author: BOND, C.

text:
    GAINES M. BROWN et al. v. C. D. B. TUSCHOFF, Appellant.
    Division Two,
    June 20, 1911.
    1. WILL: Unambiguous: Oral Evidence. Under no circumstances is oral evidence receivable to contradict or alter the plain terms of an unambiguous will when those terms are used in their ordinary and usual sense.
    2. --: -: Limitation Over: Lots Devised by Different Clauses. The will by its first clause gave to a grandson’s widow and her child five dollars; by the second, testatrix declared that a son-in-law “shall be entitled to enjoy during his natural life lots one and two;” by the third clause, that at her death, “my grandchildren, Louie and Gaines M. Brown, shall be entitled to said lots one and two, subject to the life estate” of said son-in-law, “and said Louie and Gaines M. Brown shall also at my death be entitled to lot four, and they said Louie and Gaines M. Brown shall also be entitled to the remainder of my estate of whatever kind it may be at my death, and in case either one (Louie or G. M.) should die leaving no heirs, ■ the other shall be entitled to it all.” Held, that the son-in-law having died after testatrix, and the granddaughter (Louie) having thereafter died without issue, Gaines M. Brown, under the will, took- all the estate, and the limitation over applied not only to lot four and to the remainder, but to lots one and two.
    3, -: -: Heirs May Mean Issue.. The word “heirs” and the word “issue” are convertible terms in a will when such a construction is necessary to carry out the testator’s paramount intention as gathered from the entire instrument. Where the will as a whole shows a fixed purpose to devolve testatrix’s entire estate upon two devisees to the exclusion of all other direct descendants, as the will in this case does, it will - be held that the word "heirs,” used in the sentence, “And in case either one (Louie and G. M.) should die leaving no heirs the other shall be entitled to it all,” means issue, and that when Louie died without issue G. M. took the entire estate devised tc both.
    4 -: Limitation Over: Amicable Partition: Warranty Deed by Mistake for Quitclaim: Reformation. Where the will gave the lots to two grandchildren, and provided that “in case either one should die leaving no heirs the other shall be entitied to all,’' and after testatrix’s death they made an amicable partition, and employed a mutual agent to draw up quitclaim deeds conveying their individual interests to each other, and the' agent drew up a quitclaim deed to plaintiff for his sister to sign, and,' having no other blank form of a quitclaim, used the form of a warranty deed, erasing the habendum clause, supposing that would make it a. quitclaim, and plaintiff signed it, it will at his spit be reformed to be a quitclaim as against his sister or her grantee who took with notice.
    5. -: -: -- — : -: Innocent Purchaser. And where the sister, after such amicable partition, and after such mistaken warranty deed from plaintiff to her, conveyed to defendant and died without issue, and there is substantial evidence. that, defendant bought the property from her (his wife) with actual knowledge of the fact that the deed to her from ■ plaintiff was intended to be only a quitclaim for the partition of the land, although by mistake a warranty form had been .used, the deed will be reformed to speak the real agreement between the parties, and defendant will not be held to be an innocent purchaser, for value, without notice. That defense is an affirmative one and must be pleaded.
    6. AMICABLE PARTITION: Deeds: -Warranties: Executory Devise: Quitclaim Deeds. Deeds made in a friendly partition, the intention of each grantor being to convey only Iris individual'interest, neither create any new titles, nor carry any warranties. So that a will devising certain lots to a brother and sister, and providing that “in case either should die leaving no heirs, the other shall, be entitled to it all,” created an executory devise, and deeds executed by the one to the other, i-n amicable' partition, conveyed only the individual interest of each, and when the sister died without issue the title to the lots so conveyed by the brother to her vested in him; and if the deeds were quitclaims, a conveyance by her to defendant conveyed nothing, but the title reverted to her brother.
    Appeal from Cape Girardeau Circuit Court. — Ron. Henry C. Riley, Judge.
    Affirmed.

      Wilson Cramer for appellant.
    (1) A court of equity will not decree the reformation of a written instrument, unless there was a mutual mistake. The mistake of the scrivener is not a- mutual mistake in the absence of proof that be was tbe agent of both parties to tbe contract. Benn v. Pricbett, 163 Mo. 572; Dougherty v. Dougherty, 201 Mo. 228. . (2) In the case at bar it is not shown by the evidence or even alleged in tbe petition that the justice of the peace who wrote the deed in question and made the alleged mistake was the agent of the grantee Louie Brown. (3) The petition fails to charge that there was a mutual mistake as to the deed under consideration and therefore does not state a cause of action in the first count. Neither by the allegations of the petition, nor by the proof, is Louie Brown connected with the transaction in any manner, excepting by tbe fact that she executed a quitclaim deed to her brother Gaines M. Brown for .part of lots 1 and 2. Brooking v. Straat, 17 Mo. App. 305. (1) Under the facts of this case it was immaterial whether the deed -from Gaines M. Brown to Louie Brown was a quitclaim in form, or a statutory warranty, or whether his interest was a vested, or a contingent remainder. Either form of deed would have passed his interest in the land. A quitclaim deed conveys such title as the grantor has. Johnson v. Johnson, 170 Mo. 19; Chew 'v. Kellar, 171 Mo. 225. (5) Under the 3d clause of the will of Diza Wills her two grandchildren, Louie and Gaines M. Brown, took a vested remainder in lots 1 and 2. Tindall v. Tindall, 167 Mo. 225. (6) The • concluding paragraph of clause 3: “And they the said Louie and Gaines M. Brown shall also be entitled to the remainder of my estate of whatsoever kind it may be at my death, and, in case either one (Louie or J. M.) should -die leaving no heirs, the other shall be entitled to it all,” contains a separate and distinct bequest of the residue of the estate and has no reference to the devises contained in the first and second paragraphs. They “shall be also entitled to the remainder of my estate, of whatsoever kind it may be at my death, etc., and in case either one should die leaving no heirs, the other shall be entitled to it all.” (7) A vested remainder is transferable. Byrne v. France, 131 Mo. 639; Tindall v. Tindall, 167 Mo. 218. (8) So is a contingent remainder vendible. Godman v. Simmons, 113 Mo. 122; Sikemeiers v. Galvin, 124 Mo. 367; Brown v. Rogers, 125' Mo. 392. (91) Defendant is a purchaser for a valuable consideration without notice, and, as to him, the court below had no power to reform the conveyance. 1 Story’s Eq. Jur. secs. 139 and 165; Sicher v. Rambousek, 193 Mo. 129'.

      W. H. Miller and T. D. Hines for respondent.
    (1) The expression at the end of clause 3 of the will, which reads, “and in case either one (Louie or G. M.) should die leaving no heir,” etc., was intended to mean and should be construed to mean should Louie or G. M. die without issue. The word “heirs” was clearly intended to mean issue, children, direct descendants, etc., and should be so construed. Waddell v. Waddell, 99 Mo. 345; Maguire v. Moore, 108 Mo. 273; Chew v. Keller, 100' Mo. 368; Ringquist v. Young, 112 Mo. 33; Faunning v. Doan, 128 Mo. 330; Clarkson v. Clarkson, 125 Mo. 381; Roberts v. Crune, 173 Mo. 5791. (2) Louie Brown acquired no new, no different or additional title or estate in the land by the partition deed, for partition deeds simply destroy the unity of possession without conveying a new title. Whitsett v. Wammack, 159 Mo. 14; Harrison v. McReynolds, 183 Mo. 539; Palmer v. Alexander, 162 Mo. 127; Snider v. Elliot, 171 Mo. 362; Propes v. Propes, 171 Mo. 407;' Sharp v.-Stewart, 185 Mo. 529; Cottrell v. Griffith, 57 L. R. A; 332, note. (3) Under the will the brother and sister each took a fee simple estate in the land, subject to being divested by dying first and without issue. And Louie Brown could convey no greater estate in the land than she owned. Gannon v. Albright,. 183 Mo. 238; McCune v. Goodwillie, 204 Mo. 337; Gannon v. Pauk, 200 Mo. 95. (4) As a partition deed does not confer upon the grantee any greater title to the portion allotted to him than he had in the undivided estate, a clause of warranty contained in a partition deed will not by estoppel confer any greater title. Davis v. Agnew, 2 S W. 376; Chace v. Gregg, 32 S. W. 520; Harrison v. Kay, 11 L. K. A. 722. (5) Construing the partition deed from its four corners, it should' be construed as a quitclaim deed, or deed of release. (6) Defendant had actual knowledge of the mistake in this partition deed, long before he obtained his deed from Louie Brown. (7) Counsel for defendant says the scrivener who made the mistake was not the agent of Louie Brown in preparing the deeds for signature. The evidence is clear that he represented her quite as much in preparing the deeds as he did in performing the actual work dividing the land. She accepted his work in making the division, and also in the preparation of the deeds. They, Monroe and Louie, must both be held to have assented and consented to the division, and to each step leading to the partition; so that the mistake of the scrivener was a mutual mistake.- (8) Louie did not take an absolute fee simple estate as claimed by counsel for defendant. The devise is all in one clause, and all in one sentence; and the words, “if either should die without heirs,” is a part of the devise itself, and not an ineffectual effort to cut down a fee simple estate previously given.
   STATEMENT.

BOND, C.

— The plaintiff (a person of unsound mind, suing by his guardian) sues to reform a'deed,' and joins a count in ejectment for the property described in the deed. The action is against the surviving husband of Louie Brown, who died childless about eighteen months after her marriage to defendant.

The evidence tended to prove that the maternal grandmother of plaintiff and of his deceased sister, Louie Brown, died in 1901, having first made and published the following will:

1 ‘ Know all men by' these presents that I, Diza Wills, of the county of Cape Girardeau and State of Missouri, being of sound and disposed mind, do make and publish this my last will, thereby revoking any other by me made.
£‘First, at my death I give to my grandson’s Lucius Brown’s heirs, to-wit: his widow, Martha Brown, and child, Alva 0.’ Brown, five dollars.
££ Second, at my death my son-in-law, Marcus Brown, shall be entitled to enjoy during his natural life and receive the benefits of lots one and two, as set out in the report of the commissioners appointed to make partition among the heirs of John Wills, deceased, and purchased by me at the sheriff’s sale of land in said partition suit at the August term of the circuit court of Cape Girardeau county, in said State of Missouri.
“ Third, at my death and after all of my just debts is paid, and a suitable tombstone erected at my grave and all other expense is paid, ray two grandchildren, Louie and Gaines M. Brown, shall be entitled to said lots one and two, subject to the life estate of Marcus Brown as above set forth, and said Louie and Gaines M. Brown shall also at my death be entitled to lot four, as Shown in said commissioner’s report, as aforesaid, and purchased by me at said- sheriff’s sale at the time and place aforesaid, and they said Louie and Gaines M. Brown shall also be entitled to the remainder of my estate of whatsoever kind it may be at my death, and in case either one (Louie or G. M.) should die leaving no heirs, the other shall be entitled to it, all.
££ Fourth, I do appoint Louie and Gaines M. Brown as executors of this my last will, or in case they do not wish to act, they or either of them shall be empowered to choose some one to act as executor.
‘ ‘ In witness whereof, I have hereunto set my hand and seal, this 10th day of March, A. D. 1892.” -

That the life tenant of lots one and two referred to in said will died before this suit; that after his death the plaintiff (not being then non compos) and his sister, Louie Brown (then unmarried) took the judgment of three disinterested persons as to the value of said lots, and executed mutual deeds, prepared by one of said persons, for the severance of their ownership of said lands; that the deed from the plaintiff to his sister was in form a statutory conveyance, except that the warranties of the habendum clause were stricken out. The evidence tends to show that this happened because the scrivener liad only one blank quitclaim and was compelled to use a blank statutory form for the other deed, and that he thought he had converted this into a quitclaim by simply erasing the warranties bontained in the habendtm clause. The evidence tends to show that the parties to the deeds (plaintiff and his sister) were informed of this, and that they intended to execute two partition deeds; that plaintiff was an unlearned man and relied wholly upon" the statements .of the draftsman that he was making a quitclaim deed to his sister; that subsequent to this partition, the sister, Louie Brown, married the defendant, and on the day of her marriage conveyed to him her portion of the partitioned land and other land; that defendant had notice as to the previous partition and exchange of deeds between plaintiff and the said Louie Brown; that defendant paid no substantial consideration for the deed to him; that his wife died without issue in 1905'.

The trial court, to whom both counts of the petition were submitted, rendered judgment for plaintiff, correcting his deed to his sister so as to make it a quitclaim and not a warranty deed, and adjudging to plaintiff the possession of lots one and two. Defendant perfected his appeal to this court. ..

OPINION.

I. This case turns on one question. What was the nature and extent of the estates of plaintiff and his sister, Louie Brown, devised to them under the third clause of the will of their grandmother, Diza Wills?

If the will within its four corners is unambiguous, it must be interpreted without the aid of extraneous evidence, which can only be considered when the terms of the will are of doubtful import, and then only to explain its latent meaning. Under no circumstances is such evidence receivable to contradict or alter the plain terms of a will or deed when used in their ordinary and usual sense. [Krechter v. Grofe, 166 Mo. 385; Clotilde v. Lutz, 157 Mo. 439; Davis v. Davis, 8 Mo. 56.]

The third clause of the will of Diza Wills is wrapped up in a single sentence, which makes only two references to any other part of the will — the one referring to a life estate (now terminated) in lots one and two (the. subject-matter of the present suit); and the other referring to the source of the testatrix’s title to lot four, also devised to plaintiff and his sister. This clause of the will may be considered apart from any other portions of the will, and it may be read and interpreted according to the language in which it is expressed, unless that language is so doubtful, uncertain and obscure as to require construction by reference to the will at lárge or other competent evidence in order to bring out its latent meaning. The third clause shows on its face a paramount intent to devise all of the estate of the testatrix to two persons — the plaintiff and his sister. In carrying out this intent it specifies, first, that these two persons “shall be entitled” to lots one and two (subject to a life estate); second, “and shall be entitled to lot four” (reciting how it was acquired); and, third, “and shall be also entitled” to the remainder of her estate. Separated only by a comma from these specifications are the following words, “and in case either one (Lonie or Gr. M.) should die leaving no heirs the other shall be entitled to it all.” These words conclude the third clause.

The collocation of these three separate devises; the use in each of them of the same terms to grant title, i. e., “shall be entitled;” the repetition in each of them of the names of the plaintiff and his sister; the fact that each of them, as well as the subsequent clause limiting the devises in case .of the death of either of the devisees, is separated only by a comma; the evident fact that the first and second specifications mentioned all of the estate which the executrix could call to mind, leaving the third specification to cover whatever else might turn up; the further fact shown by the first clause of the will that the testatrix intentionally and by name excluded her other descendants (heirs of her grandson) from any participancy in her estate — all, taken together, render it certain that it was the purpose of the testatrix to devolve her entire estate upon these two persons (plaintiff and his sister), and to exclude all other descendants of the testatrix from any share, part or. lot therein, and render it equally certain that when she affixed the limitation over in favor of the survivor of these two persons in case of the death of either, she intended that limitation to apply fully to the first and second devises, containing an enumeration of her estate, as well as to the third devise intended to embrace whatever might remain.

Our conclusion is that the will within its four corners demonstrates that such was the intention of the testatrix, and that when she added the clause containing the limitation over she unmistakably meant that it should apply to the entire estate devised in the third clause of her will and mentioned in the three descriptions contained in said clause.

II. The next question is, what quality and quantity of estate was created in plaintiff and his sister, Louie Brown, under the third clause of the will of their grandmother ?

The terms of the limitation over are, to-wit: “And in" case either one (Louie or G-. M.) should die leaving no. heirs the other shall be. entitled-to it all.” There is nothing in the record which shows that the testatrix at. the time of making her will was apprised of the technical meaning and import of the word “heirs” as implying others than the direct descendants or issue of the two persons named. The will as a whole showed a'fixed purpose to devolve the entire estate upon these devisees to the exclusion of all other direct descendants of the testatrix. ' The word ‘1 heirs ’ ’ and the word “issue”' are convertible terms in a will when such a construction is necessary in order to carry out the paramount intent of the testatrix. [Roberts v. Crume, 173 Mo. 579; Fanning v. Doan, 128 Mo. 323; Maguire v. Moore, 108 Mo. 273; Chew v. Keller, 100 Mo. 369; Waddell v. Waddell, 99 Mo. 345.]

This intent when once ascertained controls and overrides all expressions in a will tending to show a subordinate purpose. It is a settled rule in the construction of wills that- the expressions of a secondary intent will be construed so as to harmonize with the carrying out of the primary intent of the testatrix.

In view of the light shed upon the controlling idea of the testatrix in this case by all the provisions of her will, we hold that in'using the word “heirs” in the limitation over of the devised estate, she plainly meant “issue” or direct descendants of the persons named. As thus construed, the third clause of the will cast upon Louie Brown a defeasible fee with a limitation over in favor of her brother upon the contingency of her death without issue or direct descendants; and since the record shows that this contingency has happened, he became entitled to said estate at the time of her death by a valid executory devise. [Yocum v. Siler, 160 Mo. l. c. 295; Gannon v. Pauk, 200 Mo. l. c. 96.]

III. Defendant assigns as error the action of the trial court in adjudging, under the first count of plaintiff’s petition, that the deed containing the statutory terms “grant, bargain and sell” was only a quitclaim. The deed in question was drawn by a scrivener as one of the conveyances necessary to sever the possession of two tenants in common under an agreement to partition their estate. On this point he testified: “Q. Mr. Ruff, after you had made this division or agreed on this division, what then were you instructed by the heirs to do ? A. To make a quitclaim deed to it; each should make a quitclaim deed to the other for their interest in this land.” And, further, on cross-examination : “ Q. The young woman, Miss Louie Brown, gave no directions about the deed? A. No, sir; it seems they submitted the thing to the commissioners. Q. And with the understanding that quitclaim deeds were to be exchanged you made these two deeds'? A. That was the understanding; the deeds were to convey undivided interests. . . . Q. Do you recall any conversation whatever with Miss Louie Brown, the young woman, in regard to it? A. No, sir; only T explained to each of them, they were conveying their undivided interest to each other. ’ ’

The testimony of the scrivener further shows that the deeds were accordingly made, and were accepted by the two parties. This testimony and the action of the parties in carrying out the transaction between themselves afforded ample basis for the finding by the trial court that the scrivener was the common agent of both parties, and that the using of a statutory deed for the conveyance from the plaintiff was an inaclver-' tence contrary to the purposes and intention of both parties to the contract of partition.

The law on this subject has been well stated by Gantt, J., speaking for this division, as follows: “Courts of equity have from time immemorial exercised power to reform written instruments so as to make them speak the real agreements made between the parties in cases in which by the mistake or misprision of the scrivener the writing fails to do so, and it will exercise this power not only as between the original parties but as. to those claiming under them in privity, such' as personal representatives, heirs, assigns, grantees, judgment creditors or purchasers from them with notice of the facts.” Citing cases. [Sicher v. Rambousek, 193 Mo. l. c. 129. ]

This reformation of the deed was sought' in order that its true character should be established as a mere conveyance inter sese between the parties to an amicable partition. Such deeds neither create any new title nor carry any warranties. [Propes v. Propes, 171 Mo. 408; Sharp v. Stewart, 185 Mo. l. c. 529; Whitsett v. Wamack, 159 Mo. 14; Palmer v. Alexander, 162 Mo. 127.]

We hold there was no error on the part of the trial court in decreeing a reformation of the deed as against defendant in this case, since there was substantial evidence tending to show that he bought the property from his wife with actual knowledge of the fact that the deed to her from plaintiff was intended to be only a quitclaim deed for the partition of the land.

For these reasons, we also hold that there was no error in the finding of the trial judge that the defendant was not an innocent purchaser for value without notice. That defense is an affirmative one and must be affirmatively proven as well as pleaded; the onus lies on the pleader. [Young v. Schofield, 132 Mo. l. c. 663, and cases cited.]

The result is the judgment herein is affirmed.

Boy, G.} concurs.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    JAMES H. HOPKINS et al. v. JOHN W. COOPER et al., Appellants.
    Division Two,
    June 20, 1911.
    1. APPEAL: No Interest in Subject-Matter. An appellant cannot be heard to complain of error committed against .another party to the suit, in a matter that in no manner affected the merits as against appellant, and in which if the ruling was wrong it was error against another party who did not appeal.
    2. -: -: Partition: No Appeal by Injured Defendant. Where by will the land involved in the partition suit was devised to five children, and plaintiffs are the heirs of one of them, and the only questions in the case are whether or not under the condition imposed on the devise to their mother plaintiffs are entitled to a one-fifth interest in the land or nothing, and whether or not one Cooper, a defendant, who bought, under deeds-admited to be valid, the interests of the other four children, thereby acquired the entire property or only four-fifths thereof, and the trial court held that he acquired only four-fifths and that plaintiffs are entitled to the other fifth, and Cooper does not appeal, but the heirs of one of the other four children, who have been joined as defendants, do, the judgment must be affirmed, for appellants have no interest in the subject-matter of the controversy between plaintiffs and Cooper.
    3. -: —-: -: -: For Use in Another Suit. Ñor will the court pass upon the merits of the case and construe the will, on the ground that appellants have an interest in the personal estate of the testator, and a decision to the effect that plaintiffs in the partition suit took nothing under the will will guide the probate court in determining that appellants are entitled to a one-fourth rather than a one-fifth interest in the personal estate. The question of the proper distribu- • tion of the personal estate is not before the court in the suit for the partition of the land alone, and cannot be injected into it by those who have no interest in the land.
    Appeal from Phelps Circuit' Court.— Hon. L. B. Woodside, Judge.
    Affirmed.

      Jones Bros, and G. H. Shubert for appellants.
    (1) The right to take by will or inheritance is not a natural right, but is a statutory right and is within the control of the Legislature. State v. Henderson, 160 Mo. 190; Dawson v. Godfrey, 4'Cranch (U. S.) 321; Magoon v. Trust Co., 170 U. S., 283; Curry, v. Spencer 61 N. H., 624; In re Sanford, 126 Cal., 112; In re Speed, 216 Illinois, 23; Frey v. Campbell,-110 Iowa, 290. (2) Francis-1. Hopkins having died before the testator and before the taking effect of his will, the interest devised to her by the will would have- lapsed at common law. First Jarman on Wills, Ch. 12, 310; Ballard v. Ballard, 19- Pick. 41; Right v. Ham, 8 Mod. 226; Herd v. Ashley, 117 N. T. 606; Pirug v. Pirug, 228 111. 448. (3) This rule of the common law is abrogated by Sec. 4613, R. S. 1899. Under the provisions of this section the Hopkins children took the place of their mother. Jamison v. Hay, 46 Mo. 546; Guitar v. Gordon, 17 Mo. 408. And are only entitled to receive that portion of the testator’s estate which their mother would have taken had she survived the testator, that is one dollar. (4) Presumably, respondents, fearing there might be some irregularity in the proceedings of the. probate court which resulted in the conveyance of the interests of appellants in the lot, by their guardian, which irregularity appellants might take advantage of on arriving at the age of maturity and set aside the conveyance, made them parties defendant for the purpose of cutting off such remedy, if one existed. They were made parties by the respondents and involuntarily brought before the court. But they participated in the trial of the cause, and are therefore concluded by the judgment, and are estopped by it to deny, in any future proceeding for partition of other lands of which-E. K. Light died seized, that respondents are entitled, jointly, to an undivided one-fifth of such lands, and are also estopped by the judgment to deny that respondents, jointly, are entitled to a distributive share in the personal effects of said Light not yet distributed.' On both of these questions the judgment is res adjiidicata as to all the parties before the court. Waters v. Her-both, 178 Mo. 166;’ Young v. Byrd, 124 Mo.- 590; Wiggins v. St. Louis, 135' Mo. 558; Martin v. Trail, 142 Mo: 85. And appellants are therefore affected by the judgment.

      Watson & Holmes for respondents.
    This appeal should be dismissed and the judgment of the circuit court affirmed, because it stands admitted by the appellants, that they have no interest in the subject-matter of the controversy. 15' Am. & Eng.' Ency. Plead and P,rac. 594; Smith v. Brittenham,- 109 111. 540; Crocker v. Higgins, 7 Conn. 342; State ex rel: v. Sanderson, 54 Mo. 203.
   KENNISH, P. J.

—This suit was instituted in the circuit court of Phelps'county for the purpose .of having partition made of lot number seventy of Railroad Addition to the city of Rolla. The plaintiffs were the minor heirs of Francis I. Hopkins, deceased, and the defendants were John W. Cooper and the-minor heirs of Margaret A. Hudgens, deceased. The court found that the plaintiffs were the owners of an undivided one-fifth interest in the land and' that the defendant Cooper was the owner of an undivided four-fifths interest; that said land could not be divided in kind without great depreciation in value and should be sold in order to make partition thereof. . Upon this finding judgment was rendered for the plaintiffs, ordering the sale of the land and the distribution of the proceeds of such sale according to the rights' and- interests of the parties as found by the court. From this judgment the heirs of Margaret A. Hudgens appealed to this court, but the defendant Cooper did not' appeal!

E. K. Light, at the time of his death .in May, 19D4; was the owner of said lot”. He was the father of five children, namely, Joan Deskins, John "W. Light, Eva I. Yelton, Francis I. Hopkins, who died in January, 1899, and left surviving her seven children who are the plaintiffs in this suit, and Margaret A. Hudgens, now deceased, who left surviving her five children who are joined with John W.' Cooper as defendants.

By the terms of his last.will and testament which, prior to the trial of this cause, had been duly established and probated, said E. K. Light disposed of his property in the following language, to-wit :

“It is my will that all my estate, real, personal and mixed, of whatever kind or nature shall be equally divided among my five children, Francis I. Hopkins, Margaret A. Hudgens,. Joan Deskins, John W. Light, and Eva I. Light share and share alike after my decease with the following exception, to-wit:
“That my daughter Francis I. Hopkins at the time of my decease shall receive as her share of my estate the sum of one dollar if her husband James M. Hopkins shall be living at the time, but if her said husband James M. Hopkins be not living at the time of my decease, then it is my will that the said Francis I. Hopkins shall receive the one-fifth share of all my estate as her share, the same share as the other four children.! ’

The evidence showed that after the making of said will and before the death of the testator, Francis I. Hopkins died and that her husband, James M. Hopkins, was living at the time of the testator’s death.

The evidence also showed that after the death of E. K. Light, the defendant, John W. Cooper, purchased and acquired by deeds all of the right, title, interest and estate1 in and to said land of all of the heirs and devisees of said Light, except the interest, if any, owned by the plaintiffs. The interest of the minor heirs of said Margaret A. Hudgens, deceased, was. conveyed to Cooper by a deed from their guardian, made pursuant to an order, of the probate court. No question was raised as to the regularity or validity of the proceedings had in the probate court in obtaining the order for the making of the deed, nor is the validity of the deed challenged on'any ground, nor do the heirs of said Margaret A. Hudgens claim any interest in the land. It was clearly established, by the undisputed evidence in the case, that if plaintiffs were excluded from any interest in the land by the provisions of the will of E. K. Light, then the defendant Cooper is the owner of the land in fee simple; and that if the plaintiffs, as found by the court, own an undivided one-fifth interest in the land, the defendant Cooper is the owner of the remaining four-fifths interest. In either event none of the other heirs of E. K. Light have any interest in the land.

Appellants contend that under the terms of said will, as controlled by the provisions of section 546, Revised Statutes of 1909', the plaintiffs were entitled to receive from the estate of E. K. Light the sum of one dollar only, the amount bequeathed to their mother by said will, and that the trial court erred in finding and adjudging that they were the owners of an undivided one-fifth interest in the land.

Respondents question the right of the appellants to have the judgment of the lower court reviewed by this court. Their contention is that since appellants neither have nor claim any interest in the land in controversy, and since the judgment of the trial court in no manner affected their rights, the judgment should be affirmed without considering the errors alleged by the appellants to have been committed by the lower court.

In our opinion the respondents are correct in their contention. The defendant Cooper, whose rights alone were affected by the judgment, did not appeal. The undisputed evidence shows that the defendant Cooper is either the absolute owner of the'land, or that Cooper owns four-fifths and the plaintiffs one-fifth thereof. Since Cooper did not appeal from the judgment awarding- him four-fifths and the plaintiffs one-fifth of the proceeds of the sale of the land, we cannot see how appellants, who neither own nor claim any interest whatever in the land, can ask this court to revérse the judgment of the trial court because that court found and decreed that plaintiffs owned a one-fifth interest in the land instead of finding and decreeing that Cooper was the sole owner.

In Dixon v. Hunter, 204 Mo. l. c. 391, this court, speaking through Lamm, J., said: ‘‘‘It is fundamental that an appellant cannot complain of errors unless materially affecting the merits as against him.” Under’ the rule announced in that case it must be held that appellants cannot be heard to complain that the trial court committed error against the defendant Cooper,' in a matter that in no manner affected the merits as against them, and from which the defendant Cooper did not appeal.

It is suggested, however, that appellants are interested in obtaining from this court a construction of the will of said E. K. Light, deceased, for the reason that besides the land in controversy said Light, at the time of his death, was the owner of considerable personal property and that the interests of the appellants and the respondents in said personal property will be determined by the adjudication in this case of the respondents’ interest in said estate under the terms and provisions of the wall. But the question of the proper distribution of the personal property is not before us in this ease. The respondents have obtained a judgment awarding them- one-fifth of the proceeds of the sale of the land. From that judgment no appeal was taken by the defendant Cooper, the only party to the suit whosé rights -were affected by such judgment in favor of respondents. Under such circumstances this court will not, upon the invitation of appellants who have no interest in the subject-matter of the suit, review the action of the lower court to ascertain whether error was committed against a defendant who did not appeal, merely for the purpose of construing a will and thereby furnishing a guide for the proper distribution of personal property belonging to the estate hut not involved in the cause before the court.-

Without passing upon the question of the extent to which the respondents are entitled to share in the estate of E. K. Light, under the provisions of the will, and for the sole reason that tbe judgment of the lower court in no manner affected the rights of the appellants, we hold that the judgment should be affirmed. It is so ordered.

Ferriss and Brown, JJ., concur.


author: •VALLIANT, J.

text:
    MORTIMER R. PLATT, Jr., v. PARKER-WASHINGTON COMPANY et al., Appellants.
    Division One,
    July 1, 1911.
    1. QUIETING TITLE: Appellate Jurisdiction: Validity of Special Taxbill. Wliere the only question to be adjudicated, according to the pleadings, and the only question actually adjudicated in the trial court, was the validity of a special taxbill for $618.13, and whether or not it constituted a lien on plaintiff’s land, the title to which he asserts, and defendants admit, to be in him, the Supreme Court has no jurisdiction of the appeal, although the suit is brought under section 650, Revised Statutes 1899, to quiet title. Since plaintiff could not by a direct bill in equity to cancel the taxbill make a case to come to the Supreme Court, he cannot accomplish the same result under the guise of a suit to quiet title when his title is not disquiet.
    2. -: -: Things Considered. In determining the matter of jurisdiction the court looks to the real issues in the case, the real question to be decided, and not to abandoned or fictitious issues.

      3. --: -: Special Taxbill:• Cloud on Title. The Supreme Court lias no jurisdiction of a suit to cancel a special taxbill for an amount within the appellate jurisdiction of court of appeals, on the theory that such • taxbill is a cloud upon the plaintiff’s title.
    Appeal from Jackson Circuit Court.— Hon. Walter A. Powell, Judge.
    Transferred to Kansas City Court of Appeals.

      Ball & Byland for appellant.

      Clyde Taylor for respondent.
    (1) The appellant prayed and was allowed an appeal to this court. Respondent does not question its jurisdiction and is desirous that a decision should be had without the delay of certification to the Court of Appeals, for the reason, among others, that the taxbill in question is drawing interest at the.rate of ten per cent per annum. It is submitted that this court has jurisdiction. It is recognized that in suits upon tax-bills it has been held that the jurisdiction is in the Court of Appeals. The peculiar nature, however, of an action under section 650, requiring, as it does, that the court ascertain and decree the title and interest of the various parties, would seem to make a case involving the title to real estate within the meaning of the Constitution. Under the pleadings in this case it was incumbent upon the court to decree whether or no the title was in the plaintiff. A judgment only that the taxbill was void would not have been responsive. The judgment under section 650 would have to do more; i. e-., would have to decree in whom the title was. This is made especially clear in the case of Armor v. Prey, 226 Mo. 663. (2) This action is properly brought and the relief was properly granted under Sec. 650, R. S. 1899 A petition in the words of the statute is good pleading and is sufficient. Huff v. Land Co., 157 Mo. 65. The cause of action consists of the fact that plaintiff claims an interest in the land and that defendant claims an interest therein adverse to plaintiff. These facts alone are sufficient to require the court to try, ascertain and determine the respective interests. The rule of a pleading requires that the facts constituting the rule shall be stated. Such a rule is satisfactory under this statute, where the defendant is claiming a title adverse to the plaintiff. Spore v. Land Co., 186' Mo. 656; Ball v. Woolfolk, 175 Mo. 278; Misc.heimer v. Amos, 221 Mo. 362; Wilson v. Darrow, 223 Mo. 520; Mayes v. Pumphrey, 226 Mo. 119; Elliott v. Sheppard, 179 Mo. 382. (3) Plaintiff’s reply was responsive to the new matter in the answer, and testimony was properly admitted under the issues made thereby. Plaintiff does not claim, as asserted by appellant, that a cause of action can be stated in a reply. We again repeat that the petition in this case did not assert that the title, estate and interest claimed by the Parker-Washington Co. consisted of a taxbill. The proposition that the Parker-Washington Co. owned the taxbill and was seeking affirmative relief thereon was first brought into the case by the answer. In response to the allegation of defendant that it owned the taxbill, and that the same was valid and that it prayed affirmative relief upon the taxbill, was new matter and called for the reply that was filed. Not only this, but under the peculiar provisions of section 650, the allegations of the petition put it up to the court to try, ascertain and determine the interests of the various parties. This would have been true if there had been no reply filed. Authorities supra. It, therefore, being the duty of the court to try, ascertain and determine the interests of the various parties, it was incumbent upon the court to determine whether or not the alleged interests of the various parties were valid interests and upon this it was proper for the court to receive testimony as to the validity of the taxbill.
   •VALLIANT, J.

— In the beginning this seemed to be a suit to quiet title to land under section 650, Revised Statutes 1899*, but the answer and reply reduced it to a suit to test the validity of a special taxbill, held by one of the defendants, for paving the street in front of the land described in the petition. In his petition plaintiff stated that he was the owner in fee of the land described, and that defendants claimed some “title, estate and interest therein adverse to plaintiff’s title.”

The Parker-Washington Company is one of the defendants, the others are described as “unknown persons” who claim an interest in the land by virtue of a certain taxbill for $618.13 assigned to them by the Parker-Washington Company, and which they claim to be a lawful hen on plaintiff’s land. The prayer is that the court ascertain and determine the title, estate .and interest of plaintiff and defendants and each of them respectively and by its judgment and decree define whatever interest the several parties, plaintiff and defendants, have in the land. '

The only answer filed was that of the Parker-Washington Company. The other defendants, the “unknown persons,” seem to have dropped out of the case or were never in, at all events the decree refers to but one defendant, that one is the Parker-Washington Company. In its answer that defendant sets up no title to the land or interest therein except the taxbill, which it says it had owned, but had assigned before, the suit was commenced, but had repurchased it since the suit was brought, and now holds it and that it is a valid lien on the land. That was the only interest the defendant claimed in the land. The answer concluded with a. prayer that the taxbill be adjudged a legal hen on the land and that a special execution issue for its enforcement.

The plaintiff filed a reply, in which he stated certain facts to show that the taxbill was invalid because of fraud practiced by the defendant in obtaining the contract from the city under which the paving was done. The cause was tried on the issue presented by the answer and reply as to the validity of the taxbill. The decree was that the land belonged to the plaintiff (which was not disputed) and that the taxbill was illegal and constituted no hen on the land. From that judgment the Parker-Washington Company took an appeal to this court.

The suit was begun in January, 1907, and the decree rendered in June of that year, therefore it was before section 650, Revised Statutes 1899, was amended as it now appears as section 2535, Revised Statutes 1909.

The pleadings appear to have been designed only to test the validity of the special, taxbill, although nominally it purports to be a suit to'quiet title to the land under section 650. The pleadings show that .there was no dispute of the plaintiff’s'title, and although he says in his petition that the defendants claim some interest in it adverse to his own, yet he proceeds to show that that claim consists only in a taxbill, and that corresponds with .the statements in defendant’s answer; the real issue comes only when the reply is filed which challenges the validity of the taxbill. It is true the decree says that the plaintiff is the sole owner of the land in fee, but the defendant did not deny that in the circuit court and does not question it here. His assignment of error relates only to the question of the validity of his taxbill.' The only thing in dispute is the validity of the taxbill for $618.13; there is no title to real "estate involved and therefore this court has no jurisdiction of the case.

In determining the matter of jurisdiction the court will look to the real issue in tiie case, the real question to be decided, not to abandoned or fictitious issues.

If the plaintiff had filed his suit in equity to cancel the taxbill and remove it as a cloud from his title on the ground stated in his reply, and the defendant had answered as it Fas in this ease, the issues would have been precisely what they are in the ease before us, and the taxbill being for only $618.13; the appeal would not have come to this court. This court has not jurisdiction of a suit to cancel a special taxbill for an amount within the appellate jurisdiction of a court of appeals, on the theory that it is a cloud on the plaintiff’s title. [Barber Asphalt Co. v. Hezel, 138 Mo. 228; Smith v. Westport, 174 Mo. 394.] Since the plaintiff could not-by a direct bill in equity to cancel the taxbill make a case to come to this court, he cannot accomplish the same purpose under the guise of a suit to quiet title when his title is not disquiet.

This cause is transferred to the Kansas City. Court of Appeals.

All concur.


author: VALLIANT, J.

text:
    CITY OF ST. LOUIS v. SOL RINGOLD, Appellant
    Division. One,
    July 1, 1911.
    1. INFORMATION: Demurrer: How Preserved for Review. A demurrer to tibie information, is a pleading,' and has no place in the hill of exceptions, but being a part of the record proper should be preserved therein, and if preserved only in the bill cannot be considered on appeal. But its absence from the record proper is not material on appeal, if the validity of the information is challenged, for an objection to an information that it charges no offense known to the law, like an objection to a petition that it states no cause of action, can be made at anytime, even for the first time, in the appellate court.
    2. -: Ordinance: Judicial Notice. Courts do not take judicial notice of the existence of city ordinances. An ordinance must be treated as a fact, and when it is the foundation on which the city would build its case it must be pleaded as a fact. The court will not, take judicial notice of the existence of the ordinance simply because the information ends with the words, “Contrary to the ordinances in such case made and provided.” On the contrary where the ordinance itself is not pleaded the information is fatally defective.

      3. -: -: -: Keeping Bawdy House. The information read: “Sol Ringold, to the city of S,t. Louis, Dr; to three hundred dollars for the violation of an ordinance of the city entitled, ‘An Ordinance in revision of the General Ordinances of the City of St. Louis,’ being general ordinance No. 22,902, Section -, clause -, approved March 19, 1907; in this, to-wit”: — Then the information goes on to state that defendant kept a bawdy house in the city, and concludes with, “Contrary to the ordinances in such case made and provided.” H-eld, that the information is fatally defective is not pleading the ordinance alleged to be violated.
    4. -: -: -: Civil or Criminal Proceeding. Whether the proceeding by the city to collect money from defendant for a violation of its ordinance, be considered a civil suit or a criminal proceeding, in either case it is essential that the information state facts going to constitute a violation of the ordinance, and one of those essential facts is the existence of the ordinance itself.
    J 5. -: -: Proof. Nor is the defect in the information which fails to plead the ordinance violated cured by offering the ordinance itself in evidence. It is necessary to prove the existence of the ordinance, but what is necessary to be proven in order to establish plaintiff’s case is essential to be pleaded.
    Appeal from St. Louis Court of Criminal Correction. — . Hon. Wilson A. Taylor, judge.'
    Reversed.

      T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe for appellant.
    (1) Defendant’s demurrer to the complaint should have been sustained. (2) The trial court erred in admitting in evidence section 1518, clause 1, of Ordinance No. 22,902, because no such ordinance was pleaded in the complaint. (3) There was no evidence upon which to convict the defendant. Kansas City v. Whitman, 70 Mo. App. 633. The ordinance must be alleged and proved as alleged. St. Louis v. Roche, 128 Mo. 544. The courts will not take judicial notice of an ordinance, hence the rule that you must plead and prove the ordinance on which a claim or right is based. State ex rel. v. Sherman, 42 Mo. 210; Bowie v. Kansas City, 51 Mo. 454; Butler y. Robinson, 75 Mo. 192; St. Louis v. Railroad, 12 Mo. App. 591; Keane y. Klausman, 21 Mo. App. 485; St. Louis v. Weitzel, 130'Mo. 600.

      Lambert E. Waliher, William E. Baird and Myrt A. Rollins for respondent.
    (1) Proceedings to recover a fine for the violation of municipal ordinances are in the nature of civil actions and no greater particularity in the pleading is necessary than is required in ordinary civil actions. St. Louis v. Smith, 10 Mo. 439; St. Louis v. Weitzel, 130 Mo. 600; Kansas City v. Clark, 68 Mo. 588; Savannah v. Dickey 33 Mo. App. 522. (2) An information for the viola-" tion of an ordinance is sufficient if it informs the defendant with reasonable certainty of the cause of action and of what he is called upon to answer; if the purport of the ordinance is expressed in the information ■and the charge is stated with reasonable certainty the information is sufficient. St: Louis v. Weitzel, 130 Mo. 600; Memphis v. O’Connor, 53 Mo. 468; Columbia v. Johnson, 72 Mo. App. 232; Trenton v. Devorss, 70 Mo. App. 8. • . .
   VALLIANT, J.

— Information was filed in one of the police courts of the city against the appellant, charging him with keeping a bawdy house, “contrary to the ordinance in such case made and provided;” on which information he was tried and convicted and fined $50. He appealed to the St. Louis Court of Criminal Correction, where a trial de novo was had and he was again convicted and fined $50; from that judgment he appealed to this court. In the bill of exceptions it is said that in the Court of Criminal Correction appellant filed a demurrer to the information which was overruled and exception taken; if that is so it has no place in the bill of exceptions. A demurrer is a pleading and it, together with the ruling of the court on it, should appear in the record proper. But the absence of the demurrer and the ruling thereupon in the record proper is not material in this ease, because here the objection to the information is not to any formal part, but challenges its vitality. If a petition states no cause of action, or an information no misdemeanor known to the law, the objection may be made at any time, even for the first time in the appellate court. The appellant says now that the information on which he was tried and convicted does not state facts sufficient to constitute a violation of any ordinance of the city; if that is so the conviction cannot stand. The information is as follows: ' •

“City of St. Louis, .July 16, 1907.
“Sol Ringold,
“To the City of St. Louis, Dr.
“To three hundred dollars for the violation of an ordinance of the said city entitled, ‘An ordinance in revision of the General Ordinances of the' City of St. Louis,’ being general ordinance No. 22,902, Section — Clause —, Approved March 19,1907. In this to wit:”— Then the information goes on to state facts showing that defendant kept a bawdy house in the city, and concludes, “Contrary to the ordinance in such case made and provided.” There is nothing in the information showing that in the Revised Ordinances of the city there is an ordinance forbidding the keeping of a bawdy house or imposing a fine or other penalty for doing so. At the trial there was evidence tending to show that defendant kept a bawdy house at a certain place in the city specified in the information; then the city offered in evidence section 1518, clause 1, of ordinance No. 22,902, entitled, “An ordinance in Revision of General ordinances of the city of St. Louis,” approved March 19, 1907, to which offer defendant objected on the ground that the section of the general ordinance so offered was not pleaded; the objection was overruled and defendant excepted.

We will take for granted that the section of the ordinance so offered did forbid the keeping of a bawdy house and imposed a penalty for its violation, although we do not know what it was, because it is not contained in this record. But assuming that such was the ordinance, can the defendant be convicted of violating it when it is not pleaded by title or number, nor are its contents stated in the information either in. haec verba or in substance? When a man is properly arraigned in court for violating a city ordinance it is- no defense for him to say that he was ignorant that there was such an ordinance, for the maxim that ignorance of the law excuses no one is applicablé in. such ease. But when an information is lodged against him charging that he has violated an ordinance, it must state facts sufficient to constitute the offense of which he is accused and the ordinance alleged to have been violated is one of the facts to be pleaded and proven. An information charging an offense under a State statute need not plead the statute, because the courts take judicial cognizance of a law of the State, but they do not take cognizance of an ordinance. When an information or indictment concludes “contrary to the statute in such case made and provided,” the court takes cognizance of that statute without further reference to it, but not so when the act complained of is alleged to be “contrary to the ordinance in such case made and provided.” An ordinance must be treated as a fact and when it is the foundation on which the plaintiff would build its case it must be pleaded and proven as a fact.

In this case the only ordinance specified as having been violated is an ordinance entitled, “An ordinance in revision of the General Ordinances of the city of St. Louis,” being General Ordinance No. 22,902. Our Kansas City Court óf Appeals had this very question before, it in Kansas City v. Whitman, 70 Mo. App. 630, -wherein it was charged in the information that the act complained of was done “in violation of an ordinance entitled. ‘Revision of the Ordinances of the City of Kansas, Missouri,’ approved May 12, 1888.” Judge Ellison for the court said: “This was not a sufficient reference to the ordinance alleged to be violated. It was no more than a reference to the whole of the book of ordinances of the city.”

In St. Louis v. Roche, 128 Mo. 531, the appeal was from a judgment of conviction of violating a city ordinance; the ordinance was well pleaded, but at the trial it was not introduced in evidence; this court per Burgess, J., said: “The rule is well settled in this State that courts will not take judicial notice of the ordinances of municipalities;” and for the failure of the prosecution to introduce the ordinance in evidence in that ease the judgment of the trial court was reversed and the defendant discharged. A fact that is essential to be proven in order to establish the plaintiff’s case is essential to be pleaded.

Counsel for the city refer to St. Louis v. Weitzel, 130 Mo. 600, wherein this court held the information to be sufficient, saying: “So that it was not necessary to recite in the complaint the particular section of the ordinance alleged to have been violated.” But that was not a case in which the ordinance alleged to have been violated was an ordinance to revise all the ordinances of the city; it was a particular ordinance and, though of several sections, it related to but one subject.

Whether we call this a civil suit and therefore judge the information by the rules applicable to a petition in such case, or a criminal proceeding and therefore judge it by the stricter rules applicable to an information or indictment for a crime, in either case it is essential that the information state facts going to constitute a violation of an ordinance, and one of those essential facts is the existence of such an ordinance. This information' whilst sufficient in its statements of other facts is fatally defective in not pleading the ordinance alleged to have been violated. The judgment is reversed and defendant discharged.

All concur.


text:
    CITY OF ST. LOUIS v. JIM JOHNSON, Appellant.
    Division One,
    July 1, 1911.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge.
    Reversed.

      T. J. Rowe, Thos. J. Rowe, Jr.v and Henry Rowe for appellant.

      Lambert E. Walther, Wm. E. Baird, and Myrt. A. Rollins for respondent.
   VALLIANT, J.

— The facts of this case are exactly like those in the case of the City of St. Louis v. So Ringold, reported at page 472 of this Report, and the parties have stipulated that it may abide the judgment in that ease. For the reason stated in that case the judgment of the trial court in this cause is reversed, and the defendant discharged.

All concur.


author: BROWN, C. PER CURIAM.

text:
    WILLIAM C. KELPE, Appellant, v. CONRAD KUPPERTZ et al.
    Division One,
    July 1, 1911.
    1. NONSUIT: Appeal: Matter for Review. When the trial court makes a ruling precluding plaintiff’s recovery, said plaintiff may submit to a judgment of nonsuit, and, upon the refusal of the court to set it aside upon timely motion, appeal to this court. A peremptory instruction to find for the defendant is such preclusive ruling of the court, and all' questions that arose at the trial which are properly saved and presented will be reviewed by the Supreme Court.
    2. EJECTMENT: Title Necessary to Recovery: Proof. Ejectment under our statute is a purely possessory action, and no allegation or proof is necessary except such as goes to the right of possession between plaintiff and defendant. Upon the record in this case any one of the several ways of deducing such possessory title was open to the plaintiff; so he is not necessarily required to deduce a title from the Government.
    3. -: Plaintiff’s Theory of the Action: Insufficient Evidence to Support it. In ejectment for a strip off a certain lot 7, the plaintiff offered in evidence a deed to one Weiss to certain lands. Plaintiff then testified that the number of the strip in suit was 7123 Virginia Avenue, that he had lived there since 1875, and had been in possession of “this lot” since 1903. Held, that, allowing for all presumptions, this evidence would not have justified the trial court in submitting to the jury the question whether the plaintiff had been in possession of the land in controversy, claiming title thereto, and had been ousted by defendants.
    4. -: — : -: Abandoned Without Attempt to Prove: Peremptory Instructions to Find for Defendant not Error. In ejectment for a strip off a certain lot 7, plaintiff offered in evidence a deed to one Weiss to certain lands, and stated that he would show that Weiss was the common owner of lot 7 and lot 8, including the strip in suit, and would then follow with ownership in the plaintiff himself as to lot 7. The trial court stated that plaintiff would have to go back to the Government for his title. Thereupon the plaintiff excepted, and took the stand himself. He testified to the street and number of the strip in suit, that he had lived there since 1875, and had been in possession of “this lot” since 1903. Again the trial court stated that plaintiff must go back to the Government for his title, upon which plaintiff refused to offer further evidence, and asked for a continuance. The court gave a peremptory instruction to find for the defendant. Held, that the trial court cannot he said to have committed error by giving this peremptory instruction, when, upon a mere expression of the court’s opinion of the proper method of proving his case, the plaintiff abandoned his own theory of the action and elected to stand on an abstract proposition.
    Appeal from St. Louis City Circuit Court.— Hon. James E. Withrow, Judge.
    Affirmed.

      Kurt Von Reppert and Henry Higginbotham for appellant.
    (1) Prior possession by the plaintiff or his grantors under a claim of the fee raises a presumption of title sufficient to make a prima facie case in ejectment. The duty then' devolves upon the defendant to overcome plaintiff’s prima facie case by showing paramount title. Dale v._ Faivre, 43 Mo. 556; Bledsoe v. Simms, 53 Mo. 305; Norfleet v. Russell, 64 Mo. 176; Hunt v. Railroad, 75 Mo. 255; White v. Keller, 114 Mo. 483; Kelly v. Kurz, 118 Mo. 417; Mulherin v. Simpson, 124 Mo. 619; Bains v. Bullock, 129 Mo. 121; Hall v. Gallemore, 138 Mo. 644; Morris v. Sellenreick, 10 Mo. App. 584; Khies v. Land & Lumber Co., 121 Mo. App. ■196; Christy v. Scott, 55 U. S. 292; Bradshaw v. Ashley, 180 U. S. 59;Railroad v. Railroad, 199 U. S. 247; 10 Am. and'Eng. Ency. Law'(2 Ed.), 486; Warvelle on Ejectment, 225; Sedgwick & Wait on Trial of Title to Land (2 Ed.), sec. 718, p. 548.' (2) Possession of adjacent tracts of land or lots in one person claiming title extinguishes all prior claims of adverse possession and agreed lines as between such adjacent tracts or lots. A person cannot hold adversely to himself. In the case at bar, adverse possession must of necessity have commenced, if at all, subsequent to the year 1868, the year when plaintiff’s remote grantor was in actual possession of lots 7 and 8 and the controverted strip of land under claim of right or title. Patton v. Smith, 171 Mo. 231.

      Paul Dillon and Daniel Dillon for respondent.
    (1) After counsel for plaintiff had offered in evidence the deed from Herman Bleek, as trustee, to Peter Weiss, and had called the plaintiff to the stand and asked him a few questions, he said he had no further, evidence to offer and asked for a continuance to the next term of court. The continuance was not granted and thereupon defendants asked for a peremptory instruction directing the jury to find for defendants, which the court gave. There was no error in giving this instruction. In fact, the court had nothing else to do. Plaintiff had not shown any title to the land sued for and did not even claim that he had— in fact, admitted that he had not, and asked for a continuance. In his motion to set aside the nonsuit and for a new trial plaintiff assigned two grounds or reasons for making said motion, as follows: “1. The court erred in excluding proper, legal, competent, relevant, and material evidence offered by the plaintiff. 2. The court erred in giving the instruction requested by the defendant whereby the court peremptorily instructed the jury that its verdict must be for defendant.” The court did not exclude any evidence that was offered. The court did not err in giving the peremptory instruction — in fact, it had nothing else to do under the conditions. An appellant cannot be heard to ask for a reversal of the judgment of the trial court except on some ground or for some reason stated in his motion for a new trial. State v. Scott, 204 Mo. 261; Coffey v. Carthage, 200 Mo. 629; State v. Grant, 194 Mo. 364; State v. Dills, 191 Mo. 672; Almond v. Modern Workmen, 133 Mo. App. 390; State v. Anthony, 131 Mo. App. 625; Alexander v. Railroad, 54 Mo. App. 70. (2) The nonsuit taken in this ease by appellant was a voluntary nonsuit, from which no appeal lies. The statement made by the judge in the argument on the trial, that plaintiff would have to go back to the Government to prove his title, was not a ruling of the court, excluding or holding incompetent any evidence offered, by plaintiff. It was a mere remark from the judge during the argument. Bushyager v. Packing Co., 126 S. W. 985.
   BROWN, C.

— Ejectment commenced in the St. Louis Circuit Court January 2,1907, to recover two and one-half feet of land off the south side of lot 7, in City Block 3034 in the city of St. Louis, Tha answer is a general denial with plea of adverse possession for more than ten years, to which the plaintiff replied.

The plaintiff, at the trial, offered in evidence a deed dated February 29, 1868, from Hermann Bleek,trustee in a deed of trust in the nature of a mortgage executed by one Schoenherr and wife, and dated January 17, 1867. The trustee’s deed purported to convey to one Peter Weiss certain lands in St. Louis.

The subsequent proceedings in the trial 'are related in the bill of exceptions as follows:

“Defendant’s counsel objects to the introduction of the deed as being incompetent, irrelevant and immaterial because it does not show any title in the Sehoenherrs’ trustee and does not describe the ground contained in plaintiff’s petition. Plaintiff’s counsel states that he expects to show it covers the same ground. Defendants’ counsel states that there is no common source of title between the plaintiff and defendant, and that plaintiff will have to go to the Government for his title; defendant claims under no deed or paper title; plaintiff’s counsel states that he will show that Peter Weiss was the common owner of both lots 7 and 8, including the strip in question, and then follow ownership to plaintiff as to lot 7.
“The court states that the plaintiff will have to go back to the Government to prove his title. Plaintiff’s counsel duly excepts to the ruling of the court.
“W. C. Kelpe, sworn in his own behalf, testifies as follows:
“Q. What is your name? A. William C. Kelpe.
“Q. You are the plaintiff in this case? A. Yes, sir.
“Q. What is the number of the property we are suing for, the two feet and six inches? A. 7123 Virginia Avenue.
“Q. How long have you lived there?
“Defendants’ counsel objects.
“A. Since 1875.
“Q. How long have you been in possession of . this lot?
“Defendants’ counsel objects.
“A. Since 1903.
“The Court: ‘We have nothing to do with anything but the two feet and six inches of lot 7 in block 3034,’ and again announced that the plaintiff will have to go back to the Government for title.
“Mr. von Eeppert: Since you rule that I have to go back to the Government for the title, I have no further evidence to offer and ask to continue the case until the next term of court at plaintiff’s cost.
“Defendants’ counsel objects and prays the court to give the following instruction:
“The court instructs the jury that your verdict must be for the defendant.”

The court gave, over the objection of plaintiff, the instruction so asked, to which plaintiff excepted.

Thereupon the plaintiff took a nonsuit with leave, upon which judgment was entered for defendant, and .plaintiff excepted, and after an unsuccessful motion to set the same aside has brought the case here by appeal. The grounds stated in the motion are as follows:

“1. The court erred in excluding proper, legal, competent, relevant and material evidence offered by the plaintiff.
“2. The court erred in giving the instruction requested by the defendant whereby the court peremptorily instructed the jury that its verdict must be for the defendant.”

At the trial the plaintiff submitted to a nonsuit because the court, at the close of his evidence, instructed the jury that their verdict must be for the defendants. The plaintiff saved his exception to the giving of this instruction, and in due time filed his motion to set aside the nonsuit and grant him a new trial, which was overruled by the court. To this ruling the plaintiff again saved his exception.

The law is well settled in this State that a plaintiff may, when the court at the trial makes a ruling which absolutely precludes his recovery, abandon the prosecution of his case to a final verdict against him, submit to a judgment of nonsuit and upon the refusal of the court to set it aside upon timely motion, appeal, and bring up for review such errors as have been committed in the trial. By this salutary rule the plaintiff is placed in a position to appeal from what he considers the erroneous rulings of the trial court without subjecting himself to the conclusive incidents of a judgment upon a verdict.

In this case there can be no doubt of the conclusive effect of the action of the court in giving the peremptory instruction, so that all questions which arose upon the trial and have been properly saved and presented to this court for review are now before us.

The only suggestion of error other than in giving the instruction quoted, is found in remarks made by the court during the introduction of the plaintiff’s evidence. He had offered a deed of the land in controversy to one Weiss, to which, the defendants’ counsel objected because it failed to show any .title in the grantor (a common failing in such instruments, which are usually made to' show title in the grantee), and that the plaintiff would have to go to the Government for his title. The court seemed to concur in that remark, saying that the plaintiff would have to go back to the Government to prove his title, to which the plaintiff duly saved his exception.

It. does not appear by the bill of exceptions that the court made any ruling upon the objection to the Weiss deed. The plaintiff then took the witness stand and proceeded to testify with respect to his possession of the land in controversy, when defendants’ counsel made a general objection which the plaintiff disregarded and proceeded with his testimony. The court again remarked that he would have to go back to the Government for title, and his counsel said that since the court so ruled he had no further evidence to offer and asked a continuance at defendants’ cost until the next term of the court. There seems to have been no further exception, nor was there any other ruling of the court upon plaintiff’s application for a continuance than the giving, at the request of defendants’ counsel, of the peremptory instruction already referred to.

We cannot comprehend why the court announced that the plaintiff would have to go back to the Government for his title. There are many ways of recovering in ejectment beside deducing title from the United States, and so far as this record shows they were all open to the plaintiff. He was in position to deduce the better possessory title from a common source, to depend upon prior possession under a bona fide claim of title, or to claim under the defendants themselves. The action being a purely possessory one under our statute (Sec. 2382, R. S. 1909) no allegation or proof is necessary except such as goes to the right of possession as between the plaintiff and the defendants. [Rogers v. Mayes, 84 Mo. 520; Evans v. Kunze, 128 Mo. 670.]

I. The appellant makes no claim that the evidence presented was sufficient to show any derivative title in plaintiff either from a common source or from the Government, but his brief seems to indicate that he relied upon proof of prior possession under claim of right. If his evidence was sufficient to present that question it is plain that the court erred in taking the case from the jury. Assuming that'the Weiss deed was in evidence, which we may possibly do from the statement that it was offered and the fact that the record does not show that it was excluded, the other evidence consists of the testimony of plaintiff that the number of the two feet six inches of ground sued for was 7123 Virginia Avenue, that he had lived there since 1875, and had been in possession of “this lot” since 1903. If we' further assume from these unintelligible statements that he had lived on the remainder of lot 7 since 1875, and took possession of the two feet six inches described in his petition in 1903, and had remained there ever since, we still find nothing to indicate that he had taken possession under claim of title, or had been in any way connected with the title of Weiss or of any other claimant. This evidence, being not only unintelligible but irreconcilable, would not have justified the court in submitting to the jury the question whether or not the plaintiff had been in possession of the particular land in controversy, claiming title thereto, and had been ousted by the defendants; and it could not have done otherwise, upon the refusal of the plaintiff to proceed further, than to give the instruction which resulted in his submission to an involuntary nonsuit.

II. It only remains to consider whether the court' committed any error which drove the plaintiff to the unfortunate position in which he found himself at the close of the trial. To be sure, it announced its intention to require him to deduce his title from the Government, and had he then offered evidence tending to show that, as against the defendants, he was entitled to the possession of the premises, and had this evidence been excluded by the court and the point properly saved by exception, a record showing these facts would enable the plaintiff to take advantage of whatever error, might be involved in such ruling. Instead, however, of taking such a course, he seems, upon the first intimation of the opinion of the court as to the proper method of proving his case, to have abandoned all attempt to recover according to his own theory, and to have elected to stand upon an abstract proposition which was entirely consistent with the admission in evidence of the deed he had just offered.

The fact that it is still open to him, without prejudice to his rights with reference to the Statute of Limitations, to bring a new suit within one year from the entry of the judgment of this court upon this appeal (Chouteau v. Rowse, 90 Mo. 191; Hewitt v. Steele, 136 Mo. 327, 334; Estes v. Fry, 166 Mo. 70, 81; Wetmore v. Crouch, 188 Mo. 647, 653), in which he may if he can, make out his title from a source common alike to himself and defendants (Finch v. Ullman, 105 Mo. 255, 263; Smith v. Lindsey, 89 Mo. 76, 80; Grandy v. Casey, 93 Mo. 595, 605; Bank v. Manard, 51 Mo. 548), or prove his own prior possession under bona fide claim of right (White v. Keller, 114 Mo. 479; Bains v. Bullock, 129 Mo. 117; Hall v. Gallemore, 138 Mo. 638, and eases cited), should help him to submit gracefully to the consequences of the course he elected to take at the former trial.

For the reasons stated the judgment of the St. Louis Circuit Court is affirmed.

Blair, C., concurs.

PER CURIAM.

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

All the. judges concur.


author: BLAIR, C. PER CURIAM.

text:
    WILLIAM MACKLEY, Appellant, v. ST. LOUIS SMELTING & REFINING COMPANY.
    Division One,
    July 1, 1911.
    ABSTRACT: Insufficient: Nonsuit: No Exception Preserved. Where at the conclusion of plaintiff’s evidence, defendant demurred thereto, whereupon plaintiff took a nonsuit and later moved to set the same aside, and the abstract of the record proper does not show that the motion was overruled, or that a bill of exceptions was filed, and that part of the abstract which purports to set out matters of exception neither contains nor calls for the motion to set aside the nonsuit, the exceptions cannot be reviewed on appeal; and if no errors are assigned or apparent on the record proper, the judgment will be affirmed.
    Appeal from St. Francois Circuit Court.— Hon. Charles A. Killian, Judge.
    Affirmed.

      B. C. Tucker for appellant.

      Benj. H. Marbury for respondent.
   BLAIR, C.

— At the conclusion of appellant’s evidence defendant offered a demurrer thereto. A nonsuit was taken and a motion to set aside was filed. The abstract of the record proper does not show that this motion was overruled, nor that a bill of exceptions was filed. That part of the abstract which purports to set out the matters of exception neither contains nor calls for the motion to set aside the nonsuit. Under these circumstances matters of exception cannot be reviewed. [Wafford v. Railroad, 195 Mo. 211; Nickerson v. Peery, 163 Mo. 77; State ex rel. v. Boyle, 181 Mo. 695; Stark v. Zehnder, 204 Mo. 442; Rotchford v. Creamer, 65 Mo. 48; Stevenson v. Saline Co., 65 Mo. 425; Western Storage and Warehouse Co. v. Glasner, 150 Mo. 426; Shaffer v. Detie, 191 Mo. 377; Jenkins v. Shannon Co., 226 Mo. 187; Wade v. Alexander, 226 Mo. 92; Harper v. Oil Co., 74 Mo. App. 644.]

Error being neither assigned nor apparent on the record proper, the judgment must be affirmed.

Brown, C., concurs.

PER CURIAM.

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

All the judges concur.


text:
    SHELBY COUNTY RAILWAY COMPANY, Appellant, v. C. B. CRAWFORD et al.; W. A. DIMMITT, Respondent.
    Division One,
    July 1, 1911.
    1. CONDEMNATION: Excessive Damages: Conflicting Evidence. An assignment that the damages assessed by a jury in a condemnation case were excessive, will not be considered on appeal, if the evidence relating thereto is conflicting and is sufficient, if believed, to support the verdict.
    2. -: Evidence: Exclusion: Plan of Construction: Not Connected With Particular Tract. Where the court sustained an objection to a question asked by the railroad company in the condemnation, as to what was the “plan of construction of the railroad” with reference to a certain crossing, and the record does not disclose on whose land the crossing referred to was to be constructed, the appellate court will not review the drial court’s ruling sustaining the objection.
    3. i-: -: -: Location of Crossing. A resolution of the railroad company ordering an overhead crossing to be constructed on respondent’s land for his convenience, is not admissible evidence on the question of damages in the condemation case. Neither the railroad company nor the land-owner is by the statute given the right to dictate the location of an ordinary grade crossing; and if the resolution, if admitted, would fix the location, the company would be enabled to do indirectly what it could not do directly; and if it would not fix its location, its' admission would be useless and pérhaps harmful.

      4. -: -: -: Offer to Construct Crossing. A written tender by the railroad company to the landowner to “use the space underneath the trestle on the north side of Block Creek for the purpose of a crossing,” and- “also of a wagon crossing over said railroad on the north side of the land wherein said road is now located,” is indefinite, since it does not provide who will build the crossing, who will maintain it, what crossing it will he, nor whether it will be permanent, and the court did not err in excluding it in that form. K. -: -: -: -: Eliminated by Instruction Requested. If all consideration of crossings was eliminated from the case by an instruction which appellant asked, and the court, upon this invitation, in lieu of the one asked, gave an instruction which ignored all consideration of the evidence as to undergrade crossings, appellant cannot complain that its written tender to construct an undergrade crossing on respondent’s ' land was excluded.
    Appeal from Randolph Circuit Court.— Hon. Wm. H. Martin, Special Judge.
    Affirmed.

      E. M. O’Bryen and V. L. Drain for appellant.
    (1) The evidence offered by plaintiff as to its plan of construction of its railway over the land of defendant was proper. The court should have admitted same so that the jury could have the whole matter before them in arriving at the amount of damage sustained. Railroad v. Clark, 119 Mo. 357; 121 Mo. 195. (2) The tender of the crossing under the railway track. of plaintiff was competent and its exclusion by the court was prejudicial to the rights of plaintiff. The refusal to permit such a tender to be made is contrary to the established rules of this and other states, and constitutes a vital error in this proceeding. Railroad v. Clark, 119 Mo. 357; also 121 Mo. 195; Railroad v. Knapp-Stout Co., 160 Mo. 396; Railroad v. State, 53 N. J. L. 217; Carpenter v. Railroad, 24 N. J. Eq. 249; Packard v. Railroad, 54 N. J. L. 563; McGregor v. Gas Co., 21 Atl. (Penn.) 13; Hayes v. Railroad, 54 111. 373; Railroad v. Railroad, 105 111. 388; Railroad v. Fletcher, 128 111. 628. (3) The amount assessed by the jury as damages is excessive. Railroad v. Walsh, 197 Mo. 392.

      W. O. L. Jewett, J. D. Dale and Whitecotton & Wight for respondent.
    (1) The only evidence offered by the appellant as to the crossing at the north line was the purported resolution of the board made long after the institution of this proceeding to condemn, respondent’s land. Under the pleading in the case, the right tendered by the resolution to the respondent could not be of any avail to him as it was too indefinite to be enforceable and furnished no light to the jury in determining the damages to respondent’s farm by reason of the location of appellant’s road. While it is true that a railway company will be allowed to show by competent evidence the advantages to the land by reason of any crossing that may be placed over the right of way, yet this will not avail the appellant when, as in his case, nothing had been done by appellant that would insure respondent any right but what is guaranteed him under the laws of the State. The testimony was too uncertain and indefinite to aid the jury in determining the damages sustained. What the law guaranteed could in no wise be assisted by such indefinite testimony. The only purpose would be to make the jury believe the respondent was getting some special reservation and thereby cause them to give him a smaller verdict than they otherwise would. (2) The testimony of the witness Mitchell was not excluded on the ground that it, appellant, could not show the plan of construction of the road, but on the ground that he was not competent to show that fact. The appellant at no time offered any competent testimony as to the crossing at the point appellant insists it was going to place one. There is no conflict in the action of the trial court and the ease of Railroad v. Clark, 121 Mo. 195. (3) The appellant takes the same position as to the offer to the under1 crossing at the trestle. As to the wagon crossing, both being a part of the same offer and the action of the court applies alike to both, and the same objection made by-appellant also applies.
   BLAIR, C.

— This is a proceeding instituted in the circuit court of Shelby county by the Shelby County Railway Company to condemn a right of way across certain lands.

The commissioners awarded damages to respondent, in the sum of two hundred and seventy dollars. The railway company paid the money into court and proceeded with the construction of its road. Respondent filed exceptions and, on change of venue to Randolph county, obtained judgment for seven hundred and fifty dollars, from which this appeal is prosecuted.

The errors assigned relate to the admission and exclusion of evidence, the exclusion of an offer to permit the use of.certain crossings by respondent, the giving and refusal of instructions and the alleged excessiveness of the damages allowed.

I. It is urged that the damages, assessed are excessive. The familiar rule that the verdict of a jury on conflicting evidence will not be disturbed by this court is as applicable to this case as any other. [City of St. Joseph v. Crowther, 142 Mo. 155.] The testimony of respondent and his witnesses was amply sufficient, if believed, to support the verdict.

II. The witness Mitchell was asked by appellant’s counsel what was the “plan of construction of the railroad with reference to a crossing at the north end here.” The court sustained an objection, and, wLhout indicating what answer was expected or making any offer of proof, counsel proceeded with the examination of the witness on other subjects. The question does not disclose, as it appears in the record, on whose land .the crossing referred to was to be constructed. Under such circumstances the ruling of the trial court on the objection cannot be reviewed. [Aull Savings Bank v. Aull, 80 Mo. l. c. 202; Jackson v. Hardin, 83 Mo. l. c. 187; Copper & Iron Mfg. Co. v. Mfgrs. Co., 230 Mo. l. c. 77; State ex rel. v. Leland, 82 Mo. 260; Fitzgerald v. Barker, 96 Mo. l. c. 664; Berthold v. O’Hara, 121 Mo. l. c. 98; St. Louis v. Babcock, 166 Mo. l. c. 152; Seibert v. Hatcher, 205 Mo. 83; Ruschenberg v. Railroad, 161 Mo. l. c. 81; State v. Douglass, 81 Mo. 231; State v. Arnold, 206 Mo. l. c. 597; State v. Eisenhour, 132 Mo. l. c. 146.]

III. .Objection being made, the trial court excluded a resolution of appellant’s board of directors, adopted some eighteen months after this proceeding was instituted, which reads: “It was also ordered that an overhead crossing be placed on W. A. Dim-mitt’s land at a point near where he joins Y. L. Drain’s land south of Shelbyville.”

It is urged that this resolution should have been admitted in order that the jury might have before them, in assessing the damages, the location of the farm crossing which appellant intended to construct for respondent’s convenience. The briefs of counsel seem to concede, and the height of the railway embankment (seven to nine feet) on all of respondent’s land demonstrates, that the crossing contemplated by the resolution was an- ordinary grade crossing and not a viaduct. The latter would have necessitated the use for approaches of land not sought to be condemned. The statute (Sec. 3145, R. S. 1909) entitled respondent, under the circumstances of this case, to “all necessary farm crossings” which might be required to connect conveniently the severed parts of his farm. Neither appellant nor respondent is by the statute given the right to dictate the location of such crossings, and if they cannot agree “the court must exercise its best judgment and decide the controversy with due regard to the rights of both” (Powell v. Railroad, 215 Mo. l. c. 358) and the safety of the traveling public.

If the location by the resolution offered would have become fixed by the admission of the resolution in evidence and the assessment of damages with it before the jury, then if appellant could force its admission it could do indirectly that which it has no power to do directly, i. e. dictate the location of a farm crossing on respondent’s land.

On the other hand, if the admission in evidence and consideration by the jury of the resolution would not have the effect of fixing the location of the crossing, the admission of the resolution would be useless and probably harmful.

The case of Railroad v. Clark, 121 Mo. 169, to which we are referred in this connection, is not in point, since in that case the offer made by the railway company was to construct two open crossings for the defendant’s convenience, to neither of which would he have been entitled under the section of the statute relating to farm crossings, even had that section been applicable to the situation there presented. That case decided the question whether the condemning company could “reserve to the landowner, without his consent, one or more open crossings and have the damages assessed on the basis that the landowner has and retains such an easement.” In other words, whether the railroad could construct its road so that the landowner’s means of access to the severed parts of his tract would be more convenient than the law absolutely required, and secure consideration of such construction in reduction of damages. There the plan of construction gave the landowner more than he was entitled to under the statute, while here no such effort on the part of the company is disclosed.

Practically the same situation existed in the case of Railroad v. Knapp-Stout & Co., 160 Mo. 396, and, for- substantially the same reasons, its doctrine, based on that of the Clark case, is inapplicable here.

The fact, if it be a fact, that respondent would have secured under his abandoned contract with appellant a crossing at the point fixed in the resolution offered, is of no weight. This is not a suit to enforce that contract, nor does it appear what reasons induced respondent to provide in the contract for the crossing at the point therein fixed. It cannot be assumed that point was either the most or the least convenient point simply because under the contract mentioned appellant agreed to construct and respondent to accept a crossing there. Nor does the evidence in 'any way disclose that the crossing contemplated in the resolution was either more or less conveniently situated than that to which respondent is entitled by force of the statute itself. There was no error in excluding the resolution.

IV. Counsel for appellant offered in evidence a writing signed by them reading: “The Shelby County Railway Company hereby tenders to W. A. Dimmitt the use of the space underneath the trestle on the north side of Black Creek for the purpose of a crossing, and also a wagon crossing over said road on the north side of the land wherein said road is now located.”

On objection the tender was excluded, the trial judge stating his reasons thus: “The objection is sustained for the reason that the offer is indefinite; it does not provide who shall build the crossing, and who shall maintain it, and what crossing it will be, what time it will run, nor that it shall be permanent.”

Appellant’s counsel excepted to the ruling and the court then remarked: “The court will permit you to amend your petition or amend your offer in such way as to cover the objection and that it may be incorporated in the record so as to bind you and run with your right.”

In response to this, appellant’s counsel announced that “they would not now further press the matter of the offer in the stipulation” or tender set out. The matter was not again adverted to on the trial.

There was evidence already in the case to the effect that the plan of construction provided for the leaving open of that part of the right-of-way occupied by appellant’s trestle north of Black Creek. No instruction based on this evidence was asked. On the contrary, appellant’s counsel requested the court to instruct as follows:

“The court instructs the jury that in passing on the question of damages, the jury must not consider the question of crossings on objector’s land but must assess the damages, if any, upon the assumption that necessary and proper crossings will be provided by the railway company or enforced by the law.”

Whatever ambiguity, if any, exists in the language used when counsel announced they would “not now further press the matter of the offer” of the crossings is removed by the course thus subsequently pursued. The instruction requested demonstrates that counsel desired to avoid an assessment of damages on the hypothesis of the allowance to respondent of an under-grade crossing, despite the fact that their eyidence, notwithstanding the exclusion of the tender, showed that the plans contemplated the use by respondent of the “space under the trestle.”

It is not necessary to decide whether the evidence of the plans admitted or the tender excluded would have been sufficiently definite to require at the hands of the trial court the submission of the issue as to damages on the hypothesis that the under-trestle passageway would be left open for respondent’s use. It suffices that the evidence admitted would have served quite as well as the tender excluded as a basis for the adoption of such a theory. In other words, appellant had equally as good right, on the record as it stands, to have the jury required to consider the proposed under-grade crossing as it would have had if the trial court had admitted the tender in evidence. Nor was there involved any question of convincing the jury with respect to this feature of the proposed construction. It was for the court to determine from the evidence whether the jury should be required to assess the damages on the theory that a crossing under the trestle was to be reserved for respondent, and by requesting the instruction it did appellant in effect requested the court to ehminate ah question of the under-grade crossing from the case.

Had the damages been assessed on the assumption that a passage way under the Black Creek trestle was to be provided for respondent’s use, such assessment, on the evidence admitted, would have been quite as efficacious to bind both parties as if the excluded tender had been admitted and the damages then assessed on the same theory.

The instruction asked was refused, it is true, but in heu of it the court, accepting the' invitation extended by the request mentioned, gave another which also ignored all evidence with respect to an under-grade crossing. The verdict was thus based on a theory suggested by appellant’s counsel which would, for all practical purposes, have eliminated the so-called tender had the trial court admitted it. Under such circumstances this judgment should not be reversed on this assignment.

It is not improper to state that the tender made was indefinite and the requirement imposed by the trial court not at all unreasonable. Such an .offer should be sufficiently definite to apprise the trial court fairly of the extent of the rights thus attempted to be excepted from condemnation. In view of what was said in the preceding paragraph, the reference in the tender made to a •grade crossing need not be further considered.

It may be added that the instruction mentioned as given in lieu of that requested was fashioned on the latter and the error in it, if any, was invited by appellant. The instruction requested must be construed to have reference to the ordinary statutory farm crossing at grade, since there are no facts in this case suggesting the existence of conditions sufficiently out of the ordinary to require the construction of any other kind.

This disposes of the several matters of which appellant complains. The judgment is affirmed.

Brown, C., concurs.

PER CURIAM.

— The foregoing opinion of Blaik, C., is adapted as the opinion of the court.

All the judges concur.