author: GANTT, C. J.

text:
    MATTHEW W. THOMAS v. NORA E. SCOTT, Plaintiff in Error.
    In Banc,
    November 25, 1908.
    APPELLATE JURISDICTION: Suit to Establish Lost Deed: Title to Real Estate. A suit, under section 4565, R. S. 1899, to establish a lost or destroyed deed, involves title to real estate, and the appeal from a judgment of the circuit court is to the Su-. preme Court. If the judgment of the trial court finding and adjudging that the defendant did execute a deed to land to which she had title and wrongfully destroyed that deed, is affirmed on appeal, then her title passed by that deed to plaintiff who is a subsequent purchaser from her named grantee, and is directly affected by and involved in the decree of the court. If on the other hand the court should find that the deed was not executed, or that the named grantee wrongfully obtained possession of it before delivery, or that it was invalid as a binding contract of conveyance and therefore plaintiff is not entitled to have it established as a muniment of title, that holding would of necessity be equivalent to holding that the. title did not pass.
    On Motion to Transfer to Kansas City Court of Appeals.
    Motion overruled.

      Jas. E. Goodrich and William Henry for plaintiff in error.

      Hewitt & Hetvitt for defendant in error.
   GANTT, C. J.

This was a proceeding in the circuit court of DeKalb county, Missouri, to establish a lost deed under section 4565 and following sections of the Revised Statutes 1899.

The plaintiff in his petition set out his title from the Government down to Fora E. Hainline, who acquired her title March 26, 1896. The petition then alleges the execution and delivery of a quitclaim deed from Nora E. Hainline and Robert N. Hainline, of date March 27, 1896, conveying the land in suit to F. Thomas Hainline, which deed the plaintiff alleges was destroyed and seeks to establish by said proceeding, then alleges the execution of a deed by the said F. Thomas Hainline to the plaintiff Matthew "W. Thomas, and then prays the court to hear and make a record concerning the execution of the deed from said Nora E. Hainline and her husband to said F. Thomas Hainline, and also to adjudge and determine plaintiff’s interest in said lands according to the evidence adjudging the same. The answer filed by Mrs. Scott, formerly Mrs. Nora E. Hainline, denies the ownership of the plaintiff Thomas, and denies the execution of the alleged quitclaim deed to F. Thomas Hainline to her for a valuable consideration, denies taking a deed from said Hainline and destroying it, and alleges that she is the owner in fee simple of the land in question, and asserts that she acquired title under the trustee’s deed from one Herschel Bartlett under a power of sale contained in a trust deed executed by said F. Thomas Hainline and wife' to secure the payment of a note for $1,300 to the Mutual Benefit Life Insurance Company. She further stated in her answer that, desiring to provide F. Thomas Hainline a home during his life and intending’ to convey him a life estate, by mistake, the scrivener drew a quitclaim deed, but there was no consideration expressed in the deed, nor in fact any given her for it, as said deed was never delivered, but that in 1896 F. Tbomas Hainline tbinlring said deed had been so managed as to amount to a delivery bad it destroyed with tbe purpose of revesting tbe title in Nora E. Hainline, fearing that bis creditors might otherwise deprive him of his interest, if any. She further alleged a fraudulent conspiracy between tbe plaintiff Tbomas and F. Tbomas Hainline, tbe chief defendant, by securing tbe establishment of tbe deed in question.

The petition was sworn to by F. Tbomas Hainline and tbe plaintiff Matthew W. Thomas did not testify. There was evidence tending’ to show tbe execution of tbe deed and its delivery to F. Tbomas Hainline in March, 1896; that thereafter said Hainline gave it to a Mr. Ballinger. Ballinger testified that be bad the deed in bis possession for three or four months, and judged that it was a quitclaim because tbe words ‘ ‘ quitclaim deed” were at tbe top> of it. There was also testimony that tbe defendant bad stated that she burned tbe deed herself. On the part of tbe defendant there was testimony that it was her intention to make a deed granting a life estate to F. Tbomas Hainline to tbe land in suit, that through mistake tbe scrivener made out a regular quitclaim deed; that there was no consideration expressed in tbe deed and that she gave tbe deed to her husband, but there was no delivery of tbe deed. She offered to prove that her bus-band was instructed not to deliver tbe deed to F. Thomas Hainline but tbe offer was rejected. That F. Tbomas Hainline got tbe deed from Ballinger, and brought it home and directed her to burn it. That ,T. H. Campbell was present when Hainline told her to bum tbe deed. Campbell testified that Robert Hainline and F. Thomas Hainline jointly requested him to bold a lifetime deed that Mr. Ballinger bad been bolding, that in bis presence that same day F. Tbomas Hainline banded tbe defendant a paper and told her to destroy it or burn it. There was also testimony from other witnesses to the effect that F. Thomas Hainline disclaimed any interest in the land in question other than a lifetime deed or lease.

Matthew W. Thomas, the defendant in error, now moves this court to transfer this cause to the Kansas City Court of Appeals for the reason that the title to real estate is not involved in this action. The court in its decree found from the evidence that "on the 28th day of March, 1896, Nora Hainline and her husband duly executed a quitclaim deed to the land in suit and acknowledged the same before S. P. Allen, a notary public, for the valuable consideration therein mentioned; that they thereafter delivered said deed to the said P. Thomas Hainline, and the said deed was thereafter destroyed by the said Nora E. Hainline without having been recorded and that the destruction of said deed was not for the purpose of revesting the title in said Nora E. or Robert Hainline or either of them, and the said destruction was without the consent of the said P. Thomas Hainline, and by its decree established the quitclaim deed.

I. In Anthony v. Beal, 111 Mo. 637, it was ruled by this court that in so far as section 4565 of article 4, chapter 59, Revised Statutes 1899, attempts to confer jurisdiction on the circuit court to try, decree and detenhine title to real estate, it is void under section 28 of article 4 of the Constitution, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in its title,” and that a proceeding under said statute cannot be converted into an action to try title to real estate between conflicting claimants, but that in such a proceeding the court should make a finding of facts and adjudge the execution of the alleged deed and its loss, and if found to be sufficient, declare the estate or interest thereby conveyed. And it will be observed that in that case tbe jurisdiction of this court to- that extent was not questioned by either party to that suit. In Lane v. Lane, 113 Mo. 504, the decision in Anthony v. Beal, supra, was followed, and this court again took jurisdiction to the extent o! making a decree establishing the lost deed, but held that the proceeding was not one to try title. The question presented by this motion then to transfer the cause to the Court of Appeals, is whether a proceeding under section 4565' to establish a lost deed in a chain of title involves the title to real estate so as to give this court jurisdiction on appeal under the constitutional provision found in section 12 of article 6 of the Constitution of this State, which confers jurisdiction on this court of appeals “in cases involving title to real estate.” While this court entertained jurisdiction in the two cases of Anthony v. Beal and Lane v. Lane, already noted, it is to be observed that in neither of those cases was the question of jurisdiction of this court raised by either party to those cases. But it is squarely presented by the motion in this case to transfer to the Court of Appeals. In Hilton v. St. Louis, 129 Mo. l. c. 391, it was said by this court: ‘ ‘ The Constitution does not declare that jurisdiction exists if a question of title is involved in the trial, but that the case tried must involve the title. We take the provision to mean that the title to real estate must, in some way, be affected by the judgment to be rendered on the entire case as made by the pleadings and evidence. This seems to be the view this court has uniformly taken. [Bobb v. Wolff, 105 Mo. 52; Blondeau v. Sheridan, 103 Mo. 134; Bailey v. Winn, 113 Mo. 161; State ex rel. v. Rombauer, 124 Mo. 598.]”

It has been quite uniformly ruled by this court that a suit to set aside a deed in the chain of title as fraudulent was one involving title to real estate, though. a different conclusion has been reached in other jurisdictions. [Balz v. Nelson, 171 Mo. 682, and cases cited.]

The object of the proceeding in this case is not to set aside a deed but to perpetuate the evidence of the execution and delivery of a deed in the chain of title to real estate.

The statute requires notice to adversary parties and provides that the court shall hear the testimony, make a finding of the facts, adjudge the execution or non-execution of the alleged deed and its loss, and declare the extent of the estate or interest thereby conveyed. Conceding that in a broad sense this is not a proceeding to try and adjudge the title, as was held in Anthony v. Beal, 111 Mo. 637, still it must be plain, we think, that if the statute has any efficacy whatever it was the purpose of the Legislature to preserve and perpetuate the evidence of the execution, delivery and loss of an instrument, constituting one of the muniments of title, and admit the judgment of record. Having summoned the adversary parties into court and afforded a free opportunity to be heard as to the execution and delivery of such a deed, its loss and the estate conveyed by it, what is the effect of such a proceeding? In a subsequent suit or action to try the full title, is the judgment of the court finding its execution, delivery and loss, a mere brutum fulmén, of no judicial force, and the parties to such proceeding in no way estopped by it, but at liberty to retry the whole matter anew? Or was it not the purpose to give all parties interested a day in court of competent jurisdiction on this particular question of the execution and delivery of the particular deed and its legal effect, and to make the finding of the court a finality as to the execution of the deed and its loss as between such parties ? Why proceed to all the expense of such a proceeding, if it establishes nothing and binds no one?

If the adversary party has his day in court, and a hearing and is allowed an appeal, as in this case, why should he not be bound in a subsequent action or suit by the final determination of the court and how can he insist on a retrial of the same facts ? The statute provides that the hearing shall be by and in- a court of general jurisdiction, and we can perceive no reason why the Legislature would not have the power to confer such jurisdiction upon the court, and when the jurisdiction is exercised in conformity to the provisions of the act, why such a judgment, certainly as against the parties who appear and resist the judgment, should not be conclusive of the facts alleged in the petition and which are found to be true by the court as to the execution, loss or destruction of the instrument and the interest thereby conveyed. It is a judicial duty within the meaning of the Constitution. Such, we take it, was the conclusion reached by this court in Anthony v. Beal, 111 Mo. 637. If we are right in the deductions thus drawn, is not the title to real estate involved? If the setting aside of a deed, which is a muniment of title, involves the title to real estate within the meaning of the Constitution so as to confer jurisdiction on appeal, upon this court, why does not the establishment of a lost deed, also a muniment of title, not involve the title to real estate? We can make no distinction in principle between the two cases.

We keepfin view the previous rulings of this court, that the Constitution does not declare that the jurisdiction exists if a question of title is involved in the trial, but that the case tried must involve the title. [Hilton v. St. Louis, 129 Mo. l. c. 391.] But in that same connection it was said, “We take the provision to mean that the title to real estate must, in some way, Tbe affected by the judgment to be rendered on the entire case as made by the pleadings and evidence. This seems to be the view this court has uniformly taken. [Bobb v. Wolff, 105 Mo. 52; Bailey v. Winn, 113 Mo. 161; State ex rel. v. Rombauer, 124 Mo. 598.]”

How can it be said that the establishment of a deed conveying the whole title to a tract of land by the decree óf a court of competent jurisdiction, a decree which the statute provides shall be conclusive of such fact, does not directly affect the title to such real estate? We think it obvious that it does. The section of the Constitution of Illinois relating to appellate courts provides that appeals and writs of error shall lie from those courts to the Supreme Court of the State “in all criminal cases and cases in which a franchise or freehold or the validity of a statute is involved.” The question has often arisen whether a freehold was involved so as to confer appellate jurisdiction on the Supreme Court. In Monroe v. Van-Meter, 100 Ill. 347, it was held: “A freehold is involved in an action where the title to the land is presented and in issue between the parties.” In Piper v. Connelly, 108 Ill. 646, it was said: “The plea of liberum tenementum, necessarily, where, as here., it is directly put in issue by the replication, involves a freehold.” In Railroad v. Watson, 105 Ill. 217, it was said in general terms that “a freehold is never involved unless the primary object of the suit is the recovery of a freehold and the judgment or decree will, as between the parties, result in one party gaining and the other losing his estate.” But in Sanford v. Kane, 127 Ill. l. c. 597, it was said by the same court that, as applied to the facts in Railroad v. Watson, supra, the test thus laid down was doubtless correct, yet it was manifest from many decisions of that court, both prior and subsequent to Railroad v. Watson, that cases might often arise where the test could have no application, and it was clear “that a freehold was involved within the meaning of the Constitution and statute where the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other losing the estate.”

All of which is pertinent here. While the plaintiff in this proceeding is not seeking a decree of title and the result will not be a decree vesting title in him and divesting Mrs. Scott’s title, the inevitable result must be either that she executed the alleged lost deed or that she did not.

If as the circuit court found and adjudged she did execute the deed and wrongfully destroyed it, then her title to the real estate passed and is directly affected and involved by the decree of the circuit court. If on the other hand, this court on appeal should reverse the circuit court and conclude the testimony did not authorize such a decree, the title would remain in her and our judgment would directly affect the title.

Our conclusion is that the pleadings tender an issue in which the title to real estate is directly involved, and that this court has jurisdiction of this appeal, and the motion to transfer must be and is overruled.

Burgess, Valliant, Fox, Lamm and Graves, JJ., concur. Woodson, J., dissents.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    THE STATE ex rel. NICHOLAS B. CONRAD, Prosecuting Attorney, Appellant, v. R. H. PIPER, County Collector, et al.
    In Banc,
    November 25, 1908.
    1. TAXATION: County and Township Rate. In a county having township organization, the taxes levied hy the township boards are to he considered as a part of the taxes levied by the county court “for county purposes.” Eighty per cent of the taxes levied “for county purposes” go to the county, and twenty per cent to the township boards, and if the tax levied by the county court is the maximum rate permitted by the Constitution “for county purposes” the townships can have, for road and all other purposes, only twenty per cent of the amount levied hy the county court.
    2. -: -: Accepted by County Collector. Where the maximum constitutional rate “for county purposes” was forty cents and that rate was levied by the county court, the taxpayer who has paid to the road overseer a levy by the township board of a tax of ten, twelve or fifteen cents on the $100, cannot require the ex-officio county collector to give him credit for the amount so paid. The county is, in such case, entitled to thirty-two cents, and the township hoard to eight cents for all township purposes.
    3. -: -: Apportionment: Sections 9284 and 10324. The county court has the power to apportion the whole levy “for county purposes” by reserving eighty per cent of the maximum levy for general county purposes, and giving twenty per cent to the township board to be administered hy it in building its roads and paying its necessary expenses. The township hoard must exercise its taxing power in subordination to the authority of the county court to make the apportionment given it by section 9284, Revised Statutes 1899. That section is not in conflict with section 10324, Revised Statutes 1899, nor with the section of like number enacted in 1901, Laws 1901, p. 254.
    4. -: Township Organization: Invalid Assessment. Under the Act of 1907, Laws 1907, p. 447, which says that “in all counties having adopted or which may hereafter adopt township organization, wherein the last previous annual assessment shall have been made and returned in separate hooks for each township or separated into townships on the assessor’s hooks, township taxes may be levied on the taxable property in all such townships for the first year following the adoptions of township organization in such counties, based on such assessment,” a road tax levied by tbe township boards for 1907, in a county which in 1906 adopted township organization, based on the county assessor’s books for 1906, is illegal and void, because the county assessment was not made and returned on separate books for each township.
    Appeal from Henry Circuit Court. — Hon. C. A. Benton, Judge.
    Affirmed.

      Nicholas B. Conrad and Barnett <& Barnett for appellant.
    (1) Township taxes levied in counties which have adopted township organization are taxes for county purposes within the meaning’ of the Constitution and all county taxes including the township taxes cannot exceed forty cents on the one hundred dollars valuation. State ex rel. v. Railroad, 123 Mo. 72; State ex rel. v. Railroad, 145 Mo. 596. (2) The township board of directors have authority to levy upon all real and personal estate in their townships made taxable by law for state and county purposes a sufficient tax to keep the roads and highways of their townships in good repair, not to exceed fifteen cents on the one hundred dollars valuation, and all money collected for roads, highways and bridges shall be kept by the township treasurer as a district fund and shall only be paid out on the order of the overseer of the road district to which it belongs. Laws 1901, p. 254, sec. 10324. (a) And said road tax shall be paid to the road overseer of • the district who shall properly receipt the taxpayer therefor. Secs. 10327 and 10328, Laws 1901, p. 255. (b) As the township hoard had authority to levy this tax for road purposes and this levy was made not to exceed the limit prescribed by law in April, 1907, but the county levy was made by the county court in May of the same year, the county court should have taken this road levy into account and should only have levied the sum for county purposes which, taken in connection with this road tax, would have in the aggregate amounted to forty cents on the one hundred dollars. (3) It is contended by respondent that no assessment had been made for the year 1907 for township purposes under township organization. It is true that there had been no assessment by the township assessor, but the property had been assessed for purposes of taxation at the proper time the preceding year for the taxes 1907, and there could, not have been an assessment by the township assessor in time for taxes for the year 1907, as the township organization did not go into effect in time to do this, as the assessment is always for the succeeding year, but the county assessor was the proper assessor at the time the assessment was made. The only purpose of the assessment is to fix the valuation of the property, and this valuation has been properly fixed by the lawful assessor at the time, and this assessment was for the purpose of taxation for the year 1907. The assessor had nothing to do with fixing rates nor with the purposes for which taxes may be levied; he only fixes values. The authorities under township organization take up the matter just where they find it — they find a valid assessment already made by a competent assessor; they appropriate this assessment and make the levy based thereon. There is no reason why the township board should not levy their taxes based upon an existing valid assessment made by the county assessor. The townships and the county are not separate and independent corporate bodies. State ex rel. v. Railroad, 123 Mo. 77. (4) The eight cents on the one hundred dollars valuation set apart by the county court in its levy made May, 1907, for the use of the various townships is not a road tax but is simply for the general expenses of the townships, such as paying officers, etc.

      'G. A. Galvird and James D. Lindsay for respondents.
    (1) The levy attempted to be made by tbe township boards was unauthorized and invalid, for the reason that the assessment made and returned in Henry county in 1906 was not made and returned in the form and manner provided by law to serve as the basis of a levy of taxes by the township' boards, in 1907. To authorize a levy, or the making of estimates for levies, by such boards, in the year 1907, it was essential that the previous annual assessment should have been made out and returned in separate books for each township, or separated into townships on the assessor’s books. Secs. 10316 and 10316a, Laws '1907, p. 447. (2) A valid assessment has invariably been held an essential prerequisite to the lawful exercise of the taxing power. Abbott v. Lindenbower, 42 Mo. 162; State ex rel. v. Railroad, 114 Mo'. 1; State ex rel. v. Thompson, 149 Mo. 441; State ex rel. v. Bank, 180 Mo. 717. (a) All municipal organizations must show grant of any authority to tax which they may assume to exercise. Cooley on Taxation (2 Ed.), p. 348; Cooley on Constitutional Limitations (7 Ed.), pp. 747, 748. (b) The only taxes which can be levied by a county court or a township board are such as are provided for by statute. The power is a sovereign one, and can only be exercised in pursuance of laws passed by the Legislature. The power must be clearly given. The Legislature may impose the conditions upon which the taxing power may be exercised; and, where such conditions are made essential to the exercise of the power, they must be observed before the power can be lawfully exercised. State ex rel. v. Railroad, 87 Mo. 236; State ex rel. v. Railroad, 97 Mo. 296; State ex rel. v. Shortridge, 56 Mo. 126; City of Carondelet to use v. Picot, 38 Mo. 125; State ex rel. v. Railroad, 149 Mo. 635; Railroad v. Apperson, 97 Mo. 300. (3) Even though the assessment as made and returned had furnished a lawful basis for. levies or estimates of levies by the township boards (which respondents wholly deny), relator can not enjoin the collection of any portion of the thirty-two cents levied “for county purposes” by the county court. The power of the county court in counties under township organization to apportion eighty per cent' of the taxes that may be levied “for county purposes” to the county organization, where the necessities of the county require it, and where also the township estimates and the county estimates, taken together, exceed the constitutional limit, cannot be destroyed by any levy the township boards may make, or attempt to make, for any purpose whatever. Secs. 9280, 9283, 9284, B. S. 1899; State ex rel. v. Bailroad, 145 Mo. 596; State ex rel. v. Bail-road, 123 Mo. 72; State ex rel. v. Bailroad, 101 Mo. 120. The taxes which may be levied “for county purposes” include not only all taxes levied by the county court for the needs of the county organization, for the purposes specified in section 9283, but also all taxes that may be levied by “municipal townships for road purposes,” and all taxes that may be levied by municipal townships under township organization for either township or road purposes.
   VALLIANT, J.

Appeal from the Henry County Circuit Court. This is a suit to enjoin the county collector and other officials of Henry county from collecting a part of the county tax, which relator contends is illegal. The county has an assessed valuation of more than six million ancl less than ten million dollars, therefore the constitutional limit of taxation for all county purposes is forty cents on the hundred dollars. At the election held in November, 1906, the county adopted township organization and was divided into nineteen municipal townships. In April, 1907, the several township hoards assessed a road tax for their respective townships; these assessments varied in rate, ten, twelve and fifteen cents on the $100'. In May, 1907, the county court made its annual tax assessment for all purposes within the scope of its jurisdiction; this assessment was forty cents on the $100, being the full constitutional limit, and that court apportioned eight cents of this forty to the various townships for their purposes, reserving thirty-two cents for general county purposes. Thus it will be seen that the thirty-two cents reserved for general county purposes plus the assessments made by the township boards respectively ran the total tax beyond the forty cents allowed by the Constitution. Several persons paid these road taxes and tendered to the county collector the amount of their taxes assessed by the county court less what they had paid to the road overseer for their township road taxes and, exhibiting their receipts for the same, demanded credit on their county assessment, but the collector refused to give the credits demanded. The purpose of this suit is to require those credits to be given.

On the trial of the cause the court found the issues in favor of defendants and dismissed the plaintiff’s bill. Plaintiff appealed.

I. The effect of a judgment in relator’s favor would be-to cut down the assessment for general county purposes from thirty-two to thirty in some cases and to twenty-eight and twenty-five in others.

It is not claimed by the relator that the townships have the right, in the exercise of their statutory power, to assess a road tax so as to increase the total county assessment beyond the forty cents, but he contends that the townships may go- to- the limit of fifteen cents for roads, and in addition make an assessment necessary to defray township expenses, and those assessments being certified to the county court that court must conform to the action of the townships, give them their full road tax and sufficient to pay township expenses, and appropriate what is left of the forty cents, whatever that may be, to general county purposes. That would render the county court, when making provision for the expense of conducting the county affairs, to a large extent, subordinate to the township boards. That was not, originally at least, the intention of the General Assembly as expressed in the statutes governing this subject, and if the Legislature has ever changed its purpose in that particular, it has not expressly said so, but appellant contends it has so implied.

The Constitution, article 10, section 11, in imposing this limitation on tax assessments used the words, “For county purposes,” which include- in their meaning all subdivisions of the county for the use of which taxes may be imposed. Section 9284, Revised Statutes 1899, quotes those words “for county purposes” and uses them in the same sense in which they are used in the Constitution. That section is as follows: “In all counties in this State which have now or may hereafter adopt township organization, if the amount of revenue desired and estimated by the county court for county purposes and the amount desired and estimated by any township board for township purposes shall together exceed the rate per cent on the one hundred dollars valuation allowed by section 11 of article 10 of the Constitution of Missouri ‘for county purposes,’ then it shall be the duty of the county court to apportion the tax ‘for county purposes’ between the county organization and the- township organization in the following manner, to-wit: Eighty per cent of the taxes which may be legally levied ‘for county purposes’ shall be apportioned to the county organization for county purposes, and twenty per cent of such taxes shall be apportioned to the township- organization for the purposes provided by section 10277 of the Township Organization Law, as specified by the township board; but the combined rate for both the county and township organizations shall not exceed the maximum rate provided by the Constitution.”

Section 10277 referred to in that section is as follows: “The following shall be deemed township charges: First, the compensation of. township officers for their services rendered in their respective townships ; second, contingent expenses necessarily incurred for the use and benefit of the township; third, the moneys authorized to be raised by the township board of directors for any purpose, for the use of the township. ’ ’

It is contended that section 9284 does not include taxes levied for road purposes. If that is so, then that section means that the county court shall apportion eighty per cent of the total forty cents to general county purposes and twenty per cent to payments to the officers of the township organization as compensation for their services and contingent expenses, thus exhausting the whole tax, leaving nothing for roads. That Avould be unreasonable. The General Assembly did not intend to enact a statute that would be self-destructive. The meaning of that section is that the county court shall apportion the tax, eighty per cent for general county purposes and twenty per cent for all such township purposes as the township has a right to exercise. This construction doe's not deprive the township of the right to levy a tax for road purposes, as relator thinks it would, but it limits the share that may be apportioned to the township for all its purposes out of the fund to be derived from the forty cents' assessment to an amount which will leave sufficient, of that fund to furnish the amount estimated by the county court as necessary for general county purposes, and if there is' not enough for both the county must have eighty per cent and the township what is left.

Relator also contends that if section 9284 is construed to include road taxes, then the section has been repealed by implication because, he says, it is in conflict with section 10324, Laws 1901, p. 254, which he says is a later law. That act in its title purports to be an act to repeal certain sections of the Revised Statutes of 1899 specifically mentioned and to enact new sections in lieu thereof. Section 9284 is not one of the sections mentioned as proposed to be repealed, but section 1.0324 is one of them. The section by the same number enacted in the place of 10324, is substantially the same as the one whose place it takes, except that in the former the limit on the road tax which the township board could assess was twenty cents on the $100, in the latter it was cut down to fifteen cents, and in the former the fund when collected was to be kept by the township treasurer and paid out only on warrants of the township board, in the latter it is to be paid out only on order of the road overseer. The sole purpose of the repealed section was to give the township board power to levy a road tax and the sole purpose of the section enacted in its place was the same. Section 10324, Revised Statutes 1899, is also substantially the same as section 8527, Revised Statutes 1889, which was enacted first in 1883. The two sections, 9284 and 10324, are not at all in conflict,,; they are not on the same subject, the one confers power on the county court to apportion the total fund arising from the forty cents tax, the other confers on the township board the power to assess a road tax, and the latter was passed in full view of the power then existing in the county court to make the apportionment and it is subordinate to it. The two sections are in the same volume of the Revised Statues 1899, both promulgated as the law of the State in the same revision. Snrely if the General Assembly had intended to say that the one repealed the other, or that the township hoard had the authority to appropriate to itself one-half of the total tax authorized by the Constitution to be levied for all county purposes, it would not have left so remarkable a purpose to be gathered from so vague an inference. We hold that whether or not the township board in this case had authority to- assess the road tax which it did assess, still, the county" court had the power to apportion the whole levy in the way it did, giving twenty per cent to the township board to be administered by it, in building its roads and paying its necessary expenses, and reserving eighty per cent to be administered By the county court for general county purposes, and that the township board must exercise the taxing power given to it in subordination to the authority óf the county court to make the apportionment required in section 9284.

II. .Did this township board have the right to make the tax assessment it made under the conditions shown in the evidence?

The proposition that a valid assessment, that is, an assessment made in the manner prescribed by law, is an essential prerequisite to the lawful exercise of the taxing power, is not questioned.

The law authorizing township organizations and prescribing the method of their proceedings, makes the township clerk ex officio township assessor and requires him to make the assessment of all taxable property in his township. This assessment is the essential basis on which alone the township board can make a valid tax assessment. But Henry county did not adopt township organization until the November, 190G, election, therefore the time had passed when a township assessment could be made as a basis for a township tax assessment for the year 1907. Therefore as the law stood in November, 1906, when Henry county adopted township organization, there could be no township tax assessment in that county for 1907. But the General Assembly passed an act approved March 19, 1907, which the relator thinks covers this case. That act will be found on pages 447 and 448, Laws 1907. It was passed with an emergency clause which is as follows: ‘ ‘ There being* counties in the State that have recently adopted township, organization, and there being no provision for levying* township taxes in such counties for this year, creates an emergency within meaning of the Constitution, and this act shall take effect and be in force from and after its passage.” That clause is significant of two legislative thoughts: first, it is the legislative interpretation of the township organization law as it theretofore stood; second, it shows that the Legislature understood the condition of the counties which had recently adopted township organization and intended to relieve the situation to the extent specified in the body of the act. The act makes special reference to those counties in which township organization was adopted in 1906. The act says: “In all counties having adopted or which may hereafter adopt township, organization, wherein the last previous annual assessment shall have been made and returned in separate books for each township, or separated into townships on the assessor’s books, township taxes may be levied on the taxable property in all such townships for the first year following the adoption of township organization in such counties, based on such assessment,” etc. It is not claimed that the assessment in Henry county for that year was made in the manner prescribed in that section of the Act of 1907, but the contention is that that is not material because practically the same result can be reached by taking the assessment rolls as they were returned and gathering from them a list of the properties that belong to the respective townships. As a matter of fact that process of selection could probably be worked out with a considerable degree of certainty in so far as real estate is concerned, but as to personal property there is opportunity for mistake and confusion. But at all events that process is not what the Legislature adopted. Relator’s claim rests alone on that act and to succeed he must bring his case within its terms. The General Assembly in adopting that act had in mind the subject of counties that had so recently adopted township, organization that an assessment by the township assessor could not be made in time for an assessment of township taxes for that year and if it had intended to say that in such case the township board could use the county assessor’s list without qualification and levy township taxes thereon, that legislative intention could have been expressed in fewer words than those used. But the lawmaker said that the county assessment might be used provided it had “been made and returned in separate books for each township, or separated into townships on the assessor’s books.” This assessment was not made in that way, therefore the road tax. attempted to be assessed by the township, boards in Henry county for the year 1907 was illegal and void.

The judgment is affirmed.

All concur.


author: LAMM, J.

text:
    ERNEST MORGAN v. ZACH MULHALL, Appellant.
    Division One,
    November 25, 1908.
    1. NEGLIGENCE: Shooting Another: Whose Bullet: Jury Question. Where in a general melee and scuffle several shots were fired, and the case is presented to this court on defendant’s theory that defendant shot at another .party, a dangerous and desperate character, missed him and the bullet wounded plaintiff, there is no longer any issue, in the face of the jury’s verdict for plaintiff, as to whether defendant’s bullet or that of the person shot at injured plaintiff.
    2. -: -: Self-Defense: Misadventure. Where the defense at the trial was that defendant was feloniously set upon by another, who shot at him, and in battling for his life he shot at such other in self-defense and by innocent slip and misadventure shot wide of his mark and hit the plaintiff, an innocent bystander, and that issue was presented to the jury and there was substantial evidence to sustain their finding that the wounding of plaintiff was not the result of self-defense or misadventure, the verdict cannot be set aside on that theory of defense.
    3. -: Pleading: General Charge: Sufficient. Where the petition charges that on a named date and place.“the defendant by shooting into a crowd of people negligently shot the plaintiff with a pistol,” it charges an actionable wrong, and at the worst negligence in general terms, and, absent a motion to make more certain and specific, and absent any objection to its sufficiency prior to verdict, it is good after verdict. But it is more than a general charge of negligence; the character of the negligence is defined. It was not necessary to allege that defendant was under a social duty not to shoot plaintiff negligently and that he violated that duty, nor the size or character of the bullet.
    4. -: Shooting Another: Prima-Facie Case. If plaintiff shows that defendant shoots in his direction and wounds him, he makes out a prima-facie case for damages, and it then devolves on defendant to show that the shooting occurred without fault on his part, or to put in evidence mitigating facts.
    5. -: -: Shooting Into Crowd: Proof, Where the allegation is that “the defendant by shooting into a crowd of people negligently shot the plaintiff with a pistol,” the burden does not rest upon plaintiff to show that in fact a “crowd of people” was shot into, if it is shown that defendant negligently shot plaintiff. The law under such circumstances concerns itself little with the size of the crowd. The gravamen of the charge is the careless and negligent shooting. If that is shown, there is no variance, though the evidence shows only the plaintiff and the two or three others shot at, or, as in this case, a dozen or more, to be present, at the time defendant was shooting at one Reed, and shot plaintiff, Reed and another.
    6. INSTRUCTIONS: Non-direction: None on Issue of Negligence. Where plaintiff charged that he was negligently shot by defendant, and sued for damages, and asked no instruction on the issue of negligence, nor on issues relating to the defenses, but only asked correct instructions on the credibility of witnesses and the measure of damages, and defendant neither prayed nor was given any instruction, but stood mute, it was not error not to give instructions bearing on the issue of negligence or on the mitigating defenses. Mere non-direction is not reversible error. The statute does not require instructions in a civil case whether or no, but is permissive, not mandatory. Besides, the non-direction was a common error, and error common to all is not reversible error. If defendant did not ask for instructions, he cannot complain that they were not given.
    Appeal from St. Louis City Circuit Court. — lion. O’Neill Ryan, Judge.
    Arrtrmbd.

      T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe for appellant.
    (1) The petition fails to allege facts sufficient to constitute a cause of action. The cause of action is alleged in one clause of a sentence. The cause of action as alleged is as follows: “The defendant by shooting into a crowd of people negligently shot the plaintiff.” There is no allegation that he improperly or negligently or carelessly or illegally, or improperly or wrongfully shot into a crowd of people. There can be no inference that the act of shooting into the crowd of people was wrongful or unlawful; the inference must be that it was both lawful and proper. It is plain that the petition states no cause of action, and a cause of action cannot be gleaned from same. (2) There is a fatal variance between the allegations of the petition and the proof — the evidence for plaintiff tended to prove that defendant in self-defense shot at Frank Reed and that the bullet intended for Reed struck Morgan. There was no evidence that he shot into a crowd. There is an entire difference between the allegata ei probata. (3) Only two instructions on the law of the case were given and both were given at the instance and request of plaintiff. Instruction 1 merely indicated the measure of damages — no instructions were given on the issues. Such an instruction standing alone is clearly erroneous. Boyd v. Railroad, 108 Mo. App. 303; Seanlan v. Grulick, 199 Mo. 449.

      Thomas F. Galt for respondent.
    (1) The petition states a cause of action in that it states a general charge of negligence. Conrad v. T)e Mon court, 138 Mo. 325; Murdock v. Brown, 16 Mo-. App. 549; Dolan v. City of Moberly, 17 Mo. App-. 436; Dieter v. Zbaren, 81 Mo. 612. (2) The petition states that the defendant negligently shot the plaintiff. Plaintiff proved that there was a crowd at the place where the defendant shot. Instruction 1, indicating the measure of damages in the event of a verdict for the plaintiff, was sufficient. R. S. 1899', sec. 748; Wilson v. Railroad, 122 Mo. App. 677; Nolan v. Johns, 126 Mo. 159; Minter v. Bradstreet Co., 174 Mo. 444; Browning v. Railroad, 124 Mo. 55; Dury v. White, 10 Mo. 354; Bank v. Ragsdale, 171 Mo-. 618.
   LAMM, J.

Suing Mulhall, Ernest Morgan by his nest friend asked $20,000- damages, grounding his right of action on a negligent shooting and wounding. At a trial with the aid of a jury, he got a verdict of $5,000. From a judgment entered, defendant appeals.

The petition follows:

“The plaintiff for his cause of action showetb to the court that on the 24th day of May, 1905, upon the petition of said Ernest Morgan the said circuit court did appoint Joseph Morgan as his next friend to commence and prosecute this suit, and said Joseph Morgan has consented in writing to act as such next best friend for said purpose.
“And the plaintiff further showeth to the court that on the 18th day of June, 1904, in said city of St. Louis and on the grounds of the Louisiana Purchase Exposition Company, the defendant by shooting into a crowd of people negligently shot the plaintiff, Ernest Morgan, with a pistol; that by said shooting the bowel of plaintiff’s abdomen-was perforated in front and rear, and plaintiff’s hip socket was smashed and the head of his thigh bone destroyed; that it was necessary for the surgeon in treating said wounds to cut open plaintiff’s abdomen and close the bowel where perforated, and thereafter to cut off and remove the head of the said thigh bone; and as a further result of said injuries Bright’s disease was developed in plaintiff; that plaintiff’s life was saved by the surgeon, Dr. L. H. Laidley; but plaintiff suffered on account of said injuries most excruciating pain and anguish of body and mind, his constitution has been permanently weakened, his leg permanently shortened, and he now suffers and will continue to suffer great bodily and mental pain and anguish, all to plaintiff’s damage in the sum of $20,000, for which amount and his costs he asks judgment against the defendant.”

The answer was a general denial.

The court, on plaintiff’s prayer, gave two instructions, vis.:

“1. The court instructs the jury, that if you find for the plaintiff, you will', in assessing the damages, award him such sum as you believe from the evidence will reasonably compensate for the physical pain and mental anguish, if any, you believe he has suffered occasioned by said injuries, and the physical pain and mental anguish, if any, you believe from the evidence will result to tbe plaintiff from said injuries in the future.
“2. The court instructs the jury that you are the sole judges of the credibility of the witnesses and the weight to be given to their evidence. And in passing upon the credibility of a witness, the jury are at liberty to take into consideration his or her manner upon the witness stand; the interest he or she may manifest, if any, in the case; the reasonableness or unreasonableness of his or her testimony as compared with the other testimony in the case. And the court instructs the jury that if you find and believe that any witness willfully testified falsely to any material facts, you are at liberty to reject the whole or any part of such witness’s testimony.”

The court of its own motion instructed the jury how to return their verdict if nine concurred, and how if there was a unanimous verdict.

The defendant asked no instructions.

It appears that plaintiff, in nowise to blame, on the date and at the place alleged in his petition was wounded by a pistol bullet. That he received the grievous hurts alleged in his petition was shown, and not challenged by any proof. As no question is made over the amount of the verdict, the details become unimportant on appeal.

There was substantial evidence tending to show he was hit in the abdomen by a bullet from a pistol fired by defendant. That defendant had a pistol and fired it more than once is not denied by him or his witnesses. They content themselves with putting in evidence to the effect that in a scuffle and melee other shots were fired by other parties, and tending to show it was not a bullet from Mulhall’s firearm that struck Morgan. But in this court the cause is submitted by defendant’s counsel on the theory (to use their own words) that: “On June 18, 1904, on the grounds of the Louisiana Purchase Exposition Company defendant shot at Frank Reed, a dangerous and desperate character, missed him and the bullet wounded plaintiff in the abdomen.”

With this frank admission in the case, it is waste of time to state the evidence on the issue as to whether defendant’s bullet or another’s did the mischief. The jury settled that and defendant bows to the verdict.

As said, defendant put in testimony tending to sustain a theory of self-defense — i. e., that'he was feloniously set upon by one Reed, a desperado, and in battling for his life, by innocent slip and misadventure, shot wide of his mark and (by chance medley) hit Morgan, a non-participating bystander. That issue was threshed out at the trial and the jury found against the theory of self-defense and misadventure. In the face of this finding', we do not read counsel’s brief as insisting there was no substantial testimony on that score on which the verdict could stand. Therefore, it is not incumbent on us to emblazon on judicial pages (and thus embalm) the causes leading up to the rowdy war and its bloody incidents. The prying mind may find them once spread of record in State v. Mulhall, 199 Mo. 202 — once is enough.

Any other facts essential to understand and determine the case will appear in connection with a consideration of the several assignments of error, which are:

(1) “The petition fails to state facts sufficient to constitute a cause of action.”
(2) “There is no allegation in the petition that defendant wrongfully or carelessly or negligently shot into a crowd of people.”
(3) “There is a fatal variance between the allegations of the petition and the proof. There is no evidence that plaintiff shot into a crowd of people.”
(4) “Instruction number one, given on behalf of the plaintiff, merely indicated the measure of damages in the event of a verdict for plaintiff, hut did not state the issues nor specify the facts which must he found to warrant a verdict for him.”

I. The first two assignments of error may be considered together.

(a) Does the petition state a cause of action?

We think so. It is uncommonly laconic and crisp in its charging part, but well charges that plaintiff was negligently shot by defendant with a pistol and that averment charges an actionable wrong. At the very worst, the most that can be said against it is • that it is a general charge of negligence. On that view, absent a motion to make more certain and specific, absent any objection to its sufficiency prior to verdict (as here), the petition must be held good after a verdict. So runs the case and the general law. [Schneider v. Railroad, 75 Mo. 295; Mack v. Railroad, 77 Mo. 232; Dolan v. Moberly, 17 Mo. App. 436; Dieter v. Zbaren, 81 Mo. App. 612; LeMay v. Railroad, 105 Mo. 361; Conrad v. DeMontcourt, 138 Mo. l. c. 325; Rinard v. Railroad, 164 Mo. l. c. 285, et seq.; 29 Cyc. 570, et seq.; 6 Thompson’s Negligence, sec. 7447.]

But the averment is more than a general charge of negligence. The character of the negligence is defined. If we look to the reason of the thing or to the justice of the concrete case, then it is sure- defendant suffered no surprise or other wrong by the condensed phrasing of the petition. This becomes clear because he was thereby informed of the case he had to meet — of the ultimate fact complained of, vis.: a negligent shooting, with time, place and firearm added. It was not necessary to allege that defendant lay under a social duty not to shoot Ernest Morgan negligently and that he violated that duty; for, peradventure, all of us live, move and have our being under an implied term in the social compact, viz.: that a cowboy may not shoot one or the other of us negligently. No man has to prove such duty. Why, then, allege it in terms or its violation? No more need the size or character of the bullet, whether quail-shot or dum-dum, be alleged. Here the shot is alleged, so is its effect, and (that it was fired wrongfully and by defendant. Prom these averments, the case defendant had to meet was well ear-marked and identified. And defendant was not misled or put at fault; for he met the charge in its entirety by proof that he acted in self-defense (if he fired the shot), and by other proof tending to show that another — an unknown person — fired it.

(b) It is next argued that the petition does not sufficiently aver that defendant negligently or wrongfully shot into a crowd of people. Let us see about that. The allegation is that “the defendant hy shooting into a crowd of people negligently shot the plaintiff, Ernest Morgan, with a pistol.” Now, the pleader might have expanded his phrase and alleged that: “the defendant, by shooting into a crowd of people negligently, negligently shot the plaintiff Ernest Morgan, with a pistol,” but he did not do so and, however shrewdly analyzed, the allegation made amounts at the end to the same thing as the allegation supposed. If A negligently or unlawfully shoots into a crowd and thereby hits B with a pistol bullet, that is the statement of an actionable wrong in B,’s favor against A. If A negligently shoots B with a pistol bullet by shooting into a crowd of people, the terms are somewhat reversed hut the negligence is the same in each instance — in both it was the negligent use of a deadly weapon with resulting harm.

The two assignments of error in hand are unsound, and, hence, are disallowed.

II. It is next contended there is no evidence that defendant shot into a crowd of people and, therefore, there is a fatal variance between the allegations of the petition and the proof. If A negligently shoots in the direction of B and hits him, A ought to make amends for his negligence. It would be a sad state of the law to hold it not so. Therefore, the presence of a crowd into which a negligent shot is fired would not be an indispensable averment to a cause of action. So, by the same token, if the negligent shot was in the direction of and hit one member of a crowd, an action would lie. If, however, it be allowed to defendant in this case that he is called upon to answer only a negligent firing into a crowd, and if it be allowed to him to say that if a crowd was not in the direction of his firing he should escape liability, though he negligently hit an individual — we say, although all these things be allowed to this defendant — yet manifestly on that view of the case the law ought to concern itself but little about the size of a crowd fired into. There is much in little under such circumstances and that little goes a great ways. Indeed, there may be said to be a primal and rooted antipathy in the breast of civilized man against carelessness in shooting. For example, was not Robert Burns so concerned over promiscuous and miscellaneous gun firing that when the shadows of death were gathering about him he .waived the honor of a militia salute with its attendant pomp and circumstance, and by his last .breath did he not request that ,the awkward squad should not fire over his grave?

But, eschewing sentimental conceits and coming to the cold technical law, it has been held that in an action for damages sustained from injuries caused by an unlawful and wrongful assault and shooting, plaintiff is prima facie entitled to a verdict upon proof that he was shot by defendant; it then devolves upon defendant to show that the shooting occurred without fault on his part, or to put in evidence mitigating facts; it is not necessary that plaintiff, in the first place and hy direct evidence, should show either an intention to commit .the injury or that defendant was in fault. [Conway v. Reed, 66 Mo. 346; Orscheln v. Scott, 90 Mo. App. l. c. 366, et seq.] That is to say, a plaintiff, hit by a bullet, may identify the shooter, prove the hit and quit. At that point the burden shifts, and the law, as well as the good sense of it, puts the boot on defendant’s foot and the laboring oar in his hands- — he must justify or otherwise lawfully excuse the shot.

. However, conceding, arguendo (without holding), that counsel’s construction of the pleading is correct and that plaintiff is held strictly to the literal allegation of a “crowd,” yet we are of the notion, as said, that in Missouri two- or three would constitute a “crowd” for firing purposes under the averments of the petition.

On this view, the crowd was there. The record shows the fracas occurred inside and close to the entrance of a “wild west show” with which defendant was connected as a star actor in a cowboy role. The entrance was on the “Pike” at the late Louisiana Exposition in St. Louis. Plaintiff had been to- the show, had left the arena at half past 10' p. m. and was going out through an uncovered alley or passageway to said entrance on the Pike when he came upon four or five, men scuffling in the passageway. The record shows that just before- and fit the time the first shot was fired there were present at least the plaintiff, Reed, one Jordan, “Nebraska Bill,” Mulhall, Mrs. Edwin, Chas. Bishop, Louis Young, Mrs. Bishop, John Murray, Geo. Williams, J. S. Williams, Williams’ little hoy and Judge Corbett. Defendant fired three shots and there was an interval between them. After the first shot and before the second there is testimony that a crowd gathered. The third shot struck the plaintiff who was retreating. More than one witness speaks of a crowd being present. There was an issue as to the direction of the firing and the presence of the crowd in the firing line would depend a little on the view the jury took of the testimony on that issue. Murray was shot in the stomach. Eeed was shot in the neck. Morgan was shot in the bowels. These results speak loudly and point to a crowd. The witness Young testified he was outside of the wild west show, right in front, and that he saw “Mr. Mulhall and a crowd coming” and then saw the scuffle, then there was a couple of shots fired and then it seemed to him a dozen more and “they (the people) knocked me down; I was trying to get out of the way myself.” Other witnesses speak of a “big rush.” Another witness speaking of the scuffle-, said: “Somebody jumped on him (Eeed) and some got Mulhall around the neck and some got Eeed around the neck, three or four scuffling with, the gun, and when it went off it created pandemonium, everybody went in all directions.” The record shows that mysterious and unnamed persons approached Mulhall and talked to him as he was going to war and close to the battlefield. Flitting dimly through the testimony, as in a fog or vision, are seen crouching figures, some firing, others retiring and others dodging. Undoubtedly a crowd was there, but even on defendant’s own theory there were two persons in the line of his last shot, to-wit, Eeed and Morgan. That, as said, was “crowd” enough under a liberal interpretation of the pleadings for the purposes of justice.

The point is disallowed to defendant.

III. Defendant stood mute and neither prayed nor got any instructions whatever. Plaintiff asked none on the trial issue of neglig’ence nor on issues relating to the defense. He asked and got two — one on the measure of damages, the other a rule of law relating to the credibility of the witnesses and the weight of their testimony. In this state of the record, defendant does not contend the instructions given were bad law in and of themselves, but his counsel insist it was error to not give instructions bearing upon the issues and announcing rules of law by which the jury could be guided to a just verdict on them.

Is there merit in this contention? No, because:

(a) We are cited to Scanlan v. Gulick, 199 Mo. 449, as authority for that position. But that case is not in point. In that case a general instruction covering the issues was rightly refused because it omitted to state a material issue. It simply announces the hornbook doctrine that a single instruction, intended to cover the whole ease, should cover it. The instruction was refused because it left out the question of the bona fides of two instruments of writing vitally bearing upon the pivotal issue, and directed a judgment without requiring the court to consider a material question presented by the evidence.

Counsel lean on Boyd v. Railroad, 108 Mo. App. 303, as a staff. That case seems somewhat in point. But if it holds as counsel argue, then it is not well reasoned and we will not follow it. See, in this connection, Wilson v. Railroad, infra.

(b) An excellent law writer states the general doctrine in'civil cases to be: “It is, then, a general rule of procedure, subject, in this country, to a few statutory innovations, that mere non-direction, partial or total, is not ground of new trial, unless specific instructions, good in point of law and appropriate to the evidence, were requested and refused. A party cannot, by merely excepting to a charge, make it the foundation for an assignment of error, that it is indefinite or incomplete.” [2 Thompson on Trials, sec. 2341]. Judge Thompson supports his text by a wealth of authorities in a,note, adding: “The English rule seems to be that non-direction, where specific direction is not requested, is no ground of new trial, unless it produce a verdict against the evidence.” [Citing Ford v. Lacey, 30 L. J. (Exch.) 351; Railroad v. Braid, 1 Moore, P. C. Cas. (N. S.) 101.]

, To question that general rule in Missouri at this late day would he to spin cobwebs before the eyes of justice and mischievously unsettle the law. This is so because our statute on procedure in civil cases does not contemplate instructions whether or no. Parties litigant have their option to ask or not ask them. That statute ordains (R. S. 1899, sec. 748)-: “When the evidence is concluded, and before the case is argued or submitted to the jury or to the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in Avriting and shall be given or refused. The court may of its own motion give like instructions, and such instructions as shall be given by the court on its own motion or the motion of counsel shall be carried by the jury to their room for their guidance to a correct verdict according to the law and evidence; which instructions shall be returned by the jury into court at the conclusion of the deliberations of such jury, and filed by the clerk and kept as a part of the record in such case.”

In construing that section, the better view is that it is permissive, not mandatory. Doubtless it conduces to the science of jurisprudence and the orderly administration of the law to have instructions defining the issues, putting it to the jury to find the fact and declaring the law ou the fact when found, but it is within the knowledge of the profession (and our decisions show) that cases are not infrequently tried, nisi, without them. That mere non-direction is not misdirection is a familiár,- settled rule of appellate procedure. Under that rule, before appellant can predicate reversible error on what a trial court does not say to the jury, he must first put the court in the wrong by asking it to say something, or else the court in trying to cover the ease by instructions holds a false voice, or omits in general instructions essential elements of the case. [Tetherow v. Railroad, 98 Mo. 74; Coleman v. Drane, 116 Mo. l. c. 394; Browning v. Railroad, 124 Mo. 55; Nolan v. Johns, 126 Mo. 159; Wilson v. Railroad, 122 Mo. App. l. c. 672, et seq., and cases cited; Nugent v. Armour Packing Co., 208 Mo. l. c. 500; Flaherty v. Railroad, 207 Mo. l. c. 339.]

Here, manifestly, appellant was as much to blame as the court or respondent for the omission to instruct on vital issues; for he by his silence joined in the general silence and made it more profound. At most it was common error, if any, and error common to all is not reversible error. He who does not speak when he should, will not be heard to speak when he would.

The premises considered, we have nothing to do but look to the record and see if it supports the verdict. We find ample testimony to support it.

Accordingly, the judgment is affirmed. It is so ordered.

All concur.


author: GRAVES, J.

text:
    HELEN LINCK, Appellant, v. DORA LINCK (formerly VORHAUER) and EDWARD C. LINCK, her Husband.
    Division One,
    November 25, 1908.
    1. ESTOPPEL: Ownership of Lot: Lis Pendens. In an. alienation suit, being one purely for damages, there is no place for the filing of a notice of Us pendens; and the plea that plaintiff, who seeks to have defendant divested of title to a house and lot, in that suit charged and affirmed by her testimony that defendant was the owner of the lot, is not sustained by the filing of a Us pendens in that 'suit, in which the notice itself does not declare the .title to be in defendant except inferentially.

      2. SETTING ASIDE DEED: Fraud on Wife: Divorce: No Evidence. A deed of trust signed by the wife cannot be set aside as a fraud against her, in that it was made to defeat her subsequent judgment for alimony against her husband, the other co-grantor, and to defeat her judgment for damages for alienation of his affections against his subsequent wife, after divorce, who in the course of time came to be the owner of the property, by a simple showing that at the time the instrument was made, and long before the divorce was granted, the relations between her husband and the subsequent wife were immoral. If the deed of trust was made for a valid debt, was signed by the wife without any false representations as to the use the money was put to, or if there was at the time actual fraud yet the subsequent wife who is now the owner is not shown to have known of it or to have participated in it, but is shown to have bought from the purchaser at the foreclosure sale for a valuable consideration and to have. had property of her own, the deed of trust cannot be set aside as being in fraud of the first wife’s right.
    Appeal from St. Louis City Circuit Court. — Hon. Walter B. Douglas, Judge.
    Affirmed.

      Henry H. Oberschelp for appellant.
    (1) As this is an equity case, the Supreme Court will consider the evidence and make its own decision, irrespective of the trial court’¡3 finding. St. Francis Mill Co. v. Sugg, 104 S. W. 45; Bates County Bank v. Gailey, 177 Mo. 181. (2) Those committing or in any wise assisting in any fraud never admit it, hut do. their utmost to conceal it and .consequently its proof depends on circumstantial evidence, such as the situation of the parties and the circumstances surrounding the transactions and the conduct of the parties. Wait on Fraudulent Conveyances, pp.. 13, 15, 16, 398, 402; New York Store Mer. Co. v. West, 107 Mo. App.. 254. (3) Transactions between persons occupying fiduciary relations will be closely scrutinized. Lohman v. Stoclce, 94 Mo. 674; Condit v. Maxwell, 142 Mo. 279; Williams v. Gerber, 75 Mo. App. 18; Jones on Evidence, sec. 188. (4) As the defendant Mrs. Dora Linck, formerly Vorhauer, alleged as an affirmative defense that she was a bona fide purchaser for value without notice of the fraud, the burden of proof rested on her to prove it. Ins. Co. v. Smith, 117 Mo. 293. (5) As strong doubt of the integrity of the transaction was created, the duty of making a full explanation and the burden of proof to sustain the transfers rested with defendants. "Wait on Fraudulent Conveyances, pp. 478, 479. (6) The fail- ' ure of defendants to produce as a witness McKechnie, whom plaintiff did not know, but whom defendants admitted they knew and who appeared to be a friend of theirs and whose testimony would have been material to the issues, and the failure of the defendants to introduce other material witnesses and evidence, especially the man who was attorney for Ed. Linck, Dora Vorhauer (now Linck) and Archibald McKechnie and the Wall Paper Co., all the parties involved, raises a most unfavorable and damaging presumption against them. They knew such evidence would have been damaging to them, otherwise they would have produced it. Lee-per v. Bates, 85 Mo. 228; Ins. Co. v. Smith, 117 Mo. 294. (7) As the $1,500 deed of trust recited that it was for a cash loan of that sum from the party of the third part, Prank C. linck, to Edward Linck and as said Frank Linck and Ed. Linck both testified that said Prank Linck did not loan his said brother any money, but merely endorsed the note without recourse and delivered it back to Edward Linck, the entire transaction was fraudulent. Such transactions are declared fraudulent in their entirety, even where some money is loaned, but not the full value of the amount of the deed of trust. Bates County Bank v. Gailey, 177 Mo. 181; Cole v. Yancey, 62 Mo. App. 239. (8) As land bought in the wife’s name is presumed to be bought with the husband’s money, that same presumption applies with still greater force where the'title of the land is taken in the name of the husband’s mistress to defeat the claims of the lawful wife. Halstead v. Mustion, 166 Mo. 488. (91) If defendant Dora Linck, formerly Vorhauer, had a knowledge of facts sufficient to excite the suspicions of a prudent person and put her on inquiry, she made herself a party to the fraud. Wait on Fraudulent Conveyances (3 Ed.), sec. 379; State to use v. Estel, 6 Mo. App. 6. (10) Even if the defendant Dora Linck, formerly Vorhauer, be regarded as an innocent purchaser, still ais the deed transferring the property to her was only a quitclaim deed, aside from the indicia■ of fraud thus raised, her title is subject to all the equities in favor of the plaintiff. C'ondit v. Maxwell, 142 Mo. 278; Hope v. Blair, 105 Mo. 95.

      Ed. L. Gottschalk for respondents.
    Fraud will not he presumed, hut must be shown by the party alleging it. Bank v. Brunswick, 155 Mo. 602; Bank v. Worthington, 145 Mo. 91; Peters v. Casebeer, 53 Mo. App. 640. There should be tangible and substantial facts in evidence tending to prove the issue of fraud to authorize the court to submit it to the jury. Thrasher v. Greene Co., 1051 Mo. 244. It must be affirmatively proven. Martin v. Estes, 132 Mo. 403; Warren v. Ritchie, 128 Mo. 311.
   GRAVES, J.

Plaintiff and defendant, Edward C. Linck,- were husband and wife from 1879 to 1903, at which latter date they were divorced in a suit brought by the said Edward C. linck, but upon the cross-bill filed by the wife, the plaintiff in this suit. By the decree of divorce alimony in gross in the sum of $1,000 was allowed Helen Linck. The other defend ant, Dora (Vorhauer) Linck, is the present wife of hei co-defendant, whom he married very shortly after the decree of divorce above mentioned was granted. Not only so, but it is practically certain that the relations of the two were not what they should have been for a long time prior to the decree of divorce and subsequent marriage.

Edward C. Linck was engaged in the wall-paper business in the city of St. Louis and at least for a time was prosperous. Prior to 1895 he had purchased the tract of land in dispute and built the house thereon. In so doing he procured $8,600 from the Hancock Building and Loan Association, which loan was secured by a deed of trust for said sum, which deed of trust provided for monthly payments of $86. This conveyance is not involved in the controversy. The present action is to cancel a second deed of trust for $1,500 given by Edward C. and Helen Linck to Prank Linck, a brother of Edward C. Linck, and afterwards foreclosed, and a trustee’s deed made to one Archibald McKechnie, who thereafter deeds by quit-claim deed to Dora Yorhauer (now Linck.) The petition asks that all these three conveyances be cancelled and the property title be found to- be in plaintiff under a sheriff’s deed to her under an execution sale upon the judgment for alimony, wherein the property was sold as the property of Edward C. Linck. The petition charges that Helen Linck’s signature was fraudulently procured to the $1,500' deed of trust by her husband, in this, that he represented that he wanted the money to pay off the first deed of trust, when, as she avers, he- in fact wanted the deed of trust as a part and parcel of a fraudulent scheme upon his part to defraud her out of her claims for maintenance and alimony and to defraud, hinder and delay his creditors. This second deed of trust was made in 1895, and the sheriff’s deed to plaintiff in May, 1904. .

The answer of Edward C. Linck denies specifically the alleged fraudulent statements, and avers that on account of depression of business he had been running behind and executed the second deed of trust which his wife Helen signed and used the money in discharge of the payments then due on the first deed of trust and other debts. He then avers that during his absence the said Helen induced the creditors to attach the property and business, thus rendering him unable to pay further, and that the foreclosure and other transactions followed as the natural sequence of her acts. He avers, and the evidence shows that Dora Yorhauer obtained deed in 1899. He avers that she paid the purchase price to MeKechnie, and the balance due on the first mortgage, which balance was some $6,600, and that she has always .since been in the possession of the property.

The defendant Dora Linck pleaded the same facts, also pleaded her ignorance of any fraud upon the part of Edward C., and that the purchase was in good faith. She further pleads that she was sued in the circuit court of the city of St/ Louis by Helen Linck for the alienation of her husband’s affections. That in said suit, plaintiff to enhance her damages, testified, as did her other witnesses, that the property in dispute belonged to this defendant and secured thereby a judgment of $2,500, and that after the affirmance of such judgment, she, this defendant, borrowed money on the property in dispute to pay the lien of this judgment and other prior liens thereon and did pay such judgment out of the money so procured, by which facts it is averred that the said Helen is now estopped from claiming that said property is that of the said Edward O. Linck and not the property of this defendant.

Replies were in the nature of general denials. The learned trial judge dismissed plaintiff’s bill and entered judgment against her for costs, from which she duly appealed. The evidence in further detail will be taken up in the course of the opinion.

I. As to the estoppel pleaded, it is not sufficiently grounded in facts to sustain the issue made by defendant Dora Linck. The only evidence in the record is a lis pendens filed by Helen Linck’s attorney, containing this clause: £<And the following described real estate, situated in the city of St. Louis, is liable to be affected thereby,” then describing this'and other real estate, and the testimony that the judgment in the alienation suit was paid off out of a deed of trust given on this property. The alienation suit was one brought for damages and not such a suit as contemplated the filing of a lis pendens. Helen Linck says that if such notice was given- and filed by her attorney it was without her knowledge or authority. Again the language of the notice itself does not declare the- title, except inferentially, to be in Dora Vorhauer. This plea of the defendant- is not such as should be sustained and the point is ruled against her. The question might be different, although we do not "decide it, had the -case been such as called for a Us pendens. In an alienation suit, one purely for damages, there is no place for the filing of a notice of lis pendens, and it would require the express direction of plaintiff to bind her.

II. Going to the merits of the case and eliminating the question of estoppel, was the decree nisi well founded? We think so. A very large portion of plaintiff’s case consists of evidence tending to show improper relations between Edward Linck and Dora Vorhauer, which may be a mere circumstance tending to show a fraudulent scheme, but to say the least, it is of doubtful probative force under the charges in the petition. The alleged fraud perpetrated upon plaintiff in her language is thus stated: ££I signed this deed of trust. I do not remember seeing any notes at the time. My husband told me he wanted to borrow money on a second deed of trust to pay off the first deed of trust and borrow the money from some outside party and that is all the satisfaction he gave me. I relied upon that promise. I don’t know whether or not he paid off that building association loan. I signed that deed of trust relying upon the promise he made me.” All of this is flatly denied by the husband.

On cross-examination she says that there were six or seven attachments against Linck’s property, for as many different debts, and that she knew these debts were due when she signed the deed of trust. Plaintiff’s case is made solely upon,this testimony as to the alleged fraudulent representation concerning this deed of trust, the alleged improper relation of Linck and Dora Vorhauer, and testimony showing that after the personal property was attached and sold, Linck managed the business. On the other hand it appears that Edward C. Linck sold this second mortgage which had been executed to Prank Linck to his brother Will Linck; that after the goods were attached Will Linck sold the mortgage and notes secured thereby to Archibald McKechnie, who afterwards foreclosed and bought in the property and several years later in August, 1899, sold to Dora Vorhauer; that with this money from McKechnie Will Linck, aided by his brother Prank Linck in a small way, purchased the property at the attachment sale; that after the sale, Will Linck, Prank Linck and McKechnie, who was a friend of Will Linck, but not of Edward Linck, incorporated the Linck Wall Paper Company, and Edward Linck was hired at $9 per week to manage the business in connection with Prank Linck; that thereafter the business was run in that name, the major interest being held hv Will Linck, no interest being held by Edward Linck, and McKechnie collected the rents on the real property from the Linck Paper Company and other tenants for the three years or more he owned it. After the sale to Dora Vorhauer in 1899, which sale seems to have been brought about by Will Linck, she collected the rents and was so doing at the time of this suit. Dora Vorhauer was shown to be a woman of some property. Edward C. Linck is not shown to have had any property after the attachment and sale of the stock of merchandise. Dora Linck is not shown in any way to haAre had any knowledge of the alleged fraudulent statements made by Edward C. Linck to his then wife, Helen Linck. Mrs. Helen Linck waits from 1895 to 1904 to sufficiently discover fraud to bring this action, and was then no doubt chafing under the sting of seeing •her former husband marry the woman who had come between them. The personal conduct of Edward 0. Linck and Dora Vorhauer, prior to their marriage, is not to be commended, if, indeed, their marriage, in good morals, could be commended. Tet, when all this evidence is reviewed, it strongly tends to show that Edward 0. Linck was a practical bankrupt after his stock of goods was attached, and that the subsequent transactions were legitimate and in good faith. The evidence is at least consistent upon the theory of good faith and honesty. It evidently so struck the learned chancellor below. Complaint is urged here that Mc-Kechnie was not placed upon the witness stand by' defendant. No showing is made as to whether he was dead or alive at the date of the trial. We hardly think this authorizes us to reverse this judgment. It devolved upon the plaintiff to first make a case1, and were the evidence of defendants omitted, we have serious question of there being a prima facie case for plaintiff. However, under this record we do not have to say that no case was made by her proof. Further review of the details of the case can serve no good purpose. Upon the whole, the judgment nisi' was correct and it will be affirmed.

All concur.