author: VALLIANT, J.

text:
    TOOTLE et al. v. BUCKINGHAM et al., Appellants.
    Division One,
    July 1, 1905.
    1. MORTGAGE: Mixing Properties. The mortgagor can not by mixing other cattle of like description with those covered by the mortgage defeat the mortgage, either in his own favor or in, that of a subsequent purchaser under him.
    2. -: Sale: Innocent Purchaser: Fraud. Where the mortgagor in a chattel mortgage covering cattle told a prospective purchaser while he was negotiating a sale that they were mortgaged and that for that reason the sale would only be for cash to pay the mortgagee, and the purchaser agreed to pay cash, but maneuvered to get possession and surreptitiously removed them to another county from that in which the mortgagor resided and in which the mortgage was registered as the statute required, the purchaser is not an innocent purchaser. And where, in addition to these facts, the evidence shows that four days prior to his purchase the purchaser had mortgaged the cattle, as being in the county to which they were subsequently removed, to a commission firm and that firm transferred this latter mortgage and the notes secured thereby to defendants, they can not claim to be innocent purchasers as against the holders of the first mortgage. All these facts stamp the purchaser’s transactions as fraud, and the defendants stand in his shoes.
    3. JUDGMENT: Based on Statement of Attorney. If the facts stated by plaintiff’s attorney in his opening statement are such that plaintiff can not recover, the court has jurisdiction to render judgment thereon for defendant; and, in such case, the judgment is not open to collateral attack on the suggestion that the court erred in its opinion.
    4. -: -: Of Another State. Such a judgment rendered by a court of competent jurisdiction in another State, will be given the same force and effect as if it had been rendered by a Missouri court.
    5. -: -: Wrong Party: Replevin. Plaintiffs, living in Missouri, bought a mortgage and the notes on cattle in Kansas, which were sold by the mortgagor contrary to the provisions of the mortgage, and taken to another county, and thereupon plaintiffs placed the notes in the hands of the payee and mortgagee and instructed him to- sue in replevin, which was done, the suit being brought in his name, and when the suit came to trial plaintiff’s attorney stated to the court that the plaintiff was not the real owner of the notes and mortgage but held them for collection. Thereupon the court held that plaintiff as the mere agent of his principal could not maintain an action of replevin, and rendered judgment for defendant. Held, first, that it is only matters actually considered by the court that are settled by a judgment, and not every possible issue that might have been tried under the pleadings; second, there was no adjudication in that action of plaintiffs’ title to the cattle, and hence their right to the money received by them for the cattle recovered and sold after the replevin was begun was not settled by that judgment.
    6. -: Replevin: Collection Enjoined. Plaintiffs, the owners of notes and a mortgage covering cattle in Kansas, when they found that the mortgagor had wrongfully sold them, indorsed the notes to the payee for collection, sent them to him and directed him to sue in replevin, and gave the usual bond. The cattle were recovered, turned over to the payee, shipped to Missouri and sold for $4,500, the money being turned over to plaintiffs, who still have it. In the trial of the replevin suit the Kansas court held that the payee as the plaintiffs’ agent could not maintain the suit, and rendered judgment for the value of the cattle, $6,000, for the defendant, who had fraudulently obtained possession of the cattle from the mortgagor knowing they were mortgaged to plaintiffs, and that defendant sold the judgment to these defendants. Held, first, that they should he enjoined from collecting their judgment for $6,000; second, the case is not one in which plaintiffs are assailing the Kansas judgment as one concocted in fraud, hut is a case in which the judgment stands in place of the cattle, and the defendants, who are not entitled to. them, are in a position, if left alone at law, to enforce it against the. plaintiffs, to whom the cattle rightfully belonged, and, third, if equity can not restrain defendants in the collection of that judgment, justice is defeated hy the forms of law.
    Appeal from Buchanan Circuit Court. — ífo«. A. M. Woodson, Judge.
    Affirmed.

      Johnson, Bush S Stringfellow for appellants.
    (1) Pull faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. U. S. Constitution, art. 4, sec. 1; Hanley v. Donaghue, 116 U. S. 1; Huntington v. Attrill, 146 Ü. S. 657; Harbin v. Chiles, 20 Mo. 314; Crim v. Crim, 162 Mo. 544. (2) It is proper for a trial court to render judgment on the opening statements of counsel where such statements contain admissions warranting such action. Oscanyon v. Winchester Arms Co., 103 II. S. 263; Clews v. Bank, 105 N. Y. 398; Denenfield v. Bowman, 58 N. Y. Supp. Ill; Thompson on Trials, sec. 269; Abbott’s Trial Brief, p. 40. This is the prevailing practice in the State of Kansas. Lindley v. Eailroad, 47 Kan. 432; Eailroad v. Hartman, 40 Pac. 109. It is also the practice in this State. Pratt v. Conway, 148 Mo. 299; St. Louis v. Babcock, 156 Mo. 154. Even if a party was so unscrupulous as to be willing, he ought not to be allowed to swear around an admission made in an opening statement. Eice on Evid., p. 128. The proceeding in the Kansas court was a trial' on the merits, “a judicial examination of the issues,” since it was a decision of the issues based upon admissions made in open court by the counsel of the plaintiff in that case, and this was admitted by the filing of a motion for a new trial in that case. Orossland v. Admire, 118 Mo. 87. (3) The suit was properly dismissed as to defendant Buckingham. Service of summons outside of the State in divorce and other proceedings in which such service is provided by our statutes is equivalent to service by publication. Orear v. Clough, 52 Mo. 55. A personal judgment cannot be rendered on such service. Hendrix v. Railroad, 77 S. W. 495; Wilson v. Railroad, 108 Mo. 596; Hamill v. Talbott, 81 Mo. App. 214. In this case there is no attachment, no lien of any kind on property involved, no receiver, no money paid into court, no property of any kind was at the time of the trial nor had ever been in the custody or control of the court, hence there was no foundation for a judgment in rem or for service outside the State. The jurisdiction of the court to inquire into and determine the obligations of a non-resident so served is only incidental to its jurisdiction over the property. Some property must be brought under the control of the court by seizure or some equivalent action. Pennoyer v. Neff, 95 U. S. 714; Cooper v. Reynolds, 10 Wall. 308; Hawes on Jurisd., sec. 233. Without some property in the custody of the court the court is without jurisdiction, and a judgment founded on such service is void. Smith v. McOutehen, 38 Mo. 415; Ellison v. Martin, ,53 Mo.. 575; Latimer v. Railroad, 43 Mo. 105; Byer v. Trust Co., 63 Mo. App. 521; Adams v. Hecksher, 80 Fed. 742; Fisher v. Evans, 25 Mo. App. 582. Defendant Buckingham having been the sole defendant in the Kansas suit, even if it were otherwise possible, a suit here could not affect the binding force or the rights acquired under the judgment in that suit without having him in court. After publication a petition not coming within the statute allowing substituted service on a non-resident cannot even be so amended as to give the court jurisdiction. Janney v. Spedden, 38 Mo. 395; Adams v. Hecksher, 80 Fed. 742. (4) In order to be valid, a mortgage, where possession is not delivered, must describe the property conveyed so that a stranger with the mortgage in his hand can pick it out. Evans-Snyder-Buell Co. v. Turner, 143 Mo. 638; Stonebraker v. Ford, 81 Mo. 532; Hughes v. Menefee, 29 Mo. App. 192; Jones, Chat. Mtgs., secs. 54, 55; Chandler v. West, 37 Mo. App. 635; 5 Am. and Eng. Eney. Law, 956, 962. When stock is described as located on a particular farm or at a particular place, they must be the only stock at that place to which the description would apply. Lafayette County Bank v. Metcalf, 29 Mo. App. 394. If the animals mortgaged are mixed in with a number of others of a similar kind, the mortgage is void. Dawson v. Cross, 88 Mo. App. 296. The fact of such mixing may be shown by the evidence outside of the mortgage. Estes v. Springer, 47 Mo. App. 104; Bank v. Shackelford, 67 Mo. App. 480. Although the mortgage may be good between the parties to it, the location being made a part of the description, the mortgage is made inoperative as to the parties to this controversy by the fact that were other cattle of like description at the same place. Stonebraker v. Ford, 81 Mo. 532; Jones Bros. Live Stock Com. Co. v. Long, 90 Mo. App. 8; Young v. Bank, 97 Mo. App. 582; Mackey v. Jenkins, 62 Mo. App. 618; North Inv. & Corp. Co. v. Davis, 76 Mo. App. 512. (5) The judgment in the Kansas suit is conclusive on plaintiffs.

      R. A. Brown and Soarritt, Griffith $ Jones for respondents.
    (1) Equity has jurisdiction, (a) The action is to follow up and reclaim a trust fund, (b) To avoid a multiplicity of suits at law. (c) All the defendants liable at law are insolvent. 2 Story, Eq. Jur., sec. 899; Johnson v. Huber (Wis.), 82 N. W. 138; Moore v. Jaeger, 19 Cen. Dig. 138; Burney v. Stevenson, 15 Am. Rep. 621; Davis v. Mugan, 56 Mo. App. 311; Snorgrass v. Moore, 30 Mo. App.. 235; Evans v. Railroad, 64 Mo. 453; Parks v. Bank, 31 Mo. App. 12; Biddle v. Ramsey, 52 Mo. 153. (2) The rights of the plaintiffs in this case were not finally adjudicated and disposed of in the trial and judgment in the replevin suit in the State of Kansas, (a) The plaintiffs in this case were not parties to the replevin suit in Kansas. Their application to he made such was summarily overruled by the Kansas court, (b) There was no trial of the merits of the replevin suit in the Kansas court, the judgment there being founded upon the fact that the J. C. Bohart Commission Company, the plaintiff in that case, was not the real party in interest therein. Snorgrass v. Moore, supra; Bell v. Hoagland, 15 Mo. 360 ; Hickerson v. City, 58 Mo. 61; •Spradling v. Conway, 51 Mo. 51; Garrett v. Greenwell, 90 Mo. 120; Baldwin v. Davidson, 139 Mo. 118. (3) The testimony shows that the Cooke mortgages were in full, force and effect and were sold by Cooke to the plaintiffs for a sufficient and valuable consideration. (4) The effect of the Kansas judgment is to require the plaintiffs to pay again for their own cattle by reason of the indemnity given to the sureties upon the replevin bond in that case. (5) The merits of the replevin suit were not tried in the Kansas court. The appealing defendants had knowledge of the plaintiff’s claims. There was no consideration given for the assignment of the Kansas judgment. (6) The contention that the mislocation of the cattle in the descriptions in the Bohart mortgages renders them invalid is not tenable. The cattle were otherwise sufficiently described and the mortgages were filed in the county where the mortgagor resided and the cattle were located as required by the laws of Kansas. A mistake in the description of the mortgaged cattle regarding their location does not invalidate the mortgage. Adams v. Hill, 10 Kan. 627; Estes v. Springer, 47 Mo. App.- 99; Jones v. Workman (Wis.), 27 N. W. 158; Stonebraker v. Ford, 81 Mo. 532. (7) It is clearly shown by the testimony that the 243 head of cattle covered by the plaintiff’s mortgages were not so< mixed or commingled with other cattle of the same description, by Cnrtis, the mortgagee, as to destroy their identity, but even if such were the case it would not avail the appealing defendants anything, as subsequent grantees or mortgagees. Adams v. Wilder, 107 Mass. 123; Hoe v. Wadsworth, 59 N. H. 402; Hesseltine v. Stockwell, 30 Me. 237; Bryant v. Ware, 30 Me. 295; Jones on Chat. Mort., sec. 481; Willard v. Rice, 11 Mete. 493; Puller v. Paige, 26 111. 358. (8) The appealing defendants do not occupy the position of innocent purchasers or mortgagees. Howard v. Bank, 44 Kan. '551; Burnam & Go. v. Smith, 82 Mo. App. 48. (9) The Cooke mortgages were not discharged or cancelled. Howard v. Bank, supra.
   VALLIANT, J.

This is a suit in equity, aimed to adjust the claims of the parties in a controversy growing out of certain cattle transactions in Kansas.

The substantial facts stated in the petition are as follows: '

The plaintiffs, as partners in November, 1898, acquired by purchase from one of the defendants, the Bohart Commission Company, for a valuable consideration, certain negotiable promissory notes secured by two chattel mortgages covering 243 head of cattle in Kansas, the notes and mortgages were made by one Curtis, who was then the owner of the cattle, dated November 5, 1898, and the mortgages were duly registered as required by the laws of Kansas. Afterwards on November 18, 1898, in breach of the condition of the mortgages, Curtis sold and delivered 200 head of the cattle to one G-illett who, without consideration, delivered them to one Buckingham, who removed them to another county in Kansas, to-wit, Wabaunsee county. The plaintiffs, on learning of the breach, delivered the notes and mortgages to the Bohart Company from whom they had purchased them, for the purpose of suit and collection. The Bohart Company went to Kansas and instituted an action of replevin in its own name against Buckingham in Wabaunsee county, based on the mortgages, to recover possession of the 200 head of cattle. The Kansas law required the plaintiff in such suit to give bond with resident security, and-to meet this requirement the plaintiffs in this suit, Tootle, Lemon & Co., procured a correspondent of theirs resident in Kansas to become the surety, and agreed to indemnify him in the matter, which was done. Under the writ of replevin the sheriff found and seized 199 head of the cattle and delivered them to the Bohart Company, who immediately shipped them to St. Joseph, where they were sold in the market for $4,500 cash, which sum the Bohart Company placed in the plaintiffs’ bank to the credit of a suspense account and it was there when this suit, was filed.

Pending the suit in Kansas the plaintiffs in this suit discovered that there were two other mortgages on these cattle prior in time to the two they had bought from the Bohart Company, and in order to clear up their title they bought those also; they are called the Cooke mortgages.

In May, 1899, the replevin suit came on for trial in Kansas and in his opening statement the attorney for the plaintiff said that the plaintiff, the Bohart Commission Company, was not the real owner of the notes and mortgages but held them only for collection, whereupon the court decided that the plaintiff was not entitled to prosecute the suit and rendered judgment for the defendant Buckingham for the return of the cattle or for $6,000, their value. Buckingham immediately assigned the judgment to the Central Savings Bank of St. Joseph and its receiver.

On November 14, 1898, four days before Grillett bought the 200 head of cattle, he executed his notes for $8,000 to the Gillespie Commission Company and a mortgage on these 200 head of cattle (or cattle of the same description) to secure the same, which notes and mortgage the Gillespie Company transferred to the Central Savings Bank.

When Curtis sold the cattle to Gillett it was with the understanding that it was to be a cash sale and Curtis intended to use the cash in payment of the Bohart mortgages then held by the plaintiffs in this suit, but Gillett got possession of the cattle without paying anything for them and he and Buckingham shipped them to Wabaunsee county.

After this suit was filed, the defendants, Shoup, McDonald,. Townsend, Robinson and the Hax Realty Company purchased from the receiver of the Central Savings Bank the $6,000 Kansas judgment and on their petition were made parties defendants 'herein.

The prayer of the petition is that the defendants be required to interplead touching their interest in the cattle or the proceeds, that plaintiffs be decreed to have the first right to the fund in the bank and the benefit of the $6,000 Kansas judgment; that the Bohart Company be decreed to pay plaintiffs out of what it owes on the $6,000 judgment the balance due them, and that the other defendants be enjoined from attempting to collect that judgment.

The separate answer of defendants Shoup and others set up their title, as purchasers of the assets of the Central Savings Bank from the receiver, to the $6,-000 Kansas judgment and the Gillespie notes and mortgage, and deny that the cattle involved in the replevin suit and covered by the Gillespie mortgage are the same cattle covered by plaintiffs’ mortgages; that the notes covered by the Cooke mortgages were paid off and discharged before they came into plaintiffs’ possession and that plaintiffs paid nothing for them; that if plaintiffs had any title to the cattle in the replevin suit they have already realized it by accepting the $4,500 for which the cattle were sold in St. Joseph to wMch sum these defendants assert no claim, but do assert that they own and are entitled to collect the $6,000 Kansas judgment; that the Bohart Commission Company, the principal in that judgment, is insolvent.

The answer also states that at the trial of the replevin suit the attorney for the plaintiff in that suit in his opening statement said that his client had no interest in the notes or mortgages except that it held them for collection for the owners, Tootle, Lemon & Company, and that upon that statement the court rendered judgment for the defendant Buckingham.

The Bohart Company filed an answer admitting the allegations of the petition and joining in the prayer. Defendant Curtis filed an answer admitting the execution of the notes and mortgages to the Bohart Company for $7,722, and that they were unpaid, and stated that as to all other matters in the petition he had no knowledge or sufficient information to form a belief.

Buckingham, who was a non-resident of Missouri and was served with process in Kansas, filed no answer.

The cause came on to be heard on the pleadings and proofs and the coart rendered a decree finding the issues for the plaintiffs and decreed that the plaintiffs were entitled to the proceeds of the cattle sold in St. Joseph, then amounting-to $4,890.75, to be credited on the Curtis notes, and were also entitled to the interest of the defendants in the $6,000 Kansas judgment, and enjoined the defendants Shoup and others from attempting to collect that judgment from the principal or his sureties and enjoined the Bohart Company from paying the same to them and rendered judgment against them for costs; the decree dismissed the suit as to Buckingham on the ground that service on him in Kansas did not bring him into court. The defendants Shoup and others appealed from the decree against them, and the plaintiffs appealed from so much of the decree as dismissed the bill as against Buckingham.

We will consider the defendants’ appeal first, as that covers all that is material in the controversy.

I. The first contention is that the Cooke mortgages were satisfied before they were transferred to the plaintiffs and that plaintiffs paid no valuable consideration for them. That is not a very material question, because if the plaintiffs’ title to the cattle is good by virtue of the Bohart mortgages it is sufficient, since the notes secured by those mortgages are more in amount than the value of the cattle in dispute, and in that view the Cooke mortgages would be significant only of an older outstanding title until the plaintiffs had acquired possession of them.

The evidence shows that there were negotiations between Curtis and the Baxters on the one hand, and Cooke on the'other,- looking to a trade of the steers covered by their mortgages for a lot of calves, and the terms were agreed on, but the terms were not carried out in the essential particular of making the cash payment ; that there had been only $194 paid on the $3,080 note, and nothing paid on the other. The evidence also shows a consideration for the transfer in the form of a release by the plaintiffs to Cooke of another mortgage which seems to have been satisfactory to him whatever its value to him may have been.

II. It is also contended that the cattle covered by the Bohart mortgages are not the same cattle that were sold to Gillett and taken in the replevin suit.

There was a great deal of evidence on- this point which we deem it unnecessary to review in detail; after going through it all we have no doubt of the correctness of the finding of the cháneellor.

There was evidence .tending to show that at the time Curtis sold to Gillett there were a large number of other cattle of the same general description which Curtis had put in the herd with those covered by the Bohart mortgages which Curtis had bought from the Baxters, but that evidence does not show that the Baxter cattle could not easily be distinguished from the others.

Curtis could not by mixing other cattle of like description with those he had mortgaged to Bohart defeat the Bohart mortgages either in his own favor or in that of a subsequent purchaser under him. [Adams v. Wilders, 107 Mass. 123; Fuller v. Paige; 26 Ill. 358; Jones on Chat. Mort., sec. 481.]

There is a misdescription in the Bohart mortgages of the cattle in one particular; they are described as being two miles north of Burham in Marion county, Kansas, whereas they were never in that county. Curtis bought the cattle from the Baxters and they were then in Morris county where Curtis and the Baxters lived, the intention was to remove the cattle to Marion county to feed, but they had not been moved when the Bohart mortgages were given and when the sale to Grillett occurred. In other respects the cattle were correctly and sufficiently described.

At the date of these transactions the statute of Kansas relating to registration of chattel mortgages (Gen. Stat. Kansas, 1897, vol. 2, sec. 1. chap. 120) was as follows:

“Section 1. Every mortgage or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy there-s, of shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated, or if the mortgagor be a resident of this State, then of the county of which he shall at the time he a resident.”

These Bohart mortgages .were registered in conformity to the requirements of that statute in Morris county, which was the county of the mortgagor’s residence and the place where the cattle were at the time, and where they were when Gillett took them.

Besides, Gillett was not an innocent purchaser. Curtis told him while he was negotiating the purchase that the cattle were mortgaged to the Bohart Commission Company and for that reason the sale would be only for cash to pay Bohart. Gillett agreed to pay cash, hut manoeuvered to get possession and surreptitiously removed the cattle to Wabaunsee county where they were afterwards caught hy the writ of replevin. The fraudulent scheme is also shown hy the fact that four days before his purchase Gillett executed the mortgage to the Gillespie Company which that concern transferred tp the Central Savings Bank and which is the mortgage under which these defendants now claim.

Under the circumstances the misdescription as to location, the description in other respects being ample, was immaterial.

The finding of the chancellor that the 200 head of cattle carried away hy Gillett and found under the writ of replevin were covered hy the Bohart mortgages was •in accordance with the weight of the evidence.

III. Defendant’s next proposition is that the replevin suit in Kansas settled the whole controversy.

We are required hy our Federal Constitution to give full faith and credit-to the judicial proceedings of a sister State. [U. S. Const., art. TV, sec. 1.] We will therefore give to the judgment of the Kansas court in the .replevin suit, the same force and effect we would give it if it had been rendered hy a court having jurisdiction of the suit in this State. The court had jurisdiction to render judgment for defendant if in its opinion the facts stated hy the plaintiff’s attorney in his opening statement were such that the plaintiff was not entitled to recover. Such is our law. [Pratt v. Conway, 148 Mo. 291, l. c. 299; St. Louis v. Babcock, 156 Mo. 154.] And such seems also to be the law of Kansas, [Lindley v. Railroad, 47 Kan. 432; Railroad v. Hartman, 49 Pac. 109.] And in such case the judgment is not open to collateral attack on the suggestion that the court erred in its opinion. "We will, therefore, take this Kansas judgment at- its full face value as we would if it had been rendered by one of our own courts.

But it is not the doctrine in this State that every possible issue that might have been tried under the pleadings in a given case is conclusively presumed to have been tried and the matter become res adjudicata. Only the matters that were actually considered by the court are settled by the judgment. For our rulings on this point see cases cited in the brief for respondents.

The evidence shows that the only point decided by the Kansas court was that a mere agent holding the mortgage and notes for collection for his principal could not in his own name maintain an action of replevin for the chattels mortgaged. The record shows that Tootle, Lemon & Co. made application for leave to come in and interplead for the cattle, but that their application was denied. That ruling only meant that Tootle, Lemon & Co. could not litigate with Buckingham in that case. There was, therefore, no decision affecting the plaintiffs’ title to the cattle, and none affecting that of Buckingham, except that the Bohart Commission Company, who had no title to the cattle, was not entitled to take them out of his possession. There was no adjudication in that suit of the question of the title of these plaintiffs to the cattle.

IV. We come now to the last and serious question in the case, that is, has a court of equity the power to grant the plaintiffs relief against the collection of the $6,000 money judgment in Kansas? The Bohart Company is insolvent; but the judgment is good against the sureties on the replexin bond; these plaintiffs are obliged to indemnify those sureties for their loss; therefore, if the defendants collect the judgment they in effect collect it from those plaintiffs.

From the whole record in the case we have no hesitation in holding that the 200 head of cattle in question belonged to the plaintiffs in this suit and that they were fraudulently taken away by the man under whom these defendants claim. Now by an untoward conjunction of affairs the defendants are in a position, if left free to execute their Kansas judgment, to, in effect, make these plaintiffs pay for their own cattle and that too to those who derive their only title from the man who fraudulently deprived the plaintiffs of the cattle.

It cannot be said that there was any fraud perpetrated in the concoction of the judgment, because that judgment fell into the hands of the defendant in that case without any action on his part; the only activity displayed by him was in the transference of it after it was rendered.

The plaintiffs have skillfully woven into their bill the idea that they are invoking the power of the court of equity to trace their cattle into the money for which they were sold in St. Joseph and which they bring into court as a trust fund as the subject of the litigation. But the defendants just as skillfully decline that issue by disclaiming any interest in that fund; they are perfectly willing for the plaintiffs to have that money and only ask that they be let alone to collect their Kansas judgment according to its tenor and effect. That is the point in the case. If equity is powerless in the premises, if it cannot restrain the defendants in the collection of that judgment,' then justice is defeated in this case by the forms of law.

In the exercise of its jurisdiction to restrain a party in the collection of a judgment at law on the ground of ‘fraud the equity court has always held that it would consider only the charge of fraud in obtaining the judgment, not of fraud in the cause of action, or fraud in the form of perjury in the evidence by which it was established, and the reason given was that the law court which tried the case was competent to judge if there was fraud in the cause of action or perjury in the evidence.

This is not a cause, however, in which the plaintiffs are assailing the judgment; it is a ease in which the judgment stands in the place of the cattle, and parties who are not entitled to the cattle are in a position if left alone at law to enforce it against those to whom the cattle rightfully belong.

Suppose the cattle had been kept in Kansas to abide the judgment in the replevin suit and when the judgment was. rendered they had been turned over to Buckingham and he had turned them over to these defendants, is there any doubt but that these plaintiffs could have recovered them?

But the cattle were not left there; they were shipped away by Bohart and there is nothing left in Kansas to represent them but the $6,000' judgment. Is not that judgment, therefore, in the eye of equity, the cattle?

If the cattle had been put into the possession of the sureties on the replevin bond in Kansas to hold for their indemnification, and if, when the judgment was rendered, they had delivered the cattle to Buckingham in satisfaction thereof, the plaintiffs in this suit could have recovered them from him in an action at law, or if the plaintiffs could have shown that delivery to him would jeopardize their remedy at law they might have had direct relief in equity. And in such case if the sureties had made way with the cattle so that they did not have them to respond to the judgment and had paid that money alternative, the plaintiffs could have recovered the amount from him, or before such payment, upon a showing that he was insolvent, could have enjoined the payment to him. Thus in any view of the case the money judgment, in the absence of the cattle, is the alternative of the cattle. And the defendants stand in no better light than Buckingham, under- whom they claim, stood; the judgment was transferred to the Central Savings Bank to secure the old debt and without present consideration, and these defendants bought the assets of the bank after this suit was begun.

The fact that these cattle were shipped from Kansas by Bohart arid sold in St. Joseph and the money paid into the plaintiffs’ bank does not make the situation different from what it would have been if the cattle or their price had never come into the plaintiffs ’ hands, because if they have that judgment to pay in Kansas it means, in effect, turning the money they have received and more besides over to these defendants, Buckingham’s assignees.

Our conclusion is that the Kansas judgment represents and stands for the cattle, and as these plaintiffs as against these defendants would be entitled to the cattle, so they are entitled to that judgment and defendants have no right to collect it.

As to the plaintiffs’appeal, there is no necessity to discuss it. Since it conclusively appears that Buckingham has sold all of his interest to these other defendants a judgment against him would be of no consequence.

The judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: MARSHALL, J. —

license: Public Domain

text:
    STURGEON, Plaintiff in Error, v. MUDD.
    Division One,
    July 1, 1905.
    1. DEED OF TRUST: Foreclosure: Extension: Redemption. A mere promise, unsupported by a valuable consideration, to extend tbe time of payment of tbe mortgaged debt or to postpone a sale under a deed of trust, is not sufficient in law to bind the promisor, nor to sustain a bill of equity to redeem brought against him by the mortgagor after foreclosure in violation of said promise.
    2. -: -: -: -: Suit When Begun. A suit to redeem after foreclosure sale under the deed of trust must be begun within one year, and, besides, the mortgagor must otherwise comply with the requirements of the statute in reference to security and payment of interest.
    3. -: -: Interest Only Due. Where by the terms of the deed of trust it may be foreclosed on failure to pay either interest or principal, it is immaterial whether the principal was due at the time of forceclosure if the interest was due and unpaid.
    4. -: -: Agreement to Extend: Suppression of Facts. A breach of an agreement to extend the debt and not to foreclose does not entitle the mortgagor to redeem, if, at the time the agreement was made, the mortgagee was ignorant of the fact, which the mortgagor knew and concealed, that there was a prior deed of trust on the land and an outstanding judgment against the mortgagor which was a lien on the land.
    5. -: -: Redemption: Res Adjudicata: Ejectment. Where the mortgagor had opportunity, in the suit in ejectment brought by the mortgagee who was the purchaser at the foreclosure sale, to have’adjudicated his right to redeem on equitable grounds, and permitted the mortgagee to recover judgment without setting up those grounds, he had his day in court thereon, and cannot recover in a separate action brought by himself with those grounds as its basis.
    6. -: -: -: Equitable Action. Where the mortgagee became the purchaser at the foreclosure of a deed of trust, and afterwards brought an action in equity against the mortgagor and other heirs to have the court decree that a prior deed of trust made by their common ancestor be satisfied d>y the sale of other land than that bought by him at the foreclosure sale, and the mortgagor as a defense in that suit set up all the facts he now alleges in support of his equitable right to- redeem, an adverse adjudication in that cause is a har to this.

      Error to Audrain Circuit Court. — Son E. M. Hughes, Judge.
    Affirmed.

      W. W. Botts for plaintiff in error.
    (1) The price paid was grossly inadequate. Judge Kendall’s testimony would place the value of the farm at $6,600. Mr. Mudd himself says he would not take $6,000 for it. Wanted it, he said, for his grandson. (2) Plaintiff was at defendant’s mercy; first, because of the chain of deception by which he led plaintiff on from day to day while the advertisement was running, and finally broke off all negotiations on the day before the sale; second, the Clyce mortgage rendered it impossible for plaintiff to procure a loan elsewhere, and would deter any one from bidding at the sale, being a cloud on the title. (3) Defendant’s acts were oppressive. The fact that plaintiff was resting in security under the promise that Mudd’s man would be around to take a chattel mortgage to secure the interest, and that the principal was not due when the advertisement began; the fact that various demands were made by Mudd, only to be withdrawn, and more burdensome ones substituted, leading plaintiff a “dog’s life” up to the day before the sale; then going to the sale with a petition for suit in ejectment, already prepared, and filing it as soon as the deed could be made by the trustee. These facts bear all the ear marks of oppression. Defendant is estopped by his conduct and declarations of self and agents, before and after the sale, from now claiming absolute title, even though his agreements were not such as would bind him at law. Equity readily seizes upon any incident of surprise, undue advantage, or other inequitable ground of relief where the property has sold for a price so low as to result in hardship. Neath v. Porter, 9 Heisk. (Team.) 324; Yail v. Jacobs, 62 Mo. 130; Stofel v. Shroeder, 62 Mo. 142; Meyer v. Jefferson Ins. Co., 5 Mo. App. 245.

      Warner Lewis for defendant in error'.'
    (1) “A complainant shall come into court with clean hands” and be able to show that his conduct towards his adversary is void of offense or wrong-doing touching the matters in controversy.” Snell’s Pr. of Equity (1 Am. Ed.), p. 15; Wilson v. Railroad, 120 Mo. 45. (2) Therefore, he who does inequity shall not have equity; for, in the same measure he gives, so shall it be measured unto him. Southworth v. .Hopkins, 11 Mo. 331. (3) The plaintiff admits in his testimony that he told the defendant that the property was clear of incumbrance when he borrowed the money, and the defendant says “he believed the statement to be true when the loan was made, or he would not have made the loan.” The defendant had a right to rely upon such statement, notwithstanding that they together examin- ■ ed the records at Mexico when the loan was being made. Such statement was equivalent to a positive guaranty. Cottrell v. Crum, 100 Mo. 397; Mead v. Baum, 32 N. Y. 279; Pollock on Torts (Amer. Ed. by Webb.), p. 377; Dunn v. White, 63 Mo. 181; Caldwell v. Henry, 72 Mo. 254; Litchfield v. Hutchinson, 117 Mass. 195; Catzhausen v. Simon, 47 Wis. 103; Wharf v. Roberts, 88 111. 426; Railroad v. Ogier, 35 Pa. St. 72; McGribbons v. Wilder, 78 la. 351; Snell’s Eq. P’r. (Am. Ed.), pp. 382-385. (4) When this suit was brought the defendant was in full possession of the mortgaged estate, and the plaintiff having failed to make or show a tender of the debt and interest, can not recover in any event. Ailey v. Burnett, 134 Mo. 313.
   MARSHALL, J. —

This is a bill in equity for leave to redeem two hundred and twenty acres of land lying in Audrain county, Missouri, and being the northeast quarter of the northwest quarter, the northwest quarter of the southeast quarter, the southwest quarter of the northeast quarter, and the south half of the northwest quarter of section 33, township 51, range 5 west. The circuit court dismissed the plaintiff’s hill and gave judgment in favor of the defendant on his counter-claim, and after proper steps the plaintiff appealed.

THE ISSUES.

The gist of the' petition is, that in the year 1893, the plaintiff borrowed $3,500 from the defendant (which the evidence shows was used to purchase a part of the land involved herein) and executed a deed of trust to secure the payment thereof with interest at seven per cent, the petition alleging that the principal was to fall due in April, 1900; that the plaintiff made default in the payment of the interest due in April, 1899, and informed the defendant of his inability to pay the same and asked him to grant an extension of time, which the defendant agreed to do, and in violation of his agreement proceeded and foreclosed the deed of trust, and became the purchaser thereof for the sum of $3,000, when the plaintiff says the land was worth $6,-000. The petition further states that after the advertisement. of the notice to foreclose the deed of trust had begun to run, the defendant- agreed with the plaintiff to stop the sale if the plaintiff would deed theTand to the defendant upon condition that the defendant should hold it, apply the rents therefrom to the payment of the principal and interest, and give the plaintiff a bond to reconvey it to him at any time within three years, which agreement, the petition alleges, was duly reduced to writing and asigned by the defendant. The petition further avers that the defendant repeatedly declared to divers persons, who were likely to bid on the land, that he was not foreclosing the deed of trust for the purpose of acquiring plaintiff’s land, and did not want the money, bnt only wanted it safely invested, and that the defendant, on the 29th of April, 1899, made to the plaintiff a second proposition, in writing, to the effect that he would stop the sale' on condition that the plaintiff paid him $500 on account of the principal debt 'together with all past due interest and $6, the costs of advertising the sale, or in lieu thereof, the plaintiff should deed the land to the defendant and the defendant should give a title bond to deed the land to one Patterson at a specified time after June 1st, 1899. The petition further alleges that he accepted said proposition, and prior to the foreclosure tendered to the defendant a deed to the land, but that the defendant refused to accept the same or to carry out the agreement, and caused the deed of trust to be foreclosed and became the purchaser thereof, declaring, however, that his purpose in so doing was simply to make his loan more secure, and because the taxes on the land were less than the taxes on the loan.

It is further alleged that, relying upon the declarations áforesaid of the defendant, the plaintiff surrendered the possession of the land to the defendant on the strength of the defendant’s promise that he would permit the plaintiff to redeem the land at any time within three years after the foreclosure. The petition further alleges that the defendant has since had the possession of the land and enjoyed the rents, issues and profits thereof, which it is averred amounted to $400 a year. It is further averred that the land originally belonged to the plaintiff’s father, Robert Sturgeon, and that prior to his death, which occurred in 1881, he had placed a deed of trust on this land, together with other land then owned by him, to secure a note for $1,000, but that at the date of the execution of the deed of trust from the plaintiff to the defendant, neither of of the parties had any actual knowledge of the existence of said deed of trust; that by reason of the existence of said prior deed of trust, and by reason of the defendant’s declarations, acts and promises, other persons were deterred from bidding on the land at the foreclosure sale, and the defendant was enabled to become the purchaser thereof at the price of $3,000, which is alleged to be a grossly inadequate price. That, after defendant obtained possession of the land, he was informed of the existence of the prior deed of trust and that he purchased the prior deed of trust for $1,-500 for the purpose of protecting the plaintiff’s title to the land, and that the heirs of Eobert Sturgeon after-wards paid the defendant the amount so expended by him, and said prior deed, of trust became, thereby, fully satisfied and paid. The petition alleges that the defendant is estopped from now claiming to be the absolute owner of the land, and also alleges that the defendant has only an equitable mortgage thereon; that at the time of the foreclosure of the deed of trust, the plaintiff’s debt to the defendant amounted, with interest, to $3,745.

The prayer of the petition is that the defendant be required to account to the plaintiff for the rents, issues and profits, and that the plaintiff be permitted to redeem the land upon the payment of the balance due of the debt.

The answer admits the execution of the deed of trust from the plaintiff to the defendant, but alleges that the debt was evidenced by notes dated March 8, 1893, one for $500, due in two years; one for $750, due in three years; one for $1,000, due in four years, and one for $1,250, due in five years, and that all of the said indebtedness was past due when the deed of trust was foreclosed on the 5th of May, 1899, and the plaintiff failed and refused to pay the same, and in consequence, the defendant caused the deed of trust to be foreclosed and became the purchaser of the land. The answer then avers that the plaintiff did not surrender the possession to the defendant and that defendant obtained possession after the foreclosure sale by means of a suit in ejectment against the plaintiff, which suit the plaintiff kept in court as long a:s he could by means of continuances and change of venue, hut finally failed to defend when the case was set for trial. The answer further alleges that the plaintiff fraudulently represented to the defendant that the land was free and clear of all prior encumbrances when the defendant made the loan to the plaintiff; that after the defendant purchased the land at the foreclosure sale he discovered, for the first time, that there was a prior encumbrance on the land, and that he instituted a suit in equity, to which the plaintiff was made a party defendant, for the purpose of having said prior encumbrance enforced against the land covered thereby, other than the two hundred and twenty acres embraced in the plaintiff’s deed of trust; that he would have been willing, at any time before he purchased the first deed of trust, to reconvey the land to the plaintiff upon the payment of his debt, but that the plaintiff neglected and refused so to do, and on the contrary, the plaintiff in said suit in equity to have the first deed of trust enforced against said other land, set up all the facts stated in his petition herein, and asked affirmative relief, that he be permitted to redeem said two hundred and twenty acres of land sold under the plaintiff’s deed of trust, and that said matters were fully tried and considered by the court in said case and the relief asked by the plaintiff herein, being the defendant in said other case, was expressly denied by the court, and the defendant pleads the same as res adjudicaba of this action.

The answer then concludes with a counterclaim asking judgment against the plaintiff for the unpaid balance due on the said four notes.

The reply is a general denial.

The case made is this:

Robert Sturgeon owned four hundred and seventy-five acres of land. He had encumbered the same for $1,000. After his death the plaintiff inherited eighty acres of the land, and purchased one hundred and forty acres thereof from his brother John. In order to pay his brother therefor, he borrowed $3,500 from the defendant, and executed a deed of trust on the whole two. hundred and twenty acres to secure the same. The deed of trust was dated March 8, 1893, and the debt secured was evidenced by the four notes described in the defendant’s answer. The whole debt, therefore, according to the terms of the deed of trust, fell due in March, 1899. The plaintiff says that upon the trial of this case there was introduced a document in the nature of a bond, dated February 27, 1897, whereby the time for the payment of the de.ed of trust was extended to March, 1900, but no such document appears in the abstract of the record, counsel stating that it had been lost or misplaced-

In March or April, 1899, the plaintiff was unable to pay anything on account of either the principal or interest, and so informed the defendant and asked for an extension of time. The plaintiff says that the defendant first agreed to extend the time if the plaintiff would give a chattel mortgage on some stock to secure the payment of the annual interest which fell due on the 8th of March, 1899, but that instead of so doing the defendant sent to the plaintiff a. letter containing the advertisement of the foreclosure sale, which was to take place on the 5th of May, 1899, and that upon his that he was ready to carry out the arrangement, but that the defendant refused so to do, unless the plaintiff, would pay $500 on the principal, together with the in-remonstrating with the defendant, the defendant then agreed to extend’the time if the plaintiff would pay up all the interest and $6, the costs of the advertisement, together with $250 on account of the principal; that he “located” the $250, and then informed the defendant terest and cost of advertising, and that, thereupon he agreed thereto, and that the defendant signed a written stipulation that he would stop the sale on said terms, and if the plaintiff did not comply therewith, he would deed the land to the defendant; that by reason of the existence of the prior mortgage, the plaintiff was unable to raise the money required, and so on the 4th day of May, the day before the time set for the foreclosure sale, he and his wife executed a deed to the land and tendered the same to the defendant, but that the defendant refused to accept the same, and proceeded with the sale.

The defendant admits the execution of the agreement, but says that he subsequently discovered that there were judgments against the plaintiff, and that there was outstanding this first deed of trust and, therefore, he was not willing to take a deed from the plaintiff, but had become uneasy about his money and had lost confidence in the plaintiff, and, hence, he insisted upon proceeding with the foreclosure salé, and became the purchaser thereat.

Afterwards the defendant instituted a suit in ejectment to get possession of the land; the plaintiff caused the same to be postponed for about a year by means of continuances and change of venue, but ultimately failed to appear and defend the action, and the defendant obtained judgment in ejectment against the plaintiff and thereby got possession. The defendant further showed the facts to be as stated in his answer with reference to the suit in equity therein described, in which suit the plaintiff set up all the facts stated in his petition herein and asked for an accounting and leave to redeem, with the result that the court decided against him, and the plaintiff acquiesced in the judgment, and the same is now a final judgment and is unappealed from.

Upon this showing the trial court dismissed the plaintiff’s bill herein, and entered judgment for the defendant for the balance due on the notes evidencing the plaintiff’s indebtedness to the defendant, and the plaintiff appealed.

I.

There is no equity in the plaintiff’s bill or in the case made. Conceding all the facts stated in the petition, it is fatally defective, in this, that even though it be true that when the plaintiff was unable to meet the payment due in March, 1899, whether the same be simply the interest, as the plaintiff claims, or the principal and interest, as the defendant claims, he applied to the defendant for an extension of time and the defendant, in writing, agreed thereto or in pursuance of said agreement of plaintiff, offered to convey the land to the defendant upon the defendant executing a bond to reconvey the same to the plaintiff or to Patterson, at any time within three years, nevertheless, the petition does not state a cause of action, because it fails to allege' that there was any consideration moving from the plaintiff to the defendant to support the promises and agreements alleged. A mere promise, unsupported by a valuable consideration, to grant an extension of time for the payment of a debt, or to postpone a sale under deed of trust, is not sufficient in law to bind the person promising. [Garnier v. Papin, 30 Mo. 243; McGlothlin v. Hemry, 59 Mo. 213.]

In addition to this, section 4343, chapter 52, Eevised Statutes 1899, permits deeds of trust or mortgages to be foreclosed by the act of the parties, and in such cases permits the mortgagor to redeem at any time within twelve months, but section 4344 provides that no party shall have the benefits of section 4343 until he shall have given security to the satisfaction of the circuit court for the payment of the interest to accrue after the sale, and for all damages and waste that may be occasioned or permitted by the party whose property is sold. This was the law of this State in force at the date of the foreclosure of the deed of trust in question, and there is no allegation in the petition that the plaintiff gave or attempted to give the security required by the section, 4344. Furthermore, this action was not begun within twelve months after the foreclosure sale. That sale was had on the 5th of May, 1899, and this action was not begun until the 19th of December, 1901, and there is no evidence that in the meantime the plaintiff offered to redeem the land.

Aside from this, however, the case made does not entitle the plaintiff to the relief sought. It is immaterial whether the whole debt was due at the time of the foreclosure of the mortgage or whether only the interest was at that time due, for it is conceded that under the terms of the deed of trust any failure to pay any installment of interest, entitled the mortgagee or cestui que trust to foreclose.

For the purposes of this case it may be conceded that the defendant first agreed to renew or extend the notes and to withraw the notice for the sale under the deed of trust if the plaintiff would secure the past due interest and pay the costs of the advertisement; or that he subsequently refused so to do and demanded a payment of $250 on account of the principal in addition to the payment of the past due interest and the costs of advertising; or that he subsequently enlarged his demand so as to require the payment of $500, together with the past due interest and the costs of advertising, and that he gave the plaintiff the option to convey the land to him in lieu thereof, to be held as security for the debt and under a promise or bond to reconvey at any time within three years. This states the case as strongly in favor of the plaintiff as the facts warrant under any view that may be taken of them, and without regard to any conflict in the testimony. Yet this does not entitle the plaintiff to the relief sought, for the reason that it appears that at the time the defendant made, or is said to have made, such promises and agreements, he was ignorant of the fact that there was a prior deed of trust on the land, and also ignorant of the fact that there were judgments outstanding against the plaintiff which were liens on the land. The plaintiff knew those facts and concealed their existence from the defendant. Such conditions completely changed the circumstances under which the promises or agreements had been made and warranted the defendant in refusing to carry out any promise he had made, or in refusing to take a conveyance from the plaintiff, for such a'conveyance would leave the land subject to the liens of the judgments, whereas the foreclosure under the deed of trust would cut out the judgments and leave the defendant to take the course he afterwards adopted to procure a decree in equity charging the first deed of trust upon other land than that covered by the plaintiff’s deed of trust to the defendant, or rather requiring the sale of the other land covered by the first deed of trust before resort could be had to the land covered by the plaintiff’s deed of trust. Upon the discovery of the true state of facts the defendant had a legal right to refuse to carry out the promises he had made in ignorance of the true facts, especially when the plaintiff had concealed their existence from the defendant, as he admits he did.

Moreover, there is a sharp conflict in the evidence as to whether the defendant ever agreed to reconvey the land to the plaintiff in the event the plaintiff deeded the land to the defendant, instead of having the deed of trust foreclosed. The chancellor had all the parties before him and a better opportunity to judge of their credibility than this court could possibly have, and as there are no physical facts which would aid in the solution of the question of which told the truth, this is a case where this court must defer to the finding of facts by the chancellor. In addition to all this, the plaintiff has had two opportunities of having the question here involved adjudicated, first, when the ejectment suit was brought against him by the plaintiff, and, second, when the suit in equity to have the first deed of trust paid out of other land than the land in controversy, was brought against him. In the ejectment case, the plaintiff resorted to dilatory tactics, but failed to set up the matters here relied on or even attend the trial of the case on its merits. In the equity case, the plaintiff set up all the facts now pleaded by him in substantially the same form he now pleads the same and asked affirmative relief. The court heard the whole case and decided the issues thus made against the defendant. Thus the plaintiff has had at least two days in court, prior to the institution of this suit, in which to have the matters here complained of adjudicated, and has had a complete adjudication thereof. The plaintiff, however, seeks to ■ avoid the effect of the prior adjudication by saying that the purposes of the two suits were essentially different, and therefore the former judgment is not a bar to this action. In this, however, the plaintiff is in error, for whilst the relief sought by the defendant in the suit in equity against the plaintiff was to have, the first deed of trust paid out of the land other than that covered by the plaintiff’s deed of trust, nevertheless, the plaintiff set up all these matters by way of a cross-bill in that action, and asked affirmative relief. Thus the whole controversy, pertaining to the whole land, was before a court of equity and that court .had ample power and jurisdiction to do full justice between the parties, and to render such a decree as to the court seemed equitable and right. The plaintiff submitted to that decree, and cannot now be heard to assert any right that was then adjudicated.

These considerations necessarily lead to the conclusion that the petition states no cause of action; that the plaintiff is not entitled to the relief sought upon the merits of the case, and that the plaintiff’s right, if any such ever existed, has been adjudicated in the prior suit.

The judgment of the circuit court is for the right party and is affirmed.

All concur.


author: MARSHALL, J.

text:
    RUPPENTHAL v. CITY OF ST. LOUIS, Appellant.
    Division One,
    July 1, 1905.
    1. SIDEWALK: Pedestrian: Liability of City. The street was formerly a pjiblie road, fifty feet in the center being • macadamized, the fifteen feet on each side remaining in a state of nature. After the city acquired jurisdiction, it kept up the macadamized part, but never at any time graded the other portions or threw them open to travel or invited the public to use them. But there had been on one side for eight years a six-foot granitoid sidewalk 160 feet long, by whom constructed is not shown, but not by the city. At the end erf this sidewalk was a prolongation of a dirt sidewalk or footpath three feet wide, and through or under it at the end of the granitoid was a drain pipe, at one end of which was a hole twelve inches square and ten inches deep. Who put the drain pipe tliere is not shown; it was not done by the city. Plaintiff walking at the edge of the granitoid at ten o’clock at night, having lived in the neighborhood for seven years, but not knowing of the hole, stepped off of the granitoid into the hole and was injured. Opposite a part of the granitoid and the hole the lots were used for agricultural purposes, and for a distance of 1200 feet there were only four houses, the lots being used for truck gardens, etc. The footpath was full of holes, was very much lower than the macadam, and between it and the macadam were tall weeds. There was an electric arc light within 160 feet of the place of the accident. Held, that the city was not liable for plaintiff’s injuries. Held, also, that, even if the sidewalk had by the city been opened for public use, plaintiff by the use of ordinary care could have seen the hole and avoided the accident.
    2. -: -: —=-: Public Use. Mere use by the public of a portion of a street that has never been prepared for public use by the city and which the travelling public have not thereby impliedly been invited to use, can not cast upon the city the duty of keeping such portion of the street in repair.

      3. -: -: Governmental Discretion. Whether the whole or only a portion of a street shall be prepared and thrown open to public use, is a governmental question. After the street has been: thrown open to public use, the duty devolves on the city to keep it in repair and safe for persons to travel over while exercising ordinary care, but mere use by the public, as for a footpath, of a part of the street that has not been thrown open to public use, can not cast such a duty upon the city.
    Appeal from St. Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge.
    Reversed.

      Chas. W. Bates, Wm. F. Woerner and Benj. H. Charles for appellant.
    (1) The uncontradicted testimony shows that the so-called “Sidewalk,” which plaintiff alleges was out of repair at the point where he was injured, is no city sidewalk at all, but a mere foot-worn dirt pathway running along the uneven surface of the soil; it was never undertaken to be graded, altered or improved by the city, but left in its original state of nature. For such as chose_ to use the path it served as a continuation of the graded and improved granitoid to the east of it, but such use was not invited or sanctioned by the city, and the wayfarer passed over it at his own risk. Ely v. St. Louis, 181 Mo. 724; Heckler v. St. Louis, 13 Mo. App. 277; Hunter v. Weston, 111 Mo. 184; Moore v. Cape Girardeau, 103 Mo. 476. (2) The court erred in giving instruction I for plaintiff because there was no evidence whatever justifying for submission to the jury the hypotheses (a) that west of the granitoid there “was a sidewalk unpaved,” for the evidence showed there was no city sidewalk at all; (b) that “in said sidewalk there existed a hole or depression,” because the evidence showed the depression was not in it, but to one side; (c) that plaintiff, “whilst passing along said sidewalk stepped into said hole, ’ ’ because the evidence shows he was not passing along the path when injured. An instruction which submits to the jury hypotheses of fact concerning which there is no legal evidence is erroneous. Instructions must be framed with reference .to the hypotheses of facts which have been developed in the evidence. Smith v. Sedalia, 152 Mo. 302; Eisher v. Central Lead Co., 156 Mo. 495.

      A. B. Taylor for respondent.
    The startling proposition is asserted that a municipality, when it assumes charge of a street and sidewalk, may stop such sidewalk upon the border of an abyss, and then without notice of the death-trap invite the public to use the portion so open, and thus lead them into the trap. For, in this case,, it being dark at night, the - plaintiff walking along this sidewalk, unconscious of danger, reaches the end of the granitoid and without any warning of danger steps into the pitfall smack up against ike granitoid portion of the sidewalk and sustains his injuries. As well contend that the city may, after taking charge of a sidewalk, build it in spots. Here a safe piece next a pitfall, then granitoid and then a quagmire. The Ely case, 181 M'o. 724, was a case where the city had only assumed the care of a part of the street,' to-wit, about thirty feet in width, and had done nothing towards assuming control over the sidewalk where the plaintiff in that case was injured. Here the city had admittedly assumed the control of . this sidewalk.
   MARSHALL, J.

This is an action for $5,000 damages for personal injuries, alleged to have been received by the plaintiff on the 29th of July, 1900, on the south side of Arsenal street, about 160 feet west of Portis avenue, caused by the plaintiff stepping into an alleged hole or trench running across the sidewalk, which hole is alleged to be eighteen inches deep. eighteen inches wide, and three feet long, in consequence of which the plaintiff’s left foot and ankle were injured and sprained.

The answer is a general denial, coupled with a plea of contributory negligence. There was a verdict for, the plaintiff for $2,500 and the defendant appealed.

The case made is this:

Arsenal street runs east and west, is eighty feet in width, and is immediately south of Tower Grove Park. It was a macadamized country road at the time of the separation of the city and county of St. Louis. The macadamized portion aforesaid occupies fifty feet of the eighty feet width of the street. Outside of the macadamized portion, the street has never been graded, the city has never exercised jurisdiction over it or invited travel thereon. Weeds to the height of two or three feet grow between the macadamized portion and the outside limits of the street. The macadamized roadway is much higher than the unimproved portion of the street. Along the sides of the street that have not been improved there is a natural water drain. Beginning at Portis avenue, and extending 160 feet westwardly, there is a granitoid sidewalk six feet wide, which was built, supposedly,- by the abutting property-owners. The city did not construct it or order it constructed, and there is no evidence in the record that it was constructed by the authority or permission of the city. On the comer of Portis avenue and Arsenal street there is a vacant lot one hundred and nine feet seven and three-fourths inches. Immediately west thereof there is a two-story brick house, located on a twenty-five foot lot. West of said house there is a twenty-five foot lot, which is used for track gardening. Between that point and Kings Highway, a distance of 1,200 feet, there are four houses at considerable intervals. All the remaining portions of the land abutting Arsenal street on the south, is used for agricultural purposes. Between the end of the granitoid sidewalk and Kings Highway, the southern portion of Arsenal street is in a state of nature, and has never been graded or improved in any manner. The evidence shows that pedestrians have used it for a pass-way, and by such use there has been created a worn pathway about one foot wide, which is described as not being in as good condition as the ordinary country road. On the north side of Arsenal street, opposite the terminus of Portis avenue, there is an electric arc light. There is also another electric light at the first or second house beyond the western end of the granite sidewalk. About one foot or one foot and a half west of the western terminus of the granitoid sidewalk, someone quite a while before the date of the accident put a pipe extending northwardly and southwardly from the natural drain aforesaid, towards the south, so as to drain the lot lying to the south of the street. There is absolutely no evidence as to who put the pipe in said place, nor is there any evidence connecting the city therewith. The pipe is not as long as the width of the granitoid sidewalk. The pipe is covered over with earth, but the width of the dirt sidewalk, commencing at the western end of the granitoid sidewalk, is only three feet, whereas, the granitoid sidewalk is six feet, thus leaving on each side of the dirt pathway, at the end of the granitoid sidewalk, a space of eighteen inches where there is no sidewalk or pathway. The water had washed holes at each end of the pipe in the said eighteen inches of space, aforesaid. The survey of the place showed the hole on the north side to be ten inches deep and twelve inches in width and in length.

The plaintiff lived on Magnolia avenue, west of Tower G-rove Park — Magnolia avenue being the north boundary of Tower Grove Park — and had lived there seven or eight years. His daughter lived at 4146 "Wyoming street, which was south and east of the place of the accident. The plaintiff had been in the habit of visiting her about once a week, and in doing so he said he -usually went through the park, and had never used this portion of the street before, and did not know of the hole at the end of the granitoid sidewalk.

On the 29th of July, 1900, the plaintiff and his wife had visited their daughter and started home about ten o’clock p. m. They traveled north on Portis avenue to Arsenal street, and then turned west on the south side of Arsenal street, walking along the granitoid sidewalk. When they reached the end of the granitoid walk, the plaintiff stepped off of the end thereof into the hole, aforesaid, at the northern end of the drain across the dirt walk above described, and was injured.

The plaintiff’s evidence tends to show that he suffered a fracture of the fibula, with a rupture of the tendons of the ankle; that he was not able to go out of the: house for two months, and that he used crutches for about nine months; that he was totally disabled from work for about three months; that he was a whisky broker, a manufacturer of extracts and flavors for liquors and also of Tamaric Medicinal Bitters, and that his earnings amounted to $1,500 to $2,000 a year.

The defendant’s evidence tends to prove that in August, 1900, — the exact date is not stated, but it was within thirty days after the date of the accident — the plaintiff was seen walking around; that, at times, he would have his crutches, and then he would forget them; that sometimes he would have one crutch, under his right arm, and at other times the crutch would be under the left arm, again he would not have any; that he was seen walking on the Morgan-Ford road, about a mile from his home, within a month after the date of the accident. The plaintiff, himself, said, that about, three weeks after the accident he went to the place of the accident, using his crutches in doing so, and measured the width of the sidewalk, and the depth of the hole.

The defendant’s testimony showed that the city kept up the macadamized portion of the street, occupying fifty feet in the center thereof, but had never graded or undertaken to improve in any way the remaining portion of the street; that on the north side of the street there were no houses, and on the south side of the street there were only four houses, in the distance of 1,200 feet; that there were ten or fifteen acres of the abutting property, which was- used for agricultural and' truck gardening purposes; that the city officers supposed the property-owners had put in the granitoid sidewalk; that there was no hole or ditch or depression in the dirt pathway west of the granitoid sidewalk; that someone had put in the drain pipe aforesaid, and had not made it as wide as the granitoid sidewalk, thus leaving the dirt pathway eighteen inches nari'ower on each side thereof than the granitoid sidewalk, and that the water had washed out a hole at each end of the pipe or drain; that the dirt pathway was rough, had hollows in it, and whilst pedestrians used it, people generally used the macadamized portion of the street.

At the request of the plaintiff the court instructed the jury, inter alia, as follows:

“1. If the jury find from the evidence in this ease that Arsenal street, at the places mentioned in the evidence, was an open, public, traveled street within the city of St. Louis; and if the jury find from the evidence that there was, at said times, a sidewalk on the south side of Arsenal street, graded and paved west from Portis avenue, with granitoid, about 160 feet, and that thence west to Kings Highway, there was a sidewalk unpaved; and if the jury find from the evidence that said sidewalk was used by the traveling public on foot, and if the jury find from the evidence that at the west end of the said granitoid in said sidewalk, there existed a hole or depression; and if the jury find from the evidence that said hole or depression rendered the use of the said sidewalk dangerous, and was an obstruction to travel thereon by the traveling public; and if the jury find from the evidence that on the 29th day of July, 1900, the plaintiff was passing along said sidewalk and that whilst so doing he stepped into said hole and fell and sustained injuries to his person thereby; and if the jury find from the evidence that the city of St. Louis, by its officers or agents having charge of keeping said street and sidewalk in repair, knew, or by the exercise of ordinary care, could have known of said condition of said street in time to repair the same by the exercise of ordinary care, before the plaintiff’s injury, and neglected to do so; and if the jury further find from the evidence that plaintiff, at the time of his injury, was exercising ordinary care, then he is entitled to recover. ’ ’

The defendant excepted to the giving of said instruction, and now assigns the same as error. At the close of the plaintiff’s case, and again at the close of the whole ease, the defendant demurred to the evidence. The court overruled the demurrers and the defendant excepted and now assigns said ruling as error.

I.

The decisive question in this case is, whether the city is liable for the accident to the plaintiff, which occurred within the limits of Arsenal street, but on the portion thereof which the city had never undertaken to improve or to invite the public to use.

Arsenal street, prior to the separation of the city and county of St. Louis, was a county road eighty feet wide. The fifty feet, occupying the central part thereof, was macadamized. The fifteen feet on each side of the macadamized portion, remained in a state of nature. After the city had acquired jurisdiction of the street it continued to keep up the improved portion thereof, but never, at any time, graded the other portions of the street, or threw the same open to public travel or invited the public to use the street. Such unimproved portions were rough, full of holes, grown up with, weeds, and in no sense an improved street or sidewalk. Beginning at Portis avenne and running westwardly for a distance of one hundred and sixty feet, there had been a six-foot granitoid sidewalk for about eight years before the accident. There is no evidence in the record showing who constructed the same. The city’s engineer said he supposed the property-owners had done so. At any rate there is no evidence showing that the city had either done it or had given its permission for it to be done. The granitoid sidewalk from Portis avenue, for a distance of one hundred nine feet, extends along an unimproved vacant lot. For twenty-five- feet it is in front of an improved lot, and then for twenty-five feet westwardly it is in front of a lot that is used solely for agricultural purposes. Between Portis avenue and Kings Highway, a distance of twelve hundred feet, there are only four houses. The balance of the° abutting property, amounting to ten or fifteen acres, is used solely for agricultural and truck gardening purposes. Westwardly from the west end of the granitoid sidewalk there is a worn pathway, made by persons walking over the same. Such pathway is three feet wide at the west end of the granitoid sidewalk, and at other portions is only a foot wide, and concededly is a rough place, with holes and depressions in the same, and lies much lower than the macadamized portions of the street, in fact so much lower that the testimony shows that it would take several thousand yards of filling to raise that portion of the street up to a level with the macadamized portion.

The plaintiff had lived in that neighborhood seven or eight years before the accident and had been in the habit of visiting Ms daughter, who lived south and east of the place of the accident, at least once a week,' and he says he never used Arsenal Street at this point before, and did not know of its condition.

The case made, therefore, is, that the street is eighty feet wide; that the city has improved and thrown open to public use the central fifty feet thereof, but has never improved or invited the use by the public of the fifteen feet on each side of the improved street, but that the same has been allowed to remain in a state of nature; that some one constructed the granitoid sidewalk, and that some one put in the drain; that there is a dangerous. place where the granitoid ceases and the drain was put in, by reason of the drain and cover thereof not being as wide as the granitoid walk. The evidence, however, clearly shows that on the north side of Arsenal street, opposite Portis avenue, and within one hundred and sixty feet of the place of the accident, there is an electric arc light, which was burning at the time of the accident, and likewise another arc light at the first or second house west of the place of the accident.

The liability of a city under such circumstances has been frequently discussed by this court, but the latest and clearest exposition of the law applicable to such case is the opinion of Valliant, J., in Ely v. St. Louis, 181 Mo. 723. In that case, as in this, the street was eighty feet wide; the central portion had been graded; the outside portions of the street were in a state of nature; the abutting land was used chiefly for agricultural purposes, and "there were weeds growing in the portion of the street that had not been graded. There was, also, a worn pathway along such ungraded portion of the street, which had been caused by pedestrians walking along the same. There was a gully washed across the pathway. The plaintiff was injured by falling into the gully. The trial court non-suited the plaintiff and the plaintiff appealed. This court disposed of the case in the following clear and exhaustive manner:

“The evidence showed that whilst the city by ordinance established this as a public street, yet it prepared for public use only a wagon road through a part of it, leaving the space that would naturally be the location of sidewalks, if sidewalks were made, in a state of nature. The first question that arises is, was the city in duty bound to make a sidewalk, or, failing to do so, was it responsible for the condition of the path; after that comes the question, was the plaintiff using reasonable care in attempting to travel that path on a dark night?
“A municipal corporation on which is conferred the power to establish public streets and, when established, to construct them for public use, in the exercise of that power acts in two capacities, first, governmental, second, ministerial. When the municipality by ordinance declares that land embraced within certain lines is a public street, then, when the city obtains the title to or easement in that land for that purpose, either by gift or condemnation, it becomes a public street, but it is not necessarily then opened to the public for use. And if after that the city passes an ordinance providing for the improvement of the street so as to render it fit for use, even then it is not, by the mere passing of the ordinance, opened for use. In passing those ordinancs the city acts in its governmental, legislative capacity, and in doing so it exercises its discretion in defining the lines and the extent of the street and in declaring in what manner and to what extent it shall be improved and given to the public for use. If in passing an ordinance to establish a street, for example, near the suburbs where the population is sparse, the municipal assembly should be of the opinion that a road thirty feet wide would be sufficient for the then needs of the public, but in anticipation that in the future the population would become more dense and a street 80 feet wide would become necessary, and should provide in the ordinance for the establishment of a street of that width, no one could say that it was an abuse of its power or an unwarranted exercise of its legislative discretion. And if, after so establishing the street, the city should in the exercise of its legislative discretion, be of the opinion that for the time being a roadway thirty feet wide in the eighty-foot street was all that the public good required and should pass an ordinance providing for the improvement to that extent and no more, no one would have the right to say that the ordinance was unlawful — no one would have a right to insist that the city grade and improve more of the street than in the exercise of its legislative capacity it sees fit to do. In those matters the city acts in its delegated governmental capacity and is not answerable to an individual as for neglect of duty. [Bassett v. St. Joseph, 53 Mo. 290; Keating v. Kansas City, 84 Mo. 415; Kossman v. St. Louis, 153 Mo. 293; Smith on Mun. Corp., sec. 780.]
“But after the ordinance for the improvement of the street has been passed and the city undertakes the work of constructing or reconstructing the street as in the ordinance is required, then the city acts in its ministerial capacity, and if in that capacity it is guilty of negligence to the injury of an individual it is liable. And so after the city has constructed the street or the .sidewalk and has thereby invited the public to use it, the city is bound to keep it in condition to be reasonably safe for use and is liable as for negligence if it fails ito do so. [Moore v. Cape Girardeau, 103 Mo. 470; Hunter v. Weston, 111 Mo. 176.]
“In the case at bar the city lawfully exercised its governmental discretion to grade and prepare for use only the wagon road in part of the street; it was not required to grade and improve the whole eighty-foot space and build sidewalks on it, and, therefore, is not liable for not having done so. The path through the weeds and’ over the uneven surface spoke for itself and told every one that there was no sidewalk there, and it invited no one to use it at the city’s expense. The city was not responsible for the condition of that path and therefore it will net be necessary to decide whether by the plaintiff’s own evidence he was negligent in traveling the path under the circumstances.
“The circuit court to ok the correct view in the case.”

Speaking to the question here involved this court, in Hunter v. Weston, 111 Mo. l. c. 184, said: “ ‘A city is not necessarily required to open or put all its streets in a condition<for public travel.’ [Walker v. Kansas City, 99 Mo. 647.] Nor is it liable for the condition of a street which exists merely on paper.' [Moore v. Cape Girardeau, 103 Mo. 470.] ‘The responsibility of the authorities for the condition of a highway begins when they have actually opened it for public travel.’ [Elliott on Roads and Streets, 456.] ‘But the mere fact of establishing a highway by judicial action does not of itself so open it to the public as to render towns liable for accidents that may occur to travelers thereon. After it is thus legally established, it is to be prepared for public use. Labor is to be performed upon it. Bridges are to be built, hills cut down and valleys filled up; obstructions are to be removed and rough places, are to be made smooth.’ [Blaisdell v. Portland, 39 Me. 113.] ‘It may be and doubtless is the case that there are streets and parts of streets in many cities, which are not at present necessary for. the convenience of the public, and that will be brought into use by the growth of the city, . . and that all that is required in such cases is that the city shall see that, as the streets are required for use, they shall be placed in a reasonably safe condition for the convenience of travel..’ [Bassett v. St. Joseph, 53 Mo. 290; Craig v. Sedalia. 63 Mo. 417.] This alley, which was merely designated on paper, having no existence de facto, and never having been opened for public use, defendants owed plaintiff no duty in respect to it as an alley under the said ordinances, and they are not liable in this case. ’ ’

The rules thus laid down in the cases cited in no manner conflict with the principles announced by this court in Brennan v. St. Louis, 92 Mo. 482, and in Walker v. Kansas City, 99 Mo. 647. In the Brennan case the city had graded the whole street, including the sidewalk, thus throwing the whole street open to public use and travel and inviting the public to use the same, and the accident was" caused by the city failing to keep the sidewalk in repair after it had once assumed jurisdiction thereof and thrown it open to public use.

In Walker v. Kansas City, the. city had constructed a bridge and had originally had a railing on both sides of the bridge, but several months before the accident, the railing on the west side was taken away. The planks on that side were uneven, some projecting from one to two feet further out than others. Whilst in that condition the plaintiff, while walking along the west, unprotected, side thereof, fell off of the bridge and was injured. That, therefore, was a case where the city had assumed jurisdiction over the whole street, throwing it open to public use, and failed to keep it in a safe condition.

In the case at bar the city fell heir to the eighty foot street, but it had never thrown open for public use any part thereof except the fifty feet in the center, and there is no question that such portion was in good condition at the time of the accident. The city had never constructed sidewalks, or thrown open to public use the portion of the street where this accident occurred. Some one had constructed a granitoid sidewalk for one hundred and sixty feet; some one had put in a drain under the dirt pathway at the west end of the granitoid sidewalk and had left a space of eighteen inches at each end of the drain narrower than the granitoid sidewalk, and thereby created a pit-fall or dangerous place. But there is nothing in this record that in any manner connects the city with the construction of the granitoid sidewalk, the drain or the dirt pathway, and therefore the city cannot be held liable for any defects therein.

The instruction given for the plaintiff, hereinbefore quoted, is radically defective and fatal to the plaintiff’s case, because it assumes that the city had opened the whole street to the public use and travel thereon, and because it assumes that because the public had used said portion of the street as a footpath, the city was liable for defects therein. The very question in this case was, whether the city had thrown that portion of the street open to public use. Mere use by the public of a portion of a street that has never been prepared for use by the public authorities, and which the traveling public have never been thereby impliedly invited to use, cannot cast upon the public the duty of keeping such portion of the street in repair.

It is always a governmental question whether the whole or only a portion of a street shall be prepared and thrown open to public use. After a street has been thrown open to public use, the duty devolves upon, the public authorities to keep it in repair and safe for persons to travel over the same while exercising ordinary care, but mere use by the public, as for a footpath, of a portion of a street that has never been thrown open to public use, cannot cast such a duty on the city. The conditions and surroundings on the south side of Arsenal street from Portis avenue westwardly to Kings Highway were such that the city authorities in their governmental capacity had not considered that the public necessities required the construction of a sidewalk at that point. To construct the same would have necessitated the filling of that portion of the street so as to raise it to the level of the macadamized part, and as the cost of constructing sidewalks, under the charter of St. Louis, must be paid for by the abutting property-owners, the municipal authorities did not deem it necessary or reasonable to require sidewalks to be constructed at that point where the great bulk of the abutting property was solely used for agricultural purposes. The presence of tall weeds, growing on that portion of the street, gave notice to persons passing along there that snch portions of the street had not been thrown open to public travel. The electric arc light, within one hundred and sixty feet of the place of the accident, clearly enabled the plaintiff to see where the granitoid sidewalk ended, and by the exercise of ordinary care he could have seen the drain, the hole or depression at the end thereof, the narrower space covered by the dirt pathway, and he could thereby easily have avoided the accident. The trial court, therefore, erred in giving the plaintiff’s first instruction above set out, and, under the evidence adduced in this case, it likewise clearly erred in overruling the demurrer to the evidence.

This case is wholly unlike the case of Wiggin v. St. Louis, 135 Mo. 558, and' cases of like character, where the full width of the street had been thrown open to public use, but there was a dangerous excavation outside the limits of the street but so near thereto as to make it dangerous for persons traveling along the street.

For the foregoing reasons the judgment of the circuit court is reversed

All concur.