author: HIGBEE, P. J.

text:
    CHRISTIAN SCHEERER v. FELIX SCHEERER, Appellant.
    Division Two,
    March 23, 1921.
    1. PURCHASE OE LAND: Oral Contract: Specific Performance. The Statute of Frauds is an insuperable barrier to the enforcement of an oral contract for the purchase of land, unless the proof of such contract is so clear, cogent and convincing as to leave no reasonable doubt in the mind of the chancellor as to its terms and conditions; and where part performance is relied upon to take the case out from under the operation of the statute, there must be like proof that the acts performed refer to the contract and would not have been done unless on account of and in pursuance to it and with a direct view to its performance.
    2. -:-: Part Performance: Possession. Taking and continuing in possession by the vendee under an oral contract for the purchase of land, with the vendor’s consent, the payment of a substantial part or all of the purchase price, and the making of substantial improvements, are acts of performance when referable solely and unequivocally to the contract. The taking of posses- ■ sion alone is not generally recognized as sufficient part performance, but taking possession, followed by the further act of part payment, or the making of improvements, is sufficient to validate the parol contract.
    3. -: -: -: Signing Deed. Where the vendee made substantial part payment, went into possession, made valuable improvements, and afterwards made other substantial part payments, all referable solely to the parol contract of purchase, and a receipt for a large payment was given with the vendor’s name attached thereto, and -his testimony as to whether he signed the receipt is evasive, and he signed a deed in exact harmony with and in pursuance to the parol agreement, which he refused to deliver and accept a deed of trust for the balance, the evidence showing that a desire to avoid taxes being controlling, the contract will be specifically enforced, there being no other rational hypothesis on which the signing of the deed can be explained.
    4. -- — : -: Indefinite Terms: Cured by Interpretation. An objection that the parol contract pleaded is indefinite as to the payments to be made by the vendee before the vendor would make a deed, is cured by an allegation and proof that on the making of certain payments the vendor agreed to make a deed, which he did sign but did not deliver, for this was an interpretation of the contract which made it definite.
    5. -: -: Time of Payment: Interest as Compensation for Delay. Where the time of payment of the purchase price of land was optional with the vendee, as it spited his convenience, the law implies a reasonable time; and where the vendor accepted a second payment five years after the sale, time was not of the essence of the contract. And ordinarily, where the time of payment of the purchase is optional with the vendee, the payment of interest on the deferred payments will be sufficient compensation for the delay.
    6. -: -: Homestead: Wife’s Consent. Where the land the vendor orally agreed to sell was his homestead, enforcement will not be denied on the ground that he could not sell it without the concurrence of his wife, where he sold it with the intention of .abandoning it, acquired another homestead which he still occupies, accepted payments on the purchase price years after the sale, and permitted the vendee to remain in possession, exercising acts of ownership, for fifteen years.
    7. — -: -: Specific Performance: Wife’s Inchoate Dower. The ■wife not being a party to the parol contract for the sale of land or to the suit to specifically enforce, although it is clear that it was mutually understood that the vendee was to have a deed executed by both the vendor and his wife, and the vendee being entitled to a decree of specific performance, the purchase price should be diminished by the value of the wife’s inchoate dower, unless she will join the vendor in the execution of a deed.
    Appeal from Moniteau Circuit Court. — Hon. J. G. Slate, Judge.
    Reversed and remanded (with directions).

      Embry & Embry, S. G. Gill and Roy D. Williams for appellant.
    (1) When a verbal agreement has been properly part performed, say by the purchaser, equity recognizes in him exactly the same primary right which would have existed, if the contract had been written. The right to have the very thing done, which was agreed to be done. If this primary right or duty is violated by vendor’s refusal to perform, equity gives to the vendee its remedy of specific performance. Pomeroy’s Equity (2 Ed.), sec. 103; Pomeroy’s Equity (21 Ed.), sec. 1409. (2) Equity will not permit the respondent in this case to withdraw from the contract he entered into with appellant. It would be a great injury to appellant to permit respondent so to do. Appellant had paid a portion of the purchase price, had been placed in possession under contract of sale, and had made valuable and permanent improvements. Equity aids in compelling specific performance under circumstances of this nature. Berg v. Moreau, 199 Mo. 416. (3) Where one in pursuance of and on the faith of an oral agreement and promise of the owner that he shall have a deed for the land, enters into possession and makes valuable improvements, the case is taken out of the Statute of Frauds, and specific performance should be decreed. Anderson v. Shockley, 82 Mo. 250; Dougherty v. Harsel, 91 Mo. 161; Hubbard v. Slavens, 218 Mo. 620; Lambert v. Railroad, 212 Mo. 693. (4) In the case at bar, the contract is shown by a great preponderance of the evidence. In fact, a deed was executed by the vendor under the verbal contract. Vendor simply refused to deliver the deed. He received from time to time interest on all unpaid purchase money, and received four different payments on the purchase price. He has refused to make a deed pursuant to his verbal agreement. He has retained the $1400 paid on the principal purchase price, in addition to the interest. He has not offered to return this- sum; He simply proposes to keep all that has been paid to him, and also to keep the land that he had agreed to convey. Appellant, pleads and proves that he is ready, willing and able to meet all sums due on the purchase price and has been thus ready at all times. The decree of the court should have been in favor of the appellant, and upon the payment into court of the unpaid purchase price title should have been decreed in appellant.

      John M. Williams and George E. Williams for respondent.
    (1) The defendant failed to establish the allegations of his cross-bill. (2) The evidence discloses a contract between father and son altogether different from that alleged in the answer. (3) The defendant broke the contract made with his father and was not entitled to equitable consideration even though he had relied in his answer on the contract he actually made. The default of the son was willful. (4) The contract really made could ripen the possession of the son into a title upon two conditions: (a) compliance by the son and (b) the death of the parents. Breach of the contract by the son would leave him without remedy in equity; and a court óf equity could not accelerate the death of the parents. (5) The agreement as alleged in the cross-bill was to be executed “when the defendant was ready to make some additional payments on the land.” Such an agreement is not enforceable because of indefiniteness. Such contracts must be “clear, definite and unequivocal.” Goodin v. Goodin, 172 Mo. 48; Huff v. Shepard, 58 Mo. 242; Hilliard on Vendors, 153; 4 Kent (10 Ed.), 534. (6) The cross-bill shows the defendant broke the contract he alleges he made, and the testimony proves he broke the contract actually made. In such case ejectment is the proper remedy. Gibbs v. Sullens, 48 Mo. 237; Goodin v. Goodin, 172 Mo. 43. (7) Even if the allegations of the cross-bill relating to the contract and the proof in support were as definite as that required in Grantham v. Gossett, 182 Mo. 671, or in Goodin v. Goodin, 172 Mo. 48, or in Dalzell v. Dueber Mfg. Co., 149 U. S. 315, yet the relation of the parties is such as to keep the case within the Statute of Frauds. Emmel v. Hayes, 102 Mo. 195; Rosenwald v. Middlebrook, 188 Mo. 93. And, in such relationship, the payment of a part of the consideration, or improvements made by the son on the father’s land, or possession when accompáined by improvements, will not be treated as part performance. Pomeroy on Specific Performance (2 Ed.) secs. 112, 127, 115; Eckert v. Eckert, 3 P. & W. (Pa.) 332.
   HIGBEE, P. J.

Christian Scheerer is the father of the defendant. November 7, 1918, plaintiff brought this action of ejectment for the recovery of a farm in Moniteau County, containing about 100 acres, laying the ouster on August 8, 1918. The first count of defendant’s answer is a general denial. The second count avers that plaintiff was the owner of the l'and, and that on August — , 1903, defendant purchased it from plaintiff at the price of $5500, and, on or about August 20, paid $500 thereon; that plaintiff put defendant in possession and agreed that when defendant was ready to make some additional payment on the land plaintiff would execute a deed to defendant for the farm; that he also paid on the purchase price, February 1, 1910, $500; June 1, 1910, $200; July 25, 1912, $200; and that he paid all interest during the years stated; that defendant made improvements thereon of the value of more than $600; that shortly after the purchase of said land plaintiff made a deed therefor to defendant, but when requested to deliver it refused to do so, or to deliver it to a bank in escrow; that defendant was ready, able and willing to make full payment when he requested the delivery of the deed; that in the year 1912 plaintiff informed defendant he would never make him a deed for said premises and has never done so; that on or about August 20, 1912;, there was due plaintiff $4100 for the pur-chase price of said land, which, with the interest, and taxes on said land paid by plaintiff since the year 1912, amounts to $6000, which sum he offers to pay into court for the benefit of plaintiff. Wherefore he prays the contract be specifically performed.

The reply is a general denial, and further avers that the alleged contract was not to be performed within a year, was not reduced to writing, and was void under the Statute of Frauds.

Tlie case was tried May 7, 1919, and judgment rendered for the plaintiff, assessing his damages at $500 and the monthly rents and profits at $40, and dismissing defendant’s cross-hill. Motion for new trial being overruled, defendant appealed.

Plaintiff bought the farm in 1899 and lived on it with his wife and son, the defendant, a bachelor of mature years. The defendant had been working on the farm and was to receive one-third of the income. It seems that plaintiff kept all the income,, and in the summer of 1903 the son concluded to leave the farm and talked about buying a restaurant in Tipton.

Grallaher, a witness for plaintiff, testified he heard a conversation between the plaintiff and defendant early in August, 1903. Plaintiff said his son should take the farm at $5500, giving plaintiff $275 per year, and Felix would have it when plaintiff and his wife died; that would be five per cent on $5500 for the rental value of the land. Felix seemed satisfied. That-' was a fair price for the land. The rental value now is $7 per acre. This talk was in Tipton, in Steinkraus’s shoe shop. Six months after this plaintiff went to Tipton. His son was not married; he married in January, 1905. None of this $5500 was to be paid, nothing but the rent during the intervening period. Nothing said about making a deed.

Felix Scheerer testified: “I lived on the farm with father and mother about five years; have been in possession alone about fifteen years. Father was to give me one-third of what we made on the faim, but he had never settled with me from the time we moved there until this August, 1903, and I asked for a settlement and told him I wanted to work for myself. He figured up and wrote me a check for $900, but that included my mare, wagon, farm tools and cow at what I paid for them, $400, and he aimed to keep them when he gave me this check. After he settled with me he went out of the house, and my mother said she didn’t want me to leave, but to stay and run the farm; they were getting old and would have to rent or sell it. I said I would not rent the place, but I will buy it if father will sell it on time. Mother said to go and see him. I went to the barn and asked him. He said he would sell me the farm at $5500 and charge me five per cent on the money. I said that was all right; I have $500 in this check, I will give it back and consider $500 paid on the place and keep my stock and pay you $250 interest a year, and he said that was all right. He said I won’t make you no deed until you have more money to pay. off on it. Next thing he said was, I will pay the taxes if you will furnish me my wood, and I said I would do that, haul it to town, and I did that up until and including 1912. He has paid the taxes. Father moved to town. The next payment I made on the land was February 1, 1910, $500. (Witness here produced a receipt which he said he had carried in his pocket book). I wrote it and father signed it at his house in Tipton. It reads: ‘Tipton, Feby. 1, 1910. Received of Felix Scheerer one thousand dollars payment on tract of land of ninety-two acres of land. (Signed) Christ. Scheerer. ’ I told father he had given me nothing to show for that first $500. He said just make this receipt for $1000, this $500 and the $500 I paid him when I bought the place. I paid this $500 with cheek for $375 and $125 in cash. (Witness produced check). I gave this check to my father. • The check is marked paid. I paid father $200 middle of June, 1910, in cash. He said if people knew he had money he would have to pay taxes on it. The next payment on the purchase price was July 25, 1912, $200. The total payment on the purchase price was $1400. I paid the interest, $250 in T904, $250 the next year. From 1903 on down to 1912 I paid five per cent interest on the unpaid purchase price each year. I put up one and three-fourths miles of hog wire fence, built a closet and two hen houses, a shed and garden fence; cost a little better than $600. I also covered the house, replastered two rooms, painted house and barn and other buildings. When I paid father the second $500 and he had me write the receipt; he said he would have a deed made, and ten days or two weeks later when I was there he brought me the deed. I read it .over; it described the land, but mother hadn’t signed it. He said I will keep this deed here; in case something happens to me your mother can still sign this deed and hand it over to you. About October 1, 1913, I was going to make another payment of $100 and the interest, and I told him I wanted him to make me the deed so I would have something to show how we stood. He said, ‘Didn’t I give you a receipt for $1000?’ I said I have paid $400 since that. He said he never would make the deed; I said I would pay no more money till he made me a deed. I had Mr. Embry, my attorney, draw up a contract and see him, but he never signed it. This contract, dated July, 1914, .recites the sale of the farm to Felix Scheerer in August, 1903, for $5500; that $1400 has been, paid on the principal sum and all interest to date; that a warranty deed to said land in favor of Felix Scheerer has been placed in the Farmers’ Bank at Tipton, which deed shall be attached to this contract and held as long as Christ. Scheerer shall live and then delivered to Felix Scheerer. Interest at five per cent shall be paid on unpaid purchase price, and any sum remaining unpaid at my death shall be paid to my executor or administrator. Including last year, the way I figured it, there was about $6000 due on the premises. I offer to pay that into court. I am able and willing to pay it.”

Cross-Examination: “I didn’t want to stay on the farm as a renter. Father paid the taxes since 1913. Father had" insurance on the buildings. I paid the insurance up to 1913. I had it insured three years ago. In the fall of 1904, I borrowed $300 of father to buy 14 acres. I paid that back in January, 1905. I also borrowed $300 from him to buy some cattle. I paid that back in 1905. I also borrowed $65, and at another time $40. He said he kept a book account of it. There was no running account between us. I paid all that back. In October, 1933, I was going to make this additional payment of $100 and the interest. I then owed father $4100 on the land. I offered to give him a deed of trust. I built the shed and barn after October, 1913. The place was worth $135 an acre in 1913. The reason I paid the $200 in money was because father didn’t want to pay taxes on it. In April, 1913, my sister paid father $2500 that he had loaned her. I stopped paying father because he wouldn’t make me any papers to show I was paying him.”

Redirect: “Father said if he took a deed of trust he would have to pay taxes on it. ’ ’

William Smith testified: “I have known Mr. Scheerer since we were boys; always have been- friends. In 1904 or 1905 he told me he had sold this place to Felix for $5500, and he says: I ain’t going to make him no papers; if I do — I am going to pay the taxes on the land; if I take a deed of trust I would have to pay taxes on that and he would have to pay taxes on the land and it would be double taxes and, he says, he has got a contract.”

William Yogelbecker testified: “I know Christian Scheerer. He said he sold the place to Felix for $5500, and he wasn’t going to make him a deed because he didn’t have to pay no taxes on the money you know. That was in 1915 or 1916.”

Alva White testified:' “I saw Christian Scheerer in Steinkrans’s shop in Tipton about August, 1914,1 had a contract about the trade between Scheerer and his son. I got it from Felix. Christian Scheerer talked about it. The main reason why he wouldn’t sign it was because Felix didn’t marry to suit him. Pie said if Felix- thought .that woman would get this place — and he said that was his life-long labors and he didn’t want her to have it. He didn’t particularly object to Felix getting it. He said he had sold the place to Felix, and made the deed, and had the deed at home, and would in time give it to him, but he wanted to control it as long as he lived — the deed; he wanted to keep it in his possession.'”

Christian Scheerer testified: “I am seventy-six. I have three children. Felix there toas. Pie is forty-six, and Pauline and Mamie. I bought the farm in 18991. I had an arrangement with Felix in 1903. The last of July, 1903, lie left rue. He sold Ms cow and went to Oklahoma on Thursday; came back Sunday. He bummed in town near four days and wanted me to settle up; he wanted to buy a restaurant. So I told him, if I sell it to keep him away from town. I promised him the land after my death for $5500. He would pay me $250 the year. I rented him the place. I moved out in the spring. He wanted $300 to buy thirty acres of land off Snorgrass, and I told him to go to my son-in-law, Keisling, get the money, and I will pay him back. He afterward borrowed $350 to buy cattle.* He didn’t pay me $500 on the land. I made the settlement. He.kept the stock. I didn’t give him a cheek for $900, not as I know. He paid me off every year. I kept books. I charged him with what I gave him. He never pay me since ’ll, always a year back. The last payment, he paid me for ’12, or ’ll, I. mean. In ’13 he didn’t pay nothing. There is where he demanded a deed from me. I told him as long as me and my wife been living I never would sign the deed to anybody. Mr. Embry says that he deposit the deed in bank. I said I would do that after my death, but not before. He paid me $500 in 1910, that was in ’09

‘ ‘ Q. 1 )id you sign this (Showing receipt for $1000) ? A. Not as I remember, because he never had $1000 fo pay me. I never got $1000. I did not owe him $500 in 1903. I owe him nothing. He kept his stock, the wagon and stuff. He wanted to buy a restaurant. He made these payments of $200 in 1910. That would be $900 on account of what he owe, and Mr. Embry made that contract. I was willing to do that if he come up and settle with me. He owed me more than this. He broke his contract since by not paying the rent since 1912. I bought a house in town. My wife and I live in that. I have paid all the taxes and the insurance. I think in them last three years once in a while he paid some.”

Cross Examination: ‘ ‘ I. don’t know in my head exact-what he owed me any more. I had made a deed conveying the land to Felix. You (Embry) wanted me and my wife to go down with you and make the papers. I say, 'No, we can make the papers np here.’ Yon say my wife didn’t sign it; it wasn’t no account. I never had $1000 and I never gave a receipt for $1000.

"Q. Did you sign it? A. I never got the $1000, I tell you. I never sign it. If them $1000 would he here that’s different. That is not my signature. That check $375 may be all right. I never took it on the land. He owe me in the beginning $650. He had money from me six or seven years and every year I count off with him to how we stand. In June, 1910, I got some money from him. Payment on the land? nothing.

"Q. Hasn’t he paid you $1400 on the purchase price of the land? A. He hasn’t paid me five cents at the present time. He owe me $600 or $700. He paid nothing on the land.

"Q. In 1912 didn’t Felix offer to give you a deed of trust for $4100? A. Yes. He asked me, hut I didn’t. Taxes had nothing to do with it. Why I promised that he should have the land. I paid $400 to my son-in-law Keisling. He got it from him and I paid it hack to Keisling, and then he borrow 14 acres of land.

''Q. Did he make you some payments on the land? A. Well, I don’t know if a man call it payments, or if I call it a running account.

‘' Q. How much of the $5500 has he paid ? A. Nothing. ’ ’

Redirect: "I had a running account with Felix in my hook.” (Here the-witness again enumerated the items above mentioned and a few other small charges that he said appeared on his book, a copy of which, in English, he produced). Plaintiff’s counsel, referring to the receipt, asked him:

“Q. Did you sign it? A. Well, I ain’t sure; 1 can’t swear to it.”

Felix Scheerer testified: "I don’t understand them figures that father has copied from his hook. I paid the first and second $500 and then two $200 payments on the place, and told him so. Father signed the receipt. It is now just as it was, with the exception of being folded and worn.’

I. Tlie plaintiff relies upon the Statute of Frauds as a defense to the defendant’s plea for specific performance. There can be no question that the statute is an insuperable barrier to the enforcement of specific performance of an oral contract for the sale of land, unless the proof of such contract is so clear, cogent and convincing as to leave no reasonable doubt in the mind of the chancellor as to its terms and conditions; and where part performance is relied on to take the case out of the operation of the statute there must be like proof that the acts performed refer to that contract and would not have been done unless on account of and pursuant to that very agreement and with a direct view to its performance. [Collins v. Harrell, 219 Mo. 279, l. c. 301; 36 Cyc. 647.]

Within a decade after the enactment of the statute in England, it was found that its literal enforcement would result in frauds and hardships more widespread than those which it was designed to suppress. It was realized that in many instances the statute itself was made an instrument of fraud.

At an early day the rule of part performance, under the limitations above stated, was adopted in England and in most of the jurisdictions of this country. It has long been the rule in Missouri. The taking of and continuance in possession by a vendee under a parol contract made by a vendor, with his consent, the payment of a substantial part or all of the purchase price, and the making of valuable improvements are acts of part performance, when referable solely and unequivocally to the parol contract. There must be a radical change in the attitude of the parties towards each other, a change consisting of acts done that of themselves indicate that some contract has been made between the parties. Parol evidence is then admissible to show the details of the agreement. [Shacklett v. Cummins, 270 Mo. 496, l. c. 499.] Indeed, the rule in England is that taking possession is of itself sufficient part performance, but that rule has not been generally recognized in this country. The rule here is that taking possession, followed by the further act of part payment, or the making of improvements, as an act of part performance, is required to valídale the contract. [36 Cyc. 654.] Do the facts in this ease meet these requirements'?

II. It is altogether natural that the defendant should have concluded, after five years of unrequited labor on his father’s farm, to insist on a settlement and take up some other line of endeavor. .He was thirty years of age, unmarried, and had accumulated but a few hundred dollars’ worth of-personal property. Note the plaintiff’s evidence: “I made the settlement. He kept the stock.”

That his son was'to quit the honorable and independent life of a farmer and engage in running a restaurant in a little country village evidently grieved the plaintiff, but he appears to have been unable to undertake a reconciliation. It was the mother who, in this crisis, intervened with the hope of inducing her son to remain on the farm, and thus avoid an estrangement. She suggested that he see his father and buy the farm. It was then the father said: “Z told him if I sell it to keep him away from town.” He admits that his son paid him $500 February 1, 1910, $200 in June, 1910, and $200 in 1912. He admits he signed a deed and, no doubt, but for his obsession about eluding the payment of taxes, the sale and conveyance would have been happily closed by his taking back a deed of trust for the unpaid purchase money. His quibbling and evasive denials of signing the receipt for the $1000 paid on the farm discredit his testimony. “If them $1000 would be here, that’s different.” When pressed by his own attorney, “Did you sign the receipt?” the,answer was, “I.ain’t sure; I can’t swear to it.”

III. When we consider the testimony of Smith, White and Vogelbecker, in connection with all the other facts and circumstances in the case, there can be no reasonable doubt that plaintiff verbally contracted to sell the farm on the terms sworn to by his son. The execution of the deed can be explained on no other rational hypothesis. Nor can there be any reasonable doubt that he signed the recen acknowledging payment of $1000 on the farm. This receipt, although an incomplete memorandum, is unequivocal evidence of an antecedent contract of sale, and that the payment was made solely with reference to that contract. He told Smith, White and Yogelbecker his real reasons for not delivering the deed; he didn’t like his daughter-in-law; she should never have the land; it was his life savings; if he took a deed of trust he would have to pay taxes on it and Felix would be taxed on the land. Taxes were his nightmare. Shylock-like he would hold fast to the deed until Death released his grasp; then the mother could sign and deliver it to Felix. There was no suggestion, when talking with his old neighbors, that he did not sell the farm, or that Felix had not made satisfactory payments. These poor, frivolous, unreasonable pretexts were the only excuses he could offer for not keeping faith with his son. They demonstrate the barrenness of his defense. They are a confession of the justice of his son’s claim. Ex-pressio unius.

The statements to Smith, White and Yogelbecker cover a period of eleven years, from 1904 to 1915. During all that time his statements and actions were inconsistent with his testimony at the trial. He surrendered possession of the farm to his son in April, 1904, and acquired another homestead. His son has ever since retained exclusive possession of the farm and made valuable improvements. He made payments thereon to his father which were satisfactory, else the father would not have signed the deed. That he made the improvements and also made the payments on the land solely with reference to and in execution of the contract of purchase, clearly appears, not only from the testimony of the defendant, hut by the terms of the receipt and the fact of the execution of the deed. That the payments were made on other indebtedness, if there were any, is inconsistent with his statements to the witnesses (not questioned by plaintiff), the receipt and the deed, which he admits he signed and told Embry he would deliver after, but not before, his death. These radical changes point unerringly to the antecedent contract of sale clearly established by the evidence. To deny specific performance under the evidence would make the statute an instrument of fraud.

IV. It was objected at the trial and in respondent’s brief that the contract pleaded is indefinite as to the payments to be made by the defendant before plaintiff would make a deed, but the answer also avers that on the making of certain other payments, the plaintiff agreed to and did make a deed. This was plaintiff’s interpretation of the contract.' The averments referred to are sufficient; at least after judgment.

V. There was no time fixed for the payment of the purchase money. That was optional with the son, as it suited his convenience. Where no time is fixed, ordinarily the law implies a reasonable time. The plaintiff accepted a second payment on the purchase price nearly five years after the contract of sale. Clearly, time was not of the essence of the contract. In contracts of sale between strangers, failure to pay at the time stipulated will not usually work a forfeiture or authorize a rescission. It will ordinarily be inferred that interest on the defaulted payment will be sufficient compensation for the delay, compensation and not forfeiture being a favorite maxim with courts of equity. [39 Cyc. 1368; Scannell v. Am. Soda Fountain Co., 161 Mo. 606, l. c. 621.]

The defendant, in his answer and on trial, offered to pay the residue of the purchase price, with all interest, into court. That is all that is required in an action for specific performance of a contract of this character.

VI. The contention that plaintiff could not sell his homestead without the concurrence of his wife is not pleaded. He made the contract for the sale of his farm with the intention of abandoning’ it as a homestead. He bought and removed to his residence property in Tipton which he still occupies as his homestead. He cannot have two homesteads at the same time. [Stanley v. Baker, 75 Mo. 60, l. c. 62,] After acquiring a new homestead he accepted payments on the purchase price of his farm and allowed defendant to continue in possession, exercising acts of ownership, for fifteen years, and so ratified the contract.

VII. Another question, not mentioned in the briefs, must be considered. The wife of the plaintiff is not a party to the action nor to the contract of sale. That it was mutually understood that the defendant ^1011^ have a deed executed by his father and mother cannot be doubted. Being clearly of the opinion that the defendant is entitled to a decree of specific performance, how shall the decree be framed in the event plaintiff and his wife do not join in executing a deed of conveyance to the defendant? In that event the purchase price should be diminished by the- value of the wife’s inchoate dower.

In Tebeau v. Ridge, 261 Mo. 547, l. c. 571, Court in Banc, in an opinion by Judge Fakts, said:

“If then such contracts are to be enforced — and the rule is that while the enforcement thereof is in the discretion of the chancellor, the discretion to be used is a sound judicial, and not a capricious, discretion, and also the rule is that other things being equal they are to be enforced — then in my opinion both the weight of authority and the reason of the thing lie with the view that there should be a diminution of the purchase price by the present value of the wife’s inchoate dower. The defaulting option giver should not get the whole purchase price and then as a reward for his breach of contract keep one-third of the title in a life-estate in the family. ’ ’

See foot of page 574 for the basis of reckoning the value of the wife’s inchoate dower. [See, also, 39 Cyc. 1582.]

The judgment is reversed and the cause remanded, with directions to the trial court to ascertain the remainder due to plaintiff from the defendant on the purchase price of the .land described in the petition, with interest at the rate of five per cent per annum from July 25, 1912, and taxes, if any, paid by plaintiff since the year 1912, with six per cent interest thereon, and, upon payment into court of these sums by defendant within a reasonable time, to be fixed by the court, to order specific performance and that the sums so found due be paid to plaintiff, if plaintiff and his wife will execute a deed conveying the premises in controversy to defendant, or, if within a reasonable time, to be fixed by the court, the plaintiff and his wife do not execute' a good and sufficient deed conveying said lands to defendant, the court shall enter a decree divesting all the right, title and interest of the plaintiff in said premises and vesting the same in defendant in fee upon the payment into court by defendant for the plaintiff of the said sum so.found due and taxes as aforesaid (if any) diminished by the value as of the time of the trial (May 7, 1919) of the inchoate dower of plaintiff’s wife in the one-third part of said premises, calculated at six per cent upon the basis of a life in the contingent dowress in excess of the plaintiff’s expectancy, if any, according to the American experience table (Sec. 5968, R. S. 1879), all costs to follow the decree.

All concur.


source: Caselaw Access Project

author:
WHITE, C.
      PER CURIAM.

license: Public Domain

text:
    THOMAS WARD McMANUS v. MATTHEW PARK, Trustee, Appellant.
    Division Two,
    March 23, 1921.
    1. LAWS: Retrospective Operation: Remedy. The provision of the Constitution declaring that no law “retrospective in its operation can be passed by the General Assembly” applies only to acts which would affect vested rights, and not to statutes which are remedial only. No one has a vested interest in the form of procedure; no one -has a vested right to have his cause tried by any particular mode. Acts changing remedies in any way that does not destroy or impair vested rights are excluded from the operation of said constitutional provision, even when they are intended to apply to existing conditions. The remedy applies to the future, but as a remedy it may operate upon propery rights and interests already vested. To be retrospective in the constitutional sense it must impair a vested right.
    2. -: -: -: Annual Accounting of Trustee. The Act of 1911 (now Secs. 13429 and 13430, R. S. 1919), requiring a trustee vested with the title to an estate to make an annual report to the circuit court, applies only to procedure, is remedial in its operation, and does not affect .the rights of a trustee who became vested with the estate prior to its enactment. Such trustee has no vested right in the manner of accounting for his trust.
    3. -: -: Act of 1911: Ambiguous Terms: Construction: Remedy. Where a statute is ambiguous in its terms and affects substantive or vested rights, all ambiguity therein will be resolved in favor of its prospective operation and its constitutionality; but where the statute relates to the remedy and is ambiguous or of doubtful application, it is liberally construed in order to effectuate the purpose of its enactment, and to that end all doubts are resolved so as to affect past as well as future transactions. The evident purpose of the Act of 1911, requiring trustees to make annual reports to the circuit court, was that said remedy should apply to all trustees, whether appointed by the court before or after its enactment. It applies to a will disposing of an estate before as well as after the passage of the act, and it applies where a trustee appointed by the will “has become disqualified to act, resigned or died,” and it applies to trustess appointed by the court before the act was passed.

      4. -: -: -: Trustees: Named in Trust Instrument and Appointed by Court. A relation of personal trust exists between the testator in a will and the trustee appointed thereby; the trustee appointed by the court, upon the removal, death or resignation of the trustee appointed by the will, is under no personal obligation, but only his official obligation to account to the beneficiary, or to exhibit the state of the property in his charge, and before the Act of 1911 was enacted there was no way to compel an accounting from him except upon an al'egation of mismanagement, fraud or incompetence, and the very purpose of having accounts filed was that the beneficiary might ascertain whether there was fraud or incompetence which would justify action against the trustee; and the purpose of said act was that the circuit court might retain jurisdiction of the appointed trustee in all matters pertaining to the administration of a trust estate, and compel him to make an annual report of the condition of the estate, and to meet the contrary ruling in State ex rel. McManus v. Muench, 217 Mo. 124.
    5. --■: Title. Where the terms of an act are ambiguous, recourse may be had to its title to ascertain the intention of the Legislature; and the intention expressed in the title of the Act of 1911, requiring trustees to report annually to the circuit court the condition of the estate, clearly shows it is retroactive in its operation, and applies to all trustees.
    6. -: Constitutional Question: Not Raised at Trial. A contention that an act is unconstitutional as class legislation, if the question was not raised in the trial court, cannot be considered on appeal; on the contrary, appellant can appropriately urge on appeal a construction of the statute which will render it constitutional, if that contention was made below.
    Appeal from St. Louis City Circuit Court. — Hon. Victor H. Falkenhainer, Judge.
    Affirmed.

      Leighton Shields for appellants.
    (1) No cause of action is stated in the plaintiff’s petition requiring the filing in court of an accounting by-the defendant trustee, as a matter of equity or as a matter of law, absent a special statute providing such duty. State ex rel. McManus v. Muench, 217 Mo. 124. (2) The Act of 1911, does not create a duty requiring the defendant trustee to file in court an accounting, because such act applies only to trustees appointed by the court, and executing trusts created under wills, which became effective after the enactment of the statute. (3) In interpreting this statute, section 1 controls the conditions of the jurisdiction conferred by the act and provides a prospective operation. Straughan v. Meyers, 268 Mo. 588. (4) This statute must be construed as having a prospective effect without exception as to its character. Leete v. State Bank, 115 Mo. 184; State ex rel. v. Wright, 251 Mo. 325; State ex rel. v. Greer, 78 Mo. 188; Shields v. Johnson County, 144 Mo. 76 ; 6 Am. & Eng. Ency. Law, 939. (5) This statute must be construed so as to save it. Sec. 15, Art. II, Mo. Constitution; Hope Ins. Co. v. Flynn, 38 Mo. 483; Clarke v. Eailroad, 219 Mo. 532; 36 Cyc. 974; 8 Cyc. 801. (6) This statute is not “remedial” in the sense used by the authorities, i. e., relating to the course and form of proceedings for the enforcement of a right, but even if it were “remedial” it must be construed as having a prospective effect. Clarke v. Eailroad, 219 Mo. 524; Leete v. State Bank, 115 Mo. 184. (7) This statute is unconstitutional and void because it is special or class legislation. Art. IV, sec. 53, par. 32, Mo. Constitution; State ex rel. v. Iron Co., 268 Mo. 178; State ex rel. v. Logan, 268 Mo. 169; State ex rel. v. Poach, 258 Mo. 561; Bridges v. Mining Co., 252 Mo. 53; State ex rel. v. Miller, 100 Mo. 448.

      D. I). Holmes for respondent.
    (1) The case of State ex rel. v. Muench, 217 Mo. 124, in so far as it strips the circuit court of authority over, trustees appointed by the court to succeed those named by will, should be overruled, as it is against the established weight of authority. 39 Cyc. 515, 316, 317; Perry on Trusts, sec. 474; Lewin on Trusts (Ám. Ed.), p. 617, par. 1.6; Gottschalk v. Trust Co., 102 Md. 521; Cromev v. Bull, 4 K. L. Eep. 787; Bispham’s Principles of Equity (9 Ed.), secs. 135, 148; Minors v. Batteson, L. R. 1 App. Cases, 428. (2) The court appointing a trustee, or the court to which a trustee has applied for directions concerning the administration of his trust, has thereafter complete jurisdiction over the trustee and the trust estate, and can compel an accounting. Same authorities. (3) Under the statute the court has power to compel an accounting by the trustee. Laws 1911, p. 430. (4) The Act of 1911 is, by its terms, retroactive, so as to include within its provisions trustees appointed prior to its enactment. In construing the statute, its title, as well as its contemporaneous history, should be taken into account. People ex rel. Colling v. Spicer, 99 N. Y. 233; Straughan v. Meyers, 268 Mo. 588; Ins. Co. v. Talbot, 113 Ind. 379. (5) The act is remedial, and should be construed to operate retroactively. 36 Cyc. 1209; Black on Interpretation of Laws (2 Ed.), pp. 403-4; Ins. Co. v. Talbot, 113 Ind. 378; Clark v. Railroad, 219 Mo. 532; Abbott v. Mining Co., 255 Mo. 378. (6) The Act does not violate Art. IY, sec. 53, par. 32, of the State Constitution, as class legislation. Ex parte Loving, 178 Mo. 209; Hawkins v. Smith, 242 Mo:. 695.
   WHITE, C.

This is a proceeding brought by the plaintiff to compel an annual accounting by defendant, as trustee of the estate in which the plaintiff was one of the beneficiaries. The defendant filed a demurrer to the petition, which was overruled; defendant declined to plead further and judgment was entered for plaintiff in accordance with the prayer of the petition, from which judgment defendant appealed.

The accounting prayed for is that required by the Act of 1911 (Laws 1911, p. 430), Sections 13429 and 13430 Revised Statutes 1919. The will of Camilla S. McManus’ mother of the plaintiff, was probated November, 1905. One William F. Crow was appointed by the will trustee of a certain fund mentioned in the will. Crow died in December, 1907. On a proceeding brought in the Circuit Court of St. Louis, in May, 1908, the defendant, Matthew Park, was appointed by that court as the successor of Crow.

The defendant herein asserts that the petition states no cause of action, because it shows that the Act of 1911, providing for annual accounting of a trustee appointed by the circuit court, was passed subsequent to his appointment, and the vesting of the trust estate in him. The will, attached as an exhibit to the petition, executed in 1896 by Camilla S. McManus in the City of Saint Louis, after certain other provisions, devises to the son of testatrix, Walter McManus, one-third, and to the daughter one-third, of all the estate, and then provides for the trust as follows:

“Fifth: I give, bequeath and devise to my friend William Crow, of the City of St. Louis and State of Missouri, a like one-third part of all my estate, real, personal and mixed, and wheresoever situated, to have and to hold the same as trustee for the uses and purposes hereinafter stated. I hereby give said trustee, or his successors in this trust, full power, with the approval of the St. Louis Circuit Court, to sell any of the property subject to this trust. I hereby authorize and direct said trustee, from time to time, to invest all moneys and the proceeds of all property subject to this trust that may be sold, either in well secured first mortgage loans on improved real estate in the City of St. Louis and State of Missouri, or in other well approved securities, and to pay the net income received therefrom, together with the net income received from all of the property subject to this trust, semi-annually to my granddaughter, Camilla S. Wolcott, during her life. Should my grandr daughter, Camilla S. Wolcott, die and leave surviving her my two children, Thomas Ward McManus and Maggie Emma McManus, then it is my will that all the property held subject to this trust be divided equally between my two children; and if but one of my two children shall survive my said granddaughter, then it is my will that all the property held subject to this trust shall be by said trustee conveyed and delivered to my surviving child, to be held as his or her absolute property.
“Should my two children, Thomas Ward McManus and Maggie Emma McManus, both die and leave surviving them my said grandaughter, Camilla S. Wolcott, then it is my will that all the property ^held subject to this trust shall be by said trustee conveyed and delivered to my said granddaughter, to be held by her, as her sole and separate property, and free from the control, rights or liabilities of any husband she may have.
“It is my will that the trustee charged with the execution of this trust shall be required to give adequate bond, and that he shall receive proper compensation for his services in executing said trust.”

The will then appoints Thomas Ward McManus executor. A codicil was made, executed and annexed to the will, July 8, 1903, reciting that the daughter of the testatrix, Maggie E. McManus, had died since the execution of the will, and devising all that part of the estate which said daughter would have taken under the will, had she lived, to Thomas Ward McManus and to the granddaughter Camilla S. Burroughs.

The petition sets up the facts aibove mentioned and alleges that the exact value of the trust estate was unknown to plaintiff, but that its value was approximately two hundred thousand dollars, consisting mainly of real estate from which rentals were derived of considerable value; it sets up the interest of the plaintiff and Camilla S. Burroughs in the trust estate, and alleges that it was the duty of Park, as trustee, to present to the circuit court at least once each year, and at such other times as said court may require a report of the condition of such estate, but that since the appointment of Park as such trustee he had wholly refused to make any report whatever to the circuit court. The petition prays:

“For an order of this court requiring the said Matthew Park, trustee, to file with this court an accounting of the administration of such estate from the time of his appointment; . . . and for an order requiring a trustee to file an annual report of the condition of said estate,” etc.

I. The appellant contends that the Act of 1911 should be construed so as to apply only to trust estates created after the enactment of that law; that otherwise it would be unconstitutional, inimical to Section 15, Article II, of the Constitution which prov^eg yiaq no iaw “retrospective in its operation . '. . can be passed by the General Assembly.” It is contended that if the Act of 1911 is ambiguous in its terms, one construction of which would render it unconstitutional, and another constitutional, it must be so considered as to make it harmonize with the Constitution. Therefore, in order to avoid, declaring it unconstitutional, it should be so construed as to apply .only to trusts created and trustees appointed subsequent to the passage of the act.

This argument proceeds upon the theory that if it is made to apply to existing trusts and trustees it is retrospective in operation. Appellant cites cases stating the rule of statutory construction that, unless a different intent in the statute is evident, its provisions are to be considered as prospective only and not retrospective. [State ex rel. v. Wright, 251 Mo. 325, l. c. 344, and cases cited.] This, however, applies only to statutes which would affect vested rights, and not to statutes which are remedial only. No- one has a vested interest in the form of procedure; no one has a vested right to have his cause tried by any particular mode. [Schuermann v. Union Cent. Life Ins. Co., 165 Mo. l. c. 652; Roenfeldt v. St. L. & Sub. Ry. Co., 180 Mo. l. c. 564; State v. Taylor, 134 Mo. l. c. 144-145; State ex rel. v. Taylor, 224 Mo. l. c. 464; St. Louis v. Calhoun, 222 Mo. l. c. 52.]

This court said in case of Mainwaring v. Lumber Co., 200 Mo. l. c. 732-733:

“Acts changing remedies in any .way that do not destroy or impair vested rights, are excluded from the rule invalidating retrospective laws, even when they are intended to retroact.”

In the case of State v. Kyle, 166 Mo. l. c. 305, quoting from Cooley’s Const. Limitations (2 Ed.), p. 326, it was said:

Remedies must always be under the control of the Legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard onl by. the courts, in existence when its facts arose. The Legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime.”

The quotation is from a passage in Oooley on Constitutional Limitations which has been quoted in several cases by this court. A statute may retroact without being retrospective in the sense that it is inimical to the Constitution. So far as remedies are concerned, it may operate upon property rights and interests which are already vested, but the remedial action authorized by the statute of course applies to the future. It has been many times held by this court that a statute is not retrospective in its operation, within the terms of the Constitution, unless it impairs some vested right. [Smith v. Dirckx, 223 S. W. 104; Westerman v. Supreme Lodge K. of P., 196 Mo. l. c. 738-739; Drainage District v. Turney, 235 Mo. 80, l. c. 92-93; Abbott v. Mining Company, 255 Mo. 378, l. c. 384-385; Kreyling v. O’Reilly, 97 Mo. App. l. c. 392; Gibson v. Railroad, 225 Mo. l. c. 481; Porter v. Mariner, 50 Mo. l. c. 367; Clark v. Railroad, 219 Mo. 524.]

The case last cited construed an amendment to the Statute of Limitations and said in regard to the claim that it was contrary to Section 15, Article II, of the Constitution, l. c. 532:

“This, because the retrospective laws forbidden by that instrument are laws impairing existing vested civil rights. The law must take away such vested right, or it must create a new obligation, impose a new duty, or attach a new disability in respect to gone-by transactions, in order to be retrospective and under the constitutional ban. There is no vested right in a particular mode of procedure.”

The amplification of the principle in the last sentence of the first paragraph quoted, only particularizes what is meant by existing vested rights. A law which does not impair any vested right is not retrospective in the constitutional sense, although it may change the remedy or provide new remedies for enforcing or defining such a right. The Clark case cites many cases from other jurisdictions illustrating the doctrine. In the G-ibson case, supra, it was held that a statute giving the administrator of a deceased person, killed by the negligence of a railroad company in another State, the same right to sue in this State as the laws of such other State gave him, merely provided the' remedy and was not retrospective so as to prevent recovery, although the death sued for occurred before the act, authorizing the suit, was passed. [225 Mo. l. c. 481.]

In the Abbott Mining Company case, 255 Mo. l. c. 384, this court, Division One said:

“A vested right in the sense in which the term was used in the foregoing quotation is a property interest in the thing itself whether it exist in contract or possession; and it is subject to whatever burden may be imposed by the State for the general ■ welfare; that is to say, for the enforcement and'protection of the rights of all. Laws providing and regulating remedies for the protection and enforcement of legal rights are peculiarly within this rule. ” (Italics ours).

In the case of Drainage District v. Turney, supra, this court, in defining a retrospective law, after using the same language used by this court in the Clark case, supra, 235 Mo. l. c. 92-93, said:

“It must give to something already done a different effect from that which it had when it transpired. In this case the only ground upon which a retrospective application of this statute is asserted is that it applies to an object already in existence at the time of its enactment. Were this a good objection it would lead to startling results, for it could as well be claimed that no statute could be enacted imposing new duties upon or giving new privileges or rights to a person already born as that these things' could not be done by the Legislature with reference to a corporation already created.”

Judge Goode in the Kreyling Case, 97 Mo. App. 392, speaking of a certain statute which was claimed to be retrospective in effect, commented thus:

“So it is in a sense, but not in the technical sense which invalidates laws or restricts their operation to future affairs. That statute, of course, affects securities given before it was adopted, and is designed to do so, but it only affects the remedy and not the right. It deprives no security holder of the vested estate or interest. ’ ’ The Act of 1911, under the authorities cited, requiring trustees appointed by the court in any trust estate to make an annual report only applies to procedure, is entirely-remedial in operation, and affects nobody’s existing right. Such trustee has no vested right in the manner of accounting for his trust. The statute may be construed to affect trust estates and trustees created before its passage without being contrary to the section of the Constitution.

II. When, on the death of Crow, the Circuit Court of the City of Saint Louis appointed Park as trustee, an order was entered of record that the court retain jurisdiction of the trustee in all matters connected with the administration of the trust. Subsequently, Park applied to the circuit court for an order to sell a portion of the land held in trust for the purpose of paying certain charges, including taxes, etc., against the estate. The plaintiff here, Thomas Ward McManus, filed in this court a petition asking for a writ of prohibition to prevent the circuit court from proceeding in the matter on the ground that it had no jurisdiction. This court issued a preliminary rule in prohibition and on a hearing made the same absolute, on the ground that as the law then stood the circuit court had no jurisdiction of the trust estate; and its order retaining jurisdiction was without authority. [State ex rel. McManus v. Muench, 217 Mo. 124.]

It is evident that the Act of 1911 was intended to remedy that defect; that is, to give the circuit court jurisdiction over trustees which the ruling of this court in that case held it didn’t possess. The question to be determined here is whether or not the act shall have the effect intended as applied to existing trusts, or shall be applied only to trusts hereafter created.

The appellant claims as a further reason why the demurrer to the petition should have been sustained, that the terms of the Act of 1911 show only that it was intendded to apply to trust estates thereafter created, and to trustees thereafter appointed. The argument is that where a statute is ambiguous a doubtful construction should be resolved in favor of its prospective operation. That is true of statutes affecting substantive rights, as has been seen; all doubts must be resolved in favor of its constitutionality. But to the contrary is the rule relating to remedial statutes; where such statutes are ambiguous, or of doubtful application, they are liberally construed in order to effect the purpose of their enactment. To that end doubts will be resolved so as to affect past as well as future transactions. [Clark v. Railroad, 219 Mo. l. c. 532-533.] This court in that case said, l. c. 533-534:

“Where a new statute' deals with procedure only, prima-facie it applies to all actions — those which have accrued or are pending, and future actions. General words in remedial statutes may be applied to past transactions and pending cases, according to all indications of legislative intent and this may be greatly influenced by considerations of convenience, reasonableness and justice.” (Italics in the opinion).

The above passage is quoted by this court from Sutherland on Statutory Construction. The court then quotes from another text-book (Endlich on'Interpretation of Statutes) as follows, l. c. 534:

“In this country, the general rule seems to be, in accordance with the English, that statutes pertaining to the remedy, i. e., such as relate to the course and form-of proceedings for the enforcement of a right, but do not affect the substance of the judgment pronounced, and neither directly nor indirectly destroy all remedy whatever for the enforcement of the right, are retrospective, so as to apply to causes of action subsisting at the date of their passage.” And further quoting from the same author: “It is said that an act dealing with procedure only applies unless the contrary intention is expressed, to all actions falling within its terms whether commenced before or after the enactment.”

The ruling in that case has been approved by numerous later decisions of this court. [St. Louis v. Calhoun, 222 Mo. l. c. 52; State ex rel. v. Taylor, 224 Mo. l. c. 464; Gibson v. Railroad, 225 Mo. l. c. 481; Start v. National Newspaper Assn., 222 S. W. l. c. 872.]

The evident purpose of the Act of 1911 was to have the remedy there provided apply to all trustees appointed by the court before or afterwards. Such a trustee as is appointed on the failure of the trustee selected by a testator, the trustee between whom and the testator the relation of personal trust exists. The court appointed trustee is under no personal obligation, but only his official obligation to account to his cesUii que trust, or to exhibit the state of the property in his charge. Before the act was passed there was no way to compel an accounting from such trustee except upon an allegation of mismanagement, fraud or incompetence. The beneficiary usually could not discover mismanagement in the absence of an accounting. The very purpose of having accounts filed was that the cestui que trust might ascertain whether there was fraud or incompetence which would justify action against the trustee.

In order to ascertain the legislative intent the language of the act must be examined. It is as follows:

“TRUSTS AND TRUSTEES: Giving Circuit Court Jurisdiction of Trustees for Estates, When.
“AN ACT giving the circuit court by ivhich a trustee has been appointed, jurisdiction in all matters pertaining to the administration of that trust, and providing for annual reports of trustees.
“Section
“1. Couid to have jurisdiction, when.
“2. Trustee to make annual reports.
“3. Purpose of act..
“Be it enacted by the General Assembly of the State of Missouri, as follows:
“Section 1. Court to have jurisdiction, when. — If the circuit court of the county in ivhich a will disposing of an estate has been proved or recorded, shall for such estate appoint a trustee to succeed another therein, who has become disqualified to act, resigned or died, then that court in the proceedings wherein the appointment was made, shall have jurisdiction over such trustee, trust estate, and the beneficiaries thereof as to all matters relating to the administration of said trust until terminated; and said court upon its own motion, or upon notice and motion by the trustee of any beneficiary thereof, may in its discretion make orders therein necessary to conserve the estate or to cause the same to be properly administered.
“Sec. 2. Trustee to mahe annual reports. — Every such trustee, appointed as in this act described, shall present to the court, wherein the appointment was made, a report of the condition of said trust estate at least once each year and at such other times when ordered by the court so to do.
“Sec. 3. Purpose of act. — For purposes of this act, the City of St. Louis shall be considered a county.
“Approved April 11, 1911.”

We have put the most significant words in italics.

Two subjects are to be considered: trustees, and trust estates.

The title of the act purports to give jurisdiction of a trust estate to the circuit court by which a trustee has been appointed; that, of course, would apply to all trust estates created and- all trustees appointed by the court, whether before or after the passage of the act. The language of Section 1 of this act gives a circuit court jurisdiction over trust estates “in ivhich a will disposing of an .estate has been approved or recordedThe words undoubtedly refer to a. will disposing of an estate before as well as after the passage of the act. And further, in regard to the conditions under which the new appointment takes place the act provides for a case where a trustee appointed by the will “has become disqualified to act, resigned or died.” That, of course, means where the original trustee appointed by the will has died at any time prior to the appointment of the new trustee, that would mean before as well as after the passage of the act. So, by the clear wording of- the statute it is made to apply to all cases where trusts have been created by will and where trustees-so appointed have died before the passage of the act as well as afterwards.

The only thing appearing in the body of the act to throw doubt upon its application to trustees appointed before the passage of the act are the words, “shall for such estate appoint a trustee.” It is claimed the words “shall appoint” show conclusively that it is only trustees which are appointed after the passage of the act that can come within the jurisdiction of the court. It would be strange if it' were the intention to vest the court with control over estates and trusts created and in which trustees have already died before the passage of the act, but limited the court in that regard only to cases where new trustees have been appointed afterwards, excluding a trustee appointed before.

It has been held by this court that whe-re the terms of an act are ambiguous recourse may be had to the title in ascertaining the intention of the Legislature. [Straughan v. Meyers, 268 Mo. l. c. 588.] The intention expressed in the title of this act plainly shows that it is retroactive in its application. All of the language of Section 1, except the words “shall appoint,” indicates the same intent. The evident purpose of the act on account of the state of the law before its passage, the language applying it to trust estates created arid for which trustees failed before its enactment, the absence of any reason why it should be made to apply only to subsequently appointed trustees, all indicate that the legislative intent was to cure the trouble pointed out in the case of State ex rel. v. Muench, supra.

We think that a construction of the statute under consideration so as to make it apply to trustees appointed as well as trust estates created, before and after the passage of the .act, would meet the evident intention of the Legislature, and not do violence to the plain meaning of the language used.

III. It is further claimed that the act is unconstitutional because it is inimical to Article 4, Section 53, of the State Constitution, paragraph 32 of that section, in that it is class legislation. Defendant did not raise the constitutional question in the circuit court. No section of the Constitution is mentioned in the demurrer to the petition, nor in the motion for new trial. The section of the Constitution which is claimed to be violated must-be specifically pointed out and pressed upon by the trial court before a party can be heard to urge the constitutional question here.

The appellant, as considered in Paragraph I above, could appropriately urge upon this court a construction of the statute which would make it constitutional, and that is a different matter from questioning the constitutionality of the statute. We could consider the first, but are unable to consider the latter when it was not specifically urged upon the circuit court.

The judgment of the circuit court is affirmed.

Mosley and Bailey, CC., concur.

PER CURIAM.

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

All of the judges concur.


author: RAILEY, C. PEE CUBIAM:

text:
    THE STATE v. MINNIE KELLER, Appellant.
    Division Two,
    March 23, 1921.
    1. .ABORTION: Gravamen: Intent. The production of an abortion is not the offense denounced by the statute (Sec. 4458, R. S. 1909), but the intent to produce a miscarriage or abortion, where the act is not a medical necessity. The intent constitutes the gravamen of the offense, and the evidence must establish such unlawful intent.
    2. -: Intent: Sufficient Evidence: Dying Declaration. A conviction under the statute declaring that “any person who, with intent to produce or promote a miscarriage or abortion,” administers “to a woman (whether actually pregnant or not) any instrument or other method or device to produce miscarriage or abortion,” cannot be based upon the dying declaration of the deceased woman alone unless the State also show that she was pregnant when the operation was performed. If there is no evidence to show that the woman was pregnant at the time of the operation, her dying declaration, uncorroborated, is not sufficient (under Sec. 5240, R. S. 1909) to sustain a conviction.
    Appeal from St. Louis City Circuit Court. — lion. Wilson A. Taylor, Judge.
    Reversed..

      Anthony A. Eochdoerfer for appellant.
    (1) The negative averments of the indictment should have been established by the State. The indictment, having changed in express terms, in addition to other negative averments, that the use of instruments upon Mabel Hitz was not necessary to preserve the life of an unborn child then in the womb of Mabel Hitz, nor advised by a duly licensed physician to be necessary for the purpose of preserving the life of an unborn child then in the womb of Mabel TIitz, it became necessary for the State to prove these specific allegations. State v. Meek, 70 Mo. 355: State v. Casto, 231 Mo. 398; State v. Clements, 14 Pac., 41.0. (2) The motion made by the defendant at the close of the State’s case in the nature of a demurrer and again renewed at the close of the whole case, should have been sustained, because Section 5240, Eevised Statutes 1909, provides, that, in prosecutions for “manslaughter occasioned by an abortion or miscarriage . . . no conviction shall be based upon a dying declaration . . . unless corroborated as to the fact that an abortion or miscarriage had taken place. ’ ’ Outside of the dying declaration there was no corroborating evidence as to the fact that an “ábortion or miscarriage had taken place, ’ ’ or the connection of the defendant therewith. The conviction herein is based upon the dying declaration admitted in evidence. (3) The court should have instructed the jury in an appropriate instruction that no conviction could be based upon a dying declaration, “unless-corroborated as to the fact that an abortion or miscarriage had taken place.” Secs. 5231, 5240, E. S. 1909.

      Frank W. McAllister, Attorney-General, and George V. Berry, Assistant Attorney-General, for respondent.
    (1) The State proved every element of the crime and every averment in the indictment including the negative ones. State v. Be Groat,. 259 Mo. 380; State v. Sonner, 253 Mo. 446; State v. Bargatz, 244 Mo. 225; State v. Casto, 231 Mo. 408; State v. Meek, 70 Mo. 368; State v. Hawkins, 210 S. W. 7. (2) The dying declaration of the prosecutrix was fully corroborated. Sec. 5240, E. S. 1909; State v. Be Groat, 259 Mo. 372; State v. Aitken, 240 Mo. 262; State v. Casto, 231 Mo. 409; State v. Hawkins, 210 S. W. 7. (3) Instruction No. 2 was not erroneous. The trial court had first passed upon the admissibility of the dying declaration. State v. Zorn, 202 Mo. 34; State v. Johnson, 118 Mo. 504; Thurston v. Fritz, 91 Kan. 470; State v. Hendricks, 172 Mo. 670; State v. McCanon, 51 Mo. 162; State v. Crone, 209 Mo. 326. (4) Appellant did not ask for an instruction requiring the dying declaration to be corroborated by proof of an abortion, nor did she save the point. Sec. 5240, R. S. 1909; State v. Lewis, 273 Mo. 532; State v. McBrien, 265 Mo. 604; State v. Hendricks, 172 Mo. 670; State v. Reed, 137 Mo. 128; State v. Rowe, 196 Mo. 9; State v. Othick, 184 Mo. 108. (5) The indictment is sufficient. It is definite and certain, follows the language of the statute and fnlly informs the defendant of the offense with which she is charged. Sec. 4458, R. S. 1909; Kelley’s Crim. Law and Prac., sec. 493; State v. Hawkins, 210 S. W. 6; State v. Glow, 235 Mo. 314; State v. Casto, 231 Mo. 402; State v. Dargatz, 244 Mo. 225; State v. Harroun, 199 Mo. 525; State v. Mills, 146 Mo. 206.
   RAILEY, C.

On June 1,1918, the grand jury of the City of St. Louis, Missouri, returned into the circuit court of said city an indictment against defendant, charging her with having performed an unlawful operation on Mabel Hitz in the city aforesaid, on April 20, 1918 with the felonious intent of producing an abortion or miscarriage, from the effects of which said Mabel Hitz died on April 28,1918.

Defendant, on March 24, 1919, was formally arraigned in open court, waived the reading of said indictment and entered a plea of not guilty.

On March 25, 1919, the jury before whom said cause was tried, returned into court the following verdict:

“We, the jury in the above entitled cause, find the defendant guilty of manslaughter in the second degree as charged in -the indictment, and assess the punishment at imprisonment in the penitentiary for three years.”

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled. After sentence and judgment, she appealed the cause to this court.

The evidence, and such other matters as we may deem important, will be considered later.

I. The indictment is based upon Section 4458, Revised Statutes 1909, and its sufficiency is challenged'. We are of the opinion that appellant’s contention, in respect to said matter, is devoid of merit. The indict-men^ as frame(i> meets with the substantial ' requirements of said statute as construed in State v. Hawkins, 210 S. W. (Mo.) l. c. 6, and State ex. rel. v. Shields, 230 Mo. l. c. 100, and following.

II. It is contended by appellant that the trial court committed error in overruling her demurrer to the evidence at the conclusion of the whole case. In passing upon this question, it will be necessary to consider the provisions of the statute under which this proceeding was commenced, the subject-matter of the indictment, and the evidence produced at the trial.

Section 4458, Revised Statutes 1909, reads as follows :

“Any person who, with intent to produce or promote a miscarriage or abortion, . . . administers to a woman (.whether actually pregnant or not), . . . any instrument or other method or device to produce a miscarriage or abortion (unless the same is necessary to preserve her life or that of an unborn child, or if such person is not a duly licensed physician, unless the said act has been advised by a duly licensed physician to be necessary for such a purpose), shall, in event of the death of said woman, or any quick child whereof she may be pregnant, being thereby occasioned, upon conviction be adjudged guilty of manslaughter in the second degree and punished accordingly.” (Italics ours).

Second 4469, Revised Statutes 1909, provides that the punishment for manslaughter in the second degree is by imprisonment in the penitentiary not less than three nor more than five years.

The indictment herein does not charge that, on April 20th,-1918, Mabel Hitz was pregnant, and that defendant operated on her to produce an abortion or miscarriage, but she is charged with having performed an unlawful operation on said date, with, the felonious intent of producing an abortion or miscarriage. It is not a crime to produce an abortion or miscarriage, provided the operation is authorized by Section 4458, supra.

In construing said Section, Burgess, J., in the well considered case of State ex rel. v. Shields, 230 Mo. l. c. 103, said:

“The production of abortion is not the offense denounced by the Statute, but the intent to produce a miscarriage or abortion, by administering drugs, using instruments, etc., where the act is not a medical necessity. The intent constitutes the gravamen of the offense, and the failure of the attempt has no bearing whatever upon the guilt of the defendant, as the actual production of a miscarriage is unnecessary to the completion of the offense.”

Keeping in mind the provisions of the law aforesaid, and the averments of the indictment, was the evidence adduced at the trial sufficient to warrant the conviction of defendant? In order to determine this question, we will proceed by process of elimination. After a very careful reading of the record and leaving out of consideration, for the present, the dying declarations of Mabel Hitz, we find no substantial evidence tending to show that, on April 20, 1918, or at any other time, Mrs. Hitz was actually pregnant, nor does the evidence, without the dying declarations, tend to show, that defendant performed, or attempted to perform on her, any kind of an operation.

Passing, for the purposes of the case, the objections urged against the competency and legal effect of the dying declarations, is the verdict of the jury supported by substantial evidence, and can it stand the test of judicial criticism?

Section 5240, Revised Statutes 1909, which authorizes dying declarations of this character to be read in evidence, provides that, in prosecution for abortion or miscarriage, “no conviction shall be based alone upon such declarations unless corroborated as to the .fact that an abortion or miscarriage has taken place.” Bouvier defines abortion as “the expulsion of the foetus at a period of utero-gestation so early that it has not acquired the power of sustaining an independent life.” In 1 Cyc. 170, abortion is defined as, “the delivery or expulsion of the human foetus prematurely, or before it is yet capable of sustaining life.” In 1 Ruling Case Law, Section 9, pages 74-5, it is said: “The rule upheld by the weight of authority in the United States is that, in the absence of statute, to render criminal the procurement of a miscarriage the woman whom the accused causes to miscarry must be quick with child. ’ ’ In order to sustain a conviction based alone upon the dying declarations of Mrs. Hitz, it was necessary for the State to show that she was pregnant when the alleged operation was performed. As there is nothing in the record tending to show, that Mabel Hitz was pregnant in April, 1918, her dying declarations, uncorroborated as aforesaid, were insufficient to sustain a conviction in this case. In other words, before a conviction can be upheld, based alone upon said dying declarations, it must appear that Mabel Hitz was pregnant in April, 1918, and that an abortion or miscarriage was then produced by defendant as alleged in the indictment. The evidence submitted at the trial,, did not warrant the jury in finding defendant guilty of the crime charged against her.

III. Other matters have been presented by counsel in their respective briefs, but in view of the conclusions heretofore reached, it becomes unnecessary to consider same. On the record before us, the defendant was improperly convicted.

As all the witnesses who might be expected to throw any light on the transactions before us were examined at the trial, we do not deem it advisable to remand the cause. We accordingly reverse the case and discharge the defendant.

White, G., concurs; Mosley, G., dissents.

PEE CUBIAM:

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

All of the Judges concur.


text:
    BENNET CLARK HYDE, Appellant, v. IDA H. NELSON et al.
    Division Two,
    March 23, 1921.
    1. LIMITATIONS: Effect of Imprisonment and Bail. Under the statute (See. 1323, ft. S. 1919) declaring that “if any person entitled to bring an action in this article specified, at the time the cause of action accrued be imprisoned on a criminal charge, or in execution under a sentence of a criminal court for less than his natural life, such person shall be at liberty to bring such actions within the respective times in this article limited after such disability is removed,” an action for libel brought by a person who is neither imprisoned nor physically restrained during the pendency of a prosecution against him for murder is barred by limitations if not brought within two years after the libel was published.
    2. •— -: -: Bail. The giving of bail by a defendant in a murder charge does not stop the running of the Statute of Limitations against his civil action for libel. That “the principal is supposed to be in the bail’s constant custody” is a legal fiction, and does not amount to imprisonment or physical restraint. The purpose of admitting an accused to bail is to relieve him of imprisonment, and in spite of it he is at liberty until his sureties surrender him.
    3. - — : -■ — ■: -: Habeas Corpus. One who has been admitted to bail is not entitled to the writ of habeas corpus for the purpose of obtaining his discharge. A prisoner released on bail is at liberty, and one at liberty is not imprisoned. The fact that a defendant in a murder charge gave sufficient bail and thereafter, being wrongfully committed to jail, was discharged on habeas corpus, did not amount to imprisonment or prevent him from bringing his civil action for libel.
    4. LIBEL: Survival. Under the statutes, if the libeler dies before suit is brought, no action for libel can be maintained against his devisees or executor or administrator.
    Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.
    Affirmed,

      E. 8. Julicm for appellant.
    (1) Under Sec. 5438, R. S. 1909, appellant’s cause of action survived the death of William R. Nelson and the suit was properly brought against Mrs. Nelson and Mrs. Kirkwood, individually and as trustees, as being the legal representatives of William R. Nelson. Knole v. Paxton, 268 Mo. 463; Shippey v. Kansas City, 254 Mo. 23; Winter v. Van Blarcom, 258 Mo. 419; Taylor v. Met. Ry. Co., 256 Mo. 218; Ryan v. Ortgier, 201 Mo. App. 1. (2) The court erred in. holding that the Statute of Limitations began to run from May 11, 1910, the time of the publication of the article, instead of from April 9, 1917, at the time he was discharged under the indictments and released from imprisonment by his bondsmen. State v. Hyde, 234 Mo. 259; 6 Mod. 231, 339; República v. Jailor, 2 Yates (Penn.) 265; Comm. v. Brickett, 8 Pick. (Mass.) 140; Wharton’s Crim. Law and Proc. sec. 62; Devine v. State, 5 Sneed (Tenn.) 626; State v. Maken, 3 Harr. (Del.) 569; Ponder v. Cox, 26 Ga. 491; Matilda v. Crenshaw, 12 Tenn. (4 Yerger) 299; Price v. Slaughter, 1 Cinn. Rep. 429; Taylor v. Taintor, 83 U. S. (16 Wall.) 371; Pickett v. Rush, 4 Adol. and Ell. 912; Chandler v. Yillett, 2 Saunders, 117; In re James, 18 Fed. 853; United States v. Stevens, 19 Fed. 101;.Lassater v. Wait, 67 S. W. 518; Wood on Lim. (4 Ed.) sec. 241; 19 Am. & Eng. Ency. Law (2 Ed.), 237; 25 Cyc. 1264; State v. Calhoun, 50 Kan. 523; 18 L.' R. A. 838.

      Watson, Gage & Ess for respondents.
    (1) The alleged cause of action asserted in plaintiff’s petition was barred by the Statute of Limitation for the reason that the appellant was not imprisoned within the meaning of See. 1894, R. S. 1909. City of Warrensburg v. Simpson, 22 Mo. App. 699; Furlong v. Association, 189 S. W.. (Mo.) 385; 5 Cyc. 10; 21 Cyc. 1742; 17 C. J. 441; Sec. 4391, R. S. 1909; Bird v. Jones, 7 Q. B. 742; Black’s Law Dictionary; Ex parte Jones, 41 Cal. 209; In re Morse, 117 Fed. 763; People ex rel v. Grant, 111 N. Y. 587; Miller v. Strabbing, 92 Mich. 302; Klasner v. Klasner, 170 Pac. 745; 2! Kent. Com. 26; Rich v. Bailey, 123 Ky. 897, 97 S. W. 747; Wales v. Whitney, 114 U. S. 570; Sibray v. United States, 189 Fed. 404, 107 C. C. A. 483; In re Dykes, 13 Okla. 339, 74 Pac. 506; Piggett v. Rush, 4 Adolf & Ell. 912;'Matilda v. Cranshaw, 4 Yerg. (Tenn.) 299; Ramsey v. Colbaugh, 13 Iowa, 164; Garrett v. Georgia, 102 Ga. 558; Wilkes v. Slaughter, 10 N. C. 211; Spring v. Dahlman 34 Neb. 692; Alexander Wass v. Bartlett, 10 Gray (Mass.) 490; State v. Calhoun, 50 Kan. 523, 22 Pac. 38; L. R. A. 838; Lawson v. Buzines, 3 Harr. (Del.) 416; Johnson v. Bouton, 35 Neb. 398; Floyd v. State, 12 Ark, 43; 16 Am. & Eng. Ency. Law (2 Ed.), 49. Ex parte Cain, 20 Okla. 125, 93 Pac. 176; Secs. 2478, 2442, 2444 to 2448, 2456, 2448, 2467, 2468, 2471, 2472, 2474, 2477, 2483 and 1891, R. S. 1909. (2) Inasmuch as William R. Nelson died in April, 1915, and no suit had theretofore been instituted against his administrators or executors, no cause of action survives in favor of appellant against respondents, as trustees of his estate. Secs. 106, 5438, R. S. 1909.
   HIGBEE, P. J.

This is an appeal from the judgment of the circuit court sustaining a demurrer to plaintiff’s amended petition. Plaintiff filed his petition on April 8, 1919, and on June 10, 1919, filed an amended petition. In substance it avers that William R. Nelson was owner and publisher of the “Kansas City Star,” a daily newspaper; that Stout was managing editor and Seested was general manager of said newspaper; that Nelson died in April, 1915, testate, devising Ms property to his wife, Ida H. Nelson, and to Ms daughter, Laura Nelson Kirkwood; that his will was probated; that plaintiff is a physician and surgeon in Kansas City; that said William R. Nelson and the defendant Stout ánd Seested, wickedly and maliciously intending to injure plaintiff and to cause it to be suspected that he was guilty of murdering Thomas H. Swope and Chrisman Swope by poisoning them and that he tried to murder the family of Mrs. L. O. Swope by inoculating them with the germs of typhoid fever so that they would die, did, on or about May 11, 1910, publish in the “Kansas City Star” the following false; scandalous, malicious and defamatory article, to-wit:

“They said, now, Dr. Twyman, you may talk all you please, you are not going to convince us at all for we believe we know that Dr. Hyde (meaning this plaintiff) is responsible for the death of Colonel Swope, Chrisman Swope, and the inoculation of this family with typhoid,” meaning thereby, etc., that on March 5, 1910, the grand jury of Jackson County returned an indictment charging plaintiff with the murder of Thomas H. Swope, under which he was arrested; that he was admitted to bail March 8,1910, plaintiff, as principal, and certain sureties signing a bond in the sum of $50,000 under which he remained at large until April 27, 1910, when he was remanded to jail by the court; that on May 16, 1910, he was found guilty of murder in the first degree by a jury and sentenced to imprisonment for life in the penitentiary, which judgment was reversed April 11, 1911, and the cause was remanded for new trial; that he was admitted to bail on April 26,1911, on a writ of habeas corpus issued by the circuit court and executed a bond for his appearance signed by himself as principal and certain others as sureties, and that he was continuously under said bond until April 9, 1917, when all indictments pending against him were dismissed. Plaintiff laid his damages, actual and punitive, at $2,500,000.

The defendant demurred, because (1) the petition does not state facts sufficient to constitute a cause of action: (2) the cause of action abated on the death*of William R. Nelson: (3) no suit has been brought against the administrator of William R. Nelson, deceased. (4) the action is barred by the Statute of Limitations and plaintiff was not imprisoned within the meaning of Section 1894, Revised Statutes 1909 (now Sec. 1323, R. S. 1919). The demurrer was sustained. Plaintiff declining to plead over, the court dismissed the action and rendered judgment against him for costs.

I. The learned counsel for appellant, in framing the amended petition, obeyed the mandate of our statute requiring the petition to contain “a plain and concise statement of the facts constituting a cause ^ ac^on_ > > q^e libel was published on May 11, 1910. The action was brought April 8, 1919, nearly nine years after the publication and was therefore barred by the two-year statute unless the facts stated in the petition show that the plaintiff was under the disability of imprisonment on a criminal charge until April 9, 1917. Section 1323 reads:

“If any person entitled to bring an action in this article specified, at the time the cause of action accrued be either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution under a sentence of a criminal court for á less term than for his natural life, or a married woman,, such persons shall be at liberty to bring such actions within the respective times in this article limited after such disability is removed. ’ ’

Appellant urges that he was under duress and in the custody of the law and was imprisoned on a criminal charge while out on bail within the meaning of this section, and was entitled to bring his action within two years after the criminal proceedings were dismigSed on April 9, 1917. To illustrate his plight appellant, in substance, says he would not have been able to enforce' any of his rights that were strongly resisted against contesting litigants in a court of justice. With eight indictments still pending and the hangman’s noose dangling about his ears, he would have been impotent to assert his rights. This moving, graphic picture is not suggestive of the disability of duress, but rather of the expediency of a change of venue.

The reason for the enactment of the statute quoted is obvious. One actually imprisoned or physically re-

strained is deprived of freedom of action. He cannot look after Ms affairs. It would be a denial ^le e9.l'ia^ protection of the law. if one so restrained were not exempted from the¡ operation of tbe general Statute of Limitations. Tbe reason of the law is the life of the law.

There can be no doubt that the word imprisonment is used in this section in its plain, ordinary meaning. Imprisonment is, “The act of putting or confining a man in prison; the restraint of a man’s personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion.” [21 Cyc. 1742.]

Appellant relies upon remarks made by Judge Ferrtss in State v. Hyde, 234 Mo. 200, Dr. Hyde, as stated in the petition, at the time of his indictment had given a continuing bond in the sum of $50,000, had gone to trial at the next term, and had given no indication of any purpose to abscond. At the close of the evidence for the State, the court, of its own motion, revoked his bail bond and committed him to jail on the ground “that the evidence so far given amounts to a presumption that under the law deprives defendant of tbe right to go on bond.” This action was held to be an abuse of the court’s discretion and prejudicial to the interests of the defendant. To illustrate the lack of need for the court’s action, Judge Ferriss, in speaking of the condition of the bond, at page 258, said:

“In a sense, the effect of the bail bond was to place the defendant in the custody of his. bondsmen, but he was in custodia legis. ‘A man’s bail are looked upon as his gaolers of his own choosing, and the person bailed is, in the eye of the law, for many purposes esteemed to be as much in the prison of the court by which he is bailed as if he were in the actual custody of the proper gaoler. ’ [2 Hawkins, Pleas of the Crown, p. 140.] It is said in 1 Hale, 325: ‘Yet the law is all one if he be under bail, for he is in custodia still, for the bail are, in law, his keepers. ’ Wharton, in his work on Criminal Pleading and Practice, says: ‘ The principal is_ supposed to be in the bail’s constant custody, and tbe latter being tbe former’s jailor, may at any time surrender bim to the custody of tbe law.’ [Sec. 62.] . . . The power to surrender bis principal to tbe court at any time is given to tbe surety by our statutes, Section 5230, Revised Statutes 1909. Tbe recognizance is not a contract by which tbe defendant secures an unrestricted right to be at large; nor does it deprive tbe court of its inherent right to deal with tbe person of tbe prisoner.”

In United States v. Lee, 170 Fed. 613, 614, it was said:

“In tbe theory of tbe law,'by a recognizance of bail in a criminal action, tbe accused is committed to tbe custody of tbe sureties as to jailers of bis own choosing, and is so far placed in their power that they may at any time arrest bim upon tbe recognizance and surrender bim to tbe court, and are bound, at their peril, to see that be obeys tbe court’s order. ’ ’

Tbe purpose of admitting to bail is to relieve the' accused of imprisonment. [People v. Mead, 92 N. Y. 415.] That Dr. Iiyde was in the custody of bis bondsmen is a legal fiction. He was only constructively so, because by tbe statute (Section 3923) a surety, when be desires, may procure a copy of tbe recognizance from tbe clerk, by virtue of which tbe bail may take, tbe principal in any county in this State. It is in this sense that tbe law says tbe principal is in tbe custody of bis bondsmen. Tbe statute defines their control over bim. He is constructively in their control at all times but be is at liberty until they actually take bim into their custody.

In re Bauer, 112 Mo. 231, 234, Judge Gantt said:

“It is tbe duty of this and all other courts to construe these sections of the statute in a humane spirit, and our conclusion is that, when tbe circuit court admitted tbe petitioner to bail and approved bis bond, be was entitled to go at liberty, notwithstanding there was no other order staying tbe judgment against bim.” And on page 235:
“The learned counsel concedes that at common law the sureties on bail bond might surrender their principal at any time. It has been quaintly said that ‘bail have their principal always upon a string, and may pull the string whenever they please and render him in their own discharge.’ [Anonymous, 6 Modern, 231; Toles v. Adee, 84 N. Y. 240.] The sureties are frequently called the principal’s jailers, ‘for he is only at liberty by the permission and indulgence of the bail; they may take him up at any time.’ [Lord Hardwicke in Ex parte Gibbons, 1 Atk. 237.]”

II. Dr Hyde was released from imprisonment and admitted to bail on a writ of habeas corpus. It is pertinent therefore to consider what constitutes imprisonment in such proceedings.

The act provides that every person unlawfully committed, detained, confined or restrained of his liberty may prosecute a writ of habeas corpus. [Section 1876.] It is uniformly held that the writ will not lie where one is at large on bail bond. It was held in the learned opinion of Walker, C. J., in State ex rel. v. Wurdeman, 254 Mo. 561, l. c. 572:

“The test, therefore, as to the right to this writ is the existence of such an imprisonment or detention, actual though it may not be, as deprives one of the privilege of going when and where he pleases (Hurd on Hab. Corp., pp 200 et seq.); and upon such restraint being alleged, the court or judge will, in the .exercise of discretion, determine whether the individual liberty of the petitioner and the demands of justice, if the petitioner is being held under the warrant or process of a court, authorize the issuance of the writ.”

It is said that the writ of habeas corpus is intended for the benefit of all persons who may be deprived of their liberty without sufficient cause. An actual restraint is necessary to warrant interference by habeas corpus; but any restraint which precludes freedom of action is sufficient, and actual confinement in jail is not necessary. Persons discharged on hail are not restrained of their liberty so as to be entitled to discharge on habeas corpus, but upon their surrender to the proper officers by their sureties it has been held that habeas corpus will lie. So, if a person who has been released on bail surrenders himself o'f his own accord, it is held in several jurisdictions that habeas corpus will not lie. [21 Cyc. 288-290, where many cases are cited in the notes.]

In Johnson v. Hoy, 227 U. S. 245, 33 S. C. 240, Mr. Justice Lamar, at page 247, said:

“But even if it could be claimed that the facts relied on presented any reason for allowing him a hearing on the .constitutionality of the act at this time, the defendant would not be entitled to the benefit of the writ, because since the appeal, he has given bond in the district court, and has been released from arrest under the warrant issued on the indictment. He is no longer in the custody of the marshal to whom the wrir is addressed, and from whose custody he seeks to be discharged. The defendant is now at liberty, and having secured the very relief which the writ of habeas corpus was intended to afford to those held under warrants issued on indictments, the appeal must be dismissed.”

See opinion by Justice Miller in Wales v. Whitney, 114 U. S. 564, where the question is thoroughly examined. The sum of the matter is that a prisoner released on bail is at liberty and that one at liberty is not imprisoned.

III. Appellant also insists that under Section 5438, Revised Statutes 1909 (now Sec. 4231, R. S. 1919), his cause of action survived the death of William R. Nelson and the action was properly brought against his widow and daughter, the devisees in his will. The difficulty with the plaintiff’s case is that Section 4231, Revised Statutes 1919, has no application. It provides that “causes of action upon which suit has been .brought by the injured party for personal injuries other than those resulting in death, whether such injuries be to the health or to-the person of the injured party, shall not abate by reason of his' death, nor by reason of the death of the persons against whom such cause of action shall have accrued.” The case is controlled by Section 97 and 98, Revised Statutes 1919. Section 97 reads:

“For all wrongs done to property, rights or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract.”

Section 98 reads:

“The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.”

It is thus seen that the action for libel as' against William R. Nelson did not survive his death. Section 4231 and the cases cited by appellant have reference to actions for personal injuries, and are not in point.

The judgment is affirmed.

All concur.