author: ROY, C. — PEB CURIAM. —

text:
    ROBERT E. L. COLLIER, Plaintiff in Error, v. JOHN ARCHER.
    Division Two,
    May 26, 1914.
    CONVEYANCES: Fee: Subject to Be Divested by Condition Subsequent. A conveyance in 1836 of lands in trust for the grantor’s wife during her life, the trust to terminate at her death and the lands to become the absolute property of A and B, grandchildren of the grantor, but if they should die without issue, then to C in fee, created, not an estate tail in the two grandchildren, but a fee in them subject to being divested upon the happening of a contingency, i. e., their dying without issue.
    Error to Jackson Circuit Court. — Hon. James E. , Goodrich, Judge.
    Aeetbmed.

      J. M. Rader, Clyde Taylor and Guthrie. Gamble £ Street for plaintiff in error.
    (1) Upon the execution of this deed, the grandchildren did not take a fee simple. Long v. Timms, 107 Mo. 512. (2) From the fact that this deed in describing the interest of the grandchildren omits words of inheritance, and hence does not create what at common law would be a fee tail, it does not follow that it should he held to convey a fee simple to the grandchildren, nor that the court should fail to search for the true intent of the grantor and interpret the deed accordingly. R. S. 1909, sec. 583; Chiles v. Bartleson, 21 Mo. 344; Gibson v. Bogy, 28 Mo. 478; Thompson v. Craig, 64 Mo. 312; Bean v. Kenmuir, 86 Mo. 666; Orr v. Rode, 101 Mo. 387; Long v. Timms, 107 Mo. 512; McCulloch v. Holmes, 111 Mo. 445; Cornwell v. Wulff, 148 Mo'. 542; Walton v. Drumtra, 152 Mo. 489; Speed v. Terminal Ry. Co., 163 Mo. Ill; Yocum v. Siler, 164 Mo. 281; Utter v. Sidman, 170 Mo. 284; Chew v. Kellar, 171 Mo. 215; Roth v. Rauschenbusch, 173 Mo. 582; Underwood v. Cave, 176 Mo. 1; Gannon v. Albright, 183 Mo. 238; Williamson et al. v. Brown, 195 Mo. 313; Buxton v. Kroeger, 219 Mo. 224; Gibson v. Gibson, 239 Mo. 490. (3) The grantor intended that the grandchildren should have only a life estate and that at their death it should go to their issue, if they had any; 2 Blackstone, p. 106; 4 Kent, p. 5; 2 Preston on Estates, p. 473; Tiedman on Real Property, secs. 45, 46, 47; R. S. 1909, secs. 2870, 2872, 579; Farrar v. "Christy, 24 Mo. 453; Harbison v. Swan, 58 Mo. 147; Thompson v. Craig, 64 Mo. 312; Kinney v. Mathews, 69 Mo. 520; Wood v. Kice, 103 Mo. 329; Cross v. Hoch, 149 Mo. 325; Yocum v.- Siler, 160 Mo. 281; Gannon v. Pauk, 183 Mo. 265; Gannon v. Albright, 183 Mo. 238, 200 Mo. 75; Cox v. Jones, 229 Mo. 53; Threlkeld v. Threlkeld, 238 Mo. 459; Gibson v. Gibson, 239 Mo. 490. (4) Valentine had no issue when the deed was executed. The remainder to his children was contingent, and did not vest until Ms death. Emerson v. Hughes, 110 Mo. 627; Rozier v. Graham, 146 Mo. 352; Buxton v. Kroeger, 219 Mo. 224; Cox v. Jones, 229 Mo. 53; Gray v. Ward, 234 Mo. 291; Brown v. Tuschoff, 235 Mo. 449.

      Simrall $ Simrall, Kenneth McC. DeWeese and Sandusky <& Sandusky for defendant in error.
    (1) In a deed at common law the word “heirs” was necessary to create a fee simple estate. Tygard v. Hartwell, 204 Mo. 207; 1 Sharswood’s Blackstone’s Com., p. 107; 1 Jones, Real Prop. (Ed. 1886), sec. 5; 1 Washburn on Real Plop. (3 Ed.), p. 71; 2 Am. & Eng. Ency. Law (2 Ed.), p. 367. This rule was not inflexible in cases of wills. Gannon v. Pauk, 183 Mo. 275. (2) As the word “heirs” was necessary at common law in a deed to create a fee, so the words “heirs of the body,” or “bodily heirs” was necessary at common law in a deed to create a fee tail. 1 Sharswood’s Blackstone’s Com., p. 115 (foot p. 477); 1 Washburn on Real Prop. (3 Ed.), pp. 87, 89, 92, secs. 24, 31, 39, 40; 1 Jones, Real Prop. (Ed. 1886), sec. 614; 2 Am. & Eng. Ency. Law (2 Ed.), p. 372; Tygard v. Hartwell, 204 Mo. 207; Yocum v. Siler, 160 Mo. 292; Gannon v. Pauk, 183 Mo. 273. (3) It will be observed that this deed does not contain the words “heirs,”' nor the words “heirs of the body,” neither in the grant to Valentine S. P. Collier and Louisia F. Collier, nor in stating the cohtingency upon which the land should pass to Frances E. Long. The deed did not, therefore, at common law, create either a fee simple or a fee tail estate in Valentine S. P. Collier and Louisia F. Collier, but at common law created in them only a life estate. By our statute (R. S. 1835; p. 119, title “Conveyances,” sec. 2) it passed the fee simple title, and the subsequent clause in relation to their “Death without issue” merely marked the contingency upon the happening of which the estate should pass to Frances E. Long. It follows that Sec. 5, R. S. 1835, p. 119, has no application to this case. (4) The deed in controversy conveyed, by our statute, a fee simple title to Valentine S. P. Collier and Louisia F. Collier. R. S. 1835, p. 119, title “Conveyances,” see. 2; Tygard v. Hartwell, 204 Mo. 207. And this fee simple estate will not be cut down to a lesser estate by “subsequent ambiguous words, inferential in their intent.” Giannon v. Paule, 200 Mo. 75; Gannon v. Albright, 183 Mo. 239; Yocum v. Siler, 160 Mo. 281; Yocum v. Parker 130 Fed. 722, 134 Fed. 205. As the deed in controversy created a fee simple estate by statute (the statute in this instance plainly giving effect to what the grantor intended by the words “absolute property”) the learning in the books as to the technical effect, at common law, of the words “Dying without issue, ’ ’ when used in connection with the word “heirs,” does not arise in this case. When section 6’, R. S. 1845, p. 220, was passed, there had been no decision in Missouri on the technical effect of the words “dying without issue,” in a conveyance of land. This section construed these words, and so anticipated the vexed question, but the section was and is in harmony with the law in Missouri without this section. By all authorities these words were ambiguous. 8 Bush. (Ky.), 636; 6 Ohio St. 563; Yocum v. Siler, 160 Mo. 294; 4 Kent’s Com. (12 Ed.), star p. 281, foot p. 301. And being ambiguous, they cannot cut down a prior fee simple estate. R. S. 1835, p. 119, see. 2.
   ROY, C. —

This suit was begun in the circuit court of Clay county, and there was a change of venue to the'circuit court of Jackson county at Kansas City. The petition is in two counts; the first to quiet title to so much, of the north ninety acres of the east half of section eight, township fifty-one, range thirty-one, as lies south and east of the right of way of the Chicago', Milwaukee & St. Paul Railroad, being about sixty acres; the second, in ejectment for the same land. There was a judgment for defendant, and plaintiff has appealed.

Yalentine S. Peyton, the common source of title, executed a deed as follows:

“This indenture made and entered into this fifth day of December in the year of our Lord eighteen hundred and thirty six, between Valentine S. Peyton of the county of Clay and State of Missouri, of the one part, and Woodson J. Moss, of the county and State aforesaid of the other part, witnesseth:
“That whereas the said Valentine S. Peyton having realized from the sale of a tract of land, the property of his wife, Elizabeth Peyton, the sum of three thousand seven hundred and sixty-one dollars and seventy-nine cents, is desirous and willing to secure to her some equivalent for the same. Now, therefore, in consideration of the premises aforesaid and with the view of providing for the support and maintenance of his said wife, and in consideration of the natural love and affection which he, the said Valentine S. Peyton, has for his grandchildren, Valentine Smallwood Peyton Collier and Louisia Francis Collier, being the children of his daughter Nancy McClanahan Collier, formerly Nancy Mc-Clanahan Peyton of Nicholas county, Kentucky, the said Valentine S. Peyton has granted, bargained, sold and set over and by these presents doth grant, bargain, sell and set over unto the said Woodson J. Moss, all that certain piece or parcel of land situate, lying and being in the county of Clay and State of Missouri aforesaid, to-wit: The north half of the tract whereon we now live to begin at the northwest corner of said tract, thence south on the west line thereof so far as by running the dividing line due east to the east line, thence with that line north to the northeast corner of said tract, and thence west to the beginning to contain one hundred and thirty-five acres. And also three certain slaves for life, to-wit: Henry, Jenny and Sarah.
“To have and to hold, receive and take the same to him the said Woodson J. Moss, his heirs and assigns, to the only proper úse and behoof of him the said Woodson J. Moss, his heirs and assigns, forever.
“In trust, however, and to the intent and purpose that he, the said Wodson J. Moss shall and will employ and appropriate or cause to be employed and appropriated for the use and benefit of the said Elizabeth Peyton during’ her natural life all the rents, hire and profits of the said land and negfoes allowing the said Elizabeth Peyton the personal occupation of the said land and1 the possession and use of the said negroes whensoever and as long as she may choose. And the said Woodson J. Moss is hereby authorized to sell at such time and on such terms as he may think best, all or any of said negroes and to put the money arising from such sale or sales to interest or pay over the same with the interest which may have accrued thereon, or the interest only, at his discretion, to the said Elizabeth Peyton, without security for its return in any event; and this conveyance is upon this further condition, to-wit: That at the death of the said Elizabeth Peyton, said conveyance to the said Woodson J. Moss, his heirs and assigns, shall be null and void and the trust aforesaid shall cease, and the said land and one-half of the said negroes and their increase remaining itnsold and one-half of the money unexpended arising from the sale of such negroes as may have been sold to revert and be the absolute property of the said Valentine Smallwood Peyton Collier and Louisia Francis Collier, said infant children of the said Nancy McClanahan Collier, and the other half of said negroes and their increase so remaining unsold and the onelialf of the money unexpended arising as aforesaid to revert to and become the absolute property of my daughter, Francis Elizabeth Long, and her heirs and assigns, and in case of the death of the said Valentine Smallwood Peyton Collier and Louisia Francis ColLier, infant children of the said Nancy MeClanahan Collier without issue, them the said land above described and negroes and their proceeds, if sold', to revert to and to be the absolute property of my said daughter Francis Elizabeth Long, her heirs and assigns, forever, and in case of the death of the said Francis Elizabeth Long without issue, then the whole of the above-described negroes and their proceeds if sold, to revert and be the absolute property of the said Valentine Smallwood P’eyton Collier and Lonisia Francis Collier, forever.
“In testimony whereof, I have hereto subscribed my name and affixed my seal the day and year aforesaid.
“(Seal.) Val. S. Peyton. (Seal).”

That deed included the land in controversy. It was properly acknowledged and filed for record December 8, 1836.

Lonisia Francis Collier died while a minor, single and unmarried, in 1838.

On August 28, 1852, Valentine S. P. Collier conveyed the 135 acres of land by general warranty deed to Garrard Long, the husband of Francis Elizabeth Long mentioned in the first deed, in consideration of $2000. Elizabeth Peyton, the widow of Valentine S. Peyton, grantor in the first deed, died August 6, 1862. Valentine S. P. Collier died in 1905, leaving Eobert E. L. Collier, his eldest son, plaintiff in this case, also Thomas J. Collier, a son, Fannie Kent and Dwane Kent, grandchildren by a deceased daughter, Nannie, and Charles Bradford and Collier Bradford by a deceased daughter Laura. Defendant has acquired the title which was conveyed to Garrard Long by Valentine S. P. Collier.

Plaintiff in error contends that the deed from Valentine S. Peyton created what would have been an estate tail at common law in his two grandchildren named therein. It must be frankly conceded that Farrar v. Christy, 24 Mo. 453, and McCullock v. Holmes, 111 Mo. 445, and Harbison v. Swan, 58 Mo. 147, are direct authority for that proposition.

In Yocum v. Siler, 160 Mo. 281, the language of the instrument was the same as here, and it was held that the will devised a fee, subject to being divested on the happening of a contingency, i. e., the dying without issue. In that case there was issue, and it was held that the fee became absolute.

In Gannon v. Albright, 183 Mo. 238, the instrument was in effect the same as in this case on the issue involved. A divided court of four to three said:

“By the said fourth clause of the will the said two sons took a fee simple subject to be defeated upon their dying without issue living at their death, and as both died leaving children, the plaintiffs herein, the contingency upon which their fee simple was to be defeated never happened and never can happen, and their estate in fee became absolute, and their warranty deeds conveyed to defendants’ grantors the fee simple title. A different conclusion was reached in the construction of this same clause - ib. the will of Michael J. Gannon by Division One of this court in Edward Gannon et al. v. Gustave Pauk et al. at the October term of this court, 183 Mo. 265, but upon reconsideration of the said clause in this case by the Court in Banc, we are not satisfied with the opinion of Division One construing said clause, and must decline to accept it as the'proper construction of this will, and the judgment of the circuit court must be and is reversed.”

That conclusion was endorsed by a divided court in Gannon v. Pauk, 200 Mo. 75.

There is no reason why anyone should attempt to add to the store of learning embodied in those opinions. We shall not attempt to do so. It is sufficient for us to say that the question was therein settled and settled right.

The judgment is affirmed.

Williams, G., concurs.

PEB CURIAM. —

The foregoing opinion of Boy, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: WILLIAMS, C. — PER CURIAM. —

license: Public Domain

text:
    RACHEL CHERRY, Appellant, v. JOHN CHERRY.
    Division Two,
    May 26, 1914.
    1. EVIDENCE: Presumptions: Laws of Other States: Illinois. In the absence of proof to the contrary it will be assumed that the common-law rules as to marriage were in force in Illinois in 1905, when the alleged marriage in controversy here is claimed to have taken pla'ce.
    2. DIVORCE: Appeal: Findings Below. Appellate courts in Missouri are 'not absolutely bound by the facts as found by the trial court in divorce cases, yet where the evidence does not greatly • preponderate in favor of either party, but presents sharp conflict, the ascertainment of the ultimate fact depending largely upon the credibility of the respective witnesses, the appellate courts must necessarily defer largely to the finding of the trial court.
    3. --: Evidence: Common-Law Marriage. Evidence in a divorce suit held to sustain a finding that there was no common law marriage.
    Appeal from Monroe Circuit Court. — Eon. David E. Eby, Judge.
    Affirmed.

      Wm. N. Eairgrove, Ragland & McAllister and James P. Boyd for appellant.

      Elliott W. Major, W. E. Whitecotton, W. W. Barnes and James H. Whitecotton for respondent.
   WILLIAMS, C. —

Plaintiff, claiming to be the common-law wife of defendant, sues for divorce and the sum of fifty thousand dollars as alimony in gross. The petition alleges ‘ that plaintiff and defendant were lawfully married on or about January 1, 1905, in the State of Illinois; that they continued to live together as man and wife from that date till May 30, 1907; that, during all that time, she faithfully demeaned herself and discharged all her duties as the wife of defendant,” etc.; “but that defendant wholly disregarding his duties as the husband of plaintiff has been guilty of committing adultery with one Lina. Baskett at the county of Monroe and State of Missouri, which said act of adultery, so committed at the said county of Monroe and State of Missouri, was by defendant so committed during, the married life of plaintiff and defendant; ’ ’ that plaintiff was at the time of filing the suit a resident of Monroe county, Missouri. The petition describes the real and personal property owned by defendant, alleged to be of the value of $100,000, and prays that she be allowed as alimony in gross the sum first above mentioned.

The answer denied the marriage with plaintiff; denied tne adultery with Lina Baskett but alleged that defendant and said' Lina Baskett were lawfully married on the 16th day of May, 1907. The answer further denied that plaintiff was a resident of Monroe county,Missouri, at the date of the filing of the petition, or that he was the owner of property to the value alleged in the petition.

Trial was had in the circuit court of Monroe county. The court found the issues in favor of the defendant and specifically found that plaintiff and defendant were never married. A decree was entered dismissing plaintiff’s petition. Plaintiff duly perfected an appeal to the St. Louis Court of Appeals, but that court properly certified the case here because of the jurisdictional amount involved. The main contested issue was over the question of the marriage. Upon this issue, the evidence of plaintiff and defendant was very conflicting. Plaintiff testified that she and defendant were married January 1, 1905, at Chicago, Illinois, and that the marriage was consummated in the following manner:

“Q. Now I will ask you was there any agreement, if so, just state the agreement between you as well as you can remember it? A. I asked him to fulfil his pledge to me, and he said, ‘the folks at home would almost lynch him, her people would be very angry, they did not seem to' like him, and they would almost lynch him if he married me now, at that time, so soon after her death, ’ but he said, ‘ a public marriage is not necessary at all, that the words that the preacher says and the fees he receives do not make us husband and wife, ’ he told me, ‘we love each other,’ he asked me ‘if I did not love him,’ I said ‘yes,’ he said, ‘we love each other well enough to be husband and wife now,’ and I said ‘yes,’ and he put his arms round me and kissed me and says ‘Sweetheart, you are my wife now, you take me as your husband now and all through life and I take you as my wife and we are husband and wife,’ and I said ‘Yes.’
“Q. After that did you live and cohabit together? A. Yes, sir.”

At the time of the marriage, defendant’s home was at Jacksonville, Illinois, but his occupation was that of a paving contractor and the greater portion of his time was spent at Centraba, Illinois, and other towns where he had contracts for paving work. Plaintiff further testified that she and defendant continued to live together as man and wife until May, 1907; that during this time defendant visited plaintiff about once a week, spending the remainder of his time at different cities where his paving contracts were being performed. Plaintiff resided in Chicago two or three years, next prior to the marriage, having moved there from Bloomington, Illinois, in 1902. After the marriage, plaintiff continued to live in Chicago, at the place occupied by her prior to the marriage, until about September, 1905’, at which time she moved her furniture to the home of her sister in Bellevue Place, a suburb: of Chicago, and remained there about a month, going from there to visit another sister living at Clinton, Iowa, where she remained until the latter part of November, 1906. From Clinton, Iowa, she went to East St. Louis, Illinois, and was there met at the train by defendant and she and defendant went to the Weiss hotel in East St. Louis and lived there as man and wife until September, 1906; defendant visiting plaintiff at the hotel each week, generally on Sundays. In' September, 1906, plaintiff moved to the Milton hotel in St. Louis, for the purpose of learning the art of hair dressing and manicuring. On December 16,1906, she went to Las Yegas, N. M., for the purpose of working at her newly-acquired profession. She remained in New Mexico until the latter part of May, 1907, at which time she returned to Illinois. .'Upon learning that defendant was at Centralia, Illinois, she immediately went there and registered at a hotel under the name of “Mrs. C. John,” as she says, “to avoid notoriety.” She had a talk with defendant and learned from him that two or three weeks prior to that date he had married one Lina Baskett. Plaintiff asked defendant if he had secured a divorce before marrying Miss Baskett and he said: “No. Never mind, I will always take care of you; treat me right.” Defendant gave plaintiff a check for $250, payable to Rachel Pierce — that was plaintiff’s maiden name — and plaintiff left the next day. In June, 1907, she saw defendant a short time in East St. Louis, while he was waiting for a train. In September, 1907, she went to McLeansboro, Illinois, to see defendant, and asked him to set aside his last marriage and allow her to procure a divorce — telling defendant that he could then remarry. This last meeting was about midnight and they talked the matter over until about three a. m. Plaintiff came to Paris, Missouri, to reside, in October, 1907, a day or two before this suit was instituted. After January 1, 1905, and while plaintiff was living in Chicago and while visiting her sister in Iowa and later while living at the hotel in East St. Louis and also at the hotel in St. Louis, she received letters from the defendant. These letters and the envelopes in which they passed through the mail were introduced into evidence. The envelopes were addressed, “Mrs. J. C. Cherry.” In these letters, defendant generally addressed plaintiff as “Dear Sweet Hart” and the letters were usually signed “Your Sweet Hart Husband” or “Your Sweet Hart.” During this time, defendant paid the house rent; paid the hotel bill for plaintiff and plaintiff’s little daughter who was living with her and, generally, paid, or sent, her about ten dollars a week. Just before going to New Mexico, defendant gave plaintiff two hundred dollars. One witness for plaintiff testified that she called at plaintiff’s house in Chicago and that defendant came to the door and said that his wife was out. Another witness testified that she heard defendant refer to plaintiff as his wife. Plaintiff testified that defendant introduced her as his wife to the manager of the hotel in East St. Louis. The manager of the hotel also testified and corroborated plaintiff in this statement, and further that defendant generally spent Sundays, in 1906, with plaintiff at the hotel in East St. Louis. Plaintiff testified that on these weekly visits they cohabited as man and wife, both in Chicago and at the hotel in East St. Louis, and that defendant spent two nights with her at the hotel in St. Louis, Missouri. On cross-examination, plaintiff testified that she first met defendant at the Windsor hotel in Bloomington, Illinois, in 1896. Plaintiff’s girlhood home was at Todd’s Point, Illinois, and, at that place, in 1895, she met one Charles Watson. After keeping company with, him about six months, her parents objecting, she eloped with said Watson and a marriage ceremony was performed between them by a justice of the peace at P'ana, Illinois, November 30, 1895 ; that in 1896', plaintiff and her husband Charles Watson came to Bloomington, Illinois, and lived at the Butler hotel, as man and wife, for two or three months; thereupon Watson disappeared and plaintiff then learned that at the time she married Watson he was a married man with a wife and three children. A short time after Watson disappeared, and on September 28,1896, plaintiff gave birth to a child, a daughter: Watson died in 1904 or 1905'. After plaintiff met defendant they went driving several times and in 1899 defendant furnished some rooms over a saloon at Bloomington, Illinois, and made arrangements for plaintiff to act as his house-, keeper. This she did from 1899' to 1902, for which defendant paid plaintiff thirty dollars a month. During this time, defendant was engaged throughout the summer months, doing paving work at Bloomington, and the remainder of his time he spent at Jacksonville, except the occasional visit that he made to Blooming-ton. At this time defendant was a married man, his wife and <5ne child living at his home in Jacksonville, Illinois. His first wife died November 14,1904. Plaintiff moved from Bloomington to Chicago in 1902, taking with her the furniture which she used in Bloomington and defendant continued to visit her frequently in Chicago, up to the time of the alleged marriage on January 1, 1905. January 1, 1905, was on Sunday. Plaintiff testified that defendant came to Chicago on Friday preceding the marriage and spent Friday night and Saturday night at her place of residence; that he slept on a cot in a little alcove adjoining the room in which plaintiff slept, with curtains at the entrance to the alcove, and that they did not occupy the same bed at any time during the two nights. She claims that the marriage contract was entejed into Sunday afternoon and that plaintiff left Chicago that night; that a short time after the marriage agreement and on the same afternoon, plaintiff’s brother called at her place of residence and went down town with plaintiff and defendant for dinner. On being asked if she told her brother that she and defendant had just become man and wife, she answered that she did not, but told him that she was “happy;” that she did not tell her brother because she had agreed with the defendant to keep it as a secret. A Mrs. Wiggins testified that she visited plaintiff in the spring of 1905 at Chicago and that defendant slept in the same bed with plaintiff and called her his wife. This witness further testified that plaintiff’s reputation for virtue and chastity in Bloomington from 1899 to 1902 was good. The evidence showed that defendant owned a farm of approximately sixteen hundred acres near Paris, Missouri, reasonably worth fifty dollars per acre and that he was thé owner of considerable personal property, such as live stock and farm implements thereon located and also owned some real estate in Jacksonville, Illinois. The evidence further showed that defendant and his last wife, Lina Baskett Cherry, frequently came to Paris, Missouri, to look over the farm, and cohabited as man and wife yhile staying at the farm on these visits. Defendant testified in his own behalf that his home and residence had always been at Jacksonville, Illinois; that he first met plaintiff at Bloomington, Illinois, in 1896, and was introduced to her by her husband Charles Watson; that plaintiff never kept house for him in Bloomington, but that she lived in his rooms at that place from 1899 to 1902; that in his rooms, he had his office desk, two beds, some chairs, etc., and that plaintiff and her brother, at one time, used the rooms for about six months. Defendant denied that he had ever had any talk of marriage with plaintiff, at Chicago or elsewhere, but said that on January 1,1905, he was in Jacksonville, Illinois, at the home of his sister, attending the celebration of his father’s seventy-second birthday; that his father’s birthday was January first and that for many years the family had observed the custom of assembling’, on that date, for the purpose of celebrating the occasion; that he was in Jacksonville from December 29, 1904, until some time in March, 1905, and'the greater portion of that time was laid up with the “grippe.” He denied “that he had roomed with plaintiff in 1905, 1906, or 1907,” and stated that he had not had sexual relations with plaintiff since 1903; that plaintiff never, at any time, claimed to be his wife; that he had been 'paying plaintiff money for ten or twelve years. He admitted that he had corresponded with plaintiff but testified that he did not think that the letters introduced in evidence were written by him; that while the handwriting looked like his and was similar to his he did not think the letters were written by him. He refused, however, to swear positively that he did not write the letters. He further testified that plaintiff came to Centralia in May, 1907, and demanded that he pay her one thousand dollars. He gave her a check for two hundred and fifty dollars and plaintiff returned to St. Louis. He next saw her at midnight at a hotel in McLeansboro, Illinois, where she demanded more money, stating that she wanted one thousand dollars; that plaintiff had a gun in the front of her dress and said that she was going to have “money or blood;” that he talked with her from midnight until three a. m., at which time he went back to his hotel and did not see her again until after suit was brought. He denied that he had ever introduced plaintiff as his wife. He admitted that he slept with plaintiff at times when he was in Bloomington and paid her money all the time and stated that he could not get rid of her and that he gave her the $250 at Centralia to get her “to go away and let him alone.” Two of defendant’s sisters testified that it had been the custom of their father’s family for many years to celebrate tbeir father’s birthday, which occurred on January 1, and that they did so celebrate on January 1, 1905, at Jacksonville, Illinois, and that a photographer was called- down to the house and a family photograph was taken, and that defendant was present on that occasion. One sister testified defendant’s first wife died November 14, 1904, and from that time until the early part of 1905, defendant occupied a room at her house and that he- had been there several days prior to the birthday celebration. The sister also testified that during 1905, 1906 and 1907, paving contracts kept defendant away from home a great portion of the time, but that he would return to Jack-' sonville almost every week. J. P. Butler, the proprietor of the Butler hotel at Bloomington, Illinois, W. S. Cass, night clerk at the Butler hotel, Dr. Butler and his wife, George Purcell, a saloon keeper, and Adam Hess, a policeman, all of Bloomington, Illinois, testified that from 1899 to 1902 plaintiff’s reputation for virtue and chastity at Bloomington was bad. Defendant’s tenant on his farm near Paris, Missouri, the Missouri, Kansas & Texas freight agent at Paris, Missouri, the sheriff and the county collector of Monroe county, Missouri, testified that beginning with March, 1906, defendant, on almost every Sunday during that summer name over to Paris, Missouri, and went out to his farm. The tenant testified that defendant made these visits to the farm to help advise about the method of carrying on the farming and the feeding of the stock and that defendant made these trips on Sunday because his contracting work kept him busy through the week. John Steele testified that he was the night clerk of the hotel in McLeansboro, Illinois, on September 11, 1907, the night plaintiff came there to look for defendant and that after-plaintiff left he found an empty automatic pistol,box,>in her room. Thomas McDaniel testified that he was- passing along the street in front of the hotel at McLeansboro, September 11, 1907, and saw plaintiff and defendant on the step in front of the hotel, as defendant was leaving, and heard the plaintiff say that “it would take money or blood to square it.” The cheek which defendant gave plaintiff at Centralia, Illinois, on May 29, 1907, was as follows :

Centralia, 111., 5/29 1907 No. 15
MERCHANT’S STATE BANK (hearer)
Pay to Rachel Pierce or order $250.00
Two Hundred & Fifty & No/100 Dollars
Advance payment of personal settlement Tohn Cherry of all claims J A V

The check was indorsed ‘ ‘ Rachel Pierce. ’ ’ On the same day an agreement was entered into between the plaintiff and defendant, as follows:

“I agree to pay Rachel Pierce otherwise known as Mrs. J. Cherry the sum of fourty dollars per month so long as she does not marry or have an oather man and I rachel pirce known as Mrs. John Cherry aggrees to in no way annoy John Cherry so long as he fulfills his obligations to me.
(signed) John Cherry,
Rachel Pierce. ’ ’

One of defendant’s witnesses testified that he called at plaintiff’s residence in Chicago in 1905 and that a name card was on the door bearing the name “Maria Watson.” Defendant introduced in evidence plaintiff’s first verified petition filed in this case. In that petition, plaintiff alleged that she and defendant were married on the 25th day of December, 1905, at East St. Louis, Illinois. Plaintiff, on rebuttal, testified that she did not read her first petition before swearing to it. She denied having the card “Maria Watson” on her door in 1905; and denied having a revolver at the time she talked with defendant at Mc-Leansboxo; she further testified that when she met defendant at Centralia in May, 1907, he demanded that plaintiff deliver to him the letters that he had written her.

OPINION.

I. There was no proof made that the doctrine of the common law concerning marriage had, at any time, been abrogated in the State of Illinois by legislative enactment. Absent such proof, pg assumed that the common law in that respect was in force in that State on January 1, 1905, the date of the alleged marriage. This, for the reasons announced in the case of Stevenson v. Smith, 189 Mo. 447.

II. It is contended that the court erred in finding that plaintiff and defendant were never husband and wife. This is the principal point of con-Mention in the case. Counsel for appellant state the proposition as follows: “There is one controlling question in this case. Was the contract as testified to by plaintiff (the marriage agreement of January 1, 1905), entered into between plaintiff and defendant? If this question is answered in the affirmative, then unquestionably the judgment should be reversed. If in the negative, then an affirmance should follow.”

As will be noted from a reading of the foregoing statement of facts, the evidence in the case is conflicting. Plaintiff testified that the marriage agreement was entered into on Sunday, January 1, 1906, and that cohabitation followed. Defendant denied the marriage contract and denied that he and plaintiff were ever married. He testified that on January 1, 1905, he was in the city of Jacksonville, Illinois, attending the annual celebration of *his father’s birthday. In this he is corroborated by two witnesses— his sisters. Plaintiff introduced in evidence a letter purported to have been written to plaintiff by defendant, January 3,1905, at Jacksonville, in which he writes that he arrived there Sunday at midnight. Appellant contends that the letter corroborates plaintiff’s testimony that defendant was in Chicago, Sunday, January 1, 1905. Nowhere in the letter does the writer mention Chicago or anything that would indicate a recent trip there. It would he just as reasonable to presume that he had returned from St. Louis or any other city as to presume that he had returned from Chicago, for aught the letter contains. Neither does the letter definitely say what Sunday he returned. The testimony to the effect that defendant introduced plaintiff as his wife to the proprietor of the East St. Louis hotel, even if conceded to he true, carries but little weight. This is not necessarily inconsistent with concubinage, for even though the relations of plaintiff and defendant were unlawful, such an introduction might well he expected as a prerequisite to their being allowed to occupy the same room upon his weekly visits there. Plaintiff’s strongest corroborative evidence was contained in the letters which she claims to have received from defendant, addressed to her as “Mrs. J. C. Cherry,” and signed “Your Sweet Hart Husband.” However, one rather suspicious incident in connection with this testimony was, that while plaintiff admitted that she had received other letters from defendant, some of them prior to the date of the alleged marriage, and that these letters with others were delivered by .her-to her counsel, yet none of these pre-nuptial letters were offered in evidence by plaintiff nor was her failure so to do in any manner explained. That these prior letters may have been addressed and signed in the same way as the later letters, and therefore if was thought advisable, upon her part,' to keep them out of the evidence, we can only conjecture, however, it is reasonable to suppose that had the letters written prior to January 1, 1905', been addressed and signed differently from those written after the alleged marriage, plaintiff’s able counsel would not have overlooked the great probative value of such a showing as furnishing strong corroboration of plaintiff’s testimony concerning the marriage. That appellant’s counsel were aware of the importance of such a . showing clearly appears from the remarks of counsel made during the progress of the trial and incorporated in the bill of exceptions, yet the record contains no explanation as to why the other letters were not introduced. It must be,admitted that the comparative weight of the evidence of the respective parties is difficult to determine. After a careful review of the evidence, we feel that an opportunity to see the respective witnesses and note their demeanor while on the stand would be a great aid in arriving at a correct solution of the problem. This opportunity we cannot have. The trial court did have such an opportunity. If plaintiff’s testimony is given full credence, then there could be no doubt but that plaintiff and defendant were married on January 1, 1905. If, on the other hand, defendant and his witnesses are to be believed, plaintiff and defendant were never married. Such being the case, the determination of the fact of marriage is to be largely influenced or controlled by the credibility of the respective witnesses, and this being true, we should and must necessarily defer to the finding’ of the trial court, since he had the added advantage of seeing the witnesses and observing their demeanor while testifying. [Stevenson v. Stevenson, 29 Mo. 95.]

While it is true that in the review of divorce cases, it is the practice of the appellate courts in this State to not be absolutely bound by the facts as found by the trial court (Torlotting v. Torlotting, 82 Mo. App. 192; Barth v. Barth, 168 Mo. App. 423), yet where, as here, the evidence does not greatly preponderate in favor of either party, but presents sharp conflict, the ascertainment of the ultimate fact depending largely upon the credibility of the respective witnesses, the appellate courts must necessarily defer largely to the finding of the trial court. [Long v. Long, 171 Mo. App. 202.]

Adding to the uncertainty or doubt arising from the conflict of the evidence, the further uncertainty or doubt created by the evidence tending to show that apparently the sexual relations between plaintiff and defendant were about the same before as after the alleged marriage, that plaintiff upon meeting her brother an hour or so after the alleged marriage admits that she did not tell him of the marriage; that plaintiff moved to New Mexico for the purpose of establishing herself in business as a manicurist, returning after several months to Centralia, Illinois, where defendant was temporarily located, and registering at a hotel there under the name of “Mrs. C. John,” as she says, to avoid notoriety; that she there received a check from defendant, made payable to her as Bachel Pierce (her maiden name), afterwards indorsing the check in that name; that she there also entered into a certain contract with defendant signing her said maiden name, in which contract she is referred to as “Rachel Pierce, otherwise known as Mrs. John Cherry,” we do not feel justified in saying, and therefore will not say, that the court erred in finding that plaintiff and defendant were never married.

It, therefore, follows that the court did not err in finding the issues for defendant and entering a decree dismissing plaintiff’s petition.

The judgment is affirmed.

Boy, G., concurs.

PER CURIAM. —

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


author: ROY, C. — PER CURIAM. —

text:
    MARY McMURRAY et al., Appellants, v. KATIE McMURRAY et al.
    Division Two,
    May 26, 1914.
    1. APPEAL: No Bill of Exceptions. In the absence of a bill of exceptions the Supreme Court cannot review findings on evidence.
    2. FRAUDULENT CONVEYANCE: Possession by Mortgagor. Conceding that possession by a debtor after an absolute conveyance by him may be a badge of fraud, yet such is not ordinarily the case where the debtor puts a deed of trust on his land. Possession is generally retained by the mortgagor as a matter of course.
    3. -: -: Evidence. Even if it be conceded that possession by a grantor in a deed of trust alleged to have been made in fraud of creditors was a fact to be considered as bearing upon the character of the conveyance, still such possession was only one fact to be considered with all the evidence.
    4. EQUITY: Complete Relief: Jurisdiction. Where a suit in equity is brought to have certain conveyances of land declared void, a defendant having a claim against the property will not be relegated to the probate court for relief.
    5. THEORY OF CASE IN TRIAL COURT: Appeal. Where a case has been tried as if an answer had been filed to a cross-petition, the Supreme Court on appeal must treat the case as if an answer had actually been filed/
    6. MORTGAGE: Foreclosure: Judgment Liens: Priority: Notice. One who lends money upon the security of a deed of trust executed by the purchaser of the property at a foreclosure sale under a former' deed of trust, has a lien superior to that of a judgment creditor whose liens attached after the making of the first deed of trust and before the second, provided the lender had no notice that the purchaser at the foreclosure sale .may have bought for the original owner and mortgagor.
    7. -: Assignee: Notice: Purchase with Notice from InnO' cent Holder. An assignee of a mortgage note from a holder without notice, takes the title of his assignor even though the assignee himself have notice.

      8. -: Notice: Fraud. One who in good faith makes a loan secured by deed of trust, may foreclose the deed and purchase the property at the foreclosure sale even though in the meantime she has learned of a fraud affecting the debtor’s title to the mortgaged land.
    Appeal from Jackson Circuit Court. — No». Thomas J. Seehorn, Judge.
    Affirmed.

      C. 8. McLane, N. D. Kiss eng er and Frans E. Lindquist for appellant Martin; Albert E. Martin, of •counsel.

      Leonard Waddell for appellant Elbert.
    (1) If said Mary McMurray purchased the property, at such trustee’s sale, while the owner of the equity of redemption, such sale has no more legal and equitable bearing on her interest in the land than if she had paid off such $2500 deed of trust and received a release thereof. She but redeemed her land from her deed of trust. Kemper v. Berkeley, 79 Mo. App. 578; Freeman v. Moffitt, 119 Mo. 280. However, Mrs. Ketckum claims that she paid the purchase price of the property, out of her loan to Mr. Batson. Had she paid off such deed of trust of $2500, either at the request of Mary McMurray, or to protect her own interest, there would be no question but that she would, in equity, be entitled to be subrogated to the rights of the original mortgagee in the $2500 deed of trust. Under the pleadings, she did neither. She was a mere volunteer. Hence, no subrogation can be made. Roberts v. Best, 172 Mo. 81; Kirby v. Tallmadge, 160 U. S. 379; Squires v. Kimball, 208 Mo. 110; Wiggenhorn v. Daniels, 149 Mo. 165; Leavitt v. LaForce, 71 Mo. 253; Davis v. Briscoe, 81 Mo. 27; Insurance Co. v. Smith, 117 Mo. 261; Stuart v. Ramsey, 196 Mo. 416 ; Sensenderfer v. Kemp, 83 Mo. 588; Shaffer v. Detie, 191 Mo. 393. (2) The decree is not supported by the pleadings. State ex rel. v. Muench, 217 Mo. 124. (3) The court erred in holding that such liens, in favor of Plelen Y. Elbert, were inferior and subject to the pretended lien of Beulah L. Ketchum. R. S. 1909, secs. 1806, 2127, 2128', 2881. (4) No jurisdiction to allow Ketchum claim. (5) No jurisdiction to appoint special commissioner. R. S. 19091, sec. 2198.

      Hogsett é Boyle for respondent Ketchum.
    (1) The circuit court had full jurisdiction to give to this respondent the relief to which she was entitled, to render the judgment for $6817, to declare such judgment a lien on the property in question, to make the proper provisions for the redemption of said property from said lien, and to provide for the foreclosure of said lien in the event said property was not redeemed. (a) This is an equitable proceeding and the relief granted to this respondent is equitable in its nature, and the probate court had no jurisdiction whatever in the case; and this respondent would have had no adequate remedy and, in fact, no remedy at all, in the probate court. In re Estate of Strom, 213 Mo. 1; Matson & May v. Pierson, 121 Mo. App. 121; Jenkins v. Morrow, 131 Mo. App. 298; Hanson v. Neal, 215 Mo. 256; Baumhoff v. Railroad, 205 Mo. 248; Secs. 498, 499, R. S. 1909. (b) The relief to which this respondent became entitled by virtue of the court’s decree is not a demand, within the meaning of Sec. 498, R. S. 1909, and the judgment rendered in behalf of this respondent does not constitute a demand against the estate of an insane person within the meaning of said section, but is simply a lien against the real estate in question. See authorities supra, (c) Even if it be said that respondent’s claim was a demand, still it did not accrue until the deeds in question were set aside, and this was after letters of. guardianship had been issued. Therefore, Sec. 498, R. S. 1909, has no application. St. Louis v. Hollrah, 175 Mo. 79. (d) Even though respondent’s claim should be held to be a demand of the character referred to in Sec. 498, R. S. 1909, and it be held that respondent would have had an adequate remedy in the probate court and that the relief to which she was entitled was not equitable in its character, the circuit court would still have jurisdiction of the case because it has concurrent jurisdiction with the probate court in a case of that character. Sec. 3318, R. S. 1889; Secs. 498, 499, 500 and 3956, R. S. 1909; St. Louis v. Hollrah, 175 Mo. 79. (e) It being conceded that the circuit court had jurisdiction of the cause for the purpose of cancelling the deeds in question, the court thereby had jurisdiction for all purposes and could adjudge the equities of all parties concerned and give to them proper relief. McClure v. Bank, 160 S. W. 1005; Wehr v. Sullivan, 217 Mo. 167; State ex rel. v. Muench, 217 Mo. 124; Powell v. Powell, 217 Mo. 571; Gill v. Safe Co., 156 S. W. 811. (2) The court did not err in holding that this respondent was an innocent incumbrancer and purchaser in good faith, for value without notice, (a) This court, in the absence of the testimony, will presume, as against both appellants, that the testimony justified the findings of the trial court in this respect and that this respondent did everything which the law required of her. Railroad v. Wyatt, 223 Mo. 347; Nall v. Nall, 243 Mo. 254; Patterson v. Insurance Co., 164 Mo. App. 157; Sommer v. Bryson, 168 Mo. App. 335. (b) The rule invoked by the administrator to the effect that respondent should have made inquiry of Mary McMurray, relative to the interest which Mary McMurray claimed in said premises has no application, because the lower court held that both the $2500 deed of trust and the $600 deed of trust were valid deeds and made at the instance and request of Mary McMurray by her duly authorized • agents, (e) A grantor having made a deed purporting to convey all the grantor’s interest and then remaining in possession under a secret arrangement, is estopped in any event to invoke such rule. Van Keuren v. Railroad, 38 N. J. L. 165; Bank v. Batty, 30 N. J. Eq. 127; Galford v. Gillett, 55 111. App. 576; Sprague v. White, 73 Iowa, 670; Koon v. Trammel, 71 Iowa, 132; May v. Sturdivant, 75 Iowa, 116, 9 Am. St. 463; Dodge v. Davis, 85 Iowa, 77; Crooks v. Jenkins, 124 Iowa, 317, 104 Am. St. 326; McNeil v. Jordan, 28. Kan. 7; Sellars v. Crossan, 52 Kan. 570; Hockman v. Thuma, 68 Kan. 519; Bloomer v. Henderson, 8 Mich. 395, 77 Am. Dec. 453; Kerr v. Kingsbury, 39 Mich. 1501, 33 Am. Rep-. 362; Abbott v. Gregory, 39 Mich. 68; Hafter v. Strange, 65 Miss. 323, 7 Am. St. 659; Brophy Min. Co. v. Gold & S. Min. Co., 15 Nev. 101; Land & Invest. Co. v. Smith, 7 N. D. 236; Bldg. & L. Assn. v. Dawson, 7 Ohio N. P. 601; Forsha v. Longworth, 1 Ohio C. C. 271, 22 Ohio L. J. 354; Exon v. Dancke, 24 Ore. 110; Smith v. Phillips, 9 Okla. 297; Love v. Breedlove, 75 Tex. 649; Eylar v. Eylar, 60 Tex. 315; Bingham v. Kirkland, 34 N. J. Eq. 229; Railroad v. Oyler, 82 Ind. 394; Humphrey v. Hurd, 29 Mich. 44; Jeffery v. Hursh, 45 Mich. 59; Brigham v. Thompson, 12 Tex. Civ. App. 562; Tuttle v. Churchman, 74 Ind. 311. (d) Especially is the last proposition true where the grantor has, as in this case, made the deed for a fraudulent purpose and for the express purpose of deceiving the general public. Trust Co. v. O’Brien, 32 Ore. 336; Bank v. Batty, 30 N. J. Eq. 127. (e) Such rule could not be invoked in any event by appellant Elbert because she was never in possession and never had any right to the possession of the property. (3) The lien given to appellant Elbert was properly held to be subordinate to the lien of this respondent, (a) This court will presume that the evidence showed such lien to be subordinate and that the decree of the court below was justified. Railroad v. Wyatt, 223 Mo. 347; Nall v. Nall, 243 Mo. 247; Patterson v.. Insurance Co., 164 Mo. App. 157; Sommers v. Bryson, 168 Mo. App. 335. (b) The court did not err in refusing to treat the cross-petition of appellant Elbert as confessed, and even if it did, such question could not be reviewed in the absence of a motion in arrest. Railroad v. Wyatt, 223 Mo. 347; Trust Co. v. Merritt, 158 Mo. App. 656; Zinc Co. v. Assurance Corp., 144 Mo. App. 386. (c)' The cross-petition of appellant Elbert was denied by the plaintiff and its allegations thereby put in issue, (d) Appellant Elbert admits she filed no motion for judgment on the pleadings. Having failed to do this and having gone to trial and tried the cause on the theory that the allegations of her cross-petition were in issue, she cannot now raise this question. Benne v. Miller, 149 Mo. 232; McDonnell v. Sav. & Bldg. Assn., 1751 Mo. 275; Lapsley v. Bank, 105 Mo. App. 104; Price v. Hallett, 138 Mo. 561; Stevens v. Fitzpatrick, 218 Mo. 721; Atterbury & Nichols v. Hendrix, 127 Mo. App. 47; Henslee v. Cannefox, 49 Mo. 295; Roden v. Helm, 192 Mo. 83; Allen v. Aylor, 111 Mo. App. 257; Brewster v. Improvement Co., 247 Mo. 223; Sharp v. Insurance Co., 164 Mo. App. 475; Murphy v. Wabash, 228 Mo. 56. (e) Appellant Elbert likewise filed no pleading to this respondent’s answer and cross-petition. The allegations in such answer' and cross-petition are wholly inconsistent with the allegations in appellant Elbert’s answer and cross-petition. If one is to be taken as confessed, both must be. (4) Conveyances made with intent to hinder, delay and defraud creditors are-null and void as to such creditors only and not as to grantees who have purchased in good faith. Secs. 2881, 2882, R. S. 1909; Bank v. Worthington, 145 Mo. 91; Cordon v. Ritenour, 87 Mo. 61; Reynolds v. Faust, 179 Mo. 21.
   ROY, C. —

On April 1, 1908, Mary McMurray was the owner and in possession of the west thirty-six and one half feet of lots 26', 27, 28, 29 and 30 in block 17, Dundee Place, an addition to Kansas City, and on that day executed a deed of trust thereon to Richard W. Hocker to secure a loan of $2500 made hy Homer McWilliams to her.

Helen Y. Elbert recovered judgments against Mary MbMurray before a justice of the peace of Jackson county and filed transcripts thereof in the office of the clerk of the circuit court of Jackson county on the following dates and for the following amounts:

' Judgment for $300 dated Oct. 23, 1908, filed Oct. 28, 1908.

Judgment for $300 dated Oct. 23, 1908, filed Oct. 28, 1908.

Judgment for $300 dated Jan. 16,1909, filed April 23, 1910.

'Judgment for $300 dated Peh. 23, 1909, filed April 23, 1910.

Judgment for $300' dated Dec. 16, 1909, filed April 23, 1910.

The liens of those judgments have been duly revived and kept alive.

On October 28, 1908, Mary McMurray executed to Nathan Younger a general warranty deed for the property, which was filed on that day, and Younger executed to James E. Lyons a general warranty deed for the property dated November 301, 1908, and filed for record March 3, 1909: Those two last-mentioned deeds were fraudulent as to the creditors of Mrs. McMurray and were so adjudged hy the trial court.

On October 3, 1910, the above-named deed of trust was foreclosed hy sale and Ed H. Batson became the purchaser and received the trustee’s deed for a recited consideration of $4040. That deed was filed for record October 5, 1910, and on the same day Batson executed a deed of trust to Walter W. Calvin, trustee, to secure a loan of $5200 made by Beulah L. Ketchum. On May 13, 1911, Batson executed to R. T. Herrick, trustee, a second deed of trust on the land to secure a loan of $600 made by P. E. Colvin. In December, 1911, the note secured by this deed of trust was duly indorsed and assigned to Beulah U. Ketchum.

On September 23, 1911, Mary McMurray was duly adjudged by the probate court to be of unsound mind and incapable of managing her estate, and Sam B. Strother was duly appointed and qualified' as her guardian. lie commenced this suit as such guardian September 26, 1911, and on March 8, 1912, resigned as such guardian, and IT. D. Kissenger was duly appointed and qualified in his place.

On December 18, 1911, the deed of trust for $5200 dated October 5, 1910, was foreclosed and Claude T. Goble became the purchaser as trustee for Beulah L. Ketchum for the consideration of $6228, and received the trustee’s deed for the land.

All the above-mentioned deeds were promptly and duly recorded. The third amended petition, filed October 4, 1912, makes all parties connected with the above-mentioned deeds and judgments, and also Katie McMurray, plaintiff’s daughter, defendants herein. It alleges that Mary McMurray was insane during all the time in which said instruments were made, and that those instruments were made under a conspiracy between all the defendants except Helen V. Elbert to cheat plaintiff out of her property; and that said instruments were without any consideration, and that defendants then and there knew that plaintiff was of unsound mind.

The petition charges that defendant Katie McMurray had received the rents from the corner building on the property since October 28,1908, and refused to account therefor. The property is alleged to be worth $15,000. It contains an offer to do equity and to place all parties in statu quo, and asks that all the above-mentioned conveyances be cancelled.

The answer of Beulah L. Ketchum admitted the execution of those conveyances and denied the other allegations of the petition. It alleged that she made the above loan of $5200 in good faith, and that at the time this suit was filed she learned for the first time that Batson had held title to the land for Mrs. McMurray, and that it was so held by him to cheat and defraud Mrs. McMurray’s creditors.

The answer and cross-petition of Helen Y. Elbert alleges the existence of her judgments as above set out and the filing of the transcripts as stated, and then alleges that the conveyances above set out were made with the intention on the part of all the parties thereto to hinder and delay the creditors of Mrs. McMurray, and that said Batson purchased the land at the first foreclosure sale for Mary McMurray and held the title thereunder for Mrs. McMurray. Then follows a prayer that her judgments be declared first liens on the property and that all said conveyances be adjudged void. There was no answer by Beulah L. Ketchum to this cross-petition, but the cause was tried as though there were a denial of its allegations.

On May 7, 1912, James R. Page was appointed receiver to take charge of the property, and he duly qualified as such.

On October 4, 1912, after trial, the court entered its decree in which it found that Mary McMurray was of sound mind at the time of the execution of the deed of trust of April 1, 1908, and at the time of its foreclosure, and also at the times of the execution of the two deeds of trust by Batson. It also found that Batson purchased at the first foreclosure and held the title for Mrs. McMurray, and that the two deeds of trust executed by Batson were executed at Mrs. McMurray’s request and for full value which was received by her.

The decree found that the amount furnished by; Beulah L. Ketchum in making the loan of $5200, and in purchasing the $600 note of Calvin and in paying taxes and making repairs, amounted1 to $6817, and adjudged that amount as a first lien on the property in favor of Ketchum and adjudged that Helen V. Elbert has a second lien on the property, subordinate to the lien of Ketchum, for $1881, the amount of her judgment. The decree then found that at the time of the foreclosure sale under which Groble purchased as trustee for Ketchum, Mrs. McMurray was of unsound mind and incapable of protecting her interest. The decree then annulled that foreclosure sale and the trustee’s deed to G-oble, and also annulled the warranty deed from Mrs. McMurray to Younger, and the warranty deed from Younger to Lyons. The decree then proceeded as follows:

“It is further ordered, adjudged and decreed by the court that said Mary McMurray be and she is hereby granted a period of five months, from and after this date, in which to redeem such property from such liens,- during which period of time, H. D. Kissenger, the guardian of the person and estate of said Mary McMurray, a person of unsound mind, may sell such real estate, and apply the proceeds of such sale first in satisfaction of such lien in favor of said Beulah L. Ketchum, next -in satisfaction of such lien in favor of the said Helen V. Elbert and the residue shall be retained by the said H. D. Kissenger, as the guardian of said Mary McMurray, provided that no such sale shall be made except by approval of this court and no such sale shall be made for an amount less than the amount necessary to satisfy in full the lien herein given to said Beulah L. Ketchum.
“It is further ordered, adjudged and decreed by the court, that said H. D. Kissenger, be and he is hereby appointed special commissioner, and is hereby authorized and directed to sell such property, at public sale, after due notice as required by law, after such period of five months, from this date, if such prop•erty shall not have been previously sold or redeemed, to the highest bidder for cash, but the said H. D. Kissenger shall, in such event-, be required to execute a good and sufficient bond, in the sum of $10,000, conditioned as required by law, to be approved by this court, and to distribute the proceeds thereof as hereinbefore directed.”

On October 30, 1912, on application of the receiver, he was by order of the court empowered to borrow money to pay taxes on the property.

On October 31, 1912, Mary McMurray and Helen Y. Elbert filed their motion to discharge the receiver. On November 6, that motion was overruled; and thereupon Mrs. McMurray and Helen Y. Elbert were each allowed an appeal herein. No bill of exceptions was ever filed. After the appéal, the plaintiff died, and the cause has been revived in the name of Albert E. Martin, her administrator with the will annexed, and he has entered his appearance herein.

I. The fact that there is no bill of exceptions leaves nearly all the points relied on for reversal beyond our reach. Whether Ketchum and Calvin had notice of the fact that Batson £0 land for Mrs. McMurray in order1 to defraud her creditors, was a question of fact on the evidence; and the evidence is not’ before us. Appellants say that the pleadings show that Mrs. McMurray remained in possession of the property, and that such possession by the grantor is a badge of fraud.

It may be conceded that P0ssessi011 by a debtor after an absolute conveyance by him is a badge of fraud; but such is not ordinarily the case where the debtor puts a deed of trust on his land. Possession is generally retained by the mortgagor as a matter of course. Even if it be conceded that possession by Mrs. McMurray was a fact to be considered in determining whether Ketchum and Calvin knew that Batson held the title, for Mrs. McMurray, still that was only one fact to be considered in connection with all the evidence in the case, and we will not consider that fact alone.

• II. The administrator appellant contends that the trial court should have declared the deed of trust of April 1, 1908, and the deed made under the foreclosure thereof, and the two deeds of trug-t made by Batson void, and should have turned defendant Beulah L. Ketchum out of court without relief, on the ground that her remedy was in the probate court. Mrs. McMurray brought this suit for equitable relief, and her representative boldly asserts- that the court should furnish such relief, and send Mrs. Ketchum elsewhere for such relief as may be coming to her. Courts of equity decline to do a thing like that. “He who seeks equity must do equity.” He must do that equity at the time he gets his relief, and the doing of what is right is always made a condition of the relief granted to him. [Ruppel v. Mo. Guar. S. & B. Assn., 158 Mo. l. c. 623; Hanson v. Neal, 215 Mo. l. c. 273.]

Beulah L. Ketchum’s claim is against the property and not personally against Mrs. McMurray. Batson borrowed the money and gave his notes therefor secured by deeds of trust on the land. Ketchum could not get relief in the probate court, and even if she could, she shall not be driven that long route to get what is due her in this proceeding.

Appellant Elbert makes the point that her cross-petition alleged that the instruments under which Ketchum claims were fraudulent and void as to her, she being a creditor, and that Ketchum filed no answer to that cross-petition, and that the allegation must be taken as confessed. The case was tried as though a denial of those allegations was filed by Ketchum. In such case we are required to treat the ease as if a denial had been filed. [Benne v. Miller, 149 Mo. l. c. 231; Roden v. Helm, 192 Mo. 71; Brewster v. Land & Imp. Co., 247 Mo. 223.]

III. Appellant Elbert says that Ketchnm was bound to take notice of the filing of her judgment liens which preceded the making of the two deeds °f trust by Batson. The latter held1 title under the deed of trust of April 1, 1908, which on the record antedated those judgments. The title under the two Batson deeds of trust related back to the execution of the deed of trust of April 1, 1908, and was superior to the judgment liens. Of course if it were shown that Ketchum had notice that Batson purchased at the first foreclosure for Mrs. McMurray, that fact would let in the judgments as liens superior to the deed of trust for $5200, but there is no showing of such notice. There is no showing that Calvin had such notice when he made the $600 loan.

IV. The fact that Ketchum, at the time she purchased the note of $600 from Calvin, knew that the maker thereof, Batson, held the land f0r Mrs. McMurray to defraud her creditors, does not defeat Ketchum’s right to a lien for the amount of that note. The note was good in the hands of Calvin, because he took it without notice.

Such being the case, a purchaser from him, even though such purchaser have notice of the fraud,' is protected. [Funkhouser v. Lay, 78 Mo. 458; Finley v. Babb, 173 Mo. l. c. 267.] It is even asserted by counsel for Elbert that the foreclosure under which Ketchum purchased was made after this suit was brought and that Ketchum then knew that Batson had held the property for Mrs. McMurray. Ketchum made the loan in good faith, ■and the subsequent discovery of the fraud by her did not in any respect diminish her rights. As the note and deed of trust were good, she had the right to1 foreclose and purchase the property under such foreclosure, even though in the meantime she had learned that Batson held the land for Mrs. McMurray.

Y. Appellants allege error by the trial court in refusing to discharge the receiver and in appointing a special commissioner to make sale of the property. As the motions and evidence upon which the trial court acted are not before us, we will not proceed blindly to correct alleged! errors concerning which we know nothing.

The decree of the circuit court is affirmed.

Williams, ,G., concurs.

PER CURIAM. —

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


author: WILLIAMS, C. — PEE CURIAM. —

text:
    PAUL WINTER, by his Next Friend, Appellant, v. J. C. and FREDERICK VAN BLARCOM.
    Division Two,
    May 26, 1914.
    1. EVIDENCE: Admissions. A statement by an automobile driver who had run down a boy, that he would do all in his power to help the boy’s mother and would be responsible for all debts in the case, is not an admission of liability, and it is not competent testimony in the suit for damages for the ■ injuries.
    2. NEGLIGENCE: Automobiles: Evidence: Prima-Facie Case. Where plaintiff’s evidence tends to show that he, a boy ten years old, ran behind a street car as it passed a crossing and then suddenly darted out and ran for the sidewalk, but was struck by defendant’s automobile, and there is no showing that the speed of the machine was excessive, a demurrer was rightly sustained to plaintiff’s evidence as failing to show any negligence on the part of defendant,

      Appeal from St. Louis City Circuit Court. — Ho». Matt. G. Reynolds, Judge.
    Affirmed.

      A. R. Taylor and Hoivard Taylor for appellant.

      George L. Edwards, Percy Werner and Seddon & Holland for respondents.
   WILLIAMS, C. —

Plaintiff, a minor, sues by next friend to recover $4500 as damages for personal injuries received by being struck by defendants’ automobile, while near the intersection of Maryland and Newstead avenues in the city of St. Louis. Upon the trial of the cause in the circuit court of the city of St. Louis, the court sustained a demurrer to plaintiff’s evidence. Plaintiff thereupon took a nonsuit with leave to move to set the game aside. Later, plaintiff’s mo: tion to set aside the nonsuit was overruled and plaintiff perfected an appeal to the St. Louis Court of Appeals. While the appeal was pending in the St. Louis Court of Appeals, defendant J. C. Van Blareom died. The death of said- defendant was suggested to said Court of Appeals and a request made that a citation be issued to Mary Gr. Van Blareom, the duly appointed executrix of the estate of said deceased, to show cause why the cause should not be revived against her as such executrix. The citation was duly issued and served and as a return thereto said executrix filed demurrer to said order to show cause alleging as grounds therefor that (1) by the death of said J. C. Van Blareom “said'cause, if any, abated and did not survive;” (2) that section 5438, Revised Statutes 1909 (Laws 1907, p. 252), “which provides for survival of certain causes of action, in so far as it applies to this ease, is retroactive and in violation of article II, section 15 of the Constitution of Missouri.”

On account of the constitutional question, thus raised, the St. Louis Court of Appeals properly certified the case to this court for determination.

The injury occurred April 22, 1907; section 5438, Revised Statutes 19091, became a law June 14, 1907. Said defendant’s death occurred after said law had gone into effect and after the case had been appealed to the St. Louis Court of Appeals.

The negligence of defendants is alleged in the petition as follows: “That on said day the defendants were running and -operating an automobile westwardly on Maryland avenue at or near the intersecton of New-stead avenue with Maryland avenue; that defendant, Frederick Van Blarcom, was operating said automobile as the chauffeur of defendant, J. C. Van Blarcom ; that on said day the plaintiff was .passing northward over Maryland avenue at or near the west crossing of Maryland and Newstead avenues when defendants ’ said chauffeur in charge of said automobile, carelessly and without using any care to watch for persons and children on said street, and negligently and without using any care to control said automobile and prevent it from running against and upon the plaintiff, and negligently, without giving any signal to the plaintiff of the approach of said automobile and without using’ any care to slow down or stop said automobile and prevent injuring the plaintiff, and while running said automobile at a high and negligent speed, caused and suffered said automobile to strike, run against and permanently injure the plaintiff.”

Plaintiff testified that he was ten years old and was on his way to school, going north across Maryland avenue on the west side of Newstead avenue when injured; that four other children were with him on their way to school. When • they reached Maryland avenue three of his companions remained on .the south side of said street and plaintiff and Eddie Bohn, one of his companions, started north across the street. That there was a double street car track on Maryland avenue and at the time plaintiff and Eddie Bohn were crossing the street a westbound street car stopped at the west crossing of said streets; that plaintiff was just behind the car when it stopped, and touched the pin on the back of the car and then ran toward the north sidewalk. Eddie’ Bohn, his companion, was on the car step and while plaintiff was running to the north side of the street he did not look to the east for automobiles or vehicles but was looking west “watching Eddie Bohn hop off the car;” at this time plaintiff was struck by the automobile. The automobile was going west. After he was struck he pulled himself over to the sidewalk; that he was on the crossing when hit by the automobile, but when he came to his senses “he was fifteen feet from the crossing and the automobile was standing out in the street in front, of him.” One of defendants placed him in the automobile and took him to the Baptist Sanitarium where, he remained three weeks suffering from the fractures of three ribs and a punctured lung.- On cross-examination, he said that he had been going to school three years; “was in the fourth reader,” and that during his last two school years he had passed over this crossing on an average of four times a day; that his mother had cautioned him to look out for automobiles and carriages; that the accident happened about 12:30 p. m., while on his way back to school; that the automobile ran about fifteen feet after striking him; that he heard no sound or signal before he was hit by the automobile. Plaintiff’s mother testified concerning the injuries received by plaintiff and also that she saw defendant J. C. Yan Blareom at his office after the accident and that defendant “said his son was competent to run bis machine and that he had been a chauffeur for six years.”

Dr. Greer testified concerning the injuries and that defendant Frederick Yan Blareom told him “it was very hard to stop the machine; that he had been a chauffeur for several years and that he was very sorry that this should have happened.”

Fred B. Thomas testified that he was a motorman for the United Railways Company and was standing on the back platform of the street car, above-mentioned. Witness was off duty at the time and saw the plaintiff just behind the street car and saw him run from the tracks toward the curbstone; that the rear of the street car had passed beyond the street crossing about twelve feet when plaintiff ran in front of the machine; that just before plaintiff ran across the street, he was running behind the street car, pulling the pin out of the draw bar on the back part of the street car, and after pulling the pin out, dropped it, and ran across the street in front of the automobile. He saw the automobile strike plaintiff and when the witness first saw the automobile it was about ten feet from the boy; that plaintiff got over to the far side of the machine before it struck him;-that the automobile ran about thirty feet from where the plaintiff lay.

Samuel A. Baird, the conductor on the street ear, testified that he was on the back platform of the car and saw plaintiff behind the car, running to keep up with the street car. At this time the street car was thirty or forty feet west of the street crossing, and plaintiff suddenly ran, from his position behind the car, across the street toward the curb and was struck by the automobile; that the automobile was close to plaintiff when witness first saw it; that it was more than ten feet away but he didn’t know the exact distance. The witness couldn’t say whether he heard the automobile horn' sounded or not. When asked if he didn’t hear the automobile “toot” before it reached the crossing, he answered: “It seems to me I did hear it then, but I couldn’t say positive.”

Dr. Lemen and two witnesses testified concerning the injuries.

This was all the testimony introduced by plaintiff. At the close of plaintiff’s testimony, defendants’ demurrer to the evidence was sustained.

OPINION.

I. Appellant contends that “the court erred in striking out the testimony of Mrs. Winter as to the admission of Frederick Van Blarcom.” The testimony here mentioned was as follows: “Q. What did Mr. Frederick Van Blarcom say in regard to the automobile and the injury to the boy? A. He sympathized with me, told me he would do. all in his power to help me and be responsible for all debts in the case and that I should not worry. ’ ’ Upon defendants’ motion the above testimony was stricken out. Appellant contends that this testimony was competent for the purpose of showing an admission of liability on the part of defendant. We are unable to agree with this contention. The declaration was not an admission of liability for the injury but was evidently nothing more than an offer to pay the cost of treatment of the injured boy. It was not an admission that defendants’ negligence was the cause of the injury. The'ruling of the trial court, in this regard, was not erroneous.

II. It is next contended that error was committed in sustaining defendants’ demurrer to the evidence.

The negligence charged in the petition was that defendants negligently, (1) failed to use care in watching for children on the street; (2) failed to use care to control said automobile and prevent it from striking plaintiff; (3) failed to give any signal to plaintiff of the approach of said automobile; and (4) ran said automobile at a high and negligent speed.

Upon a careful review of the testimony, we are unable to find any evidence sufficient to make out a prima-facie case for plaintiff under any of the charges of negligence above enumerated. Plaintiff testified tbat be did not bear tbe automobile born sounded, but tbe evidence does not show tbat tbe situation was sucb as imposed upon defendants tbe duty of sounding tbe born. It clearly appears from tbe evidence offered by plaintiff tbat be was running behind tbe car tampering with tbe draw-bar pin, and suddenly darted, or ran, from this position to a place in front of tbe automobile so close to it tbat tbe accident was unavoidable. Tbe space from tbe street car to tbe curb was certainly-not very great and plaintiff, running, would quickly cover tbe distance. Tbe automobile therefore must have been very close to tbe place of tbe accident when plaintiff, evidently without any prior indication so to do, suddenly turned aside and ran in front of tbe automobile. There is no evidence tbat tbe automobile was being run at an excessive rate of speed. Tbe speed of tbe automobile was not shown. Plaintiff testified tbat it stopped within fifteen feet of tbe place where it struck him. "We do not say that the defendants were free from negligence — tbe evidence is not sufficiently clear and full to determine tbat question— but it can be fairly said tbat tbe evidence fails to show any negligence upon tbe part of tbe defendants. This was a matter of proof and tbe burden to so prove was upon tbe plaintiff. Tbe mere fact tbat tbe plaintiff was struck by tbe automobile is not a sufficient showing to prove tbat it was caused by tbe negligence of defendants. So far as tbe situation is disclosed by tbe present evidence, it would appear tbat tbe proximate cause of the injury was plaintiff’s act in suddenly turning, from bis position back of tbe street car, and running across tbe street in front of tbe automobile, too close to tbe same to give the driver thereof an opportunity to avoid striking him.

We therefore conclude tbat tbe trial court properly sustained tbe demurrer to tbe evidence and later properly overruled plaintiff’s motion to set aside the nonsuit.

Since the above conclusion results in the1 final disposition of the case, a discussion of the constitutional question involved in the matter of the revival of the cause of action against the executrix of one of the defendants, becomes unnecessary.

The judgment is affirmed.

Roy, G., concurs.

PEE CURIAM. —

The. foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


text:
    WM. McCORD HICKS et al., Appellants, v. S. B. WATSON et al.
    Division Two,
    May 26, 1914.
    1. EJECTMENT: Adverse Possession: Limitations: Widow’s Quarantine. Where a defendant in ejectment, claiming under ,an administrator’s deed, has been in adverse possession long enough for the Statute of Limitations to run in his favor, he will prevail against the heirs of the intestate, even though dower had never been assigned to intestate’s widow, and her right of quarantine, had she or some one claiming under her been' in possession, might have prevented the running of the statute against the heirs and in favor of one who claimed, as this defendant does not, under the widow.
    2. -: Order of Publication: Renewal of Order of Sale. The recital in the prohate court’s order of sale, that the order of publication made at a previous term had been duly published according to law, is presumed to be true in the absence of a showing to the contrary.
    3. -: —--: -: Part of Land Sold. When after due publication an order of sale of real estate to pay debts has been made, and part of the land sold, a renewal of the order is sufficient for the sale of the remainder, without" further publication.
    4. -: -: -: -: Renewal Order. The fact that a renewal order of sale of lands to pay debts directs 'tie sale of all tke lands- included in the original order, whereas in fact a part of these lands had been sold under a prior order, does not invalidate the sale of the remainder under the renewal order.
    5. -: -: -: -: Report of Sale: Presumptions as to Purchaser. Where the record entry approving the last sale does not show to whom the land was sold, nor describe it, it will be presumed, in the absence of a showing to the contrary, that the report showed that the land was sold to the person to whom a deed was immediately made.
    6. -: -: Notice. In a proceeding in 1864 to sell lands to pay debts, notice in the order of publication to “all persons interested in the estate” of the facts required by Sec. 25, R. S. 1855, p. 145, was sufficient notice to the heirs, being the only notice then required by law.
    Appeal from Greene Circuit Court. — Row. Alfred Page, Judge.
    Affirmed.

      Wright Bros, for appellants.

      T. J. Murray for respondents.
   ROY, C. —

This is a proceeding to quiet title to 180 acres of land. There was a judgment for the defendant.

James E. Hicks died intestate on January 23,1863. He was at the time of his death in possession of, and claimed to own, the real estate in controversy. The plaintiffs are his heirs. His widow, Eliza J., died in 1911. James E. Hicks lived with his family on the land at the time of his death. On February 20, 1864, the administrator of his estate applied to the probate court for an order to sell all of his real estate to pay debts. An order of publication was made of record pursuant to the statute, returnable to the first day of the next May term to be held on the third Monday in .May. On May 23, 1864, th.e order of sale yms made, describing tbe land and reciting that the order of publication made at the February term had been duly published according to law. The order found all the facts necessary to be found to justify such order. It directed that the land be sold at public sale on the third Monday in August next at the courthouse door' in Greene county while the probate court was in session. That order was not executed and was renewed without new application or notice at the August term, 1864, directing a public sale on the first day of the next term of the court. On May 23, during the May term, 1865, the following record entry was made-: “Now at this day comes Elisha Headlee, Public Administrator, having in charge the estate of said deceased and files herein his report of the sale of said real estate, which report is by the court approved.”

A deed was read in evidence from the administrator to Francis M. Watson, dated May 29, 1865-, which recited that it was made pursuant to order of sale made at the May term, 1864, and that the sale was made on November 21, 1864, at public sale during the session of said court. It conveyed the south 120 acres of the land in controversy.

On December 23,1865, at the November term, there was a renewal of the order of sale as to all the land in controversy. That order recited that the order of publication made at the February term, 1864, had been duly published according to law. It overlooked the fact that 120- acres of the land had been sold by the administrator to Watson, and directed that all the land be sold at public .or private sale on or before the first day of the next term of the probate court.

On June 7, 1866, at the May term, 1866, the following record entry was made: “Now at this day comes said administrator and files herein his report of the sale of real estate, which said report is by the court approved and said administrator ordered to be charged with the sum of ($150') one hundred and fifty dollars.”

A deed from the administrator to Mrs. E. J. Hicks was in evidence conveying the north sixty acres of the land in controversy, reciting that it was made pursuant to the order made at the November term, 1865, and that the -land was sold at public, sale on Monday, February 19,1866.

On October 8,1868, Mrs. E. J. Hicks conveyed the north sixty acres of the land in controversy to Francis M. Watson, who bad purchased the other part of the land as above stated. The defendant claims through mesne conveyances from Francis M. Watson, and he and those under whom he claims have been in possession ever since the sale of the land by the administrator. .

Defendant put in evidence receipts given to the administrator for the costs of publishing the order of publication and for publishing notices of the sale of real estate.

There was evidence for defendant tending to show that the east eighty acres of the land in controversy did not belong to James E. Hicks, but as we'have concluded that whatever title James E. Hicks had has vested in the defendant, we will not set out that evidence. There was a plea of the ten-year Statute of Limitations.

I. As to the south 120' acres of the land the plaintiffs are barred by the Statute of Limitations; and we n°t decide whether the deed to Francis M. Watson from the administrator was valid. Plaintiffs claim that as dower had never been assigned to the widow, her right of quarantine prevented the running of the Statute of Limitations against the heirs.

It is true that where the widow or some one claiming under her is in possession under her quarantine right, the heirs cannot be barred by adverse possession. [Graham v. Stafford, 171 Mo. 692; Carey v. West, 139 Mo. l. c. 176.] But the defendant does not claim the south 120 acres under the widow. He claims under the administrator’s deed. Whether that deed is valid or not the Statute of Limitations has run in his favor. [Agan v. Shannon, 103 Mo. 661.]

II. As to the remaining sixty acres, we hold that the administrator’s deed to Mrs. E. J. Hicks was valid and conveyed all the title that her husband owned at his death.

The recital of the fact that the order of publication made at the February term, 1864, had been duly published according to law, is presumed to be a fact in the absence of any showing to the contrary. [Agan v. Shannon, supra.]

The order of sale made at the November term, 1865, on December 23, was nothing more than a second renewal of the order of sale made at the May term, 1864, based on the order of publication made at the February term, 1864.' No new application or order of publication in such case was necessary. [Brown v. Marshall, 241 Mo. 707.] It is true that a sale, or an attempted sale, had been made of a part of the land to Francis M. Watson, and the last renewal order overlooked such fact and ordered the sale of all the land. The whole includes all its parts; and the order was good as to the land which had not been previously sold.

The record entry approving the last report of sale does not show to whom the sale was made nor does it describe the land. A deed was made immediately to Mrs. E. J. Hicks for that part of the land which was not sold at the first sale. In the absence of a showing to the contrary, we will presume that the report showed that Mrs. Hicks purchased the land which was conveyed to her.

III. Appellants make the point that the heirs of James E. Hicks were not mentioned or notified in the proceedings. The order of publication notified “all persons interested in the estate” of the said deceased of the facts .required by Revised Statutes 1855, page 145-, section 25-. That was the only notice then required by law.

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM. —

The foregoing opinion of Roy, 0., is adopted as the opinion of the court.

All the judges concur.