author: WOODSON, J.

text:
    THE STATE ex rel. EXCELSIOR POWDER MANUFACTURING COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    July 14, 1914.
    1. APPELLATE JURISDICTION: Constitutional Question: In Court of Appeals: Motion to Transfer. It is not the duty of a court of appeals, upon the filing of a motion therein to transfer a pending cause to the Supreme Court, on the ground that a proper determination of the issues involves a construction of a certain section of the Constitution, to immediately transfer said cause, without an examination of such question and a determination of whether or not it has jurisdiction. The Court of Appeals is entitled to a reasonable time to investigate the ground of the motion, and may take the motion with the case.
    2. -: -: -: —-: Public Highway: Nuisance. Relator was sued for maintaining a blasting powder mill near a railroad track, charged to he a nuisance, and for damages incurred by plaintiff from an explosion in the glaze building of the plant, whereby she was injured while a passenger on a train on. said track, and for said injuries she recovered a verdict for $2000. Relator asked the court to instruct the jury that the railroad was not a public highway within the meaning of section 41 of article 12 of the Constitution, which the court declined to do, and on its appeal to the Court of Appeals relator filed its motion therein asking that court to transfer the case to the Supreme Court on the ground that its proper determination involved a construction of that section of the Constitution. . The court announced that the motion would he taken with the case, and has not pronounced judgment on the validity of the motion. Held, no ground for compulsory transfer.
    Prohibition.
    Writ denied.

      Kinealy <& Kinealy and E. Wright Taylor for relator.
    (1) This case, in view of'the pleadings, is to be determined on the facts shown by relator's petition and the exhibits filed therewith. State ex rel. v. Guthrie, 245 Mo. 150; State ex reí. v. Caulfield, 245 Mo. 278; State ex rel. v. Lamb,- 237 Mo. 437-; State ex rel. v. Sheppard, 192 Mo. 497. (2) The Court of Appeals has no jurisdiction of a case involving a construction of the Constitution and upon the constitutional question being brought to its attention it is the duty of the court to at once transfer the cause to this court. Constitution, art. 6, sec. 12; Constitution, Amend. 1884, sec. 5; R. S. 1909, sec. 3938. (3) Even an application to the Court of Appeals to transfer the case to this court is not a jurisdictional requirement in prohibition proceedings. State ex rel. v. Williams, 221 Mo. 247; State ex rel. v. Eby, 170 Mo. 518; State ex rel. v. Aloe, 152 Mo. 484. (4) The true meaning of section 14 of article 12 declaring railroads to he “public highways ’ ’ was a live one in the trial court and of the utmost importance to relator, the defendant there, because: (a) That constitutional provision in reality merely means that railroads are subject to legislative control and have certain q-wasi-governmental rights, such as eminent domain. Farber v. Eailroad, 116 Mo. 81. (b) The railroad is private property and no one has a right upon it without the consent of the railroad company. Nevada v. Eddy, 123 Mo. 546; Isabel v. Eailroad, 60 Mo. 475. (c) Therefore, even if the relator’s plant were a dangerous thing yet the fact that it is located near a railroad could not constitute it a public nuisance, although it might be a private one. 22 Cyc. 1152; Martin v. St. Joseph, 136 Mo. App. 320. (d) For the maintenance of a private nuisance no one has a right of action except the owner of the premises, and not even he if he consents to it. Ellis v. Eailroad, 63 Mo. 131; Whalen v. Baker, 44 Mo. App. 290; Kavanaugh v. Barker, 131 N. Y. 211. (e) Mrs. Liggett’s complaint, if any she has, should therefore be founded on negligence. The defendant would then have open to it the defenses of accident, contributory negligence and the exercise of ordinary care, which could not be set up in a case based upon the maintenance of a nuisance. Casey v. Bridge Co., 114 Mo. App. 61; Paddock v. Somes, 102 Mo. 239. (5) The Court of Appeals therefore has no jurisdiction of that appeal and should be required to transfer the case to this court.

      W. D. Summers, W. L. McSpadden and Ball & B,yland for respondents.
    Begardless of 'whether the appellate jurisdiction in the case mentioned in relator’s petition is in.the Supreme Court or the Court of Appeals, the writ should be denied. Bespondent’s return raises and was intended to raise for the determination of the court the question of the proper appellate practice, to the end that it may be finally decided by this court whether it is competent for the .Court of Appeals, upon a motion to transfer a cause on the ground of alleged lack of jurisdiction, to order, as it did here, that the motion would be heard with the case. Belator’s theory seems to be that because the statute in such case, section 3938, provides that when a case is sent on appeal to the wrong court, “it shall be the duty of such Court of Appeals, immediately on such fact coming to its attention, to order the transfer of the same to the Supreme Court;” therefore, whenever any litigant asserts, by motion or otherwise, that a case has been sent wrongfully to the Court of Appeals, that court must immediately order it transferred. Either the emphasis placed by relator on the word “immediately” used in the statute calls for this narrow.and literal interpretation, or at least relator means that the Court of Appeals must in such case have a separate and preliminary hearing of such motion and may not be allowed in the orderly conduct of the business of the court to have the question of jurisdiction briefed, argued and submitted when the case comes on in due course. The respondents contend that the Legislature never intended for the language of this enactment to be so construed, and never contemplated that the Court of Appeals should not hear on brief and argument such a question, or any other question, before pronouncing judgment on it. The court could indeed pass on such a motion without hearing argument on same, and without the reasons pro and con for its action being made the subject of discussion either in brief or argument. Such plain cases sometimes occur, but the Court of Appeals is not bound in all cases to do this. It may avail itself of a hearing upon the question both by brief and argument to the end that no order may be made improvidently and without due consideration. Its practice in this regard is stated in the return. If perchance on hearing and consideration of the motion the court should decide that the jurisdiction in the case is not in the Supreme Court and should proceed to render judgment on the merits of the questions involved in the appeal, and if such determination of relator’s motion should be wrong in the estimation of this court, prohibition or certiorari would then lie. State ex rel. v. Smith, 176 Mo. 90: In this, case the preliminary rule, in any possible view of it, was pre- * maturely issued. In Kansas City to use v. Surety Co., 196 Mo. 304, the motion to transfer was “taken with the case,” jurisdiction retained and the case decided. In Milling Co. v. Blake, 242 Mo: 23, the- same practice was followed and result reached. In Kettelhake v. Car & Foundry Co., 243 Mo. 412, the same practice was followed and the cause transferred without, of course, being decided. In State v. Doerries, 243 Mo. 626, the same result was reached.
   WOODSON, J.

— This is an original proceeding in prohibition instituted in this court by the relator seeking to prohibit the judges of the Kansas City Court of Appeals from exercising-jurisdiction in a certain cause brought by one Clara E. Liggett against the relator in the circuit court of Jackson county, to recover damages for personal injuries sustained by her through the alleged negligence of the relator, and in-which a judgment was rendered in her favor for the sum of $-2000, from which the relator appealed to the said Court of Appeals. The’ relator also asks this court to compel the respondents to certify the cause to this court for determination.

The facts of the case are undisputed and are stated by counsel for relator in substantially the following language: . .

. The petition for prohibition was filed with the clerk of this court and with it was filed a certified copy of the order made by the Kansas City Court of Appeals upon the relator’s motion to transfer the Liggett case to this court, and there was also filed as an-exhibit to the petition a copy of the abstract of the record in the said Liggett case. Upon the petition being filed the court ordered a preliminary rule in prohibition to issue, and same being duly served the respondents filed a return wherein they made no denial of any of the allegations of the petition except they alleged that they had not refused to transfer the Liggett case to this court, but at. the same time they admitted that they had made the order charged in the petition, which will be subsequently set out. The respondents then alleged that the petition filed by the relator fails to state facts sufficient to entitled it to a writ of prohibition. Thereupon in due course relator filed a motion for judgment upon the pleadings. The case is therefore up for decision on the facts set forth in the relator’s petition and the exhibits filed therewith.

From relator’s petition it appears that the case of Liggett v. Excelsior Powder Manufacturing Co. was tried upon the second count of the plaintiff’s petition, wherein plaintiff alleged in substance that the defendant (relator'here) operated a plant for manufacturing blasting powder near Holmes Park in Jackson county, which was situated near public schools and a public highway, to-wit, the railroad of the St. Louis & San Francisco Railroad Company, upon which it and the Kansas City Southern Railway Company operated trains; that by reason of the location of said plant its glaze mill, wherein were stored large quantities of blasting powder, was liable to explode and injure persons being or travelling in the near vicinity thereof and especially upon said railroad, and that by reason of said facts the maintenance of said powder plant at that place constituted it a continuous, common and public nuisance.

Plaintiff further alleged that one morning while she was passing said plant upon a passenger train of the Kansas City Southern Railway Company, there was an explosion in the glaze building^ of the plant, whereby the glass in the windows of the train were broken and blown upon her person and inflicted serious injuries on her, for which she claimed $25,000. "When the case came on for trial the defendant objected to the introduction of any evidence because the plaintiff alleged that she suffered her injuries while riding on a railroad train and upon the theory that the location of defendant’s plant near the railroad track constituted it a public nuisance; that although section 14 of article 12 of the Constitution declares railroads to be public highways, yet this did not mean that they were highways in the same sense as pubilc- county roads, or in such sense that the establishment of the plant near the railroad could constitute the factory a public nuisance. This objection being overruled the defendant duly excepted, and thereupon plaintiff introduced her evidence and at the close of her case the defendant requested the court to give the following instruction:

“The court instructs the jury that although the railroads are declared to be public highways by section 14 of article 12 of the Constitution of Missouri, yet this does not mean that they are public highways in the same sense as are public county roads, nor are they to be considered as public highways in determining any of the issues in this case, and therefore under the pleadings and the evidence your verdict must be in favor of the defendant. ’ ’

This instruction being refused, the defendant excepted and then offered its evidence, and at the close of all the evidence the court gave certain instructions for both parties, and thereunder, as previously stated, the jury found for the plaintiff therein, and the appeal' was duly taken to the Court of Appeals.

The appellant there, the relator here, filed in the Court of Appeals the following motion to transfer the cause to this court, viz:

“Now comes Excelsior Powder Manufacturing Company, appellant in the above cause, and moves the court to transfer this cause, by proper order to that effect, to the Supreme Court of Missouri for the determination of the cause and the questions involved on this appeal, and for the grounds of this motion appellant assigns the following:
. “1. The determination of this appeal and the questions involved thereon, and which were raised and decided against appellant on the trial of this cause in the circuit court of Jackson county at Kansas City, involves the construction of the Constitution of the State of Missouri and particularly of section 14 of' article 12 of said Constitution.
“2. This cause on appeal is within the exclusive jurisdiction of the Supreme Court of Missouri.
“3. This court has no jurisdiction of the appeal in this cause because same involves the construction of the Constitution of this State.”

Upon the presentation of said petition for a removal of the cause to this court, the Court of Appeals made the following order:

“Now at this day the court having considered the appellant’s motion to transfer this cause to the Supreme Court doth order that the said motion be taken with the case.”

Upon the making of this order counsel for relator applied to this court for the writ of prohibition previously mentioned.

I. Counsel for relator presents to this court and ably discusses several nice legal propositions; but the view we take of the case it would he improper for us to consider any of them at this time.

If I correctly understand the position of counsel, it is this: That because section 3938, Revised Statutes 1909, provides that when a ease is appealed to the wrong court it shall be the duty of such court to immediately on such fact coming to its knowledge, order the cause transferred to the Supreme Court, and, therefore, whenever a litigant asserts by motion that a cause has been improperly sent to/the Court of Appeals then it becomes the immediate duty of that court to transfer the same to this court without delay.

Counsel for “respondents contend that the Legislature never intended for the language of this enactment to be so construed, and never contemplated •that the Court of Appeals should not hear on brief and argument such a question, or any other question, before, pronouncing judgment on it.....It may avail itself of a hearing upon the question both by brief and- argument to the end.that no order may be made improvidently and without due consideration.”

The respondents assumed that the Court of Appeals had the authority and jurisdiction to hear counsel by brief and argument, upon the question of removal, and consequently made the order previously mentioned, that the petition for a removal be taken with the cause.

In my opinion there is no doubt but what the respondents are correct in the construction they have placed upon said statute. No court should be required to make an order without first being" advised of its character, and offered a reasonable time and opportunity to investigate and pass upon its validity; otherwise those courts might be forced into the commission of grievous errors, which in all probability they would not commit if given an opportunity to investigate the questions presented.

There is scarcely a term of this court that passes without our taking motions of various kinds with the case. We do this in order to investigate the questions presented by the motion and thereby enable us to intelligently and properly pass upon them.

We presume that the Court of Appeals was actuated by the same sensible motive when it made the order in this case taking the motion for removal with the cause. That order only signifies that the court entertained some doubt as .to its jurisdiction and that it wanted time to investigate the question in the light of briefs and argument of counsel.

If the Court of Appeals should err in its ruling as to its jurisdiction in the case, the law affords the relator ample remedy. [State ex rel. v. Smith, 176 Mo. 90.]

In the case of Kansas City ex rel. v. Surety Co., 196 Mo. 281, the motion to transfer was taken with the case, but the jurisdiction of the case was retained by this court and the case was here decided.

In Milling Co. v. Blake, 242 Mo. 23, the same order was made and the same disposition was made of the case.

In Kettelhake v. Car & Foundry Co., 243 Mo. 412, the same order was made on motion to transfer cause to the Court of Appeals, which upon investigation was sustained and the cause was transferred without being decided.

And the same was true of the case of State v. Doerries, 243 Mo. 626.

There are many other cases of like import decided by this court, too numerous to mention. .

Entertaining these views of the law, we are clearly of the opinion that the preliminary rule heretofore issued should be quashed, and it is so ordered, and the Kansas City Court of Appeals is directed to pass upon the petition for a removal of the cause to- this court in the manner indicated by its order herein set out.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    ELZENA MOSS et al. v. MARGARET V. ARDREY et al., Appellants.
    In Banc,
    July 14, 1914.
    1. DEED BY ENTIRETY: Wife’s Separate Money: Proof Aliunde. A deed to a husband and wife, nothing more appearing, will be held to create an estate by the entirety, and the entire land on the death of either goes to the' survivor. But since the Married Woman’s Acts the husband cannot appropriate the wife’s money without her written consent, and, in spite of the fact that the deed names him and her as the grantees, she or her heirs may show by parol proof that without her written consent he used her money in part to pay the purchase price, and if that is satisfactorily shown the deed, as to her or her heirs, will be held to be a conveyance to him and her as co-tenants, in the proportion that the money contributed by each bears to the entire purchase price.
    2. -: As Result of Husband’s Wrong. But neither the husband during his life, nor his heirs after his death, can by parol testimony defeat a deed to the husband and wife and have it declared to create a cotenancy between him and her, by showing that, without her written consent, he used a part of her money to buy the land. The husband, being a wrongdoer, cannot in a court of equity obtain a change in .the-character of the conveyance which he has brought about in wrong of the wife, nor can his heirs after his death, any more than he or they could attack the validity of a deed which he had made in fraud of creditors. In such case equity leaves him where he placed himself, and declares the deed to him and his wife, so made at his instance, by using her money without her. written consent, to create _an estate by the entirety, and on his death the entire land goes to her as the survivor.

      Appeal from Pike Circuit Court. — Hon. William T. Ragland, Judge.
    Reversed and remanded.

      Schofield & Plowman for appellants.
    (1) The Married Women’s 'statutes do not limit the right of the wife to use her separate estate as she sees fit. Macks v: Drew, 86 Mo. App. 227; Craig v. Bradley, 153 Mo. App. 593. (2) The quitclaim deed in this case to husband and wife created an estate by the entirety, and did not create an estate in common as held by the trial court. Gibson v. Zimmerman, 12 Mo. 386; Garner v. Jones, 52 Mo. 68; Beauchamp v. Shrader, 52 Mo. 72; Bains v. Bullock, 129 Mo. 117; Hall v. Stephens, 65 Mo. 676; Edmondson v. Moberly, 98 Mo. 523; Hume v. Hopkins, 140 Mo. 65; Craig v. Bradley, 153 Mo. App. 586; Wilson v. Frost, 186 Mo. 311; Frost v. Frost, 200 Mo. 482. (3) The estate by the entirety created by this deed could only be attacked in equity on the grounds of fraud, and there is no evidence of any fraud in the case. Wilson v. Frost, 200 Mo. 484; McLeod v. Venable, 163 Mo. 536; Donovan v. Griffith, 215 Mo. 149; Craig v. Bradley,. 153 Mo. App. 592; Ober v. Howard, 11 Mo. 425. (4) Where the husband uses his wife’s money in the purchase of land and takes the title in the name of himself and wife, there is no presumption of a resulting trust, but prima-facie it is a provision for the wife. Jones v. Elkins, 143 Mo. 651; Craig v. Bradley, 153 Mb. App. 592; Wells v. Moore, 68 Mo. App. 501; Medlin v. Morris, 243 Mo. 260’; Hall v. Stephens, 65 Mo. 677. ' (5) The deed from William Ardrey and wife to the two small children was effective to vest title in them.

      M. L. Farres for respondents.
    (1) The quitclaim or release deed to William G. Ardrey and Margaret V. Ardrey did not create an estate by the entirety. Jones v. Elkins, 143 Mo. 651; McLeod v. Venable, 163 Mo. 541; Johnston v. Johnston, 173 Mo. 115'; Donovan v. Griffith, 215 Mo. 149. (2) In the absence of written authority of the wife, where the husband uses her separate money, in part-in a purchase of lands and takes the title in their joint names, no estate by the entirety is created. Jones v. Elkins, 143 Mo. 651; McLeod v. Venable, 163 Mo. 536; Johnston v. Johnston, 173 Mo. 115; Donovan v. Griffith, 215 Mo. 149.
   GRAVES, J.

— The petition in this case is in two counts. By the first count the plaintiff Elzena Moss seeks to set aside for fraud and undue influence a certain deed executed by her and others to her father, conveying the land.in dispute. This count, in addition, asks that the court ascertain and determine the title of the several parties in and to the lands. The second count is an action for the partition of the land. The case is fully stated by the trial court in a finding of facts incorporated with its judgment. Many of these findings of facts stand admitted in the briefs, but where there is dispute such dispute can be considered in the course of the opinion. The findings nisi will serve well for a statement of the case. Such findings are as follows:

“The court finds, under count number one, that Noah Turley died intestate about the year 1859, leaving surviving him his widow, Christiana Turley, and their only child, Charity C. Turley, and seized in fee of tbe following described lands, to-wit [lands in controversy described]; that at the death of said Noah Turley all of said lands descended to said Charity Turley, subject to 'the dower right therein of her mother, the said widow of said Noah Turley, deceased; that thereafter there was duly assigned and set out to said widow, Christiana Turley, as and for her dower in said lands, sixty-three acres thereof; that after the death of Noah Turley his said widow married one Benjamin Milam; that in the year 1870 or 1871, said Charity C. Turley married one William C. Ardrey; that thereafter in the year 1873 the said Christiana Milam and .Benjamin R. Milam, her husband, by their general warranty deed of date March 20, 1873, and duly acknowledged by .the grantors in said deed and duly filed for record, June 2, 1891, in the office of the recorder of deeds in and for Pike county, Missouri, granted and conveyed to the said Charity C. Ardrey all of said sixty-three-acre tract; that by reason of such conveyance the said dower interest in said sixty-three-acre tract and the said remainder interest therein of the said Charity C. Ardrey merged, and she became and was the owner in fee of both the said sixty-three-acre tract and the seventy-three-acre tract, constituting together said 136-acre tract; there were born to said William G. Ardrey and Charity C. Ardrey his wife, four children, James T. Ardrey, Evelene Ardrey, Elzena Ardrey and William S. Ardrey; that Sophia Ardrey, a defendant herein, is the wife of said James T. Ardrey; that Nora Ardrey, a defendant here, is the wife of William S. Ardrey; that said Evelena Ardrey married George Burch, a defendant herein; that said Elzena Ardrey married .one Charles Liter, from whom on the - day of May, 1907, she was lawfully divorced; that thereafter and prior to the death of her father, the said Elzena Liter married and is now the wife of Joseph Moss, her co-plaintiff herein; that in the year 1884, said Charity C. Ardrey died intestate, leaving surviving her widower, the said William G. Ardrey, and the said four children born to the said William G. Ardrey and his wife Charity C. as afbresaid; that after the death of their mother, the said children by means not clearly appearing in the evidence, sought to dispossess their' father of said lands, which by reason of the death of their mother had descended to said four children as tenants in common subject to their father’s curtesy estate therein. Failing, in their attempt to dispossess the said William G. Ardrey, the said heirs sought either to buy the interest of their father in said lands or sell their interest therein to him. Several propositions tending to that result were made by the respective parties; and thereafter on the 27th day of September, 1901, by their quitclaim deed of that date, the said James T. Ardrey and his wife Sophia, Evelena Burch and George Burch her husband, Elzena Liter and her then husband, Charles Liter, William S. Ardrey, and his said wife Nora, remised, released and quitclaimed to the said William G. Ardrey and his then wife, Margaret V. Ardrey, for the expressed consideration in said deed of the sum of $1300, all of said 136-acre tract; that of said consideration the sum of $325 was in fact paid to each of said four heirs of Charity C. Ardrey, deceased; that after the death of Charity C. Ardrey and prior to the execution of said mentioned deed, said William G. Ardrey married Margaret V., who as the surviving widow of said William G., is one of the defendants herein; that on the 3-lst day of December, 1901, said quitclaim deed was duly acknowledged by all of the grantors therein and was duly recorded in the office of the recorder of deeds; that at the date of the execution by them of said quitclaim deed, each of the four children of William G. Ardrey was of age, married and not living with their father, and each of them had a separate home and domestic establishment; that they sold their said interest in said lands with full knowledge of the interest their father had in the same, having previously consulted a lawyer and bv him been informed as to the nature and extent of such interest; that in the matter of the execution of said deed, the said William G. Ardrey did not exercise any influence over his children, nor ' were their interests in said lands sacrificed, nor did they suffer any loss by reason of such conveyance. On the contrary, they received a fair and full consideration for the interest they conveyed; their father then being fifty-six years of age, and the value of tho courtesy estate being in excess of the value of the remainder interest; and said lands were at the date of said quitclaim deed not worth over ten dollars per acre; the said transaction was characterized by fairness and was without any fraud or semblance thereof on the part of the said William G. Ardrey.
“The court further finds that of said consideration paid to said heirs for said lands, six-thirteenths , thereof, to-wit, the sum $600, the separate money and ' means of said Margaret V. Ardrey, was by her said husband, he having the same in possession at the time, paid to said heirs as part of the purchase price and not with the written consent of the said Margaret V. Ardrey.
“The fact of such payment was testified to by the defendant, Margaret V. Ardrey, as a witness in the case, testifying therein in behalf of plaintiffs and was conceded by counsel for defendants in their briefs furnished the court. The fact of such payment prevented said quitclaim deed from' creating an estate by the entirety in said William G. Ardrey and his wife. If after such conveyance Margaret Y. Ardrey had died before her husband, it clearly appears that neither he nor his heirs after him could be heard to claim that he took the entire estate as surviving tenant by the entirety. If it were' such estate as to one, it was as to the other. It would be an estate by the entirety as to both, or as to neither. The court finds and declares as a proposition of law that under and by virtue of said quitclaim deed, the grantees therein took title in and to said lands as. tenants in common; the said William G. Ardrey thereby becoming the owner in fee of an undivided seven-thirteenths interest in said 136-acre tract; and his wife'Margaret V. Ardrey thereby becoming the owner of an undivided six-thirteenths interest in said 136-acre tract, subject to the said courtesy estate therein of the said William Gr. Ardrey.”

The court further finds, that there were born to the said William G. Ardrey and his wife Margaret V., two children, defendants herein, viz., Pansy L. Ardrey and Clifton Ardrey, the latter of whom is a minor, duly served with process herein and represented herein by his duly appointed guardian ad litem herein, the said Margaret V. Ardrey; that on the day ' of--, 1901, the said William G. Ardrey and his wife signed and on the--- day of--, 1901, acknowledged a certain quitclaim deed purporting to convey to their said two children, Pansy L. and Clifton Ardrey, the above described 136 acres; that said last-mentioned deed, after the signing and acknowledgment of the same as aforesaid, was by the grantors named therein, put away and kept at their home, among' their papers, and was continuously in their possession during the said . William G.’s life, and thereafter remaining in the possession of said Margaret V. Ardrey until January 4, 1910, when she duly filed the same for record in the office of said recorder of deeds, and with the intent thereby to pass the title to the lands in controversy to said Pansy L. and Clifton Ardrey; that there was never any delivery of said last mentioned deed by William G: Ardrey; and there was never any delivery of the same by Margaret V. Ardrey until the filing of the same by her for record as aforesaid, and no title of the said William G. Ardrey in or to said lands passed or was conveyed by said deed to any one. That said William G. Ardrey did not reside on said lands at the time of his death and did not have any homestead therein- and there is no homestead interest or claim .involved in this action. That upon the death of 'William Gr. Ardrey, which occurred the 19th day of December, 1909, his said undivided seven-thirteenths interest in said 136-' acre tract passed to and vested in his said children as tenants in common, subject to the dower estate therein of the said widow Margaret V. Ardrey, which said dower estate became vested in her upon the death of her husband. Upon the delivery of said quitclaim deed from Margaret Y. Ardrey to her said two children as aforesaid,. all of her interest in said lands, including said dower .interest,, passed to and vested in her two children.

“Under the second count of the petition the court finds the facts as above found under count number one of said petition, and the court further finds that the plaintiff Elzena Moss is entitled to partition of the lands in controversy; that from the nature and amount of the property sought to be divided and the number of owners it is apparent to the court that the assignment of dower and a partition of said lands in kind cannot be made without great prejudice to the owners.

“It is therefore ordered, adjudged and decreed by the court that the ownership of said 136-acre tract is as follows, to-wit, the defendant Pansy L. Ardrey and Clifton Ardrey are each the owners in fee simple of an undivided three-thirteenths interest in said 136 acres.

“That the defendants Pansy L. Ardrey and Clifton Ardrey are the owners of the said dower estate in the undivided seven-thirteenths interest in said lands, held by her said husband, and acquired by him from the children of his first wife as aforesaid, said dower interest and estate being an, undivided one-third interest in said last-mentioned seven-thirteenths interest, for and during the life of the said Margaret V. Ardrey; that subject to said dower interest, the plaintiff Elzena Moss, and the defendants Pansy L. Ardrey, Clifton Ardrey, William S. Ardrey, James T. Ardrey, and Eveline Burch are, each the owner of an undivided one-sixth interest in said last-mentioned undivided seven-thirteenths interest in said lands. •

“It is therefore ordered by the court that at and during the regular February term, 1911, of the circuit court of Pike county, Missouri, said above described. 136-acre tract be by the then sheriff of said county sold at public sale to the highest bidder, for cash in hand, after giving notice of such sale, as required by law, and that at the regular February term, 1911, of this court said sheriff make due report to said circuit court of his proceedings under this order.”

I. The court found against the plaintiff on her theory of there being fraud .or undue influence in the making of the quitclaim deed by the plaintiff and the other three children ¿iescrjq)e(j in the first count of the petition, and this question is not now urged here. It could not well be here under any circumstances, because the evidence in the record does not warrant such a contention. The finding of the trial court was right under the facts, and that leaves this deed and the character of the estate conveyed by it open for discussion, and that question we take next.

II. The trial court found that in the purchase of this land the husband used $600 of the wife’s money. This finding is borne out by the*record, and we shall not disturb it. In fact the evidence tends to show that one-half of the money used in the transaction was the.wife’s money. The difference would be that between $600 and $650, and we shall not disturb the finding. Proceeding then upon the theory that the husband used $600 of the wife’s money in procuring this quitclaim deed, what construction should be given to this deed? Appellants claim that it created an éstate by the entirety, respondents contra. Taking the deed alone, it undoubtedly creates an estate by the entirety. Respondent’s contend that the facts considered show a different character of instrument. This is one of the vital questions in the case.

If there was nothing in this record but the naked quitclaim deed to the husband and wife, we would be obliged to say that an estate by the entirety had been created, and that upon the death of the husband the whole estate vested in the wife, the survivor. [Gibson v. Zimmerman, 12 Mo. 386; Garner v. Jones, 52 Mo. 68; Bains v. Bullock, 129 Mo. 117; Hume v. Hopkins, 140 Mo. 65; Holmes v. Kansas City, 209 Mo. 523.] But in this case we have more than the mere naked deed, from which to determine the character of the estate conveyed thereby. We have here a case where the husband, without the written assent of the wife, invested her separate money in the lands in question, and took the title in the name of the two. In such case when such a deed is attacked in equity by the wife or her heirs the husband is declared to hold that portion of the land paid for out of the wife’s money in trust for her and her heirs, in case of her death, and holds the other portion for- himself and his heirs, subject to all marital rights. Such seems to be the well recognized doctrine in this State. In the early case of Garner v. Jones, 52 Mo. l. c. 72, it is said:

“It may be conceded that if a husband invests the separate funds of his wife in real estate and takes a deed to them jointly, a court of equity would protect her in the enjoyment of the property and declare a trust in her favor. But no such point arises in this case. This is a plain deed made to husband and wife as an advancement to her without any words securing' it to her sole and separate use. Under this view, at her death the estate remained in the husband as an entirety and her heir took nothing by descent.”

The Garner case was one where the character of the title was dependent solely upon the deed, and as indicated in the opinion, there was no proof aliunde tending to show a trust estate. And such is the rule now, as we have above said. If we have in evidence only a naked deed to husband and wife, we should declare an estate by the entirety to have been,created. But on the other hand the rule is just as clear, that by proper proof such a conveyance may be shown to create a trust estate in proportion to the amounts invested by the two parties. In Jones v. Elkins, 143 Mo. l. c. 651, Brace, P. J., said:

“It would seem to follow as a necessary sequence that if the husband invests his wife’s statutory separate money in land, without her written assent, and takes the legal title jointly to himself and his wife, the title which he takes to himself will be held by him upon the same trust (Garner v. Jones, 52 Mo. 68 ; Modrell v. Riddle, 82 Mo. 31); and where he purchases land and pays for it with the separate money of his wife in part, without her written assent authorizing him so to do, and in part with his own money, and takes the legal title jointly to himself and wife, the title which he takes to himself will be held by him upon the same trust pro tanto as the amount the separate money of the wife that was used by him in procuring the title bears to the whole of the purchase money. [Bowen v. McKean, 82 Mo. 594.]”

Later in McLeod v. Venable, 163 Mo. l. c. 545, Marshall, J., said:

‘ ‘ In fact, it is more reasonable to so construe her actions. She is charged with knowledge of the law, and hence is as conclusively presumed to have known the rule announced in Jones v. Elkins, 143 Mo. 647, as she is to have known that laid down in Garner v. Jones, 52 Mo. 68. Indeed it must be held that she knew that under the facts of this case, the $1200 was her separate property and accrued to her after the passage of the Act of 1875, and that it was invested in this land, in their joint names, by kér husband, without her written consent, and hence under the rule announced in Jones v. Elkins, as well as under the exception to the common-law rule announced distinctly in Garner v. Jones, she had. a trust estate in the land in the proportion of $1200 to $3712 which a court of equity would protect, and therefore there was no necessity for a severance of her interests from her husband’si The trial court took this view and decreed her interest in that way and then gave her husband one-half of her interest, the whole of his own, and divided the other half of her interest among her collateral heirs.”

In Johnston v. Johnston, 173 Mo. l. c. 118, the same judge said:

“In Missouri, since the passage of the Married Woman’s Acts, it has been uniformly held that if a husband invests any of his wife’s separate money, acquired by her after said acts took effect and. in the manner therein specified, together with money of his own in real estate in their joint names, without her express written consent so to do, it will not create an estate by the entirety, but the wife will, by a court of equity, be decreed a resulting trust in the land to the extent represented by her money.
“In Winn v. Riley, 151 Mo. 61, it was held that if the husband takes' his wife’s. money, arising as aforesaid, and uses it in his business, his wife could treat him as her debtor or as her trustee as she chooses.
“In all these later cases, except Winn v. Riley, the investment of the wife’s separate money, with other money of the husband, was in real estate, while here it was in personal property. But this is an immaterial difference. For at common law there was no difference between the right of survivorship as to real property and as to personal chattels. And ashereinbefore shown, section 4600, Eevised Statutes .1899, excepts grants to husband and wife, and leaves the rule as to them as.it was at common law, so far as real estate is concerned, and the Married Woman’s Acts have abolished the common-law unity of the husband and wife and placed married women, as to their separate personal, as well as their real, property, on the same footing towards their husbands, as any other persons occupy towards each other.
“The result is that not only in the other jurisdictions referred to, and according to the text-writers quoted from, but also by the more recent decisions of this court, an. estate by the entirety does not arise, nor does the'right of survivorship exist, as to real estate where the land is purchased by the husband without the wife’s express consent, partly with the money of the husband,- but the wife will be decreed a resulting trust in the land, by a court of equity in the proportion that her money bears to the total purchase price of the land.”

To the same effect is Donovan v. Griffith, 215 Mo. l. c. 166, whereat Pox, J., said:

“This leads us to the consideration of the complaints of the defendant-appellant, James E. Griffith. Learned counsel for defendant insist that the conveyance of the Pritchett forty acre tract to James E. Griffith and Leona Griffith, his wife, created an estate by entirety, and that upon the death of the wife the defendant became the absolute owner in fee of said forty acres by right of survivorship.
“It must be conceded that, if nothing else was disclosed by the record in this cause other than the conveyance itself-, the contention of counsel for the defendant would be unanswerable. 'The authorities are all one way on that proposition; but the suit involves a contest as to the nature and character of the estate created by this conveyance, and all the facts were developed concerning the execution and delivery of the deed. That the purchase money for this land was partly furnished by the defendant, James R. Griffith, and partly by money constituting the separate estate of the wife, the testimony shows beyond dispute. We have read in detail the testimony developed upon the trial and it fully supports the finding of the court concerning the amount of money belonging to the husband and wife which was applied to the payment for the purchase of the Pritchett forty, as well as the interests of the parties in said lands.
“Upon the facts disclosed by the record applicable to this case, it comes directly within the rules of law announced in McLeod v. Venable, and Jones v. Elkins, supra, and the doctrine as announced in those cases is a full and complete answer to the contention of the defendant that the deed to Griffith and wife constituted an estate by entirety.
, “It was expressly ruled in Jones v. Elkins, supra, that where the husband purchases land and pays for it with the separate money.of his wife in part, without her written assent authorizing him so to do, and in part with his own money, and takes the legal title jointly to himself and wife, a court of equity will protect the wife in the enjoyment of her interest in the property and declare a trust in her favor.
“In McLeod v. Venable, supra, the case of Jones v. Elkins was unqualifiedly approved, and it was held that under the rule announced in the Elkins case, as well as under the exceptions to the common-law rule announced distinctly in Garner v. Jones, 52 Mo. 68, and under the facts in that case, the wife had a trust estate in the land in proportion to the amount contributed by her to the full amount of the purchase money, which a court of equity would protect. An examination of those cases will demonstrate that the facts upon 'which the rules of law are predicated are nearly identical with the facts in the case at bar.
“Counsel for defendant manifestly rely upon the ease of Garner v. Jones, supra. That case, it is true, very clearly and correctly announced the rules of law applicable to estates by the entirety, and in a clear, painstaking manner sets forth the reasons upon which the doctrines of estates by the entirety are predicated. With the doctrine announced upon that subject in Garner v. Jones we have no fault to find or criticism to suggest. It is entirely in harmony with the uniform unbroken line of decisions by this court, as well as most of the courts of our sister States where the subject has been in judgment before them. However, it is apparent that defendant overlooks what was said in that case, which is strikingly applicable to’ the case at bar. The learned judge, after discussing the law applicable to estates by the entirety, in conclusion announced this rule in the following language: ‘It may be conceded that if a husband invests the separate funds of his wife in real estate and takes a deed to them jointly, a court of equity would protect her in the enjoyment of the property and declare a trust in her favor. • But no such point arises in this case. ’
“The cases to which I have directed attention treating of this proposition cite numerous authorities in support of the conclusions therein reached, and it is sufficient to say that if the doctrines as announced in the cases applicable to this proposition are longer to be followed, then there can be but one conclusion reached upon this question, and that is that Leona Griffith, the wife 'of the defendant-appellant, had an interest in the lands involved in this proceeding, which a court of equity would protect, and she being dead, that the plaintiffs were entitled to the interests as designated in the written finding of the court, and the court was warranted, as was done in the case of McLeod v. Venable, supra, to decree partition and order tbe land to be sold and the proceeds distributed in accordance with the interests of the parties.”

Upon the facts found in this case , and the law as declared in the cases quoted from above, it is clear that, if the wife was attacking this deed in equity, or if in the event of her death her heirs were so attacking it, there would be no question that the chancellor should say that the husband held in trust for the wife, such portion of the estate as her money paid for in the first instance. In this case it would be six-thirteenths of the whole tract. But does this rule apply here? That question we take next.

III. We have changed our views from those expressed in the - Division. We were then impressed with the view that the trial court was right when it said:

“The fact of such payment was testified to by the defendant, Margaret V. Ardrey as a witness in ' the case, testifying therein in behalf of plaintiffs and was conceded by counsel for defendants in their briefs furnished the court. The fact of such payment prevented said quitclaim deed from creating an estate by the entirety in said William Gr. Ardrey and his wife. If after such conveyance Margaret V. Ardrey had died before her husband, it clearly appears that neither he nor his heirs after him could be heard to claim that he took the entire estate as surviving tenant by the entirety. If it were such estate as to one, it was to the other. It would' be an estate by the entirety as to both, or as to neither. The court finds and declares as a proposition of law that under and by virtue of said quitclaim deed, the grantees therein took title in and to said lands as tenants in common; the said William Gr. Ardrey thereby becoming the owner in fee of an undivided seven-thirteenths interest in said 136-acre tract; and Ms wife Margaret Y. Ardrey thereby becoming the owner of an undivided six-thirteenths interest in said 136-acre tract, subject to the said courtesy estate therein of the said WiUiam G. Ardrey.”

We were impressed with the idea, that if the facts of the transaction prevented it from being an estate by the entirety in the interest of the wife or her heirs, it could not be an estate by the entirety so far as to bind the husband and his heirs. We believe now that we were wrong in the view then expressed, and that the judgment nisi is wrong. It will be noted that the cases cited and quoted from are cases where the deed creating the estate by the entirety is being attacked in equity by the wife or her heirs. We find no case where the husband, who has done the legal wrong, has been allowed in equity to have the character of the estate as created by the deed changed by making proof of Ms wrong. Nor have we found a case where his heirs were permitted to change the character of the estate fixed by the terms of the deed by making similar proof. If the husband takes the funds of the wife and invests it in lands and takes the title in his own name, a court of equity will declare a resulting trust, because not to so declare it would be to work a fraud upon the wife, and the husband has been the author of such fraud. So, too, it is upon this principle, that if the husband takes his wife’s money, and along with some of his own, buys land taking the title in the name of the two, thus creating an estate by the entirety, a court of equity will at the instance of the wife seize upon the situation, and as to her declare that as to such proportionate part of the land as was paid for by the wife’s money, a trust arises in her favor, and she is the absolute owner of such interest. But these are eases where the wife or her heirs attack the deed. And it must be remembered further that the principal invoked is that it would be a legal fraud upon the wife to permit the transaction to stand. But does it follow from this that the husband,- who is the wrong-doer, can appeal to equity, or in the event of his death, can his heirs, who stand in his shoes, invoke the aid of such court? This is the vital question in this case.. We do not believe that the husband could in equity change the character of a deed which had been made at his instance and in wrong of the wife, any more than he could attack the validity of a deed which he might have made in fraud of his creditors. His wrong-doing in either case prevents him from getting relief in equity. What would prevent him would prevent his heirs, for they stand in his shoes. That it is upon the ground of fraud that the wife and her heirs can attack a deed creating an estate by the entirety is made plain by Valliant, J., in Frost v. Frost, 200 Mo. l. c. 483. For these reasons we do not believe the heirs of the husband can attack this deed, and if not, then the wife took the whole estate upon the death of the husband. The judgment nisi did not take this view of the case. . The plaintiffs were not entitled to question the character of the estate created by this deed. They could not reap a benefit from the wrongful act of the husband. The deed should have been held to have created an estate by the entirety. With this question out of the case there is nothing left in the other contentions. It follows that the judgment should be reversed and cause remanded to be proceeded with in accordance with the views herein expressed. It is so ordered.

All concur.


author: "WOODSON, J. BROWN, J. GRAVES, J.

text:
    Ex parte MAY LAYMASTER v. B. F. GOODIN, Sheriff.
    In Banc,
    July 14, 1914.
    1. CRIMES: Injunction: Nuisances. All crimes are nuisances, but some nuisances are public and others private; and while a court of equity may use its injunctive powers to abate a public nuisance, a crime which is only a private nuisance cannot be enjoined by a court of equity and the offender punished for contempt for a violation of the restraining order. Only courts of law can properly punish such a crime. [Distinguishing State ex rel. v. Canty, 207 Mo. 439; State ex rel v. Lamb, 237 Mo. 437.]
    2. -: -- — : Bawdy House. A circuit court has no jurisdiction to issue a writ of injunction against a woman charged in the petition for the writ with "setting up and keeping a common bawdy house,” and upon a hearing of evidence find that she has violated said writ and thereupon commit her to jail for contempt, since the offense was an ordinary crime, and not a public nuisance.
    GRAVES', J., concurs in the result, not on the ground that the keeping of a bawdy house is not a public nuisance but ' because the petition asking for the injunction did not charge the woman’s acts to be a public nuisance and states no other grounds of equitable cognizance.
    BROWN, J., concurs in the conclusions reached, for the reason that in its injunction against the woman the State is attempting to substitute the equity practice for the criminal law, contrary to the Constitution, which ordains that all prosecutions for felonies or misdemeanors shall be by indictment or information, in which the accused shall be entitled to a trial by jury and to meet the witnesses against him face to face.

      Habeas Corpus.

    Petitioner discharged.

      Irwin & Peters for petitioner.
    (1) The court should have sustained the demurrer to plaintiff’s petition on the ground that a court of equity has no jurisdiction to enjoin the commission of a crime, and neither has it jurisdiction to enjoin the maintenance of a bawdyhouse, or any other house not of a public character. State ex rel. v. Canty, 207 Mo. 455; State ex rel. v. Lamb, 237 Mo. 457. (2) It was the duty of the court to pass upon petitioner’s application for a change of venue, and if it was found that all the requirements of the statute had been conformed to, then it became mandatory upon the court to grant such change. Douglas v. White, 134 Mo. 228; Railroad v. Mining Co., 13-9' Mo. App. 272. (3) There was no evidence that petitioner was conducting a bawdyhouse; the evidence was undisputed that she occupied her premises alone, aside from her negro servant girl; there was no evidence that any immoral conduct ever was engaged in at or upon the premises of petitioner; there was no evidence of the congregating of any idle, dissolute, lawless, turbulent and immoral persons of any kind whatsoever at or upon the premises of petitioner ; there was no evidence that any loud or unusual noises emanated from her premises or that any condition whatsoever existed thereon that did or could have disturbed any one; therefore the court had no power or authority to punish her for something that was not a contempt of court either- in law or in fact. In re Clark, 208 Mo. 121; State ex rel. v. Wear, 135 Mo. 265; People v. Kanvanaugh, 220 111. 49.

      James H. Lay and A. M. Hough for respondents.
    (1) When a public nuisance is involved no notice to the defendant is required, the State is the party interested then, the plaintiff in the cause. Likewise no bond can be required as a prerequisite to the granting of the temporary injunction. State ex rel. v. Lamb, 237 Mo. 437; State ex rel. v. Canty, 207 Mo. 439. (2) A court of equity cannot and will not enjoin the' commission of a crime, but where,- as frequently happens, the thing done is not only an offense against the criminal laws of the State, but likewise has the elements of and is a public nuisance, detrimental to the public peace and happiness, good order, rights, public morals and decency, then the mere fact that it is also a criminal act has not, does not and ought not to deprive a court of equity of jurisdiction in such kind of cases. We cite the Canty ease and the Lamb ease as completely sustaining our position as above stated. Also, we cite the late ease of State ex rel v. Feitz, 174 Mo. App. 456, following as it does the law as declared by this court in the Lamb and Canty cases. A bawdyhouse is a public nuisance per se. Clementine v. State, 14 Mo.' 115; Givens v. Yan Studdiford, 4 Mo. App. 503; Ash-brook v. Dale, 27 Mo. App. 650', 72 Mo. 129, 86 Mo. 156; State ex rel. v. Dykeman, 153 Mo. App. 416. (3) The right to a change of venue is statutory and the ruling of the circuit court, either for or against the application, can only be reviewed in one way, that is, by appeal,. after excepting to the action and filing a term bill of exception. It is like any other erroneous ruling of the trial court, to be corrected on' appeal or by writ of error. The mere filing of an application for change of venue does not divest the court of jurisdiction. Eudaley v. Eailroad, 186 Mb. 399; State ex rel. v. Eiley, 203 Mo. 175; In re Drainage Dist. v. Eichardson, 227 Mo.. 261. (4) Direct and positive evidence in bawdyhouse eases can rarely be obtained in a criminal prosecution for setting up, keeping and maintaining such places, and the same applies where it is sought to stop and abate such houses by injunction on the ground that they are a public nuisance. The evidence of witness Schultz and other witnesses showed what the character and reputation of the houses had been for many years, and that they had been occupied for years by prostitutes and used as bawdyhouses, and were known in Jefferson City as such houses, and the evidence showed petitioner to be a prostitute and bawd. Clementine v. State, 14 Mo. 112; State v. Bean, 21 Mo. 267; State v. Bernard, 64 Mo. 260'; State v. Dudley, 56 Mo. App. 450'.
   "WOODSON, J.

— This is an original proceeding— habeas corpus — fi}ed in this court by the petitioner, asking to be discharged from a sentence of ten days imprisonment in the county jail, imposed by the circuit court of Cole county, for the violation of a temporary injunction issued by it against her on the-day of--, 1913, “for setting up and keeping a common bawdyhouse” in Jefferson City, Missouri.

The facts are substantially as follows:

On July 19, 1913, the prosecuting attorney of Cole county filed in the office of the clerk of the circuit court thereof, an information charging the petitioner “with setting up and keeping a common bawdyhouse.”

This information was filed in vacation of the court, and the cause was tried at the July term, 1913, of the court, which resulted in a mistrial. At the November term thereof she was again tried and acquitted by a jnry.

During the interim of the mistrial and the acquittal the prosecuting attorney filed in said court a petition asking that the petitioner herein be enjoined from conducting a common bawdyhouse in said city.

Without notice to petitioner the circuit court granted a temporary injunction, as prayed, without bond, and set the case down for trial at the November term, some four months subsequent, but she had in the meantime been notified of the issuance of the temporary order.

At that term of court the petitioner filed a demurrer to the petition asking for the injunction, which was by the court overruled at the March term, 1914.

Thereupon the petitioner filed answer; but subsequently filed a motion'for a change of venue of the cause from Cole county, on account of the prejudice of the judge thereof. This motion was overruled, as I gather it, because of some informality in the application.

Thereupon, a second motion in proper form for a change of venue was filed, which was also overruled.

In the meantime the prosecuting attorney had duly filed in court an application requesting that the petitioner herein be cited for contempt of court, for the alleged violation of the temporary injunction previously issued in the injunction case.

On March 21, 1914, the court took up the citation for contempt and after hearing much evidence pro and con regarding the said violation of the temporary injunction, took the case under advisement until the 30th, and then found her guilty, and sentenced her to im-prisonmént in the county jail for ten days, and ordered the issuance of a committment, etc., which the sheriff proceeded to execute, when the petition for the writ in this case was applied for and issued, under which the marshall of this court released her from custody on bond, etc.

I. Counsel for respondent raise a question as to whether or not the bill of. exceptions was properly and timely filed.

Without going into that question I will state that in my individual opinion it was neither properly nor timely filed to preserve the questions attempted to be here presented thereby.

II. But the record proper is correctly before this court; and it appears from the petition filed that the petitioner was charged in' the petition for the injunction with ‘setting up and keep-mg a common bawdyhouse m Jefferson City, Missouri, ’ ’ and the judgment of the court finding her guilty of contempt, etc.

This charge, finding and judgment simply convicts the petitioner of the ordinary crime of setting up and keeping a hawdyhouse. [State ex rel. v. Canty, 207 Mo. 439, and cases cited.]

Counsel for respondent rely not only upon the case just cited, but also upon the case of State ex rel. v. Lamb, 237 Mo. 437, as authorities supporting their position in this case. They are not in point.

By an examination of both of those cases it will be seen that it was alleged and proven according to the majority opinion of the court, that not only a crime was being committed, as here, but also that the business complained of was so vile, open, notorious and vicious, that bad and dangerous men, in large numbers, were attracted thereto ;■ even criminals .were constantly congregated there, to the great detriment of the peace and safety of the community. In other words, those cases hold that a public nuisance, even though a crime, may be enjoined by a court of equity, though having no criminal jurisdiction, not because of the crime, but because of its inherent and constitutional authority to abate such nuisances.

There is no doubt but what a court of equity has this power, and it should be exercised freely whenever the exigency of the case demands, yet it should not invade the province of the criminal courts of the country, which must try criminals with the assistance of a jury, according to the Constitution and laws of this State,' and country generally.

The differentiation of this case from those is, that while all crimes are nuisances, yet they are not necessarily public nuisances. A court of equity may abate the latter, but the courts of law only can properly punish the former. Some of the States have enacted statutes conferring jurisdiction upon courts of equity in both, classes of cases, but this is not one of them. It still preserves the right of one charged with this class of crime, as in most all others, to he tried by a jury of his peers.

Great pains'were taken in the case of State ex rel. v. Canty, supra, to point ont and distinguish the difference between these two classes of cases, and after further consideration I am unable to make that demarcation any plainer by anything I might here add.

No lawyer or judge differs as to the law governing these two classes of cases, but the trouble the courts have had, and I presume always will have, is to determine from the facts of each particular case to which class it belongs. The line of demarcation between the two is often so narrow that it becomes exceedingly difficult to follow it in many complicated and intricate cases; but fortunately for the court, this is not of that character. The petitioner was charged and found guilty of setting up and keeping a common bawdyhouse, which according to all of the authorities, in the absence of statute, is an ordinary crime, but not a public nuisance in any sense of the term.

A court of equity having no jurisdiction over the subject-matter of this cause, it necessarily follows, under the laws of this State, that the circuit court of Cole county had no authority to try and imprison the petitioner for the crime stated in the petition for the injunction. [State ex rel. v. Williams, 221 Mo. 227.]

If we are correct in this view of the law of the case, then the circuit court of Cole county sitting in eqnity, had no jurisdiction to enjoin the petitioner from committing the crime, of keeping a common bawdyhouse. That crime, if the petitioner is guilty of it, can be promptly and adequately punished under the criminal laws of the State, which were enacted expressly for that purpose, and there is, therefore, no necessity to resort to the extraordinary powers of a court of equity to suppress such a well-known and common crime.

So believing, I am of the opinion that the petitioner should be discharged; and it is so ordered.

Walker and Faris, JJ., concur; Grtives and Brown, JJ., concur in separate opinions; Lamm, G. J., and Bond, J., dissent.

CONCURRING OPINION.

BROWN, J.

— I concur in the conclusions reached by my learned brother Woodson, for the reason that in its suit against the petitioner the State is seeking to substitute the equity practice for the criminal law —a thing which the Constitution does not permit. A party whose property is being injured or destroyed by the criminal acts of another may enjoin such criminal acts, notwithstanding to do so amounts to enjoining the commission of a crime. [State ex rel. v. Schweickardt, 109 Mo. 496; State ex rel. v. Feitz, 174 Mo. App. 456.] Nevertheless it is not the theory of our organic law that the liberty of even the humblest citizen may be taken- away without a compliance with section 12, article 2, Constitution of Missouri, which ordains that all prosecutions for felonies and misdemeanors shall be by indictment or information; in which the accused shall be entitled to a trial by jury. [Sec. 28, art. 2, Constitution of Missouri.] In such trial the accused has the right to meet the witnesses against him “face to face.” [Section 22, art. 2, Constitution of Missouri.] This last clause of our organic law means that witnesses having personal knowledge tending to prove defendant’s guilt must confront him in court, and a conviction cannot stand upon the evidence of witnesses who have only heard rumors of defendant’s guilt. A mere rumor has no face, and cannot be “confronted” by anybody within the purview of our Constitution. [State v. Wellman, 253 Mo 302, l. c. 315.]

Before the constitutional safeguards above noted can be cast into the scrap-heap the people must amend their organic law.

SEPARATE CONCURRING OPINION.

GRAVES, J.

— I concur in the result reached by our brother Woodson in this case, but am not certain that I follow all of his reasoning. That my position may not be misunderstood I prefer to state it in my own way. The bill in equity involved in this case is' one which simply charged the defendant therein, the petitioner herein, with ‘ setting up and keeping a common bawdyhouse in Jefferson City, Missouri.” Upon this petition the temporary injunction was granted, and for the violation of which petitioner was deprived of her liberty. To my mind the trouble with this petition is that it states no cause, of equitable cognizance, but as I see it, not for the reasons stated by my brother.

I adhere strictly to the rule announced in State ex rel. v. Canty, 207 Mo. 439, and State ex rel. v. Lamb, 237 Mo. 437. I do not understand those eases to say that a court of equity will enjoin a crime, but they do announce the doctrine that when a given state of facts shows a public nuisance, then a court of equity will enjoin the doing of the acts which make up and constitute the public nuisance, although such acts or some of them may within themselves be crimes.

Now at common law the mere maintenance of a bawdyhouse was a public nuisance. Thus in 14 Cyc. 484 it is said: “A bawdyhouse was a public nuisance at common law, because it drew together lewd and debauched persons, thus tending to disturb the peace and 'to increase immorality among the people.”

By statute it has been made a crime, but the making of it a crime has not destroyed its character as a public nuisance, and therefore the jurisdiction of equity over it as a public nuisance. At the instance of the State, through its law officers, public nuisances may be abated, as can private nuisances at the instance of the individual.

But all this does not help- the State in this case. The petition for equitable relief should have averred in direct terms that the defendant was maintaining a public nuisance, but the term “public nuisance” is not found therein. On the other hand the criminal name for the act is used throughout. It may appear to be a refinement to say, that in law the keeping of a bawdy-house is a public nuisance, and yet say that a petition in equity which says the defendant is keeping a bawdy-house does not charge her with maintaining a public nuisance. But when we consider the fact that equity can only také hold of the subject upon the theory of there being a public nuisance, it is clear that the charge in the bill should specifically aver a public nuisance. This of course should be followed by specifications. The bill in this case, upon which the temporary injunction was granted,- does not so charge, and therefore stated no cause in equity.


text:
    STATE ex rel. MAY LAYMASTER v. KENNETH WILHITE and J. G. SLATE.
    In Banc,
    July 14, 1914.

      Certiorari.

    Dismissed.

      Irwin & Peters tor relator.

      James H. Lay and A. M. Hough for respondents.
   WOODSON, J.

— This proceeding was begun in this court, requesting a writ of certiorari, requiring-the judge of the circuit court of Cole county to send up a complete record of that court in a contempt case against May Laymaster, in and of a habeas corpus proceeding also pending in this court, and disposed of at this sitting of the court. [Ante, p. 613.]

The writ was issued and the record was sent up as requested.

The disposition of that case also disposes of this, and the cause is therefore dismissed.

All concur except, Bond, J., not present.