held that under the circumstances the presumption should be that there was such a record.

Those eases go as far to sustain the plaintiffs’ theory of this case as this court has ever gone, but to fully sustain the plaintiffs’ theory we would have to go one step farther. This will was never recorded, therefore it lacks that important fact which was in the cases referred to, and as the court in the case last cited held that it should be presumed that the clerk in recording the will in that case did his duty and waited- until it had been probated, so the presumption in the case at bar should be that the clerk did his duty in withholding this will from record because, the court had not by its judgment declared it duly probated.

Whether the parties interested could now present the will for probate or whether the record is in such a condition as would entitle them now to a judgment nunc fro tunc, we express no opinion, because there is no such case before us, but we do .feel constrained to say that the proof adduced did not justify the conclusion that the will had been duly probated, and ' therefore did not justify the judgment that the respondents were entitled to the interest in the land which the judgment gives them. The judgment is therefore reversed and the cause remanded for a new trial.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    BAGNELL TIMBER COMPANY, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY.
    Division One,
    March 29, 1912.
    1. FORMER DECISION: Sufficiency of Evidence. On the former appeal in this case it was held that there was sufficient evidence to make out a prima facie case in favor of plaintiff against the present defendant. The judgment against the defendant was then reversed only because there was no evidence that plaintiff had a contract with the partnership which furnished the ties to defendant, and that there was a departure, since the petition declared upon a joint contract made with the partnership and the present defendant, and the evidence showed no such joint contract.
    2. -: -: Same Holding on Same Evidence. As the court on the former appeal in effect held that the evidence tended to show that defendant entered into a contract with plaintiff for the purchase of the ties, and as plaintiff introduced at the second trial the same evidence introduced at the first, it is again held that plaintiff made out a prima facie case against the defendant at the second trial.
    3. -: Contract: Joint and Several: Liability of any Obligee. All contracts which at common law were joint only are now, under the statutes' (Secs. 2769, 1981 and 2772, R. S. 1909), joint and several; and any one of the obligees thereto may he sued, and a recovery had against those only who the evidence shows are liable thereunder. The decision of the court on the former appeal in this case (180 Mo. 420), holding that the contract pleaded was a joint contract made and entered into by plaintiff as the one party and by the defendant and a partnership as the other party, and reversing a judgment for plaintiff because the evidence did not support the allegations of the petition of a joint contract, in that it failed to show that the partnership jointly with defendant entered into a joint contract with plaintiff, hut showed only á several contract between plaintiff and defendant, and therefore there was a departure, is overruled.
    4. -: In Same Case: When Overruled. In the absence of cogent or convincing reasons shown, the Supreme Court will not open up and reconsider questions adjudicated upon a former appeal in the same case. But where such reasons are clearly shown, and especially where the former ruling inadvertently overlooked and nullified a statute, or overruled some sound and well settled principle of law, the court will reexamine the questions and overrule the former fiecjsion,

      Appeal from Pettis Circuit Court. — Eon. Louis Hoffman, Judge.
    Reversed and remanded (with directions).

      J. E. Bothwell and Charles E. Yeater for appellant.
    (1) Notwithstanding this action was brought on a contract alleged to have been made by plaintiff with defendant railway company and the firm of Graham & Miller, and the evidence fails to prove that both said defendants were parties to the contract, the plaintiff may recover against the railway company, if the evidence shows that it alone was a party to such contract. Sec. 1981, R. S. 1909; Campbell v. Hood, 6 Mo. 216; Finney v. Allen, 7 Mo. 419; Brown v. Pearson, 8 Mo. 161; Crews v. Lackland, 67 Mo. 621; Dissenting opinion of Valliant, J., herein, 180 Mo. 468; Séc. 2772, R. S. 1909; 1 Territorial Laws, 1816, p. 430; R. S. 1825, p. 215, sec. 4; Moore v. Otis, 18 Mo. 118; Gates v. Watson, 54 Mo. 590; State ex rel. v. Tate, 109 Mo. 270; Glen v. Plunt, 120 Mo. 340; Logan v. Billings, 107 Pac. 415; Sawin v. Kenny, 93 U. S. 289; Witters v. Sowles, 34 Fed. 119; Murray v. Elright, 56 Ind. 362. (2) A former decision of this court will be overruled and reversed, if cogent and convincing reasons are shown, particularly, as in this case, where former rulings of this court were inadvertently overlooked and overruled, and where express remedial statutes were inadvertently nullified. Bank v. Donnell, 195 Mo. 570; Machinery Co. v. Ramlose, 231 Mo. 527; Gracy v. St. Louis, 221 Mo. 6; Padgett v. Smith, 205 Mo. 125; Wilson v. Beckwith, 140 Mo. 382; Rutledge v. Railroad, 123 Mo. 131; Bird v. Sellers, 122 Mo. 32; Boone v. Shackelford, 66 Mo. 497; Hamilton v. Marks, 63 Mo. 172; Chambers v. Smith, 30 Mo. 158; Bealy v. Smith, 158 Mo. 522. (3) The court in its former decision ruled that “there is not one word of evidence in this case, that in the remotest or slightest degree tends to show that the plaintiff had any contract whatever with Graham & Miller, of any kind, either joint or several.” The railway company is standing here on this'former decision, and the plaintiff since that finding of fact by this court acquiesces in it. It necessarily and logically follows, that the sale was made to the railway company, which received the ties direct from the plaintiff, and the acts of the parties in carrying out the sale contract, shown by the testimony of Bagnell, Stevens and Miller, establishes the fact that the plaintiff and the railway company were the only parties to the transaction, which is of such a nature that the actual conduct of the parties furnishes a complete construction and definition of the contract. The second judgment based on the same pleadings and evidence as in the former trial, should therefore be reversed, and the former opinion should be overruled, and the first judgment should be affirmed, as ought to have been done in the first instance, as being for the right party on the undisputed evidence. Wilson v. Beckwith, 140 Mo. 389; State ex rel. v. Yaile, 122 Mo. 33.

      Lee Hagerman, George B. Jackson and Montgomery & Montgomery for respondent.
    (1) This cause was heard and decided by this court, 180 Mo. 420. The evidence was carefully and fully considered, a lengthy narrative and analysis of the evidence made, covering thirty-two pages of the report and nine pages of this devoted to the testimony of the main witness for the appellant. No oversight or mistake of any matter material to the decision of the case was made by the court in its statement or decision. The cause was reversed and remanded for a new trial and the appellant submitted the case to the lower court upon the old bill of exceptions, upon which the cause was first presented to this court, so that there was not the least change in the evidence. This conrt, in its decision of the case, held that there was no evidence of any contract with the defendant railway company to support a verdict. No cogent or convincing reasons are shown why the court should open up the case and review its former conclusions. Under these circumstances the court should treat its judgment upon the facts as res adjudicata, and closed. Gracey v. St. Louis, 221 Mo. 1; May v. Crawford, 150 Mo. 524; Yiertel v. Yiertel, 212 Mo. 573; Shoe Co. v. Ramlose, 231 Mo. 527; Baker v. Railroad, 147 Mo. 152. Under the findings of fact by the lower court, in following the mandate of this court, that there was no evidence against the defendants to support a verdict against it, the error of the court, in its instruction, if there be any, becomes wholly immaterial. (2) It is only necessary to read the opinion of this court and the opinion of Yakliant, J., to satisfy the court, that on the former hearing it did decide that there was a total failure of proof as to any contract with the defendant railway company. (3) The case was properly decided upon the facts when here the first time. Bagnell, who was the only witness who testified about the contract, does not make out any case; he so directly contradicts himself as to wholly destroy his testimony. All his dealings with the subject-matter after the alleged contract was made to show clearly, that up to the time he filed his corrected lien paper, he regarded Graham & Miller as sole contractors with plaintiff, and not the defendant railway company. They but confirm the judgment of the court that there was no evidence of any contract with defendant railway company.
   WOODSON, J.

In the year 1900, the plaintiff instituted this suit against the defendant railway company, and L. G. Graham and J. T. Miller, partners, to recover the sum of $5421.50, a balance due it, under a contract alleged to have been made and entered into by and between them, whereby the former agreed to and did sell and deliver to the latter 50,000 railroad ties, for the price of forty-three cents per tie for first class, and thirty-three cents per tie for culls.

The answer of the railroad company was very lengthy, consisting of a number of specific pleas, most of which are immaterial in so far as this appeal is concerned. One of them denied that the company either jointly or severally entered into the contract with the plaintiff mentioned in the petition; but alleged the fact to be, that Graham & Miller were independent tie contractors, and that they as such purchased the ties mentioned from the plaintiff, and sold and delivered them to the defendant company, for which it paid them the full purchase price. The answer also contained a plea of. res adjudicata.

No service was had on Graham & Miller, and the cause as to them was dismissed.

A trial was had, which resulted in a judgment in favor of the plaintiff for the amount sued for. After moving unsuccessfully for a new trial, the defendant duly appealed the cause to this court.

In due time the cause was submitted to this court, and in an opinion written by Marshall, J., the judgment of the circuit court was reversed for the reason stated in the opinion, that “there is not one word of evidence in this case that in the remotest or slightest degree tends to show that the plaintiff had any contract whatever with Graham & Miller of any kind, either jointly or severally.” Proceeding, the court in substance held that as to the defendant railway company, a recovery could not be maintained for the reason that the petition declared upon a joint contract made and entered into by and between the plaintiff, the one party, .and the railroad company and Graham & Miller, the other party, while the evidence failed to show that Graham & Miller ever entered into a contract with plaintiff, either jointly or severally, to furnish. the ties mentioned, which the court held was a total departure, and not simply a variance between the allegations of the petition and the proof. The cause was remanded to the circuit court for another trial.

The foregoing is a brief statement of the case when first presented to this court, but a full statement of it may be found in Bagnell Timber Co. v. Railroad, 180 Mo. 420.

When the cause was remanded to the circuit court, a jury was waived and the parties stipulated as to certain facts not here material, but it was expressly agreed that said stipulations should not be construed as an admission concerning the nature of the contract or as to who were the parties to the contract under which the ties were furnished to the railroad company.

By agreement, the plaintiff introduced a transcript of the evidence introduced by it, at the former trial, and rested.

The defendant company then introduced its evidence and rested; and thereupon the plaintiff introduced certain evidence in rebuttal.

The plaintiff requested the court to give to the jury three instructions, numbered one, two and three. The court gave the third, which is irrelevant to the questions here presented, and for that reason will receive no further notice. The court refused number one as asked, but modified same and gave it in said modified form, and refused number two. To all of which action of the court the plaintiff duly excepted.

Instructions numbered one and two as asked, read as follows:

“1. The court sitting as a jury declares the law to be that if it appears from the evidence that on or about April 20, 1899, the plaintiff made an agreement with defendant railway company and” the firm of Graham So Miller [or with the railway company alone] to furnish and deliver to them or to said railway company at St. Louis, Sedalia and Wagoner at and for the price of forty-three cents per tie for first class and thirty-three cents per tie for cull ties, and did so furnish and deliver 49,320 first class and five cull ties, and that defendants or said railway company have failed and refused to pay the full price for said ties, then the finding should he for the plaintiff against the defendant railway company for the sum of $5406.65, together with six per cent interest thereon from October 26, 1899.
“2. The court declares that it is admitted hy the parties to this cause that plaintiff delivered to the defendant railway company the number of railroad ties stated in the petition, and it is admitted that the unpaid balance due to the plaintiff for such ties, on October 26, 1899, was the sum of $5406.65; and the court sitting as a jury declares the law to he that if it appears from all the facts and circumstances in evidence before the court that the said railroad ties were delivered under a contract of sale made hy plaintiff with the said railway company and Graham & Miller, or with the said railway company alone, and that the said unpaid balance is yet due to the plaintiff, then the finding should he for the plaintiff and its damages should be assessed at an amount equal to said sum of $5406.65, with interest thereon at the annual rate of six per cent from said October 26, 1899.”

The ‘modification of instruction number one, before mentioned, consisted in striking therefrom the words, “or with the railway company alone,” which are embraced within the brackets.

The court, as previously stated, found for the defendant, and the plaintiff appealed.

I. There are three questions presented by this record for determination: first, does the evidence make a prima facie case against defendant; second, what is the character of the contract under which the ties were furnished; and third, is this court, by the former judgment rendered herein, precluded from a reconsideration of the questions there determined?

We will dispose of these questions in the order stated.

Attending the first: It stands confessed by all the parties to the record that the contract to purchase the ties for the use of the railway company was made and entered into by and between the plaintiff, either jointly with the company and Graham & Miller, or with the railway company alone. So it is seen that the question is not, was there such a contract in fact made and entered into, but the question is, with whom was it made?

At the first trial, the circuit court held that it was made with the railway company, and rendered judgment accordingly against it, for the balance due thereunder. Upon appeal, this court, in unequivocal language, held that the contract was not made with Gra ham & Miller, and reversed the judgment and remanded the cause to the circuit court for another trial, not because there was evidence which tended to show that the contract was not made with it, but for the express reason that there was a clear departure between the allegations of the petition, which declared upon a joint contract, and the evidence introduced, which showed a contract in severalty, and we thereby, by necessary implication, held that the contract, the existence of which was conceded, was made by the company alone. While it is true, Valliant, J., in a dissenting opinion in that case, expressly stated that there was evidence which tended to prove that the contract was made with the railway company, yet we are not justified by that statement alone, to infer that the other members of the court entertained an opposite view of the evidence, when their ruling was based upon an entirely different proposition. If it was the intention of this court to reverse the judgment against the company, not only for the reason stated, that there was a departure between the allegations of the petition and the evidence introduced, but also for the reason that there was no evidence which tended to show that the railway company entered into the contract, that would have been equivalent to holding that no contract for the sale of the ties had ever been entered into by anyone whomsoever, for the simple reason, that if not made with Graham & Miller and the railway company jointly, nor by Graham & Miller alone, as this court expressly held on the former appeal, and if, as now contended, we also by implication held that there was no evidence which tended to show that the railway company entered into the contract, then clearly no such contract was ever entered into by anyone. This, however, is contradicted by every physical fact in the case, and the admissions of the parties that a contract was made for the purchase of the .ties, that the ties were delivered in pursuance to its terms and partially paid for by the defendant.

We are, therefore, clearly of the opinion, that this court upon the former appeal held that there was sufficient evidence introduced at the former trial to make out a prima facie case in favor of the plaintiff against the railway company.

But independent of that ruling we have again critically examined the voluminous record in this case, and are satisfied that it contains ample evidence in favor of the plaintiff to carry the case to the jury,

II. We will now consider the second proposition presented for our determination, namely, what is the character of the contract sued on, as stated in the petition?

This court on the former appeal clearly held that the contract as plead, was a joint contract made and entered into by and between tbe plaintiff, tbe one party, and the railway company and Graham & Miller, tbe other party, and then reversed tbe judgment because tbe evidence did not support tbe allegations of tbe petition, in that it failed to show that Graham & Miller entered into tbe contract jointly with said company.

Conceding that at common law, tbe contract as stated in tbe petition was a joint one, as was held on tbe former appeal, yet under tbe express provisions of section 2769, Revised Statutes 1909, which was enacted long prior to tbe date of this contract, all contracts which, by tbe common law, are joint only, are declared to be joint and several; and by sections 1981 and 2772, Revised Statutes 1909, it is provided that in all cases upon joint obligations and joint assumptions of copartners or others, suits may be brought against any one or more of them, and that in all such actions tbe plaintiff shall not be nonsuited by reason of bis failure to prove that all tbe defendants are parties to tbe contract, but may have judgment against such of them as be shall prove to be parties thereto.

Under tbe provisions of those sections of tbe statute, and tbe numerous decisions of this court construing them, for all practical purposes, all contracts which at common law were joint only are now joint and several, and any one or more of the obligees thereto may be sued, and a recovery bad against those only who tbe evidence shows are liable thereon.

Tbe decisions so bolding are too numerous to be here cited, but many of them are cited in tbe footnotes to tbe sections of tbe statutes before mentioned.

In tbe light of these statutes and tbe decisions construing them, with tbe dissenting opinion of Valliant, J., calling tbe court’s attention thereto, it is inconceivable to me what induced tbe court to bold on tbe former appeal that because tbe petition declared upon a joint contract a recovery could not be bad against those defendants who the evidence showed were liable thereon.

The doctrine announced in that case is clearly erroneous, both upon principle, and authority; and in that particular it is hereby overruled.

III. The third and last question presented is, are we precluded by the former rulings of this court from reconsidering the same question now presented?

’ In the absence of cogent or convincing reasons shown, this court on a second appeal will not open up and reconsider questions adjudicated upon a former appeal. [Gracey v. St. Louis, 221 Mo. 1; May v. Crawford, 150 Mo. 524; Viertel v. Viertel, 212 Mo. 572; United Shoe Co. v. Ramlose, 237 Mo. 527; Baker v. Railroad, 147 Mo. l. c. 152.]

But where such reasons are clearly shown, and. especially where the former ruling inadvertently overlooked and nullified a statute, or overruled some sound and well settled principle of law, such.as was. done by this court on the former appeal in this case, we should have no hesitancy whatever in overruling the former decision, and re-examining on the second appeal. [Citizen’s Nat. Bank v. Donnell, 195 Mo. l. c. 570; United Shoe Mach. Co. v. Ramlose, supra; Gracey v. St. Louis, supra; Padgett v. Smith, 205 Mo. 125; Wilson v. Beckwith, 140 Mo. l. c. 382; Rutledge v. Railroad, 123 Mo. 131; Bird v. Sellers, 122 Mo. 32; Boone v. Shackleford, 66 Mo. l. c. 497; Hamilton v. Marks, 63 Mo. l. c. 172; Chambers v. Smith, 30 Mo. 158; Bealey v. Smith, 158 Mo. l. c. 522-3.]

Counsel for the respondent insist that even though we should overrule the former decision in this case, as being erroneous, nevertheless, they with much earnestness contend that this judgment should he affirmed for the reason that the record contains no evidence which tends to prove that the defendant company ever entered into the contract with the appellant to purchase the ties, either jointly with Graham & Miller or severally by itself.

This contention is untenable, as we have shown in paragraph one of this opinion. We there pointed out that on the first appeal the record contained ample evidence to mate out a prima facie case in favor of the appellant and against the respondent, and that this court so held at that time. That being true, and since the appellant introduced the same evidence at the second trial that was introduced at the first, we must of course, again hold that appellant made out a case for the jury at the second trial.

While it is true the respondent introduced evidence to the contrary, nevertheless, that presented a question of fact, which should have been submitted to the court or jury under proper instructions, which was not done.

The court should have given instructions numbered one and two as requested, by the appellant; and its failure to so do shows that the court tried the case in compliance with the rulings of this court, announced on the former appeal, which was error, nevertheless. The circuit court, however, is to be complimented for obeying the mandate of this court, though erroneous as it was. It thereby imposed the duty upon this court to correct its own errors, and did not undertake to do that for us, as it might have been too big a task, even though it had the authority to do so, which clearly it has not under the Constitution and laws of this State.

The judgment is reversed and the cause remanded for a new trial in conformity to the views herein expressed.

All concur.


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

text:
    DAHNKE-WALKER MILLING COMPANY, Appellant, v. FRANK BLAKE, State Superintendent of Insurance and Garnishee.
    Division One,
    March 29, 1912.
    1. APPELLATE JURISDICTION: Garnishment: Against State Superintendent of Insurance. The State Superintendent of Insurance Is a State officer within the meaning of the Constitution, and that fixes the appellate jurisdiction in the Supreme Court of an appeal from a judgment refusing to a creditor of an insurance company a writ of garnishment against him for moneys in his hands as such officer, irrespective of the amount or the constitutionality of the statute involved.
    2. CONSTITUTIONAL QUESTION: Garnishment: Untimely Raised. Where the Superintendent of Insurance, in his answer to the plaintiff’s interrogatories in the garnishment proceeding brought against him, pleaded the statute as his right to retain the fund, it was the plaintiffs duty, if he wished the constitutionality of that statute determined, to have raised the point in his denial of those answers; and having failed to do so the constitutional question comes too late if raised for the first time in plaintiff’s motion for a new trial, and must be deemed as " waived. So grave a question as the constitutionality of a statute must be lodged in the case at the first opportunity, or it will be deemed to have been waived.

      Held, by VALLIANT, J., that, where the Supreme Court has jurisdiction of the case on other grounds, if there is a vital constitutional question in the case, it may be raised here for the first time.
    3. -: -: — : -: Appellate Jurisdiction. The Supreme Court does not obtain jurisdiction of an appeal by the untimely lodgment of a constitutional question in the case. Unless the question is timely raised it is deemed out of the case.

      Held, by VALLIANT, J., that, while timely action in the trial court to raise a constitutional question is necessary in order to give the Supreme Court jurisdiction on that ground, yet where the court on other grounds has jurisdiction, if there is a vital constitutional question in the case, it may be raised here for the first time.
    4. INSURANCE: Defunct Company: Selling and Impounding Fund. After a judgment on a policy of insurance, and the service of execution and an order of the court directing the Superintendent of Insurance to sell the securities to satisfy the judgment, the funds in the Superintendent’s hands, derived from such sale are in custodia legis and must he used to satisfy such judgments and orders in the order in which they are served; and if the fund is exhausted or will he exhausted in paying them, a subsequent judgment creditor is not entitled to any part of the fund to satisfy his demand.
    5. -:-:-: Garnishment. Reid, by VAL.LIANT, J., concurring in a separate opinion in affirming the judgment, that the Superintendent of Insurance is not amenable to the writ of garnishment; and if he has in his hands a fund out of which a creditor of an insurance company is entitled to be paid, he is amenable to the writ of mandamus.
    Appeal from the St. Louis City Circuit Court. — lion. Moses ff. Sale, Judge.
    Affirmed.

      R. F. Walker for appellant.
    (1) Town mutual insurance companies are exempt from all laws of the State governing insurance companies, except the statutes requiring notice of loss, blanks for proof of same and the taxation of companies. See. 8084, R. S. 1899; Leather Co. v. Ins. Co., 131 Mo. App. 706. The provisions of Sec. 7071, R. S. 1909, exempting the insurance superintendent from garnishment, have no application to this case. Hoover v. Ins. Co., 93 Mo. App. 111. (2) The statute in regard to the deposit of securities by town mutual companies with the superintendent of the insurance department is wholly permissive and the superintendent is subject to process of garnishment. Sec. 8086, R. S. 1899. A voluntary deposit made, as in the case at bar, is subject to the process of garnishment. Robinson v. Ins. Co., 161 Fed. 798; 37 Ins. Law Jour., p. 1002; Morrill v. Bond Co., 151 Fed. 305. (3) Where a garnishment will not cause delay and the purpose for which funds are held has been accomplished, a public officer may be garnished. When the reason for the rule ceases the rule should not be held to apply. Rood on Garnishment, secs. 32, 34; Wilbur v. Ray, 30 Yt. 581. The same rule applies even where funds are in the hands of a receiver. Robertson v. Detroit P. Works, 152 Mich. 612. (4) Under the general law the garnishee in this ease is not exempt from the process of garnishment, because he holds the funds as an official. He is not such an officer as is exempted under the statute. The law in regard to garnishment at the time of these proceedings was the same as at the present. Sec. 2415, R; S. 1909. (5) The garnishment law as a whole should be strictly construed, being in derogation of the common law, and exceptions to its operation, as is Sec. 2415, R. S. 1909, intended to limit its powers, are also subject to strict construction, and must be limited to those expressly named as exempt from its provisions. 1 Shinn on Attach. & Gar., sec. 8. (6) The plaintiff was a policy holder and the statute under which this proceeding was instituted and prosecuted, expressly subjects the securities deposited with the garnishee to process to satisfy claims of policy holders. Sec. 8086, R. S. 1899. (7) This section expressly authorizes the issuance of an execution to secure the satisfaction of a judgment rendered on the claim of a policy holder. Sec. 8086, R. S. 1899. (8) The subjection of the garnishee to the writ as ancillary to and in aid of the execution is not contrary to public policy, but effectuates the purpose for which the securities are held, viz., as a “ guaranty that all claims of policy holders shall be duly paid.” Sec. 8086, R. S. 1899. (9) The securities, of the cash fund, held by the garnishee, are not in the custody of the law in the sense that they are not subject to garnishment. Sec. 8086, R. S. 1899. The superintendent was not the officer of a court and did not hold the securities subject to the orders of any tribunal. Rood on Garnishment, sec. 27. (10) An officer holding property in custodia legis must hold it as an arm of the court. This fund is not so held, but as prescribed by the statute it is held for the express purpose of securing the just claims of policy holders, and it was for this purpose the garnishment was served. Rood on Garnishment, sec. 27. (11) If it be held that section 8086, R. S. 1899, is entirely void, plaintiff is still entitled to a judgment for the fund in question, because it has proceeded under the general law in regard to the issuance of its execution and the seizure of the property. Secs. 2195, 2199, R. S. 1909; Douglas v. Orr, 58 Mo. 573; Caffery v. Choctaw Co., 95 Mo. App. 187. (12) To affect personal property with the lien of an execution the officer must take possession of same actively .or constructively. Hopke v. Lindsay, 83 Mo. App. 85; Relf v. Ins. Co., 13 Mo. App. 184; Huff v. Morton, 94 Mo. 405. (13) The officer charged with the service of the writ of garnishment complied with the statute and constructively seized the property. Secs. 2195, 2199, R. S. 1909; Marx v. Hart, 166 Mo. 254; Dodge v. Knapp, 112 Mo. App. 513. (14) An execution must be served, levied and returned by the sheriff to whom it was delivered. Sec. 2177, R. S. 1909. And within his bailwick, Coleman v. Ins. Co., 74 Mo. App. 675. (15) Sec. 8086 is unconstitutional and void: 1st. Because it is a stay law: Sec. 15,. art. 2, Constitution; Sec. 10, art. 1, Constitution of U. S.; Bailey v. Gentry, 1 Mo. 164; Blair v. Williams, 4 Litt. (Ky.) 35; 1 Freeman Ex. (2 Ed.), sec. 34. 2d. Because it is special legislation in granting a stay on executions.. Sec. 53, art. 4, Constitution. 3d. Because it is further special legislation in preferring the rights of judgment policy holders over judgment creditors. Sec. 53, art. 4, Constitution. (6) The statute authorizing the deposit of funds with the superintendent of insurance,' if permissive, was invalid, because it imposed no duty on-town mutual insurance companies which could be enforced by law. If the statute is invalid, then the superintendent of insurance is clearly subject to garnishment, regardless of any other reason, as any other individual holding securities or funds belonging to this class of insurance companies.

      Elliott W. Major, Attorney-General, John W. Matson and F. O. Ferriss for respondent.
    Section 8015, R. S. 1899, provided that “the superintendent shall not be subject to garnishment, attachment or any other process, nor order in respect to such securities than by this chapter provided.” This section must be read in connection with section 8086, which provides the “process” that must be pursued. A public official, holding as agent of the law and as a public official securities and moneys, is- not subject to garnishment under the statutes. 14 Am. and Eng. Ency. Law (2 Ed.), 817; Richards v. Griggs, 16 Mo. 416, 57 Am. Dec. 240; Curling v. Hyde, 10 Mo. 375; Shinn on Attach, and Garn., sec. 505; Road on Garnishment, secs. 25, 26, 27; Waples on Attach, and Gar.. (2 Ed.), secs. 428, 429; Coekey v. Leister, 12 Md. 124. The statutory remedy, provided by section 8086, being a complete one, is exclusive, and no other method can be adopted by the creditor of the defendant to obtain the securities or the proceeds thereof involved in this case. Phelps v. Brumback, 107 Mo. App. 25; State ex rel. v. Snyder, 139 Mo. 554. The Boone Tobacco Co., having proceeded as directed by section 8086 has a prior lien to the plaintiff in this case. “A garnishment is like an attachment, the first service creates the prior lien.” Tabbott v. Plarding, 10 Mo. 350; Pritchard v. Toole, 53 Mo. 356; Whiteside v. Longacre, 88 Mo. App. 168. If this garnishee be regarded as a trustee, he is a trustee holding property which, by the terms of the trust, is to be disposed of by the order of a court, and therefore, he is not liable as garnishee in this action. Coekey v. Leister, 12 Md. 124. Where, by a statute, a new right is given and a specific remedy provided, or a new power and also the means of executing it are provided by statute, tbe power can be executed and the right vindicated in no other way than that prescribed by the statute. Where the statute gives a right and furnishes the remedy, that remedy must be pursued. Sedgwick on Const, of Stat. and Const. Law (2 Ed.), pp. 343, 344; Lewis’s Sutherland Stat. Const. (2 Ed.), secs. 333, 572, 720; Endlich on Interp. of Stat., secs. 154, 465; State ex rel. v. Trust Co., 209 Mo. 472; Phelps v. Brumback, 107 Mo. App. 25; State ex rel. v. Snyder, 139 Mo. 549. Statutes which are intended to promote the convenience of suitors, or to improve the procedure for obtaining legal redress, are remedial. 2 Lewis’s Sutherland Stat. Const. (2 Ed.), sec. 688; Black on Interp. of Laws, p. 307. Apart from express legislative declaration to that effect, the doctrine that municipal corporations and public officers, on the ground of public policy, are not subject to statutory garnishment, thought sometimes denied, has the support of the great weight of authority. Greist v. St. Louis, 156 Mo. 643.
   GRAVES, P. J.

This is a garnishment proceeding by which the plaintiff seeks to recover of Blake, State Superintendent of Insurance, as successor to Vandiver, State Superintendent of Insurance, an amount sufficient to satisfy a judgment of $3544 and costs of suit, said judgment being in favor of plaintiff and against the Mercantile Town Mutual Insurance Company. The judgment was rendered by the circuit court of the city of St. Louis. Execution was issued directed to the sheriff of Cole county, and Mr. Vandiver, then State Superintendent of Insurance, was garnished.

Interrogatories were duly filed. To these interrogatories Mr. Vandiver filed answer. Plaintiff filed its denial of those answers. This denial was specific and set ont in detail plaintiff’s contentions. To this Mr. Vandiver filed a reply in which his position is fully outlined.

The first question suggested by the record is, have we jurisdiction of this cause? The second is the alleged constitutional questions here for review? This requires a scanning of the record. The amount involved does not give us jurisdiction. The actual amount of cash now held by the State Superintendent of Insurance is about $3600. The amount of plaintiff’s judgment and execution is something less than that sum. But we have jurisdiction irrespective of the amount. The State Superintendent of Insurance is a State officer within the meaning of the Constitution. [State ex rel. Waddill v. Smith, 131 Mo. 176.] This fixes our jurisdiction. But going to the other question, let us see how the record stands.

In the motion for new trial the constitutionality of section 8086, Revised Statutes 1899, is challenged in some three places. Is such question in the case? Was the constitutional question timely raised? Note above the order of the pleadings. In the garnishee’s answer, among other things, he says:

“In answer to the second interrogatory, this garnishee states that prior to the time he was summoned as garnishee herein, on the 19th day of February, 1908, to-wit, on the - day of - 19, — , the defendant, Mercantile Town Mutual Insurance Company, a company operating under the provisions of article 11 of chapter 119 of the Revised Statutes of the State of Missouri, and duly organized and existing as a town mutual company, did deposit with this garnishee, as Superintendent of the Insurance Department of the State of Missouri, certain securities, consisting of one note of the Laclede Mutual Fire & Marine Insurance Company for $7500, secured by a deed of trust on certain real estate in the city of St. Louis, Missouri, and one note of the Norris Real Estate Company for $10,000, secured by a deed of trust on certain real estate in the city of St. Louis, Missouri, as a guaranty that all just claims of tbe policyholders of said company, the Mercantile Town Mutual Insurance Company, shall be duly paid, all pursuant to and in accordance with the provisions of section 8086, of the Revised Statutes of Missouri. That the Boone Tobacco Company, a corporation and a policyholder of and in said defendant Mercantile Town Mutual Insurance Company, on the 23d day of November, 1907, in the Louisiana Court of Common Pleas, a court of record holden in the city of Louisiana in the county of Pike and State of Missouri, and during the regular November term, 1907, of said court, did obtain a final judgment on said policy against said defendant, Mercantile Town Mutual Insurance Company, for the sum of $3,543.75, and costs, with interest on said sum from said 23d day of November, 1907, at the rate of six per cent per annum, which said judgment was not appealed from and remained unpaid for a period of sixty "days after the final adjournment of the said term of said court at which said judgment was rendered, and which still remains unpaid, which shid November term, 1907, of said court finally adjourned on the 30th day of November, 1907. That on the first day of February, 1908, execution was issued on said judgment, in favor of said Boone Tobacco Company, and on said first day of February, 1908, the Honorable David H. Eby, Judge of the 10th Judicial Circuit of Missouri, and judge of said Louisiana Court of Common Pleas, did, by his written order bearing date February 1, 1908, in vacation of said court, direct this garnishee, as Superintendent of the Insurance Department of the State' of Missouri, to satisfy said execution by selling a sufficient amount of the said securities so deposited by the said Mercantile Town Mutual Insurance Company with Willard D. Vandiver, as Superintendent of the Insurance Department of the State of Missouri, as aforesaid, under and by virtue of the provisions of said section 8086.”

Then follows a similar statement as to another judgment against said insurance company rendered by the circuit court of the city of St. Louis.

These are followed by a statement to the effect that, in obedience to the orders made by Judge Eby in the one judgment, and Judge Reynolds on the other, the said State Superintendent of Insurance had advertised and sold the securities aforesaid, and had received therefor the net sum of $3650, which he held in his hands as such official. The answer also avers that the garnishee is not subject to garnishment for a fund thus held. It must be noted that the garnishee in his answer specially refers to and relies upon section 8086, Eevised Statutes 1899. He says that the orders of the two circuit judges were made by authority of that section, and that he had acted thereunder himself in selling the securities. These two judgments and the two orders were prior in time to the judgment and execution of the plaintiff. It will be noticed that the garnishee planted himself in his answer to the plaintiff’s interrogatories squarely behind the provisions of said section 8086, supra. To this answer the plaintiff filed its denial, but not a word is said about the constitutionality of the statute relied upon and pleaded by the garnishee. In its denial of the garnishee’s answer the constitutionality of the statute relied upon could have been assailed and should have been assailed. These documents constitute the pleadings in a garnishment proceeding. The rule of this court is that so grave a question must be lodged at the first opportunity, or it will be deemed to have been waived. If it can be appropriately and naturally raised in the pleadings, and thereby be a question lodged in the record proper, such is the time and place to raise it.

In Lohmeyer v. Cordage Co., 214 Mo. l. c. 689, we said: “But it must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived. [Barber Asphalt Pav. Co. v. Ridge, 169 Mo. l. c. 387 et seq.] ”

The above was quoted with approval in State v. Gamma, 215 Mo. l. c. 104.

In the later case of Hartzler v. Street Ry. Co., 218 Mo. l. c. 564, we again reiterated the rule thus: “It becomes apparent from an examination made of the record that the constitutional question, in due course of orderly procedure below, could have been put in the case by the answer, or in the instructions, or in other timely ways, so as to save it. The motion for a new trial was not the first door open for the question to enter, and in our later decisions we have ruled that a question of such gravity must be raised as soon as orderly procedure will allow. This, in order that the trial court may be treated fairly and the question get into the case under correct safeguards and ear-marked as of substance and not mere color.”

So in the case at bar. Vandiver’s answer to the interrogatories pleaded the statute. Plaintiff filed a written denial of that answer in order to make up the issue. That denial does not challenge the constitutionality of the law. Under such circumstances the challenge for the. first time, after judgment, in the motion for new trial, comes too late, and such question must be deemed as waived by plaintiff. This question is therefore eliminated from our consideration. Were this not a case wherein we had jurisdiction for another reason, we would have to certify it to the Court of Appeals, because the alleged constitutional question was not timely raised. If the question was not sufficiently lodged in the case to give us jurisdiction, it is not sufficiently lodged to call for consideration. With this question out of the case, we will discuss those remaining, in so far as may be required for a disposition of the cause.

II. With the constitutionality of section 8086, Eevised Statutes 1899, out of the case, as above indicated, there is but little left to it. As indicated above there were two judgments against the insurance company prior to plaintiff’s judgment. On each an execution had been issued and in each case the judge or court entering the judgment had by written order directed the Superintendent of Insurance to sell the securities and satisfy the executions. All this was done long prior to the issuance of plaintiff’s execution on the 18th day of February, 1908. The three judgments involved were rendered in the following order: Boone Tobacco Co. v. Mercantile Town Mutual Insurance Co., judgment for plaintiff for $3543.75, November 23, 1907, in the Louisiana Court of Common Pleas. Execution was issued February 1, 1908, and served February 3, 1908, by delivering a copy to the State Superintendent of Insurance, together with a written order from Judge Eby, judge of the court entering such judgment, directing the said State Superintendent of Insurance tó satisfy such execution by selling a sufficient amount of the securities held by him and belonging to said insurance company. [Hill & Griffith Co. v. Ins. Co., judgment in circuit court of city of St. Louis for plaintiff in sum of $3547.60.] Execution was issued February 6, 1908, order of the circuit judge on February 7, 1908, and each served on February 11, 1908. Plaintiff’s judgment was procured February 8, 1908, and his execution issued February 18, 1908, and service made February 19, 1908. From this it will appear that the other two policyholders and judgment creditors had taken all steps required by section 8088, supra, before this plaintiff acted. The material part of that statute reads:

“In case any policyholder shall obtain a final judgment against any such company, and such judgment shall not be appealed from, and such judgment shall remain unpaid for a period of sixty days after the final adjournment of the term, of court at which such judgment may be rendered, execution may issue upon such judgment, and the said superintendent shall be required to sell a sufficient amount of said securities to satisfy said execution, and the court rendering such judgment or the judge thereof in vacation may by a written order direct the superintendent to satisfy said execution as herein provided.”

The prior judgment creditors had done everything required of them by this statute. They had caused execution to issue after the expiration of the time mentioned in the statute. They had procured the written order of the judge to the State Superintendent in each case, and this order, together with a copy of the execution, had been served upon the State Superintendent. And all this before plaintiff acted at all toward the impounding of this fund.

If this statute is valid, and we must so take it in this case, because not challenged in time, then this fund had been impounded by prior creditors, before the service of the garnishment. It was first impounded in the Tobacco Co. case. As shown by the record the proceeds of the sale was not enough to satisfy the first two judgments. There was no balance to be reached by garnishment, even if garnishment could reach the fund. Under the terms of this statute the judgment nisi was right and should be affirmed. Under this statute the Superintendent should sell the securities and pay out the funds in the order of priority. By this we mean, that when the Superintendent was first served with the written order of Judge Eby in the Tobacco Co, case, that service in law impounded in his hands so much of the insurance company’s property as was required to satisfy that execution, and it must be satisfied even before the one in the Hill & Griffith Co. case. Under this statute the order of the circuit judge impounds the property and holds it for a certain purpose, i. e., the satisfaction of the execution refered to in the written order. Prom thence on the property is really in custodia legis. So we repeat that with the constitutionality of section 8086, supra, out of the way, there is nothing left to the plaintiff’s case.

Let the judgment be affirmed.

All concur ; Vallicmt, Jin separate opinion.

SEPAEATE OPINION.

VALLIANT, J.

I concur in the result reached in this case by my learned brother Graves for the reason that in my opinion the Superintendent of Insurance is not amenable to the writ of garnishment. If he has in his hands a fund out of which a creditor of an insurance company is entitled to be paid, he may be amenable to a writ of mandamus, but that is different in character and effect from a writ of garnishment.

I concur in. what is said as to the necessity of timely action in the trial court to raise a constitutional question in order to give this court jurisdiction on that ground, but I am of the opinion that in a case where this court on another ground has jurisdiction, if there is a vital constitutional question in the case it may be raised here for the first time.


text:
    J. C. SCHNEIDER v. THOMAS MANEY, Appellant.
    Division One,
    March 29, 1912.
    1. SUIT ON JUDGMENT: Revivor: Release by Assignee. The assignee of a judgment, which has been revived, and which is used as the basis of a suit by the assignee and introduced in evidence by him, cannot he heard to complain (1) that the memorandum of a release of one of the judgment debtors on the margin of the record signed by the clerk is mere hearsay, nor (2) that the release by himself as assignee of other judgment debtors was on the margin of the revived judgment, and not on the .margin of the original judgment, nor (3) that the judgment of revivor was invalid because at the suit of himself as assignee.
    2. -: Release of Part: Liability for Balance. One of several joint obligors on an administrator’s bond, is liable for the balance due on the judgment on the bond, after deducting the amounts paid by the other judgment debtors for their release. The assignee of the judgment has the right to recover of one of the judgment debtors the total amount due on the judgments against the principal and his sureties on the bond. That is. true by force of Sec. 2769, R. S. 1909, which makes contracts that were joint by common law both joint and several, and Sec. 2772, which provides that a creditor may sue any one or more joint obligors.
    3. -: -: -: Sec. 11278: Liability for Contibution Inter Sese. Sec. 11278, R. S. 1909, providing that “no such surety shall he compelled, in any action, to pay more than his due proportion of the original demand; and when such surety shall have previously paid any portion thereof he shall be liable to pay only so much as the amount already paid by him falls short of his due proportion of the original demand,” refers only to the liability of contribution between the sureties; it does not apply in a suit by the holder of the joint obligation against one or more of the joint obligors.
    4.. -: -: Release of Part: Amount Due Not Shown: Burden. Where the assignee of three judgments on an administrator’s bond against its principal and six sureties, sues, one of the sureties on the. judgments, and offers the judgments in evidence, showing an entry on the margin releasing five of the sureties, it is his duty to make known how much is due and unpaid on the judgments. That burden rests upon him because the proof of payment is peculiarly within his knowledge and control, and where that is the fact there is an exception to the usual rule concerning the burden of proof. Unless he shows the amount that has been paid, he is not entitled to any judgment.

      Appeal from Buchanan Circuit Court. — Hon. H. M. Ramey, Judge.
    Beversed and remanded.

      Brown (& Dolman for appellant.
    (1) Plaintiff’s petition is grounded, and his cause of action founded, upon a liability of the defendant to plaintiff upon the revivor judgments and not upon the original judgments. At the time the revivor judgment was taken plaintiff had no legal right to obtain such revivor in his own name, and the judgments so taken were null and void. Goddard v. Delaney, 181 Mo. 564; Bick v. Tanzey, 181 Mo. 515; Bick v. Bobbins, 131 Mo. App. 673. The several causes of action set out in plaintiff’s petition were founded upon the revivor judgments. The introduction in evidence, therefore, of the original judgments were, as stated in Bick v. Bobbins, 131 Mo. App. 675, “entirely immaterial to the issue involved” and “may be regarded as surplusage in the case.” (2) On the margin of the record of the original judgments, it appears that, for value received the same were released as to Philip Bogers and J. Francis Smith, defendants therein, and on the margin of the record of the revivor judgments on account of part payments on these judgments, the other joint defendants, except Maney, were released from all liability thereon. Whatever these joint defendants paid were paid in satisfaction of the judgments, at least pro tanto. Baird v. Given, 170 Mo. 302. Section 11278, Bevised Statutes 1909, provides that “No surety shall be compelled, in any action, to pay more than his due proportion of the original demand,” and in the absence of evidence that the sureties released in said judgments were insolvent, plaintiff in any event, in this action, would not be entitled to recover more from this defendant, and if the evidence should disclose that these sureties had paid the entire judgment it is extinguished. Nelson v. Webster, 68 L. R. A. 514; McDaniel v. Lee, 37 Mo. 204; Bank v. Kemble, 61 Mo. App. 215; Black on Judgments, sec. 995; Johnson v. Greve, 60 Mo. App. 170. If plaintiff received the full amount of said judgments there is no balance. Lumber Co. v. McColgin, 63 Mo. App. 470. (3) Plaintiff must make out his own case; that is, that the whole of said judgments were due and unpaid, and when his own evidence discloses the fact that said judgments were paid as to four out of the five joint defendants, and the amount of such payments were peculiarly and solely within his own knowledge, the burden was upon him to prove the amount of such payments, and it was error to render judgment for the full amount of said judgments with interest. Browning v. Crowe, 43 Mich. 489; Robinson v. Robinson, 51 111. App. 317; Swinhart v. Railroad, 207 Mo. 423; Ellison v. Bowman, 29 Mo. App. 439.

      Charles F. Strop and Eugene Silverman for respondent.
    (1) Appellant offered no evidence in support of the plea of payment contained in his answer. Payment is an affirmative defense and must be pleaded and proved by the party asserting it. Ferguson v. Dalton, 158 Mo. 323; Griffith v. Creighton, 61 Mo. App. 1. (2) Appellant does not complain in his motion for a new trial that the judgment was excessive. He cannot make such claim in this court without having first brought the matter to the attention of the trial court. State v. Bank, 144 Mo. 381; Glanton v. Dold, 109 Mo. 64; Weese v. Brown, 102 Mo. 299; Ridenhour v. Railroad, 102 Mo. 270; Alexander v. Relfe, 74 Mo. 495. (3) As a matter of fact the judgments are not excessive. The original judgments rendered October 3, 1893, aggregated $28,640.99. The judgments in this case rendered more than fourteen years later aggregated $36,834.12. The statements by the clerk of the court as to the release of Philip Rogers from the judgment was not in evidence and was hearsay only. The release of Lutz and others shown upon the margins of the revived judgments was from liability upon those judgments, which judgments appellant contends are void. The only release from the judgments sued on, considered in evidence, was the release of J. Francis Smith. There being six defendant sureties and one only being released, appellant was liable for five-sixths of the amount of the original judgments and interest, which at the date of judgment amounted to $50,970.67, five-sixths whereof amounts to $42,475.55. The judgments rendered against appellant were for the aggregate sum of $36,834.12. He clearly has no complaint as to the judgment being excessive. (4) There can be no pretense that appellant has paid anything upon these judgments or that any other person has paid anything for him. Under any theory respondent must recover judgment against appellant for one-sixth of the amount of the original judgments with interest.
   VALLIANT, J.

This is a suit on three judgments, one in favor of Francis T. Conrad for $13,493.97, another in favor of Martha Clark for $7613.15, and the third in favor of Agnes Conrad for $7613.51, all rendered in the circuit court of Buchanan county, October 3, 1893, and all assigned to J. G-. Schneider, the plaintiff in this suit. The judgments were founded on an administrator’s bond executed by James Walsh, as principal, and six sureties, Lutz, Smith, Rogers, Ullman, Fuelling and the defendant in this suit, Maney. Before the assignment to Schneider the judgments were released as to Rogers, and after the assignment they were released by the assignee as to Smith. Afterwards, in 1895, the assignee sued out a scire facias against Walsh, the principal, and the remaining four sureties who had not been released, and obtained a revivor of the judgments as to them. April 14, 1905, Schneider released the judgments as to all the remaining sureties except this defendant Maney, and on the next day brought this suit against Maney alone.

Defendant’s answer was a general denial, the ten-year Statute of Limitations, and payment. On the trial the plaintiff introduced in evidence the three original judgments, the judgments of revivor, and the indorsements of assignments and releases on the margin of the judgment records. On each of the original judgments was an assignment thereof by the judgment plaintiff to George T. Hoagland and by him to J. G. Schneider, the plaintiff in this suit, a release of Rogers by Hoagland while he owned the judgments and a release of Smith by Schneider after he became the owner. The release of Rogers is in this form: “This judgment is released and satisfied as to defendant Philip Rogers, by the plaintiff. See papers on file in case No. 5049, June SO, 1894. S. D. Cowan, Clerk; by C. M. Thompson, D. C.”

“This judgment released as to Philip Rogers only'by George T. Hoagland, by release dated September 20, 1894, and filed with papers in case No. 5049, September 20, 1894. S. D. Cowan, Clerk; by C. M. Thompson, D. C.”

The release of Smith'is in this form: “This judgment is, for value received, released as to Francis Smith. J. G. Schneider, December 20, ’95. Attest John T. Chestnut, Clerk; by A. Patton, D. C.”

The release as to Lutz, Ullman, and Fuelling is written on the judgment of revivor and is in these words: “St. Joseph, Mo., April 14, 1905. For and on account' of part payments made in this judgment by Ferdinand Lutz, Benjamin Oilman and Louis Fuelling, I hereby release them, and each of them from any and all liability in this judgment. J. Gr. Schneider. Attest: Ambrose Patton, Clerk.” This was all the evidence introduced at the trial.

The court rendered judgment for the plaintiff against defendant Maney for $36,834.12, from which he appealed.

I. Respondent takes the position that the evidence shows the release of but one of the six sureties, Smith, and therefore the defendant is liable for five-sixths of what remains due on the original judgments, and he computes that on the date of this judgment there was due for principal and fourteen years interest on the three judgments $50,970.67, five-sixths of which would be $42,475.55, whereas the judgment rendered against the defendant was only $36,834.12, and therefore he has no right to complain.

As to the release of Rogers, respondent says the only evidence of it is the memorandum on the margin of the record of the judgment signed by the clerk and therefore it is mere hearsay. But respondent cannot object to that evidence on the ground that it was hearsay, because he introduced it himself. Besides the memorandum refers to a paper containing the release filed in another suit.

As to the release of Lutz, Ullman and Fuelling it is signed by respondent himself and attested by the clerk, but respondent says it is written in the margin of the record of the revived judgment and since the judgment of revivor was at the suit of himself as assignee it is invalid, because as assignee lie had mo right to have a judgment revived in his own name. That is not a very captivating argument. Although this release was written on the margin of the record of revival, yet it related not to the act of revival, but to the judgment that was revived. If respondent .after obtaining money from those sureties for that release had thereafter sued them on tlie original judgment, and they had pleaded the release and he had replied to them as he is now replying to this defendant, he would have put himself in a very indefensible. position; it would have been equivalent to saying that in exchange for their money he had given them a shadow, not substance. A judgment of revivor is not the creation of an original judgment obligation, it is a recognition of the existence of the original judgment and a continuance of its life, therefore when Schneider signed the release saying that for the considerations received he released them from “all liability in this judgment” he and they understood that he released them from liability on the original judgment; if he intended otherwise he intended a fraud, which we will not presume.

II. It is immaterial, however, so far as the plaintiff’s right of action against this defendant is concerned, whether the other sureties were released or not, because by force of our statute, section 2769, Revised Statutes 1909, contracts that were by common law joint are joint and several, and under section 2772 the creditor may sue any one or more of the joint obligors. Defendant would bp liable, therefore, for the balance due on those judgments after deducting the amounts paid by the other sureties for their release.

Appellant refers to section 11278, Revised Statutes 1909, which is: “No such surety shall be compelled, in any action, to pay more than his due proportion of the original demand; and when such surety shall have previously paid any portion thereof he shall be liable to pay only so much as the amount already paid by him falls short of his due proportion of the original demand.” That statute refers only to the liability of contribution between the sureties; it does not apply in-a suit by the holder of the joint obligation against- one or more of the joint obligors. [Vaughn v. Haden, 37 Mo. 178.]

Plaintiff therefore had the right to recover of the defendant Maney the total amount due on the judgments, whatever that may be, but the trouble with the case made by the plaintiff is that he made no proof of the amount due. If there had been no payment the judgments themselves would show the amount due, but the plaintiff’s proof showed that there had been payments, yet failed to show to what amount.

Ordinarily payment is an affirmative plea and the burden of proof is on the defendant, but there are exceptions to that rule, and this is one. "Where the proof of payment is in the exclusive knowledge and control of the plaintiff the burden is on him to produce it. The law is thus stated in 16 Cyc.,936: “Where the party who has not the general burden of proof possesses positive and complete knowledge concerning the existence of facts which the party having that burden is called upon to negative, or where for any reason the evidence to prove a fact is chiefly if not entirely within the control of the adverse party, it has been held that the burden of proof, meaning the burden of evidence, is on the party who knows or has special opportunity for knowing the fact, even in criminal cases, although he is obligated to go no farther than necessity requires.” That is the doctrine of this court. [Swinhart v. Railroad, 207 Mo. 423.] The evidence introduced by the plaintiff shows that five of the six sureties against whom these judgments were rendered have made payments and been released; how much those payments amount to is a fact peculiarly within the knowledge of the plaintiff, but he has seen fit to give no statement thereof either in his pleading or proof. That is a matter not within the knowledge of the defendant. The principal in the bond is not sued and no reason is given for omitting him. Has he also made a payment?- The plaintiff alone knows,

The plaintiff’s attitude is this: He comes into court saying: Here are three judgments against the principal and six sureties which have been regularly assigned to me; payments have been made by five of the six sureties and they have been discharged; how much those payments amount to I know, but do not care to say, and I demand judgment against the remaining surety for the full amount of the judgments, principal and interest, less whatever sums he may be able to prove I received from his co-sureties. The law will not sanction a judgment obtained under that showing. Under the evidence adduced the plaintiff was not entitled to recover. The judgment is reversed. Graves, P. J., Lamm and Woodson, JJ., concur, except they are of opinion that the cause should be remanded for new trial, and it is so ordered.


author: LAMM, J.

text:
    NORA N. JELLY v. ALBERT LAMAR et al., Appellants.
    Division One,
    March 29, 1912.
    1. DOMESTIC PARTITION: Deed to Husband and Wife: Estate by Entirety. In domestic partition, made by the three daughters who had inherited the land from their father, and their husbands, a deed by two of the daughters and their husbands to another daughter and her husband did not create an estate by the entirety in the grantees, nor did it invest any title at all in the husband, or create any new title. In domestic partition the heir takes, not by deed, but by inheritance from the ancestor, and the heir henceforth holds in severalty, though such heir be a married daughter and the deed is to her and her husband.
    2. -: -: Curtesy. And if the married daughter die leaving children born of the marriage, a deed by her surviving husband conveys only his estate by the curtesy. 1
    3. -: -: Assumption of Debt. Nor did the giving of a new mortgage on the segregated portion of the land, set off to the inheriting daughter and deeded to h.er and her husband, in an amount equal to her proportionate share of an existing mortgage and judgment against tbe whole, relate back to the partition and create an estate by the entirety. Nor did the payment of that new mortgage out of the proceeds of a sale of the land by him after her death establish, or tend to establish, that he paid a consideration creating him a joint tenant with her.
    4. -: -: -: Payment by Husband’s Grantee: Subrogation. Where the inheritance is burdened with a mortgage and judgment, and they are prorated among the heirs at the time of the domestic partition, each takes her share of the estate with that burden; and though it is removed from one of the parcels by a new mortgage given by the heir thereto and her husband, the substance of the debt continues and she must take it subject to that burden; and if after her death her husband, supposing, because the partition deed named him and her as grantees, that he was the owner of the entire estate as survivor, conveys it to another, who in good faith pays the incumbrance, this last grantee is not a volunteer or intermeddler, but is entitled to subrogation, and to be reimbursed out of a sale of the property for the amount of the mortgage, with interest from .the date of payment.
    Appeal from Buclianan Circuit Court. — Hon. C. A. Mosman, Judge.
    Beversed and remanded (with directions).

      Duncan & TJts for appellants.
    (1) John D. Noble took a fee to tbe nineteen acres in question for tbe reason that tbe title of said premises stood of record in Hania Lamar and "William T. Lamar, ber husband. Tbe evidence shows that tbe name of William T. Lamar as grantee in tbe said deed was placed there with tbe knowledge and consent of bis wife, Hania Lamar, and further that there was an indebtedness against tbe whole eighty acres when Hiram J. Hurst died, which indebtedness was divided in four equal parts, and that tbe husband of Hania Lamar agreed, in consideration of said partition and conveyance to himself and wife, to assume and pay one-fourth of said indebtedness, which would make him a purchaser for value to that extent. The evideuce further shows that he did pay off and discharge said indebtedness. In construing a deed the main guide is the intention of the parties just as in construing a will; and if the wife desired and it was the intention of the parties to the deed to create by their conveyance and estate in entirety in the husband and wife we see no reason why that could not be done and was not done in this case. In other words, “a person sui juris has a right to. give away his property if he chooses, and courts will not relieve against such a transaction merely because the act was voluntary or for an inadequate consideration.” Obst v. Unnerstall, 184 Mo. 338. We are aware that this court in the case of Whitsett v. Wamack, 159 Mo. 14, held that a deed secured in pursuance of an oral agreement of partition apportioning the part of the wife as an heir to the wife and husband, conveys no title to the husband, but we think there is a distinction between the facts in the case and the one at bar. In the Whitsett case there was nothing but a partition agreed upon, and there was nothing to show that she desired the husband to be included ás a grantee in the deed or that he assumed any obligation whatever to pay any indebtedness on the land. In the case at bar the evidence shows that the name of the husband of Hania Lamar was put in the deed as a grantee with her special knowledge and consent, and that there was an indebtedness against the place at the time, which he agreed to assume and pay off, and in our judgment that is a sufficient consideration to create him a purchaser for value and to create an estate by the entirety in husband and-wife, and thus remove it from the rule in the Whitsett case. (2) Granting that the fee of the premises was in Hania Lamar at the time- of her death, and her husband was only entitled to a curtesy interest, and that at the time of the death of Hania Lamar there was an outstanding deed of trust against said premises for $245.41, as shown by the evidence, which indebtedness was owing on said premises at the time of partition, and she agreed to assume and pay her share of the indebtedness which was that amount, then defendants contend that it was not the duty of the life tenant to pay the principal of said indebtedness, but only the interest, and in case the life tenant paid the principal of the indebtedness the remainderman would be liable to the life tenant or his grantees for said amount, and if he refused to reimburse the life tenant said life tenant or grantees would have the right to foreclose the lien against the remainderman’s interest in said estate. Sec. 66, p. 42, Tiedeman on Real Property; 16 Cyc. 634.

      Allen, Gabbert é Mitchell for respondent.
    (1) A deed made by two coparceners to a third coparcener and her husband, in an effort at voluntary partition of their jointly inherited estate, conveys no title to the husband, and a grantee in a subsequent deed by the husband after the death of the wife cannot assert title to the land as against the wife’s heirs, as * such deed conveys only the husband’s curtesy. Whit-sett v. Wamack, 159 Mo. 14; Palmer v. Alexander, 162 Mo. 127; Snyder v. Elliott, 171 Mo. 362; Harrison v. McReynolds, 183 Mo. 533; Sharp v. Stewart, 185 Mo. 518; Clark v. Sires, 193 Mo. 502; Starr v. Bartz, 219 Mo. 47; McMurtry v. Fairly, 194 Mo. 502. And this is so even if the deed in the case at bar was made to the plaintiff and her husband by her direction, as the grantors conveyed no part of their shares, and had no interest in the shares embraced in the deeds to the grantees ; it belonged to the wife by inheritance, and the title being already in her, thé deed merely designated her share by meets and bounds in order that it might be held in severalty, and was not a grant. Propes v. Propes, 171 Mo. 417; Yancey v. Radford, 86 Ya. 638; Harrison v. Ray, 108 N. C. 215. (2) The last contention of appellant is that the land in controversy should he impressed with a lien in favor of appellant representatives of John D. Noble, deceased, for $245. 1. The evidence does not sustain facts upon which* to base such contention, and the trial court so found. 2. "Who is demanding that the land be impressed with this lien? William T. Lamar, the surviving husband of Hania and life tenant, is not asking it. So far as he is concerned, this matter is a “closed incident.” If he paid off the lien, it is his loss and it is his personal right to recover, if there be such right. The appellant heirs of John D. Noble are the persons who are asking for this lien in this suit. It is certain that neither John D. Noble nor his appellant heirs ever paid any lien that was on this land at the time he bought it. Noble simply paid a purchase price for the deed and title of William T. Lamar and he got what he paid for. There is not the slightest intimation in the record that Noble paid or assumed any lien on the land. On the contrary, it is “ clear, cogent and convincing” that he did not pay anything for or on account of the land but the purchase price and that he got the land clear of any such encumbrance. Conceding that Noble thought he was buying a fee simple title, yet respondent cannot be deprived of her rights because of his misunderstanding of the effect of the deed which he received from Lamar.
   LAMM, J.

Certain defendants, the children and widow of John D. Noble (the latter dying intestate pending this suit), appealed from a decree in equitable partition. Defendants Albert and Charles Lamar and plaintiff are children of Hania Lamar, deceased, and William Lamar. Plaintiff and defendants Albert and Charles are on the same side of this controversy, hence the last two do not appeal.

Fetching a small compass about it, the controversy is this: Hiram J. Hurst died about 1880, intestate, seized of eighty acres of land, leaving his widow, Henrietta, and three married daughters, Launrana Noble, Sarah E. Blackstun and Hania Lamar. Launrana was the wife and is now the widow of said John D. Noble. This land was encumbered with a mortgage and there were several judgments against Hiram J. Hurst. We infer all were liens on the land. Presently (all the husbands taking part, including Noble) there was a domestic partition between Henrietta and her three married daughters. By that partition Hania Lamar was allotted nineteen acres of the eighty and this suit relates to her parcel. Presently they made conveyances to each other in consummation of this domestic partition. The partition deed instead of running to Hania Lamar purported to convey her allotment to “William Lamar and Hania Lamar his wife.” There are record indications that the partition deeds to the other married daughters were also conveyances of this soft. The Lamars took possession of Hania’s parcel; and, in 1902 or 1903, Hania Lamar died intestate, leaving her husband William surviving and several young children, to-wit, the plaintiff Nora (now married to Jelly) and the defendants Albert and Charles Lamar. In 1904 William, the surviving husband of Hania Lamar, assumed' to convey the land in question to his brother-in-law, John D. Noble, by a general warranty deed. Since that time and up to his death, after the institution of this suit, Noble held possession. Since his death his children and widow hold possession. The husband of Hania Lamar, said William, is yet alive.

The Nobles contend, among other things, that their ancestor, John D., got title in fee by said conveyance of William Lamar and that they take by inheritance from him. Contra, the Lamar children claim that nothing but a life estate passed by that deed. Such is one of the issues.

The decree was out and out in favor of the Lamar children and took no note of an' encumbrance, presently mentioned. The land was partitioned between the three, share and share alike, and was ordered sold subject, however, to the life estate of William Lamar as tenant by the curtesy. The court further decreed that said life estate passed to John D. Noble and now rests vested in his widow and children. ‘

Under the facts of this record the partition deed vested no title at all in William Lamar. Such deed confers no new title. In domestic partition, the rule is that each heir takes (not by the deed, but) by inheritance from the ancestor. Such deed merely severs and adjusts the right to possession. It confers no new or additional estate. Its effect is that henceforward each heir holds his share in severalty — the title being already in him by descent cast. Such was the common law, and such- is the doctrine in this jurisdiction. Partition deeds are read in the light of the' surrounding circumstances and the purpose in view and all taking part therein take -with notice that no heir loses or gains any title. [Whitsett v. Wamack, 159 Mo. 14; Palmer v. Alexander, 162 Mo. 127; Starr v. Bartz, 219 Mo. 47.]

It results that an entirety of estate was not created by the partition deed, and that William did not take as survivor on the death of his wife. He was, as to that parcel, a tenant by the curtesy on his wife’s death, because of having children born alive by the marriage with Hania, and that life estate he conveyed by his deed to Noble.

It is argued, however, that he acquired an interest by the partition deed, became joint owner with his wife and thereby took as survivor on her death be-, cause of the following facts: When the domestic partition was made the judgment and mortgage debts against the land were divided into four equal parts. Thereat the judgment creditor, as I gather, loaned the Lamars enough to pay Hania’s share of the old mortgage, taking a new mortgage covering that advance plus her share of said subsisting judgment debts — the sum aggregating, say, $242. This last mortgage was paid off by Noble out of the proceeds of the sale to him in order to clear the land for that transaction. Eecurring to that sale, it may, for our purposes, be conceded that Lamar in good faith-thought he was selling and Noble in good faith thought he was buying the whole title. Whether William and Hania could have contracted together on an adequate consideration that they would become tenants by the entirety, and whether (if they had so contracted) the partition deed, ex proprio vigore, would have made them such tenants, we need not, hence do not, decide. It is sufficient for us to hold, as we do, that we find no clear and cogent evidence that William Lamar and Hania his wife contracted between each other that William should personally assume the payment of this debt as a consideration for the partition deed purporting to convey title to them jointly. How could it have that effect, when it neither diminished nor enlarged Hania’s title by inheritance, but related solely to a severance of possession and made her the owner in severalty? Nor are we of opinion that the payment of that mortgage out of the proceeds of the sale of the land established, or tended to establish, the fact that William Lamar paid a consideration creating him a joint tenant with his wife. Whatever effect it had, it did' not relate back to the partition deed and create a tenancy by the entirety.

If. the foregoing were the whole' case, we would affirm the judgment on the views already expressed. But it is not the whole case. As said, Hania Lamar acquired title subject to the liens of a mortgage and of certain judgments. As said, the plan of the domestic partition was to prorate the amount of the several lien debts among the heirs of Hiram J. Hurst. That plan was consummated, and Hania’s share was $242. That the amount took the form of a mortgage in favor of the judgment creditor who advanced enough more to take up her share of the old mortgage, goes for nothing in equity. It changed the form of the thing, but not the substance. Now, equity looks to substance, not form. ITania took title to her parcel, cum onere, the burden with the benefit, as heir of her father and the new mortgage stands for and represents her burden thus assumed. It would be highly inequitable to let her children have the land clear of such burden, when as here, Noble in good faith removed the burden by paying the mortgage debt. Noble was no volunteer or intermeddler. When he, to acquire the whole title, furnished the money to pay that mortgage in 1904, he became, on the whole title failing, entitled to subrogation. The mortgage was due and its payment saved the estate of the remaindermen. Noble’s heirs and widow stand in his shoes; hence the chancellor, in clearing and correcting the title in favor of the Lamar children, and awarding partition, should have made Noble’s heirs and widow whole in that regard, under the cardinal maxim -. they who seek equity must do equity. “Equity does nothing grudgingly or by halves. Its out-stretched arm corrects, but with loving kindness, withal.” [Stitt v. Stitt, 205 Mo. l. c. 165.] When equity lays hold of a subject-matter it does not lift its hand until plenary and perfect justice is done as near as may be under the issues. Appellants by their answer plead all the facts and ask relief. The proof sustained their view of it. The decree, nisi, did equity as far as it went, but it stopped short of doing full and rounded equity in the above regard. Mr. Noble when he bought from Lamar dealt with the land as full owner and greatly improved it. At best the case is a hard one for his estate. To allow the Lamar children to take the benefit of a title cleared of the encumbrance, would be lame and halting equity. They must make restitution out of the proceeds of the court’s sale.

Accordingly the decree is reversed and the cause remanded with directions to enter a new decree awarding partition to the Lamar children, ordering a sale, and making the same disposition of the life estate as in the former decree, hut in addition the chancellor must compute the interest at six per cent on $242 from the date in 1904 that the mortgage was paid and adjudge payment to the Nobles of the amount of principal and interest so found, out of the proceeds of the partition sale.

Graves, P. J., and Woodson, J., concur; Valliant, J., absent.