author: KENNISH, J.

text:
    SARAH McDERMEITT et al., Appellants, v. LUCY KEESLER et al.
    Division Two,
    February 27, 1912.
    1. CONVEYANCE: Undue Influence: Grantee’s Activity in Transaction. The fact that the grantee went for the scrivener to prepare the deed by which his father conveyed the land to him alone, to the exclusion of his eight brothers and sisters; that he went to two neighbors and requested them to come to his father’s house and witness his will; and that he lived under the same roof with his parents, are circumstances that are frequently found in cases of fraud and duress in the procurement of a deed, but they do not of themselves establish fraud; and when the grantor’s wife explains them hy testifying that the grantor became alarmed by reason of his ailment, at a time when the grantee was unpaid and unrequited for many years of filial service, and sent for him and asked him to go for the scrivener, they have no tendency to prove that the grantee was the moving party in the transaction or that he was guilty of any fraud or undue influence.
    2. -: Incapacity. The deed was made in 1901, and the grantor was adjudged insane in 1906. At the time it was made the grantor and his wife were old, and he had become alarmed at his ailment and had his wife call his son, the grantee, and asked him to go for a scrivener. The grantee was forty-six years of age, and had lived with them nearly all his life, and rendered them valuable services, which had not been paid for. The other eight children had left home, some of them many years before. Numerous witnesses, gave positive opinion evidence that the grantor was capable of transacting business and conveying property at the time the deed was made! They testified that after he recovered from his illness in 1901 he in fact transacted business for two or three years; that he went to town and paid his doctor bill, made purchases at the stores and paid for them, attended to his business at the hanks in which accounts were kept in his name, and sold hogs and cattle, refusing to sell unless he received his price, and those who dealt with him in these transactions testified that he knew what he was doing and was capable of taking care of his interests. The deed was placed on record within a few days after its execution, and other members of his family came to visit him and the deed was the subject of conversation.’ He thereafter paid taxes on nineteen acres mentioned in the deed, saying it was all the land he owned, but paid no taxes on the remaining ninety-nine acres which is the property in controversy on this appeal. Held, that, in spite of the fact that many witnesses (relatives, neighbors and experts) testified that the grantor was so infirm and weak, in body and mind, that he did not know what he was doing or what the deed contained, when he made his mark thereto, the trial court properly ruled that the deed could not be set aside for incapacity on the part of the grantor.
    3. -: -: Services of Child. In passing upon the capacity of an aged father to make a voluntary deed, the fact that the grantee, his son, had lived with his parents and worked for them without remuneration until he was ■ forty-six years of age, and that their relations had always been congenial and filial, cannot be overlooked.

      i. -: -: Burden. The burden is on plaintiffs to prove that the grantor in a deed was incapacitated to make it.

      5. -: -: Change in Situation. The grantor’s intention at the time the deed was made and the circumstances then surrounding him, and not his capacity afterwards, are what the law considers. The fact that parents, aged and feeble, made a deed to an unmarried son forty-six years of age, and that afterwards he married and died before they did, and that the land will go to his widow and posthumous child, cannot be held to render invalid a deed made in good faith and in accordance with the intention of the parties at the time.
    6. -: Valid in Part and Invalid in Part: Matters for Review. Where the deed conveyed two tracts, one of nineteen acres and another of ninety-nine, and the court set it aside as to the nineteen-acre tract but refused to set it aside as to the ninety-nine-acre tract, and plaintiffs alone appeal, the finding as to the nineteen-acre tract will not be reviewed on appeal.
    7. COSTS: Equity: Decree for Both Parties. Where the cause is in equity and the decree is partly in favor of plaintiffs and partly in favor of defendants, the appellate court will not review the action of the trial court in apportioning the costs between the parties.
    Appeal from Andrew Circuit Court. — Hon. Alonzo I). Burnes, Judge.
    Affirmed.

      Perry A. Brubaker, James W. Boyd and K. Dr Cross for appellants.
    (1) That part of the decree of the court which fails to set aside the deed as to the ninety-nine-acre tract of land mentioned in the petition is erroneous, and should he reversed. 1. Said part of said decree is against the law and the evidence, and the weight of the evidence. 2. The evidence conclusively shows that Henry Keesler, deceased, and Mary Keesler, his wife, were aged, infirm, weak in body and mind, not capable of attending to. any business, and that they did not, at the time it is alleged they made their marks to said deed, realize, understand or know what they were doing or what the deed contained. Ennis v. Burnham, 159 Mo. 494. (2) The grantee in said deed was the son of the alleged grantors, the personal agent and manager of the old gentleman, Henry Keesler, looked after most of his business matters for- him, and was his confidential agent and adviser in regard to the most of what business he had, and he had at all times a controlling and dominating influence over him. Under such circumstances the court will require proof that the dealings were fair and honest in all respects on the grantee’s part. Kirschner v. Kirschner, 113 Mo. 296; Martin v. Baker, 135 Mo. 503. (3) The fact that the court found that Henry Keesler and his wife did not know what was contained in said deed, and on that account set aside the said deed as to the tract of land, consisting of nineteen and seventy one-hundredths acres, ought to be considered by this court in the trial of this case anew, because, with all due deference-to the circuit court, it would seem that if the said grantors on account of senile dementia, a serious physical disease, could not and did not understand what was in said deed, the said deed ought to be set aside not in part but in toto. (4) There could be no division of the costs as to the tracts of land, because the ease was tried as one case and all the facts were made in the trial of the case as one case, and if the plaintiff won or recovered only a portion of the ground for which they were suing, then the defendants are guilty, and all the costs in the case should be adjudged against the defendants. R. S. 1909, secs. 2263-2268; Hawkins v. Nowland, 53 Mo. 328; Berry v. Rood, 225 Mo. 96.

      Booher & Williams for respondents.
    (1) In the case of Hendricks v. Woods, 79 Mo. 590-, Sherwood, J., said: “It has been our custom even in cases of equitable cognizance to defer somewhat to the finding's of the trial court. ’ ’ In the case of Chouteau v. Allen, 70 Mo. 290‘, the same judge says: “After a careful perusal of the evidence, a tangled web of infinite contradictions, we have deemed it best, as much of the testimony was taken orally, and opportunity thus afforded the lower court, which is denied’to us, of observing the demeanor of the witnesses, to defer somewhat to that court, and to give its findings our sanction.” ErsMne v. Lowenstine, 82 Mo. 301; Anderson v. Griffith, 86 Mo. 549; Bank v. Murray, 88 Mo. 191; Boggen v. Boggen, 127 Mo. 306; Daily v. Daily, 125 Mo. 96; Taylor v. Crockett, 123 Mo. 300; Armstrong v. Logan, 115 Mo. 465; Jones v. Thomas, 217 Mo. 540. (2) A disposing mind and memory may be said to be one which is capable of presenting to the testator all of his property, and all the persons who come reasonably within the region of his bounty, and if a person has sufficient understanding and intelligence to understand his ordinary business, and to understand what disposition he is making of his property, then he has sufficient capacity to make a will, and this is true though the mind of such person may be impaired by age and disease. Benoist v. Murrin, 58 Mo. 322. That rule has never been questioned by this court, but it has met with universal approval whenever presented for consideration. Jones v. Thomas, 218 Mo. 538; Chadwell v. Reed, 198 Mo. 381; Hamon v. Hamon, 180 Mo. 685; Hughes v. Rader, 183 Mo. 630 ; Cast v. Lust, 142 Mo. 638; Sehr v. Linderman, 153 Mo. 276. The law ordinarily requires a higher degree of mentality to make a contract than to make a will. That is true only where the contract is dual in character, operating in the exchange of values, and the grantor must compete in an intellectual struggle with the grantee. But where the deed is not for an exchange of the values, implied in the ordinary exchange of real estate, but is intended by the grantor as a gift to a son in. consideration of love and affection, which is the basis of most wills, no higher degree of intelligence is required of the grantor to make the deed than is required of him to make the will. Jones v. Thomas, 218 Mo. 508. The deed in controversy was made as a gift, not as a contract. Chadwell v. Reed, 198 Mo. 359; Richardson v. Smart, 152 Mo. 623. The great weight of the evidence is that the grantor was of sound mind at the time he executed the deed. The law in its application to the facts in this case is well settled. The presumption is that all men are sane. The parties claiming under the deed are not bound to prove the sanity of the grantor. The burden of proving the unsoundness of mind and incapacity of the grantor at the time of the execution of said deed rests upon the party seeking to have the deed set aside. Chadwell v. Reed, 198 Mo. 381; Cutler v. Zollinger, 117 Mo. 92; McKissock v. Groom, 148 Mo. 459; Hamon v. Hamon, 180 Mo. 685; Southworth v. Southworth, 173 Mo. 59; Hughes v. Rader, 183 Mo. 630; Crowder v. Searcy, 103 Mo. 97. (3) By undue influence is meant such influence as amounts to force, coercion or over-persuasion, destroying the free agency and will power of another. It is not merely the influence of affection or desire to gratify the wishes of one near and dear to the testator. Sehr v. Ldnderman, 153 Mo. 289; McFadden v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 366. An affirmative showing' of such undue influence is required to be made, either by direct facts shown, or by facts and circumstances from which undue influence results as a reasonable and fair inference and not a mere conjecture. Doherty v. Gilmore, 136>. Mo. 420; Riley v. Sherwood, 144 Mo. 354. There is no evidence in this case tending to show trust or confidence as those terms are known to the law between the said Henry Keesler, deceased, and his son, Lafayette, excepting that which exists usually between parent and child, and such relationship is not sufficient to justify the setting aside of a deed of conveyance from father to son without showing the exercise of some undue influence or the existence of fraud or that some advantage had been taken by the son of the father’s weakened condition of mind. Jones v. Thomas, 218 Mo. 536; Huffman v. Huffman, 217 Mo. 182; Studvbaker v. Coffield, 159 Mo. 596; Campbell v. Carlisle, 162 Mo. 634; Doherty v. Gilmore, 136 Mo. 414; McKissock v. Groom, 148 Mo. 467. The influence must be such as amounts to moral coercion. Morton v. Paxton, 110 Mo. 456; Carl v. Gabel, 120 Mo. 283; Yon de Yeld v. Judy, 143 Mo. 348. (4) Lafayette Keesler in his lifetime never claimed the nineteen-acre tract. Henry Keesler always claimed the nineteen acres. It had been assessed to Henry Keesler and the ninety-nine-acre tract had been assessed to Lafayette Keesler and Henry Keesler had caused the change on the collection books to be made and defendant, Lucy Keesler, believing that the notary had included this description by mistake, consented to the correction in the decree. But for this the finding .would doubtless have been for the defendants as to all the land. Kline says the old deed from which he copied, “contained more land than he wished to convey.” Evidently Kline, in eliminating these lands, failed to take out the nineteen acres.
   KENNISH, J.

This is an appeal from a judgment of the circuit court of Andrew county. Appellants, plaintiffs below, are children and heirs of Henry Keesler, deceased, and his widow, Mary Keesler. Respondents, defendants below, are the widow and minor son of Lafayette Keesler, deceased, the latter having died about a year prior to the death of Ms father, the said Henry Keesler.

It is alleged in the petition that Henry Keesler, deceased, in his lifetime, was seized in fee of two tracts of land in Andrew county, Missouri, particularly described in the petition, one containing ninety-nine' acres and the other about nineteen acres; that said Henry Keesler resided upon and occupied said land as his homestead until he was committed to an insane asylum in the month of August, 1906; that on the 15th day of January, 1901, the said Henry Keesler and his wife, Mary Keesler, executed a paper purporting to convey to their son Lafayette Keesler all of the said described lands, being all of the real estate then owned by the said Henry Keesler; that at the time of the execution of the said paper the said Henry Keesler was of unsound mind and did not have sufficient mental capacity to make said pretended deed; that the said Lafayette Keesler, through fraud and undue influence and control over the mind of the said Henry Keesler, procured the execution of said pretended deed, without any consideration whatever; that on account of the facts alleged, the said pretended deed is fraudulent, null and void. The prayer of the petition is that the court render a judgment and decree setting aside and annulling the said pretended deed and declaring it to be null and void, and for general relief.

The answer is a general denial.

The case was tried at the November term, 1907. A large number of Avitnesses testified in behalf of the respective parties. Declarations of law were asked by the defendants and refused by the court. None were asked by the plaintiffs. The court took the case under advisement, and at the November term, 1908, rendered a decree in favor of plaintiffs as to the nineteen-acre tract described, on the ground that it was not intended to be conveyed and that it was included in the deed by mistake of the scrivener, but found in favor of the defendants as to the ninety-nine acre tract.

Plaintiffs appealed to this court.

At the time of the execution of the deed in controversy, to-wit, January 15, 1901, Henry Keesler and his wife, Mary Keesler, were living on their farm of 118 acres, near the town of Helena, in Andrew county. They were then near eighty years of age and had owned and lived on said farm about twenty years. They had nine children then living, three sons and six daughters. All of the children except Lafayette Keesler had left the home of their parents; some of them many years before. Lafayette Keesler was then about forty-seven years of age, and bad made bis borne with bis parents practically all of Ms life. He bad been away a few years at one time, but Ms parents urged Mm to return and make Ms borne with them, which be did. He bad married and built a bouse on Ms father’s farm, where he lived with his wife until she died without issue, four years before the execution of said deed. After the death of Ms wife he again made his home with his parents and was living with them, working and helping his father on the farm, at the time when the said deed was executed. He married a second time in August, 1902, and with his wife, the defendant, moved into and made his home in the bouse in which be had formerly resided with Ms first wife.

Henry Keesler had in former years helped Ms other children by giving them land or personal property, but he had not assisted any of them to the extent of the value of the land purported to have been conveyed by the said deed. Lafayette Keesler died in February, 1906, at the age of fifty-two years, leaving surviving him Ms widow, the defendant Lucy Keesler. The other defendant, Paul Lafayette Keesler, is a posthumous child, having been born several months after Ms father’s death. Henry Keesler was adjudged insane in the year 1906, and was placed in an insane asylum, where he died on the 11th day of January, 1907.

Both sides are in substantial agreement as to the foregoing facts.

The deed is attacked upon two separate grounds: First, want of mental capacity of the grantor, Henry Keesler, to make the deed; second, fraud and undue influence of the grantee in procuring the execution of the deed.

Appellants complain that the decree as to the ninety-nine acre tract is against the law and the evidence, and should be reversed.

The main ground of attack upon the deed at the trial was the want of mental capacity of the grantor, Henry Keesler. As to the issue of fraud, it may be safely asserted that there is an entire absence of any direct evidence in the record tending to prove fraud or undue influence on the part of Lafayette Keesler in the procurement of the deed. There 'are circumstances, it is true, such as the fact that he went for the scrivener to prepare the deed and take the acknowledgments thereto; that he went to two neighbors and requested them to come to his father’s house where they witnessed a will; that he lived under the same roof with his parents; circumstances which are frequently found in eases of fraud and duress in the procurement of a deed or a will. But it was shown by the uncontradicted testimony of the plaintiff, Mary Keesler, one of the grantors and a witness for plaintiffs, that when Henry Keesler became alarmed by reason of his ailment, the suggestion as to making a disposition of his property came from him, and the son Lafe, who was in the cellar sorting potatoes, was sent for and asked by his father to go for the scrivener. So far as this record discloses, if the father had died in that sickness, as he feared, without having made the deed in controversy, the son, then nearly fifty years of age, would have had nothing to show for his years of service for his parents. It was doubtless that fact that caused the father and mother to be concerned about making some disposition of the property in apprehension of death. In any event there is no evidence tending to prove that the son was the moving party in the transaction.

It is contended by appellants that the facts in evidence establish the existence of what is termed in law a confidential relation between the son and fa-' ther, and that because of said relation when the deed was made the law will presume that it was the result of fraud and undue influence and place the burden upon the grantee to rebut such presumption. That principle of law is well settled. [Kirschner v. Kirschner, 113 Mo. 290; Ennis v. Burnham, 159 Mo. 494.] However, under the facts of this case, we do not regard it as important whether the evidence is sufficient to raise the confidential relation as claimed by appellants, for even if respondents be held to carry the burden of showing that the instrument was not the product of undue influence, we think the evidence fully satisfies that requirement. We entertain no doubt as to the correctness of the chancellor’s conclusion on the issue of fraud.

There was much testimony and a sharp conflict upon the issue of want of mental capacity. There was substantial agreement among the witnesses that Henry Keesler’s mind was failing* in 1903 and that he continued to grow worse until adjudged insane. And there were many witnesses, relatives, neighbors and experts, who testified that at the time the deed was made the said Henry Keesler was so infirm and weak, in body and mind, that he did not know what he was doing or what the deed contained, when he made his mark thereto. On the other hand, there was opinion evidence of witnesses who were equally positive and equal in number, that he was not only capable of transacting business and conveying* his property, but they went further and testified that after he recovered from his ailment in 1901 he did in fact transact business for two or three years; that he went to town and paid his doctor bill, made purchases at the stores and paid for them, attended to his business at the banks in which accounts were kept in his name; that he sold hogs and cattle, refusing to sell unless he secured his price. In these transactions and business affairs those who dealt with him testified that he knew what he was doing and was capable of taking care- of his interests. In addition to the foregoing, when it is considered that the deed was placed on record within a few days after it was executed; that other members of the family came to visit their parents thereafter and that this deed was the subject of discussion; that thereafter the father paid taxes on the nineteen-acre tract, saying that was all the land he owned, and that he did not thereafter pay' taxes on or give in for assessment the ninety-nine-acre tract, it seems reasonable to conclude that he not only knew what he was doing when he sent for the scrivener and executed the deed, but that after he had recovered he was fully satisfied with what he had done.

The fact cannot be overlooked that when the deed was made, the son had been living with his parents and had worked fo,r them without remuneration until he was then past middle life. The relations between the son and the parents were completely congenial. This fact is shown by all the testimony. The mother, although asking the court to set aside the deed, testified that <£Lafe always did what his father wanted him to do, and I never knew of him trying to get anything away from his father.” Under these circumstances what more natural than that the father, fearing that he might not live, should convey the land to the son in whom he had entire confidence, evidently intending that their relations should continue as in the past, and as they did in fact continue for five or six years until the son’s death? At the time of making the deed it doubtless did not enter the minds of the parents that they, aged and feeble as they were, should outlive the son, but the fact that they did outlive him and that a situation developed which they did not contemplate, cannot be held to render invalid an instrument made in good faith and in accordance with the intention of the parties at the time. There can be no doubt that the parents, in making that deed, intended that they should be taken care of by the son and that they should have a home there as long as either should live. However, that was not made a condition in the instrument, and is not a question for determination in ■this court.

The presumption of law is that Henry Keesler, deceased, was mentally capable of executing the deed, and the burden of overcoming that presumption was •on the plaintiffs. We have read and carefully considered the long record of the testimony, and while there ■is a sharp conflict in the evidence upon the issue of •mental capacity, we think the finding of the court is fully sustained by the record.

Appellants complain of the decree in that it finds for the defendants as to the ninety-nine-acre tract, while finding for the plaintiffs as to the nineteen-acre tract. The defendants did not appeal, and as plain.tiffs cannot complain of the decree, in so far as it is in their favor, we are not disposed to review the finding of the court as to the nineteen-acre tract.

Appellants also complain of the action of the trial court in apportioning the costs between the plaintiffs and the defendants. But as this is a suit in equity and as the decree was partly in favor of plaintiffs and partly in favor of defendants, the taxation of the costs was in the discretion of the court. [Bender v. Zimmerman, 135 Mo. 53; Turner v. Johnson, 95 Mo. 431.]

For the reasons given the judgment is affirmed.

Ferriss, P. J., and Brown, J., concur.


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    THE TOWN OF OTTERVILLE v. IDA E. BENTE and J. Y. BENTE, Appellants.
    Division Two,
    February 27, 1912.
    1. TOWNS: Filing Plat: Statutory Dedication of Streets. Where the plat to an addition to a town was, in 1859, duly executed, acknowledged and filed in the office of the county recorder of deeds, there was a statutory dedication of the streets indicated thereon. The fee to those streets vested at once in the public by force of the statute, and no further acceptance was necessary.
    2. -: -: Common Law Dedication of Streets. Even though the plat was insufficient under the statute, it and the subsequent sale of the lots thereunder, and building the town chiefly in this addition on the lots along the streets laid out therein, and the acceptance by the town and the public of most of the streets in their entirety (and of the major portion of the. streets sought now to be opened), coupled with the sale, according to the plat, of all the lots abutting on the parts of the streets now in dispute, constituted a common law dedication and an acceptance of the plat in its entirety and of the whole of all the streets as marked on the plat.
    8. -: -: Streets: Adverse Possession: Necessary Evidence. The land comprising that part of two streets now sought to be opened by the town is shown to have been in private possession at a time when the Statute of Limitations ran against the public, but that possession did not continue long enough to divest title and is not coupled by the evidence with the subsequent possession of others nor with that of defendants. SeíA, that the evidence is not sufficient to warrant a finding that the public had been divested of title by adverse possession. The burden was on defendants, and they failed to carry it.
    Appeal from Cooper Circuit Court. — Eon. W. E. Martin, Judge.
    Affirmed.

      Bente é Wilson for appellants.
    "When tlie plat was filed the lands therein described as streets and alleys should have been taken charge of by tbe city and used for tbe purposes for which it was set aside as provided by the statutes. R. S. 1855-, secs. 1, 8; R. S. 1899, secs. 8955, 8959; R. S. 1855, p. 1535; R. S. 1865, p. 247; R. S. 1879, sec: 6569; R. S. "1889; sec. 7309. There is no evidence any where in the records to show that the town ever accepted the streets in question. The town must accept the streets. Mere user by the public will not establish a street. Downend v. Kansas City, 156 Mo. 60; Downend v. Kansas City, 71 Mo. App. 529. The evidence clearly shows that plaintiff never accepted the streets in question and if it did it immediately abandoned them for they never were used as streets. State v. Young, 27 Mo. 259; E. S. 1890', sec. 9472. Plaintiff should have accepted said streets by user or by an ordinance. Vossen v. Dantel, 116 Mo. 379. There can be no dedication of land to a city for a street without an acceptance of the same by it. St. Louis v. St. Louis University, 88 Mo. 155. Prior to the adoption of the statutes of 1865, the Statutes of Limitations ran against the government as well as against the citizen. The statute invoked by the defendants took effect on August 1, 1866, and was prospective only in its operation. R. S. 1855', p. 1045; R. S. 1865, p. 745, 746; Dice v. Hamilton, 178 Mo. 89 ; Ins. Co. v. St. Louis, 98 Mo. 422; Mississippi Co. v. Vowels, 101 Mo. 225, 204 Mo. 98. Defendants and their predecessors had entered into the possession of the lands in question prior to 1865 and are still in the possession of the same. The plaintiff’s right of action has long since been barred. The right of entry accrued before its enactment. Dice v. Hamilton, 178 Mo. 89; Ins. Co. v. St. Louis, 98 Mo. 422; McC'une v. G-oodwillie, 204 Mo. 306; Stone v. Perkins, 217 Mo. 586; Hubbard v. Stevens, 218 Mo. 615. Defendants or their predecessors have been in possession of said lands since 1858 to 1860, and the ten-year Statute of Limitation has barred plaintiff’s cause of action. Dice v. Hamilton, 178 Mo. 89; Ivy v. Yancey, 129 Mo. 501; R. S. 1899; secs. 4262. So also the thirty-year Statute of Limitation has barred the plaintiff. R. S. 1899, secs. 4268; Campbell v. Greer, 209 Mo. 215

      Roy D. Williams for respondent.
    (1) Wear and Sanders are the common source of title. They, in 1859, duly acknowledged and filed a plat of their second addition, dedicating the ground sued for as a street of the city of Otterville. Those claiming uner Wear and Sanders are estopped to question this plat. Hannibal v. Heirs of Draper, 15 Mo. 640; Hannibal v. Heirs of Draper, 36 Mo. 336; Nayler v. Harrison, 207 Mo. 350. (2) Otterville was first incorporated in 1857, and plat was filed in 1859'. The State at that time did not require a plat to be accepted by a city. A requirement that a plat should be accepted by a city first made its appearance in our laws in the Acts of 1887 (Laws 1887, p. 227). The case cited by appellant lays down the proposition that in 1859 no acceptance was necessary. Downend v. Kansas City, 156 Mo. 60. (4) Such possession as shown by defendant could not start the Statute of limitations, for there is no privity between the “Irishman” and the defendants. To tack possessions, privity is necessary. Cripen v. Hannaban, 50 Mo. 536; Adkins v. Tomlinson, 121 Mo. 494.
   BLAIR, C.

‘According to the plat of Wear and Saunders’ Second Addition to the Town of Otterville, Missouri, Boonville street running north and south, and Grover street running east and west, intersect each other in the northwestern part of that addition. The purpose of this action is to open that part of Grover street running west from its intersection with Boonville street four hundred and twelve feet to the west line of the addition and that part of Boonville street running north from the same point two hundred and seventy feet to the north line of the addition.

At the beginning of the trial the following stipulation was entered into by the parties and filed:

“In order to avoid unnecessary costs,' the following facts are to be taken as agreed to upon the trial of this case.
“First. The town of Otterville was incorporated by an act of the Legislature in 1857 and that said act was amended in 1859, and that said town was re-incorporated under and in accordance with the general statutes of Missouri for the year 1899, and that said reincorporation of said town occurred within the last three or four years, and that either party shall have the right to read said laws in evidence without any further proof of the same, and that said town of Otterville is now and was at the commencement of this suit duly incorporated as a village under Laws of 1899.
“Second. That Sarah A. Saunders and husband S. M. and ¥m. G-. Wear, is the common source of title to said land in question.
“Third. That on September 13, 1859, the plat of Wear and Saunders’ second addition to the town of Otterville, Cooper county, Missouri, was filed in the recorder’s office of Cooper county, Missouri, and that the land in question is covered by said plat and that Wear and Saunders’ second addition to Otterville, Missouri, was laid out by the owners of said land.
“Fourth. That the defendants are in possession of the land sued for and were at the time of the institution of this suit and for a long time prior thereto.
“Five. The issue to be tried is the right to the possession of the land in question.”

Counsel for defendants admitted on the trial that “Wear and Saunders’ second addition to the town of Otterville covers the best portion of the village of Otterville as it now exists” and that “all the lots, as shown by the copy of the plat of Wear and Saunders’ Second Addition to the village of Otterville, all the lots east of Boonville street have been disposed of and improved, and all the alleys and streets, as shown. by the plat, have been opened and used, bnt there have been no improvements west of Boonville street, nor have any streets or alleys been opened west of Boon-ville street. ’ ’ That part of the addition west of Boon-ville street is a very small part of the whole.

•. A copy of the- original plat was admitted, the objection to it as a copy being expressly waived, and evidence that the original was properly acknowledged and filed in the office of the recorder of deeds September IB, 1859, and that it had subsequently been lost, was offered and not controverted. Only a part of the plat appears in the record in this court.

For the defendants there was evidence that about 1861 one Hinch took possession of the west end of that part of Grover street involved in this action and retained possession five or six years. Thereafter he abandoned his possession and about 1870 one Amey took possession and fenced a larger tract, including' that formerly fenced by Hinch. The lots south of and abutting on the part of Glrover street here in dispute were owned at the time of the trial by George Amey and Thomas Thompson, Thompson owning two and Arney the rest. The lots on the north were owned by the heirs of S. W. Potter. No deed to defendants was in evidence nor does the evidence disclose how. long they had been in possession of the parcels in dispute.

I. It is contended that the title to the parts of Grover and Boonville streets involved in this controversy never vested in the public, because, it is said, the plat was not properly executed and acknowledged and no acceptance of the particular parts of the streets mentioned is shown.

If the evidence that the plat was duly executed, acknowledged and filed in the office of the recorder of deeds of Cooper county was true, this was a statutory dedication of the streets, and the fee thereto vested at once in the public by force of the statute (Sec. 8, chap. 158, R. S. 1855), and no further acceptance was necessary. [Reid v. Board of Education, 73 Mo. l. c. 304; Becker v. St. Charles, 37 Mo. l. c. 18; Brown v. Carthage, 128 Mo. l. c. 17.]

If the plat filed was defective and insufficient under the statute, it and the subsequent sale of lots thereunder, and building the town qbiefly in this addition on the lots along the streets laid out therein and the acceptance by the town and the public of most of the streets in their entirety and the major portion of Grover and Boonville streets themselves, coupled with the sale, according to the plat, as indicated by the evidence, of all the lots abutting on the parts of Grover and Boonville streets now in dispute, constituted a common law dedication and an acceptance of the plat in its entirety and the whole of all the streets as marked on the plat. [Heitz v. St. Louis, 110 Mo. l. c. 624, 625; Railroad v. Baker, 183 Mo. l. c. 322; Indianapolis v. Kingsbury, 101 Ind. l. c. 212, and cases cited; Stetson v. Dow, 16 Gray, 372.]

II. The evidence is not sufficient to warrant a finding .that the public had been devested of title by adverse possession. Hinch’s possession commenced, it is true, at a time when the statute ran against the public but did not continue long enough to devest title and is not coupled by the evidence with the subsequent possession of others. The evidence discloses a break between his possession and that of Arney, who went in in 1870. Arney’s possession began after the statute was amended in 1866 (by the taking effect of the Gen. Stats. 1865), and consequently no occupancy by him or those claiming under him could affect the title. [Columbia v. Bright, 179 Mo. l. c. 454.] Besides there is no proof that Arney or any one else succeeded to Hinch’s possession nor that defendants succeeded to the possession of any one. [Maysville v. Truex, 235 Mo. l. c. 625, 626.] The burden was on defendants to make out their defense of the statute and in this they wholly failed.

The plea of the Statute of Limitation is quite informal but we have treated it as if unobjectionable.

The conclusions reached dispose of all assignments of error, and the judgment is affirmed.

Roy, C., concurs.

PER CURIAM. — The foregoing opinion of Blair, 0., is adopted as the opinion of the court.

All the judges concur.


author: FERRISS, P. J.

text:
    ROBERT L. BARBEE et al. v. FARMERS BANK OF POLO et al.; FARMERS BANK, Appellant.
    Division Two,
    February 27, 1912.
    1. CONVEYANCE: Presumption of Delivery: Acknowledgment: Improvements. The evidence to rebut the inference that a deed was delivered arising from its execution and acknowledgment, from the possession of the grantee and the making of valuable improvements on the land by him, and from other concurrent acts of the parties indicating ownership, such as the payment * of taxes by the grantee, must be clear and decisive; otherwise, delivery of the deed and ownership by the grantee will be presumed.
    2. -: - — : -: -: Facts in Evidence. In 1885 a father purchased eighty acres of land adjoining his home place, and placed his son, who had lately married, in possession, where he continued to reside till 1906. In 1889 the assessment was ’ changed to the son at the request of the father,- and thereafter the son continued to pay the taxes until 1897, when the assessment was again changed to the father and.his wife, who in 1894 requested a justice of the peace to prépare a warranty deed conveying the land to the son, and the deed was written, and signed and acknowledged by them, but whether or not it was actually delivered is the main matter of controversy. In 1896 the father conveyed the land to his wife,’but prior to that time the son had been arrested for obtaining money under false pretenses, was heavily in debt and pressed by his creditors. In 1900 defendant bank obtained a judgment against the son, execution was levied on his interest in the land, and it was sold to the bank. In 1901 the wife conveyed the land to the son’s minor children, and they are the plaintiffs, in this suit to quiet title, claiming title through her deed. The father and his wife admit the making of the deed to the son, but say it was made in 1892, and both they and he deny that it was ever delivered. ’ The justice, who is disinterested, testifies that the father and his wife told him at the time that they were giving the land to the son and intended to deliver the deed that day on their way home, but his testimony is denied by both of them. Several witnesses, apparently disinterested, testify that both parents and the son subsequently stated that the deed had been delivered, but all three deny those statements. Subsequent to the making of the deed the son made permanent and lasting improvements, remodeled the house, built corn cribs and otherwise improved the land as a home. The wife testified that she took the deed, which expressed a consideration of $3500, in payment of a note she held against her husband, but she could not tell how long she held the note, nor its amount, nor what it represented. Held, that the deed to the son was delivered, and the chancellor erred in finding for plaintiffs. \
    3. -: Deference to Chancellor: Former Contrary Finding by Another Judge: Ejectment as Res Adjudicata. After the bank had bought the land at execution sale, it brought suit in ejectment against the son, obtained judgment, which was affirmed on appeal, and was put in possession. This suit to quiet title was brought by the son’s children, to whom the son’s mother had conveyed the land after she had obtained a deed from her husband. The substantial evidence at both trials was the same, but at the first trial, at which the issues were determined by the judge sitting as a jury, it was held that the deed made by the son’s parents to him prior to his mother’s deed to his children and prior to her husband’s deed to her, had been delivered to the son at the time it was made, and that the execution sale transferred the title to the bank; and at the trial of this case before a different judge, he found that the deed had not been delivered and therefore the title was in the son’s minor children, the plaintiffs. Held, that the judgment in the ejectment suit is not res adjudicata; but the usual rule of the Supreme Court in equity cases, where the testimony is contradictory, to defer to the finding of the chancellor, who can see and hear the witnesses, does not apply, since there is no reason why deference should be given to the finding of the chancellor who tried this case more than to that of the judge who tried the other.

      4. APPEAL: Equity Suit: Testimony Omitted From Abstract. "Where the testimony omitted from the abstract consisted of depositions offered by appellants, and the judgment against them should, upon the testimony abstracted, be reversed, the omitted depositions presumably were beneficial to them, if they had any probative value at all; and respondents not complaining that, if preserved, the omitted depositions would have any effect on the result, the rule that in equity eases the Supreme Court will not undertake to review the evidence unless the entire testimony is preserved in the record, does not apply.
    Appeal from Clinton Circuit Court. — Hon. A. D. Burnes, Judge.
    Reversed' and remanded (with directions).

      M. M. Bogie and Farris S Farris for appellant.,
    (1) The declaration of law declaring the law to be that the execution of the deed to W. O. Barbee was evidence of the delivery of the deed should have been given. R. S. 1909, sec. 2818; Burke v. Pence, 206 Mo. 338; Benton Land Co. v. Zietler, 182 Mo. 280; Ruckman v. Ruckman, 32 N. J. Eq. 261; Flint v. Phipps, 16 Ore. 437; Fain v. Smith, 14 Ore. 82; Brown v. Brown, 66 Me. 316; G-ould v. Day, 94 TJ. S. 405; Moore v. Hazelton, 9 Allen (Mass.) 102; Regan v. Howe, 121 Mass. 426. (2) Failure to state in writing the conclusions of fact found separate from the conclusions of law is reversible error. R. S. 1909, sec. 1972; Cochran v. Thomas, 131 Mo. 258; Blount v. Spratt, 113 Mo. 48; Briggs v. Eggan, 17 Kan. 589: (3) Declarations of law numbers 2 and 4 should have been given, declaring the law to be that under the evidence W. O. Barbee had acquired the title to the lands in controversy by the operation of the Statutes of Limitations before the institution of this suit. Fields v. Bollinger, 234 Mo. 194; Farmers Bank v. Barbee, 198 Mo. 470; Land Co. v. Hays, 105 Mo. 143; Crispin v. Hannavan, 50 Mo. 536; Rannells v. Rannells, 52 Mo. 109: (4) All the issues in this case were joined and the same evidence heard in an ejectment suit where the title was the issue between Farmers Bank of Polo and W. O'. Barbee, W. L. Bar-bee and Martha J. Barbee, and the finding being for the defendant Farmers Bank of Polo as to the ownership of fee, unless some new issue was made or some new proof shown, the finding in this case should have been the same. Farmers Bank v. Barbee, 198 Mo. 470; Potter v. Adams, 143 Mo. 665; Mann v. Doerr, 222 Mo. 20; May v. Crawford, 150 Mo. 525; Butler Co. v. Bank, 165 Mo. 459; Bedford v. Skyes, 168 Mo. 8; Estes v. Nell, 140 Mo. 649; Chamberlain v. Waples, 193 Mo. 108; Chapman v. Dougherty, 87 Mo. 620; Sanford v. Herron, 161 Mo. 186; Cline v. Jones, 111 111. 563; Reed v. Douthit, 62 111. 348; Walker v. Walker, 42 111. 311; Wallace v. Burdell, 97 N. T. 22.

      Frcmk B. Ellis and J. M. Davis é Son for respondents.
    (1) In an equity case this court will not review instructions or declarations of law given or refused by the trial ’court. This is elementary. Shaffer v. Detie, 191 Mo. 388; Chilton v,. Metcalf, 234 Mo. 40; Ellis v. Krutzinger, 31 Mo. 432; Hall v. Harris, 145 Mo. 620. (2) The action of the Farmers Bank v. Barbee, .198 Mo. 465, was an ordinary action in ejectment, in which the answer was a general denial. The judgment in that case is therefore not res adjudicaba of the title to the premises. Stone v. Perkins, 217 Mo. 599; Fleming v. Tatum, 232 Mo. 692-; Sampson v. Mitchell, 125 Mo. 217; Kimmel v. Benna, 70‘ Mo. 52; Crowl v. Crowl, 195 Mo. 345; Tyler on Ejectment, 585. Plaintiffs acquired their title before the institution of that ejectment suit; they were not parties to it, and no one is a privy to a judgment whose succession to the right of property thereby affected occurred previous to the institution of the suit. They had no right to control the proceedings to make a defense or to adduce or examine witnesses or to appeal from the decision. Being neither parties no,r privies, they are- not bound by it. Henry v. Woods, 77 Mo. 281; Debenture Co. v. Johnson, 102 N. W. 382; 1 Freeman on Judgments (4 Ed.), sec. 162; Chase v. Kaynor, 78 la. 449; Dull v. Blackman, 169 U. S. 423; 24 Am. & Eng. Ency. Law (2 Ed.), 748, and cases cited; Schnelle v. Barlow, 38 Fed. 857; McWilliams v. Land Co., 35 So. 514; Adams v. Grossman, 228 Mo. 584. (3) This court will act on the presumption that the trial court decided the case correctly, and will affirm the judgment for the reason that it appears from the abstract of the record presented by the plaintiffs that the deposition of Martha J. Cotton, Geo. W. Cotton, and the affidavit of Martha J. Barbee, agreed to be read as her evidence were each read in evidence on the trial and are not contained in the record. Dougherty v. Noble, 138 Mo. 32; State ex rel. v. Jarrett, 183 Mo. 204; Patterson v. Patterson, 200 Mo. 335; Guinnan v. Donnell, 201 Mo. 173; Pitts v. Pitts, 201 Mo. 3560 Miller v. McCaleb, 208 Mo. 573. But if the court should review the evidence, notwithstanding such omissions, then it will defer, upon the disputed matters in evidence, largely to the finding of the chancellor who had the witnesses before him, the opportunity of observing their demeanor on the witness stand'and their manner in testifying, he being thereby placed in a much better position to judge the weight to be given the testimony of the respective witnesses than this court could have. Phillips v. Trust Co., 214 Mo. 682; Jones v. Thomas, .218 Mo. 540'. All the evidence, or its substance, not being preserved in the record, this court will act on the presumption that the trial court decided correctly.
   FERRISS, P. J.

Suit under section 2535-, Revised Statutes 1909, to determine and quiet title. The controversy arises in this way: In 1885 W. L. Barbee purchased the eighty acres of land in controversy, taking the title in his own name. This land was adjoining a farm owned by him. His only son, W. O. Barbee, hereinafter called Bnd Barbee who had • lately married, was placed in possession of this eighty, where he continued to reside until 1906. In 1889 the assessment was changed at the request of the father into the name of the son, who thereafter paid the taxes until 1897, at which latter date the assessment was again changed to W. L. and M. J. Barbee. In 1896, W. L. Barbee conveyed this land to his wife, Martha J. Before this last conveyance was made Bud Barbee had been arrested for obtaining money under false pretenses, was heavily in debt, and pressed by his creditors. On February 8, 1900, the defendant bank obtained a judgment against Bud Barbee in the circuit court of Ray county for something over $1,000. On July 18, 1901, Martha J. Barbee conveyed this land to the minor children of Bud Barbee, who are plaintiffs in this case and who claim title through this conveyance. In June, 1902, an execution was levied upon the judgment obtained' by the Bank of Polo upon all the right, title and interest of Bud Barbee in and to this land. At the sheriff’s sale the property was purchased by the defendant bank, and a deed made and delivered by the sheriff to the purchaser. Shortly thereafter the defendant bank instituted suit in ejectment against W. L. Barbee, Martha J. Barbee and Bud Barbee, and obtained a judgment which was affirmed in this court (Bank v. Barbee, 198 Mo. 465), and the bank was put in possession.

This suit was filed by the minor children of Bud Barbee, who claim title, as stated above, through the deed from their grandmother. Pending the suit one of the plaintiffs, George, died and W. O. and Lydia Barbee became parties as his representatives. •

The bank defends upon the ground that Bud Bar-bee was the owner of this land when it was sold by the sheriff under execution, and that the bank is now the owner thereof. It is claimed that this land was given to Bnd Barbee by his father, and also that he acquired ownership by adverse possession. It is charged in the answer of the bank that the transfers from W. L. Barbee, in 1896-, to his wife, Martha, and from her to her grandchildren, were without consideration, and were made to defraud the creditors of Bud Barbee, and the court is asked to set aside said conveyances and confirm the title in the defendant bank.

Judgment below was rendered for the plaintiffs.

A vast number of witnesses appeared on both sides. The following facts appear without controversy :

Bud Barbee was placed in possession of this land shortly after his marriage for the purpose of affording him a home. His parents both say that he was “on their hands, ’ ’ and they desired to get rid of him. The' property was assessed in his name at the request of his father, and Bud paid the taxes. In 1894, W. L. Barbee and his wife requested Squire Moffit to prepare a warranty deed conveying this land to Bud. The deed was written, and it was signed by the two grantors and acknowledged by them before Squire Moffitt. Whether it was ever actually delivered to Bud is the' main matter in controversy, concerning which facts will more fully appear in the opinion. The parties admit the making of the deed, but say that it was made in 1892. Subsequent to the making of the deed, Bud Barbee made permanent and substantial improvements on the place, remodeled the house, built corn' cribs, and otherwise improved it as a home. Whether his father reimbursed Bud the cost of improvements and taxes paid is in controversy.

I. We cannot undertake to set out in detail the. voluminous testimony in this case. Upon a careful consideration of all the evidence, we' are constrained, to disagree with the learned chancellor as to the weight of the evidence. W. L. Barbee bought this land about the time Bud married, and put Bud in possession of same as his home. Subsequently the parents signed and acknowledged a warranty deed conveying this land to Bud. Squire Moffit, who wrote the deed and took their acknowledgments, testified that they told him at the time that they were giving the land to Bud and that they intended to deliver the deed to him that day on their way home. Both grantors deny that they made this statement to the justice. He is, however, a disinterested witness, and his affirmative evidence on this point should outweigh the denial of the parties, in view of their obvious interest in the case, as will appear later on. Several witnesses, apparently disinterested, testify to statements made subsequently by both the elder parties and Bud to the effect that the deed had been delivered.. All three parties deny ever having made, such statements, and one or two witnesses testify that Bud claimed that the land belonged to the old man. There is also testimony, not of great weight, that the deed was seen by two persons in Bud’s possession. Substantial improvements were made, by Bud under his direction by men employed apd paid by him. There is some .testimony to the effect that his father reimbursed Bud the cost of the. improvements and his outlay for taxes. We are satisfied, however, from, all the evidence that to a substantial degree Bud paid the cost of the improvements. Both the elder parties and Bud testify that he occupied' the place as a tenant and paid rent by a division of the crops. Their evidence is vague and unsatisfactory on this point, and is but slightly corroborated. Several farm hands testify to facts indicating a division of the corn crops. It appears, however, that Bud worked the adjoining eighty acres also, and that the crops from both tracts were gathered together at his place, the corn in cribs and the hay in stacks. He worked the old man’s farm on shares. The testimony of these farm hands does not undertake to go further than to show that crops were divided, and their testimony could well he taken to refer to crops from land other than the eighty acres in controversy. Against the inferences to be drawn from the execution of the deed, the affirmative testimony of the justice as to the declared intention to immediately deliver the deed to Bud, the testimony of subsequent statements of both parties to the deed that it had been delivered, the acts of ownership by the grantee, the positive testimony that the deed was seen in Bud’s possession, and the fact that the property was assessed to Bud at his father’s request, the Barbees oppose flat denials but slightly corroborated. .

The evidence to rebut the case made by the defendant bank — that is, the inference arising from the execution of the deed that it was delivered, the possession by Bud, and the concurrent acts of the parties indicating his ownership', — should be clear and decisive.

In Grould v. Day, 94 U. S. 405, it is said: “Delivery will be presumed, in the absence of direct evidence, from the concurrent acts of the parties recog- ' nizing a transfer of title.”

In Massachusetts this is the rule: Evidence of the execution of a deed in the presence of an attesting witness is evidence from which to infer delivery. [Howe v. Howe, 99 Mass. 88; Moore v. Hazelton, 9 Allen, 102.]

In New York, this: “In cases of voluntary settlements the courts have gone great lengths in sustaining the validity of deeds', without affirmative proof of any delivery, and the earlier cases hold that a voluntary settlement fairly made is binding in equity, unless there is clear and decisive proof that the grantor never parted or intended to part with possession of the deed, and if he retains it there must be other facts to show that it was not intended to be absolute.” [Wallace v. Burdell, 97 N. Y. 22.]

Section 2818', Revised Statutes 1909, provides: “Every instrument in writing, conveying or affecting real estate, which shall be acknowledged, or proved, and certified as herein prescribed, may, together with the certificates of acknowledgment or proof, and relinquishment, be read in evidence without further proof.”

We have construed this section to mean that the certificate of acknowledgment takes the place of proof that the deed was signed and delivered; that it is “prima facie evidence that the deed was duly executed, that is, that it was signed and delivered.” [Burke v. Pence, 206 Mo. l. c. 339.] This evidence is not conclusive. It may be rebutted by proof to the contrary.

It must be conceded that the testimony of the three parties, father, mother and son, if given full credence, clearly negatives the delivery of the deed and the ownership in Bud Barbee. Both W. L. and Martha Barbee say that they kept this deed in their possession about a month, and then burned it. Mrs. Barbee says that at the time the deed was written they expected to deliver it, but were not certain about it; that they thought they “would have it ready.” W. L. Barbee, when asked why he had the deed made, replied, “Well, that was our business.” In view, however, of the acts of these witnesses, about to be detailed, and their obvious interest in the case, we must accept their testimony with great doubt as to its reliability. W. L. Barbee retained the title to this land on the records in his own name until 1896, and until his son,-Bud, had got into serious trouble in both the criminal and civil courts, and was being hard pressed by creditors, all of which was known to his parents. Then W. L. Barbee conveyed this property to his wife. The stipulation in the record states that this conveyance recites a consideration of $3,500. Mrs. Barbee testifies that she took this land knowing her son’s troubles, and took it in payment of a note sbe field against her husband. She cannot tell how long she had held the note, nor does °she state its amount nor what it represented. She says the payment for the land took the note and a little more. After the defendant bank had obtained judgment against Bud, Martha J. conveys this land to Bud’s minor children in consideration of love and affection. Taking the testimony of all the • parties together, we cannot resist the conclusion that these conveyances were made for the purpose of placing the land beyond the reach of Bud’s creditors, and to confirm the original purpose of the elder Barbees to keep the property in Bud’s family. Such in fact was the result of these conveyances. These facts account for the anomalous position of Bud Barbee as a witness. In order to secure this property to his children he must disclaim ownership in himself. His counsel admitted in open court that his reputation for truth was bad. He himself admitted that his record was bad. Two witnesses testified that the reputation of W. L. Barbee for truth was bad, and one (a director in the defendant bank), that the reputation of Mrs. Barbee was bad. There was no counter evidence on the question of the reputation of the Barbees. Their testimony does not ring true, and we deem it insufficient to meet the case made by the defendant bank; There is evidence pro and con as to the reputation for truth of witnesses on both sides, also evidence tending to impeach some of the testimony for the defendant. Taking the record as a whole, and making due allowance for the unsatisfactory character of some of the testimony, we must hold that the deed was delivered to Bud Barbee, and that he was owner when the defendant bought at sheriff’s sale, and that the land is now the property of the defendant bank.

Our attention is called to the oft-repeated declaration of this court that in cases where the evidence is contradictory deference should he paid to the finding of the chancellor, because he can see and hear the witnesses. We adhere to this doctrine, but find small room for its application here. The ejectment suit, referred to above, brought by the defendant bank against the Barbees involved the precise issue presented in this ease. The testimony in that case was introduced in this case upon the contention of res adjudicates. Upon comparison, we find the substantial testimony was the same in both cases. Each side produced some additional testimony at the last trial, but the main facts appear alike in both cases. The former case was tried by the court, and a finding of facts made. That finding was in favor of the bank, and was to the effect that W. L. and Martha Barbee executed and delivered the deed to Bud Barbee to the land in question in 1894. The first trial was before a different judge. It was a straight ejectment suit to which these plaintiffs were not parties. The judgment there-, in is not res adjudicata. The fact remains, however, that there were two different conclusions upon substantially the same evidence. Both judges heard and saw the witnesses. We can perceive no reason why we should defer to the finding of one more than to that of the other, so far as the question of superior opportunity to judge of the credibility of witnesses is concerned. These observations are fully sustained by what is said by Lamm, J., in Mann v. Doerr, 222 Mo. l. c. 20.

II. What we have said disposes of this case on the merits, and it is therefore unnecessary to discuss the other propositions urged by appellant. One matter, however, should receive attention. It is suggested by respondents that the record before us does not show all the evidence given at the trial, and our attention is called to some former decisions of this court where we held that in equity cases we would not undertake to review the evidence unless the entire testimony was preserved in the record, on the theory that the omitted testimony might he controlling and would probably sustain the judgment. The first three pages of respondents’ brief contain what purports to be an additional abstract of the record, and calls attention to the fact that the bill of exceptions contains the following: “Defendants now offer in evidence the deposition of Martha J. Colton;” also, “Defendants now offer in evidence the deposition of George W. Colton;” but that said depositions are not contained in the abstract. The respondents, however, do not tell us what testimony was contained in these depositions. They were offered by the defendant bank, and, presumably, were beneficial to the defendant, if they had probative value at all. As our judgment is in favor of the defendant, we cannot see that the respondents could be in any way prejudiced by the failure to set out these depositions in the record. Respondents do not complain that these depositions, if preserved, would have any effect upon the result. Upon the facts in this case we are of the opinion that the rule contended for by respondents does not apply. We must assume that the appellant acted in good faith, and that it regarded the omitted testimony as unimportant. If .respondents deemed the abstract insufficient they could file an additional abstract under Rule 11. They undertake to do this, but their said additional abstract does nothing more than call our attention to the fact that certain depositions were omitted. No motion was made to dismiss the case for want of a full abstract.

The judgment is reversed and the cause remanded, with directions to the circuit court to enter judgment for the appellant bank in accordance with the views herein expressed, and to further order and adjudge the cancellation of the deeds from W. L. Barbee to Martha J. Barbee and .the deed from, said Martha J. to the children of W. O. Barbee.

Kennish and Brown, JJ., concur.