author: VALLIANT, P. J.

text:
    AMERICAN BREWING COMPANY, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    February 26, 1908.
    1. PAYMENTS: Voluntary: Water: License. The city ordinance fixed the ordinance rate for water obtained from the city works, when the water used for purely manufacturing purposes exceeded twenty-five thousand gallons per day, at one and one-fourth cents per hundred gallons, and at one cent per hundred gallons when the amount consumed annually exceeded fifty million gallons; and in order to obtain water from the city, plaintiff was required to take out a license for which it had to pay in advance for the estimated quantity likely to be used for the ensuing period of six months, and if at the end of a six-months’ period a reading of the meter showed that the quantity used was either more or less than the estimate, the difference was to be adjusted and the account balanced. The plaintiff took out three licenses, each for a period of six months, the three covering a period of eighteen months, and paid for the same at the rate of one and one-fourth cents per hundred gallons, but at the end of the time the meter readings showed it had used more than fifty millions gallons annually, and it sues for a return by the city to it of one-fourth of one cent for each hundred gallons -used. The evidence showed that at the time the licenses were taken out the quantity likely to be used was a mere estimate, that neither the plaintiff nor the assessor of water rates could know certainly what it would be, and that the licenses were issued with the understanding that the differences between the estimates and the actual consumption as shown by the meters were to be adjusted at the end of each six months’ period. Seld, that the plaintiff was not precluded . from recovering on the theory that the payments were voluntary.
    2. WATER: Manufacturing Purposes: Burden of Proof. The burden was not on the city, when sued for excessive payment for water furnished at the rate of one cent per hundred gallons when the amount annually used for purely manufa.c/uring purposes exceeded fifty million dollars, to show that a part of the water was used for a saloon or that the amount used for any purpose other than purely manufacturing purposes was sufficient to reduce the amount consumed to less than fifty million gallons. The burden was on the manufacturing company to show that the water it used was for purely manufacturing purposes.
    3. -: -: Finding of Trier of Fact. In an action at law the finding of the trier of the facts will not on appeal be disturbed if there is any substantial foundation for it in the evidence. And whether or not the water used by plaintiff was used for purely' manufacturing purposes is such an issue. And the rule is to be observed when the finding was against plaintiff on whom was the burden of proof, because of a failure to make such proof, as it is where the finding is in his favor, because he did make proof to support it.
    4. -: -: What is: In Making Beer. It is not necessary, where the issue is whether or not the water used in the manufacture of beer was used “for purely manufacturing purposes,” for the company to show that the water went solely into the composition of beer; it was used for such purpose if it was used or consumed in the business of making beer, whether in the composition of the beer itself, or for cooling and ice machines, etc.
    5. -: -: -: -: Reversal Because of Wrong Theory. And where the issue was whether the water used was used “for purely manufacturing purposes,” and the trial court found it was not so used, but the evidence on that point is very meager, and the questions asked indicated that the defendant tried that issue on the theory that the water was not used “for purely manufacturing purposes” unless it was used solely in the composition of beer, and no instructions were given or asked, the judgment will be reversed and the cause remanded, in order that complete justice may be done, although the rule is that the finding by the trier of the fact is binding on this court on appeal; for, if the court tried the case on that theory, an error of law influenced its finding.
    Appeal from St. Louis City Circuit Court. — No». Walter B. Douglas, Judge.
    Reversed and remanded.

      Harlan, Jeffries S Wagner for appellant.
    (1) Appellant is entitled to the rate of one cent per hundred gallons under the ordinance, (a) It is affirmatively shown by the evidence that, during the period in controversy, (1), appellant consumed over fifty million gallons of water annually from respondent’s water works; (2), appellant used the same at its manufacturing plant, located wholly in one city block; and (3), appellant used all of the same for purely manufacturing purposes. (b) The affirmative 'and uncontradieted evidence that all the water was used for purely manufacturing purposes is strengthened by the presumption that respondent’s officers in authority, the assessor and collector of wafer rafes and his deputies, did their duty under the ordinance, and that in giving the appellant the one and one-fourth cent rate for purely manufacturing purposes, during the period in controversy, they must have found that the water was being used for such purposes. Municipal Code, St. Louis, 1901, ch. 38, secs. 23.18, 2319, 2320a, 2321, 2323, 2325-, 2338, 2343, 2345, 2348, 2349', 2350', 2352, 2353, 2354; Hammond v. Gordon, 93 Mo. 223'; Adams v. Cowley, 95 Mo. 501; State ex rel. v. Bank of Neosho, 120 Mo. 161; McShane v. School District, 70 Mo. App. 624. (g) Respondent’s officers again found the fact that the water had been so used for purely manufacturing purposes, by their correction of appellant’s rate to one cent per hundred gallons, after discovery of the overcharge. (d) Appellant is entitled to the benefit of the further presumption that it, and its officers and employes, as well as respondent’s officers, obeyed the law and complied with the ordinance prohibiting the use of water through respondent’s meters by unauthorized persons, or for unauthorized uses, and prescribing penalties and forfeitures therefor. Municipal Code St. Louis, 1901, ch. 38, secs. 2343, 2344, 2345, 2349, 2350, 2352, 2353, 2364; St. Louis v. Arnot, 94 Mo. 275; State ex rel. v. Bank of Neosho, 120 Mo. 161. (e) Even if the evidence disclosed, which it does not, that any part of the water had been used for other than purely manufacturing purposes, unless the evidence also showed, which it does not, that such an amount was so used as to reduce the amount used for purely manufacturing purposes hy appellant to less than fifty million gallons annually during the period in controversy, such proof would only go to reduce, pro rata, the amount of the overcharge and appellant’s consequent damage, and would not defeat its cause of action. (2) The overpayment was made by appellant under compulsion or duress. Westlake '& Button v. St. Louis, 77 Mo. 47; St. Louis Brewing Association v. St. Louis, 140 Mo. 428; American Brewing Company v. St. Louis, 187 Mo. 367.

      Charles W. Bates and Charles P. Williams for respondent.
    (1) This court cannot, on the evidence, find, as a matter of fact, that the water was used for purely manufacturing purposes, and withdraw the money from its designated special application. Charter of St. Louis, art. 7, sec. 11. (2) Mr. Koehler’s testimony as to general matters is necessarily qualified by the reference to special matters. (3) There need be no presumption of plaintiff’s violation of the ordinances. Plaintiff had the right to use one and one-fourth cent water for general purposes. (4) The action of the former assessor of water rates with respect to former distinct periods, is presumed to have been correct as applied to the matters coming under his jurisdiction, and forming, as to him, distinct and separate res gestae. (5) The correctness of this former official’s action is not impeached, by showing that the action of a successor, with respect to new and distinct periods, constituting distinct and new res gestae, was different. (6) Plaintiff is seeking to show that it belonged to a special class, with a special rate. It cannot belong to two classes at the same time. (7) The facts shown do not constitute duress or compulsion. The fundamental basis of duress is fear. It must appear that tbe vis compulsiva overcame the will of the person affected, causing' him to do something’ he would not otherwise have done. 2 Greenleaf on Evidence, sec. 301; James v. Dalbey, 107 Iowa 468; Dunham v. G-riswold, 100' N. Y. 226; Flanagan v. Minneapolis, 36 Minn. 406 ; Brown v. Pierce, 7 Wall. 214; Galnsha v. Sherman, 105 Wis. 263; Bank v. North, 114 Wis. 637; Hackley v. Headley, 45 Mich. 569; Bank v. Sargent, 91 N. W. 597; Darling v. Hines, 5 Ind. App. 326 ; Newburyport Water Co. v. City, 103 Fed. 594; Douglas v. Kansas City, 147 Mo. 428; Walker v. St. Louis, 15 Mo. 563; State ex rel. v. Stonestreet, 92 Mo. App. 214. The mere customary sending out of notices, calling attention to the law, is not sufficient. Douglas v. Kansas City, 147 Mo. 428. Mistake is no part of this case. American Brewing Co. v. City, 187 Mo. 380. (8) Any other rule will confuse, hopelessly, mistake and duress. (9) This court cannot reverse upon the record below; and this court will not look to the memorandum of the trial court either to support or defeat the judgment below. Breeheisen v. Coffey, 15 Mo. App. 80; Kennard v. Peck, 19 Mo. App. 342; Mead v. Spalding, 94 Mo. 43; Hewitt v. Steele, 118 Mo. 463; Kreis v. Railroad, 131 Mo. 533; Kennedy v. McNichols, 29 Mo. App. 11.
   VALLIANT, P. J.

Plaintiff sues to recover a sum which it is stated in the petition the plaintiff was compelled to pay for the use of water furnished the plaintiff by the city in excess of the rate prescribed by the city ordinance. By the provisions of the ordinance set out in the petition the meter rate for water, when the quantity used for purely manufacturing purposes exceeded an average of twenty-five thousand gallons per day, was one and one-fourth cents per hundred gallons, provided that when the quantity exceeded fifty million gallons annually the rate should be one cent per hundred gallons. The petition stated that plaintiff used for purely manufacturing purposes within the time mentioned more than fifty million gallons annually, yet the city required plaintiff to pay one and one-fourth cents per hundred gallons.

This is the second appeal in this ease. The former appeal was from the judgment sustaining a general demurrer to the petition; that judgment was reversed and the cause remanded. [Am. Brewing Co. v. St. Louis, 187 Mo. 367.]

When the cause went hack to the circuit court, defendant filed an answer, the purport of which was a general denial and a plea that the plaintiff’s payment was voluntary.

The cause was tried hy the court, jury waived. The plaintiff’s evidence showed that in order to obtain water from the city the plaintiff was required to take out a license for which it had to pay in advance for the estimated quantity likely to be used for the ensuing period of six months, and a new or renewed license was to he taken out and paid for in advance every six months. If at the end of a six-months’ period a reading of the meter showed that the quantity used was either more or less than the estimate, the difference was adjusted and the account balanced to date. The plaintiff took out three licenses, each to cover a period of six months, the three covering a whole period of eighteen consecutive months, and paid for the same at the rate of one and one-fourth- cents per hundred gallons, which was the rate it was required to pay. At the end of the time it was shown hy the meter readings that plaintiff used more than fifty million gallons annually. The evidence also showed that after that period the licenses were issued to the plaintiff at the rate of one cent per hundred gallons.

On the former appeal it was held that the plaintiff was not precluded from recovering on the theory that the payments made, under the circumstances above shown, were voluntary. The petition stated and the evidence showed that the plaintiff was dependent on the city for water, could not carry on its business without it and could not obtain it except by complying with the demands. The plaintiff perhaps could have taken out a license estimated on an annual consumption of fifty million gallons and have paid in advance therefor only one cent per hundred gallons, but if it turned out at the end of the year that less than fifty million gallons had been used plaintiff would have been liable to the city for the additional one-fourth cent per hundred gallons, and would have had to adjust the difference before taking out another license. The evidence showed that in the beginning the quantity likely to be consumed was a mere estimate, neither the plaintiff nor the assessor of water rates could know certainly what it would be, and the licenses were issued with the understanding that the differences between the estimates and the actual consumption shown by the meters were to be adjusted at the end of each six months’ period. The plaintiff was not precluded on the theory that the payments were voluntary.

There remains but one question in the case and that is a question of fact: Was the water used purely for manufacturing purposes? The ordinance prescribing the rates says: “When the quantity used exceeds an average of twenty-five thousand gallons per day, one and one-fourth cents per hundred gallons. The meter rate for the use of water for purely manufacturing purposes and livery stables is hereby fixed at one and one-fourth cents per one hundred gallons; provided, that when the quantity used exceeds fifty million gallons annually by any manufacturing plant, located in one or more blocks adjoining each other, the rate shall be one cent per hundred gallons. ’ ’

There was but one witness on that point, Mr. Koehler, the president of the plaintiff corporation. His evidence was directed chiefly to the issue of voluntary payment. In his direct examination he was not questioned especially in reference to the purpose for which the water was used, hut he stated in general terms that the manufacturing business in which he was engaged required great quantities of water and he obtained the water to be so used from the city; could obtain it from no other source. On cross-examination he was asked if all the water that passed through the meters was used in the manufacture of beer, he answered: “We used it for general manufacturing purposes connected with the manufacture of beer. It does not all go into beer. A great deal is used for the purpose of cooling and ice machines and so forth. Q. Was any of this water passed through those meters used for any purpose other than that connected with the manufacture of beer? A. No, sir. Q. There is a saloon, or was, on your property on Seventh street, is there not? A. Tes. Q. Where did that saloon get its water during this period?' A. I do not know, I really do not. . . . Q. As far as you know is it not your best impression, Mr. Koehler, that that saloon was supplied with water from your plant?. A. Well, I cannot say, I do not know whether they paid a separate license or not. Q. You would not swear a part of this water was not used by the saloon? A. No, sir; I would not testify either way, because I do not know. ’9 The witness was then asked about a stable, and if the water used in it was not a part of that which passed through these meters, and he said.he did not know. That was practically all the evidence adduced to prove that all this water was used for purely manufacturing purposes. The trier of the fact thought, it was not sufficient and found for the defendant on that issue. In a law case an appellate court does not, as a rule, review the evideuce further than to ascertain if there was any substantial evidence to support the finding.

The plaintiff was not entitled to recover unless the water was used for purely manufacturing purposes. That fact was an essential averment in the petition and it was traversed by the general denial in the answer. The burden of proof therefore was on the plaintiff.

It is argued that the court should have considered the fact that the ordinances in evidence made it the duty of the city officials to see that a license was not abused by the licensee suffering water to he used for a purpose other than that for which it was issued. The part of the ordinance above quoted shows that whilst the rate of one and one-fourth cents per hundred gallons is given for water to he used for manufacturing and livery-stable purposes when the quantity used exceeds twenty-five thousand gallons per day, yet that rate is not given exclusively for that purpose; the preceding sentence fixes that rate for all water in that quantity passing through the meters, without specifying for what purpose, and as the plaintiff’s license called for the one and one-fourth cent rate it is at least questionable if the city officers had the right to prohibit the plaintiff using the water for any other purpose of its own than manufacturing. Of course they could have prevented the plaintiff from suffering any one else to use water coming through its meters.

The point is advanced that after the eighteen months which constitute the period in which this controversy arose the assessor of water rates recognized that the plaintiff was entitled to the one cent rate and gave it. But the evidence shows that Mr. Harris, the official who gave the rate, did so because it appeared from the hooks in the water-rates office that the plaintiff was using annually more than fifty million gallons of water. He was asked on cross-examination whether he knew that all the water that passed through the plaintiff’s meters was used for purely manufacturing purposes, and he answered that he did not know.

It is also argued that to defeat the plaintiff’s claim it devolved on the city to show that the quantity of water that was used for the saloon or other purposes was enough to reduce the total quantity to less than fifty million gallons. That argument assumes that the burden was on the defendant to show that some and how much of the water was used for other than manufacturing purposes; but that is an erroneous assumption, the burden was on the plaintiff to show that the water it used was for purely manufacturing purposes.

The evidence, as we have seen, was very meager. The plaintiff in its testimony was directing its attention to the refutation of the defendant’s plea that the payments were voluntary, and seems to. have overlooked the question as to the use made of the water, and all the evidence that there was on that point came out in the defendant’s cross-esamination of the plaintiff’s witness who was evidently not prepared to answer the questions, therefore in answer to the questions concerning the water used in the saloon and stable he said that he really did not know. On that testimony the court found that the plaintiff had failed to' prove that all the water that passed through the meters was used for purely manufacturing purposes.

As we have already said, this is an action at law, and in such case the finding of the trier of the fact will not be disturbed if there is any substantial foundation for it in the evidence. This is true as well when the finding is against the party on whom was the burden of proof because of failure to make the proof, as it is where the finding was in his favor because he did make proof to support it. "We do not mean to trench on that rule in this case, and although the testimony on that point was very meager, and the point itself seems to have been overlooked in the effort to meet the other defense which was specially pleaded, and although to affirm a judgment based on a finding under such circumstances might not leave onr minds entirely satisfied that complete justice had been done, yet we would be constrained to affirm the judgment unless it appears from the face of the record that an error of law entered into the finding of the fact. "When Mr. Koehler, the president of the plaintiff corporation, was on the stand as a witness for the plaintiff he was, on cross-examination by defendant, asked this question: “Do you know whether or not you used any of the water that came through these meters in anything else than putting it in the beer you manufactured 1 ’ ’ That question signified that to the mind of the counsel asking it, it was material to know whether the whole quantity of water that passed through the meters went into thebeer that was manufactured and it implied that in the opinion of the interrogator only so much of the water that went into the composition of the beer could be deemed to have been used for purely manufacturing purposes. The witness answered in effect that it was all used in the business of manufacturing beer, though not all entered into the beer as one of its ingredients. It was not necessary for the plaintiff to prove that the water went into the composition of the beer; it was sufficient if it was used or consumed in the business of making beer, as said by Mr. Koehler, for example, cooling, ice machines and many other uses to which it might be applied. "What view the court as the trier of the fact took of that question we of course do not know, as no instruction was asked or given on it, but the fact is the defendant brought out the evidence and it was in the mind of the court when the finding was rendered.

If the court took the view of the law as was implied in the question, if it gave weight to the testimony thus adduced by tbe defendant — tben an error of law influenced tbe finding of tbe fact. Tbe court may bave disregarded this evidence and rested its finding on tbe fact that tbe evidence showed that there was a saloon on tbe premises and a stable near by and tbe plaintiff was unable to say what part of tbe wáter that passed through its meters was not used in supplying tbe saloon and tbe stable, but that we do- not know. We think that justice will be better satisfied with a new trial when these doubtful points may be cleared up. Tbe judgment is reversed and tbe cause remanded to be retried.

Lamm and Graves, JJ., concur; Woodson, J., dissents.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    JAMES H. REYNOLDS, Appellant, v. WILLIAM E. HOOD.
    Division One,
    February 26, 1908.
    1. PRACTICE: Peremptory Instruction. A peremptory instruction to find for plaintiff should not he given in any cause where his prima-facie case is not admitted, or where if admitted the defendant has introduced evidence which tends to disprove it.
    2. EJECTMENT: Title: Limitations: Peremptory Instruction. Although the evidence shows the paper title to he in plaintiff, yet if defendant has introduced evidence which tends to show that he or those under whom he claims, had been in the open, exclusive and adverse possession for more than ten years before the institution of the suit, claiming to be the owners, the court should not give a peremptory instruction to find for plaintiff.
    3. -: -: Adjustment and Compromise: Estoppel. And where there is substantial evidence that plaintiff had brought a former suit for the land in controversy and other land, and it was agreed and stipulated that, as a settlement of all adverse claims between plaintiff and defendant, plaintiff was to have judgment for a twenty-foot strip lying between their adjoining farms and defendant was to have all the rest of the land claimed by both, and such judgment was entered, and defendant moved back his fence and yielded possession of the twenty-foot strip to plaintiff, no peremptory instruction to find for plaintiff should be given, for if tbat evidence was true it was a complete bar to plaintiff’s action.
    4. -: Boundary Line: Dispute: Settlement. Where there is a dispute as to the location of the true boundary line between two adjoining proprietors, or where the line is uncertain and they are ignorant of its true location, and by agreement they fix upon á permanent boundary line and take possession in pursuance thereof, the agreement is valid and binding upon them and those claiming under them.
    5. -: -: Former Suit: Estoppel. Where the judgment in ejectment was by agreement, settling the boundary line between two adjoining proprietors, and the parties have taken possession under that judgment, it operates as an estoppel between them, and is a bar to all future actions of ejectment between them for the same property; and, if defendant at the time of the former suit was claiming to own all the land and was actually suing for recovery, it is wholly immaterial whether he owned all of the land at that time or acquired it by deed or inheritance thereafter.
    Appeal from Greene Circuit Court. — Eon. Jas. T. Ne-ville, Judge.
    Affirmed.

      A. E. Wear for appellant.
    (1) Defendant admits Ms possession of the land in controversy; and plaintiff shows that it descended to him and his grantors, and no sale or transfer of the title to the same from their ancestor entitles plaintiff to recover. R. S. 1899, sec. 3060. (2) The claim of an agreement to settle the dispute of the line between plaintiff and defendant in a former suit is not sustained by the judgment entered in said former suit. That suit was instituted to recover other lands, and nothing of defendant’s claim is mentioned or appears in the judgment. The defendant’s statements, made to William Winters and to Frank Winters long after the rendition of such former judgment, is a complete refutation of the' claim and shows that defendant did not have in mind the subject-matter of this suit at the time such judgment was entered. The conduct of plaintiff at the time; his denial of any such agreement, and his subsequent conduct in buying up the interests of those owning the land, and doing this, too, immediately after the conclusion of the former trial — these facts and circumstances show that he had no such agreement or understanding as claimed by defendant, in his mind, and could not have thought or considered that he was agreeing to adjust his rights with respect to the land now in controversy.

      F. T. Stockard and Gideon & Sons for respondent.
    Where there is a dispute as to the true division line between adjoining proprietors, or the line is uncertain and they are ignorant of its true location, as in this case, and they fix and agree upon a permanent boundary line and take possession accordingly, as the circuit' court in this case found that they did do, the agreement is binding on them and those claiming under them. Krider v. Milner, 99 Mo. 145; Golterman v. Schiermeyer, 111 Mo. 404; Jacobs v. Mosely, 91 Mo. 457; Barnes v. Allison, 166 Mo. 96.
   WOODSON, J.

This is a suit in ejectment, instituted in the circuit court of Greene county, by the plaintiff against the defendant, to recover a certain strip of land, described in the petition, and $100 damages for the unlawful withholding the possession thereof from plaintiff, and one dollar monthly rents and profits.

This case was commenced in the circuit court of Greene county, Missouri, at the September term, 1904. The petition is in the usual form for ejectment and prays to recover the possession of the following described land situate in Greene county, Missouri, to-wit: Beginning at a point 12 rods north of the southeast corner of the northeast quarter of the northwest quarter of section 2 in township 28 of range 24, running thence north 18 feet and 6 inches, thence west 80 rods, thence south 18 feet and 6 inches, thence east 80 rods to the place of beginning, and in section 2, township 28, range 24, and for the recovery of one hundred dollars damages, and for one dollar a month as monthly rents from the rendition of judgment until the premises are delivered to plaintiff.

The answer of the defendant (omitting the caption and style of cause) is as follows:'

“Now at this day comes the defendant and for answer to plaintiff’s petition admits that he is in the possession of the strip of land, or premises, sued for by the plaintiff, but denies each and every other allegation in plaintiff’s said petition contained.
“And for another further separate answer and second defense to plaintiff’s said petition, states that on the 21st day of August, 1897, the plaintiff filed an ejectment suit in this court against the defendant, asking for the possession of the north thirty-four and eighty one-hundredths acres of the said northeast quarter of the northwest quarter, said section, township and range, and that the division or true line between their premises, then being uncertain, unsettled and unknown to both the plaintiff and defendant, as a compromise and settlement of all differences between them as to the true division line, it was agreed by and between them that the true line dividing their respective tracts of land was twenty feet south of the plaintiff’s fence as then located, and that this court might render such a judgment fixing the true line between this defendantand the plaintiff, and in pursuance of said agreement, compromise and adjustment, and in confirmation thereof and the settlement of the line between plaintiff’sand defendant’s possessions, this court did on the 11 day of October, 1897, render the following judgment:
“ ‘ J. II. Reynolds, Plaintiff, v. W. E. Hood, Defendant.
“ ‘Now at this day come the parties, plaintiff and defendant, by their respective attorneys. Whereupon, by agreement of said parties, judgment is entered herein in favor of the plaintiff and against the defendant for a strip of land twenty feet wide south of the fence as now located on the land in dispute in the northeast quarter of the northwest quarter of section 2, township 28, range 24, and being so entitled to the possession thereof, the said defendant unlawfully withholds from plaintiff the possession thereof. It is therefore considered, adjudged and ordered by the court that the plaintiff have and recover of and from the defendant the possession of the strip of land twenty feet wide south of the fence as now located on the land in dispute, together with all costs in this behalf laid out and expended, for which execution may issue.’
“Which said judgment is recorded in this court in Circuit Court Record No. 60, at page 524.
“And thereupon this defendant paid all costs of said suit, and in pursuance of said compromise, agreement and judgment this defendant at great costs, expense and labor immediately moved his said fence twenty-two feet south of where said fence was then located, where the same now is and has remained since the year 1897, and plaintiff is estopped from claiming the same.
“And for another and further answer and third defense to plaintiff’s said petition, says that he has been in the open, notorious, exclusive, continuous, adverse possession of the premises sued for by the plaintiff: for more than ten years before the commencement of this suit, claiming to be the sole owner thereof.
“Wherefore, the defendant prays the court to be discharged with his costs.”

Tlie replication of plaintiff was general denial of the new matter set up in defendant’s answer.

The case was tried by the court without the intervention of a jury.

David D. Reynolds was the common source of title, and the plaintiff is one of his grandsons. On and prior to August 21, 1897, the plaintiff, by inheritance and mesne conveyances, acquired title to the strip of land in controversy, excepting a small interest, which does not affect the legal propositions herein involved. The defendant was in possession of the land at the time of the institution of the suit. The value of the annual rents and profits was five dollars.

The defendant’s evidence tended to prove that he had been in the open, notorious, exclusive and adverse possession of the premises for more than ten years, next before the institution of this suit. He also introduced evidence which tended to prove that on and prior to August 21, 1897, he was in possession of not only the strip of land now in controversy, but was also in possession of an additional strip of land, twenty feet in width, adjoining thereto on the north and extending the entire length thereof; that on and prior to said date both the plaintiff and defendant claimed to own all of said land, that is, both of said strips of ground, and that on said day the plaintiff sued the defendant in ejectment for the possession of all of said land; that said land was situated between plaintiff’s and defendant’s farms, and that the true boundary line between them was unknown to either of them, and its exact location was in dispute, both claiming all of said land. That during the pendency of said suit, they effected a compromise as to the true boundary between them, defendant agreeing to give to plaintiff the said strip of land twenty feet in width in consideration that defendant would1 relinquish all claim to the strip now in suit; that in pursuance to that agreement and in adjustment of their differences, the judgment pleaded in the answer was, by agreement of parties, rendered in said suit. That after the rendition of the judgment, and in pursuance thereof, he moved his fence south twenty feet and thereby surrendered the possession of that twenty feet strip to plaintiff, and retained possession of the strip of land now in controversy in pursuance to said agreement and judgment; for several years prior to August 21, 1897, and ever since that date, he has been in the open, notorious, exclusive and adverse possession of said land, claiming to own it by virtue of his original rights thereto; and ever since the date of the rendition of said judgment, he has also claimed to hold and own the title to said land by virtue of said agreement and judgment.

In rebuttal, the plaintiff introduced evidence tending to rebut and contradict defendant’s evidence regarding the agreement mentioned; and also to contradict his evidence regarding his title to the land by adverse possession.

At the close of all the evidence, the plaintiff asked, and the court refused, a mandatory instruction, telling the jury to find for the plaintiff, to which action of the court the plaintiff duly saved exceptions.

The plaintiff also asked for the following instruction which the court refused, to which action the plaintiff duly excepted, to-wit:

‘ ‘ 6. The plaintiff, not being the owner of the interests of his grantors as shown in the evidence in this suit at the commencement of the former suit between plaintiff and defendant for the possession of other lands contiguous to the land in controversy, any judgment or settlement as to such other lands could not affect the land sued for in this case. ’ ’

The court then found the issues for the defendant, and entered judgment accordingly, and in due time and by proper steps the plaintiff took an appeal to this conrt.

I. The appellant asks for a reversal of the judgment of the trial court, because, he contends, the record shows that respondent was in possession of the land at the time of the institution of the suit, and that the title thereto descended to him and his grantors, and that it fails to show a sale or transfer of that title from him to- the respondent. It is for that reason appellant insists that his peremptory instruction should have been given.

Conceding all appellant’s claims to be true, yet the court properly refused to give the peremptory instruction asked, for two reasons: first, because the record shows there was evidence introduced by respondent which tends to prove he had acquired appellant’s title to the property by adverse possession; and, second, for the reason that the record discloses the fact that there was evidence introduced which tended to show that appellant and respondent were adjoining proprietors, and the true boundary line between them was unknown and in dispute, and that by agreement they fixed a permanent line, by respondent giving possession of the strip of land twenty feet in width, mentioned in the evidence, to the appellant, in consideration that the latter would relinquish all claims he had to the strip now in controversy.

It is improper to give a peremptory instruction to find for plaintiff in any cause where his prima-facie case is not admitted, or where if it is admitted the defendant has introduced evidence which tends to disprove that prima-facie case. In either of those cases the jury must weigh the evidence and pass upon the facts. [Milliken v. Commission Co., 202 Mo. 637, l. c. 655.]

The law is well settled, that where the evidence submitted at the trial of an action at law by the plaintiff and defendant, respectively, is conflicting, the findings of the trial court are conclusive upon this court, and we will not undertake to say on which side the weight of the evidence lay. [Blanton v. Dold, 109 Mo. l. c. 69; Dobbins v. Humphreys, 171 Mo. 198, 202; James v. Life Ass’n, 148 Mo. l. c. 15, 16.]

The trial court had before it the witnesses who testified, and had the opportunity of observing their demeanor on the witness stand and their manner of testifying. It was in much better position to judge as to the weight to be attached to the testimony of the respective witnesses than this court can possibly be. Even in equity proceedings, where the right of this court to review the evidence is unquestioned, the uniform practice of this court is to defer somewhat to the findings of the trial court on issues of fact, and to refuse to reverse a judgment of the lower court on the ground that the findings were against the weight of the evidence. [Kittredge v. Bldg. Assn., 103 Mo. App. 361; Johnson v. Realty Co., 177 Mo. 595, 597.]

H. It is equally well settled in this State, that where there is a dispute as to the location of the true boundary line between two adjoining proprietors, or where the line is uncertain and they are ignorant of its true location, and, by agreement, they fix upon a permanent boundary line and take possession in pursuance thereof, then the agreement is valid and binding on the parties thereto and those claiming under them. [Krider v. Milner, 99 Mo. 145; Goltermann v. Schiermeyer, 111 Mo. 404; Barnes v. Allison, 166 Mo. 96.]

The finding of the court in favor of the respondent upon this question is conclusive upon this court.

III. It is finally insisted by the appellant that the court erred in not giving instruction number six, asked by him, which told the jury, in effect, that the plaintiff not being the owner of all the interests of his grantors to the land in controversy at the commencement of the former suit between plaintiff and defendant for the possession of the other lands mentioned in evidence, that any suit could not be a bar to this present suit.

The action of the court in refusing this instruction was proper, for the reason that it ignores all the evidence of the settlement of the boundary line between them by agreement.

While, ordinarily, it is true a judgment in an ejectment suit is not a bar to another .between the same parties regarding the same land; yet where that judgment was, by agreement, based upon a valid contract settling the boundary line between two adjoining landed proprietors, and the parties have taken possession under that judgment, as in this case, then the judgment operates as an estoppel between the parties, and is a bar to all future actions of ejectment between them regarding the same property, and it is wholly immaterial whether he owned all of the land at that time or not, since the evidence tended to show, and the court found, that he was claiming to own all of the land and was actually suing for recovery.

The answer sets up an equitable defense, and the court found the facts therein stated to be true, which is a perfect bar to an action in ejectment. [Chouteau v. Gibson, 76 Mo. 38.]

Finding no error in the record, we are of the opinion that the judgment should be affirmed.

All concur.


author: GRAVES, J. Lamm, J.,

text:
    CAROLINE PERRY, Appellant, v. MRS. P. W. STRAWBRIDGE and Mrs. J. A. THOMPSON, Appellants, and CALLIE EVANS et al., Respondents.
    Division One,
    February 26, 1908.
    1. INHERITANCE: Through Murder of Intestate. One who murders an owner of property cannot inherit from such murdered person. Especially should that be the ruling where the murderer has only a mere expectancy in his victim’s property. So where George Evans murdered his wife, who died without children or other descendants, and soon afterwards committed suicide, he did not inherit any interest in her property, and hence his children have no interest therein.
    2. -: By Husband: Curtesy. Under the Act of 1895 (Sec. 2938, R. S. 1899) the husband cannot be denied the right to one-half his childless wife’s property because he had no curtesy in her estate. The very purpose of that act was to make provision for the husband in case he had no curtesy.
    3. -: Profiting by Crime: Common Law: Part of Statute. By the common law no one shall be permitted to acquire property by his own crime, and the common law is by statute made a part of the law of this State, unless repealed, changed or modified by statute, and in this respect it has not, either expressly or impliedly, been repealed or modified by our Statute of Descents and Distributions. Hence, a husband who murders his childless wife cannot, under the act of 1895, inherit her property, nor can his children inherit her property through him.
    4. -: Statutory Construction: In Light of Common Law: Act of 1895. Statutes are not only read and construed in the light of the common law, but those in derogation of the common law are to be strictly construed, especially where’ they are in derogation of common right and common decency. The Widower’s Dower Act of 1895 is not inconsistent with the common law which prohibited an heir from inheriting the property of an intestate whom he had murdered.
    5. -: -1 — : Spirit and Meaning: Exception: Widower. The courts will not give a construction to a statute which is abhorrent to reason, but one in harmony with its reason and spirit. Though general in its terms and by its strict letter applicable to the case in suit, an exception will be made when to hold it ) apply will be to shock a sense' of decency and common right, and defeat the intention and high purpose of the statute itself. Hence, the word “widower” in the Act of 1895, providing that when the wife shall die without any child or other descendants, her widower shall be entitled to one-half of all her property absolutely, means one who has been reduced to that condition by the ordinary and usual vicissitudes of life, and not one who by his own criminal act has made himself a widower.
    6. -: Murder: Forfeiture of Estate. To hold that a murderer cannot inherit the property of his victim is not to violate the Bill of Rights which says that “no conviction can work corruption of blood or forfeiture of estate.” In such case, the murderer acquired no estate in his victim’s property.
    Appeal from Jackson Circuit Court. — Hon. W. B. Teasdale, Judge.
    Reversed and remanded (with directions).

      Reed, Yates, Mastín é Harvey for appellants.
    (1) Section 2988, Revised Statutes 1899, was enacted as a companion statute to section 2939, Revised Statutes 1899, and the same rules of legal construction apply to both. Under section 2939 the wife takes in lieu of dower. Under section 2938 the husband takes in lieu of curtesy. Yon Arb v. Thomas, 163 Mo. 33; Gilroy v. Brady, 195 Mo. 209; Spurlock v. Burnett, 183 Mo. 501; Matney v. Graham, 50 Mo'. 559; Wigley v. Beauchamp, 51 Mo. 544; Hamilton v. O’Neil, 9 Mo. 11; Jarboe v. Hey, 122 Mo. 354; Payne v. Payne, 119 Mo. 174; Westerman v. S. L. K of P., 196 Mo. 714. (2) A husband cannot take under section 2988 property of the wife whose death was occasioned by the criminal and felonious act of the husband himself. Wharton on Homicide (3 Ed.),- p. 1064, sec. 665; Cleaver v. life Asso., 1 Q. B. 147; Lundy v. Lundy, 24 Can. Sc. 650; Box v. Lanier, 112 Tenn. 393; Mutual Life Ins. Co. v. Armstrong 117 U. S. 591; Schreiner v. High Ct. C. O. of F., 35 111. App. 576; Schmidt v. Northern Life Asso., 112 Iowa 41; Riggs v. Palmer, 115' N. Y. 506, 5 L. R. A. 340; Shellenberger v. Ransom, 31 Neb. 61, 10 L. R. A. 810; McKinnon v. Lnndy, 24 Ont. Rep'. 132. (3) Statutes are to be read and construed in the light of the common law and with reference to its cognate principles. Johnson v. Fluetsch, 176 Mo. 452; Brown v. Dressier, 125 Mo. 589; State v. Clinton, 67 Mo. 380; Judson v. Smith, 104 Mo. 61; Rozzelle v. Harmon, 103 Mo. 339; Westerman v. K. of P., 196 Mo. 714. (4) Sections 2938 and 2939 are to be construed as one law, and as reciprocal statutes affecting the estates of husband and wife respectively in the same manner. Gilroy v. Brady, 195 Mo. 209; Spnrlock v. Burnett, 183 Mo. 501; Waters v. Herboth, 178 Mo. 166. (5) Section 2938 of the statutes must be construed in accordance with the following settled rules: (a) Statutes are to be read and construed in the light of common law and with reference to its cognate principles. Among these principles is the maxim “No man can take advantage of his own wrong.” (b) Statutes in derogation of the common law are to receive such construction as not to allow them to infringe upon the rules or principles of the common law to any greater extent than is plainly expressed, (c) Statutes should always be construed so as to give effect to the intention of the lawmakers; to ascertain this intention the court is not confined to the language of the act but should consider the evil it was designed to remedy, and it is competent for the court to declare that a thing which may be within the letter of the statute is not governed by the statute. The reason of the law should prevail over its letter, (d) If a literal interpretation of the statute will distort it from its true purpose, or' lead to unjust, oppressive or absurd results, the presumption is that the Legislature intended an exception to its language, and this is true where there is neither obscurity or anything equivocal in the language of the law itself. 1 Kent’s Com., p. 464; Burt v. Ins. Co., 187 U. S. 362: Ins. Co. v. Armstrong, 117 U. S. 599; State v. Clinton, 67 Mo. 390; Jndson v. Smith, 104 Mo.-61; Westerman v. K. of P., 196 Mo. 670; Ross v. Railroad, 111 Mo. 25; Venable v. Railroad, 112 Mo. 103; Chouteau v. Railroad, 112 Mo. 375; Bank v. Haywood, 62 Mo. App. 550; State ex rel. v. Railroad, 105 Mo. App. 207; Townsend v. Hawkins, 45 Mo. 288; Gupton v. Gupton, 47 Mo. 46; Sharkey v. McDermott, 91 Mo. 652; Nowack v. Berger, 133 Mo. 42; Church of the Holy Trinity v. U. S., 143 U. S. 457 ; % Lau Ow Bew v. U. S-., 144 U. S. 47; Rodgers v. U. , 152 Fed. 346; Sams v. Sams, 85 Ky. 396; Henry v. Till-son, 17 Vt. 486; Reygate v. Wardsboro, 30 Vt. 446; In-graham v. Speed, 30 Miss. 410'.

      Ben T. Hardin and Clyde Taylor for respondents.
    (1) The right of the widower to take under section 2938 does not depend on the right of curtesy. Secs. 2938, 2941, R. S. 1899; Ferguson’s Estate v. Gentry, 104 S. W. 108. (2) The court cannot write an exception into the plain .words of section 2938', on the ground of public policy. The statute itself is public policy. Moorshead v. Railroad, 203 Mo. 121; Owens y. Owens, 100 N. C. 24; Deem y. Miliken, 53 Ohio St. 688; Shellenberger v. Ransom, 41 Neb. 631; Carpenters’ Appeal, 170 Pa. St. 203; In re Johnson Estate, 29 Pa. Super. Ct. 255; McAllister v. F'air, 72 Kan. 533; Kuhn v. Kuhn, 125 la. 449.

      Barnett & Barnett and Bruce Barnett also for respondents.
    (1) Under section 2938 the husband inherits one-half of his wife’s estate where she dies-without children even though the estate she left was one in which he had no interest as a tenant by the curtesy. The estate which the husband takes under this section is not an incident or dependent upon an estate by curtesy. Thestatnte in question absolutely provides that if the wife dies without children or other descendants, the husband shall be entitled to one-half of her estate. Gilroy v. Brady, 195 Mo. 208; Obrien v. Ash, 169 Mo. 288; Waters v. Herboth, 178 Mo. 169; Richter v. Bohnsack, 144 Mo. 516; Spurlock v. Burnett, 183 Mo. 528. (2) Whatever the rule may have been at common law, under our statute and Constitution and under similar statutes and Constitutions in this country, the fact that the husband took the life of his wife does not change the statutory devolution of the wife’s property and does not operate as a forfeiture of his inheritance. The statute establishes the rule of descent and distribution which is not affected by the criminal act of the heir or distributee. 21 Am. & Eng. Ency. Law (2 Ed.), 238 and 239; Shellenberger v. Ransom, 41 Neb. 631, 59 Neb. 935; Deem v. Millikin, 6 Ohio Circt. Ct. 357, affirmed-53 Ohio St. 668; Carpenter Estate, 170 Pa. St. 203; Owens v. Owens, 100 N. Car. 240; In re Johnson Estate, 29 Pa. Super. Ot. 225; In re Kuhn’s Estate (Iowa), 101 N. W. 151; McAllister v. Puir, 72 Kan. 533; King v. Ex’r of King, 64 Mo. App'. 301. The authorities cited by appellant are not in point, most of the eases relied on being insurance cases or other cases, where plaintiff’s cause of action is based upon the fraudulent abuse of contract right, and such cases have no analogy to a case in which the law itself casts the descent. Carpenter Estate, 170 Pa. St. 203. (3) But if we had a statute in this State forfeiting the inheritance of a homicide, should he take the life of the person from whom he otherwise would inherit, such statute would be unconstitutional. It is provided in our Constitution, “That no person can be attainted of treason or felony by the General Assembly; that no conviction can work corruption of blood or forfeiture of estate.” Sec. 13, art. 2, Constitution of Missouri; Carpenter’s Estate, 170 Pa. St. 203; Deem v. Millildn, 6 Ohio Circt. Ct. 357, affirmed 53 Ohio St. 668; Owens v. Owens, 100 N. Car. 240; McAllister v. Fair, 84 Pac. 113.
   GRAVES, J.

The petition is one for the partition of real estate in Jackson county, Missouri, formerly owned by Lillie Maud Evans, now deceased. Whilst a petition in partition, it admits that two defendants, Oallie Evans and Zora Evans, claim an interest in the property, but avers that they have -no interest. Two defendants, Mrs. P. W. Strawbridge and Mrs. J. A. Thompson, file answers, which in averments practically correspond with the petition of the plaintiff and likewise ask for partition. The defendants, Callie Evans and Zora Evans, by their separate answer, each aver that they are the children of George Evans, who was the husband of Lillie Maud Evans, and that the said Lillie Maud Evans died before their father and without children, by which fact their father inherited an undivided one-half interest in the property, which passed to them upon his subsequent death. These defendants prayed the court to ascertain and determine the title. Other defendants merely had undisputed mortgage rights. The case was tried upon the following agreed statement of facts:

“It is hereby agreed by the parties hereto, that upon the trial of this cause the following facts shall be taken as true: That on May 26th, 1902, one Henry Wollman was the absolute owner in fee simple of the land in the West Kansas Addition, number one, in plaintiff’s petition described; that on said day Lillie Maud Evans became the owner of said property by virtue of a full warranty deed from the said Henry Wollman; that on June 4th’ 1902, one James Clark Whittier was the absolute owner in fee simple of the land in Hyde Park in plaintiff’s petition described, and that on said last-named date Lilly Mand Evans became the owner of said property by virtue of a full warranty deed from said James Clark Whittier and wife; that George Evans and the said Lilly- Maud Evans were lawfully married on the 12th day of October, 1898; that no child was ever born of said union; that on August 15, 1903, said Lilly Maud Evans was the owner of the above-described land by virtue of the facts above set forth, and on said day was the lawful wife of the said George Evans; that on said August 15, 1903, the said Lilly Maud Evans died by the hand of her husband, the said George Evans, and that about three hours thereafter the said George Evans died by his own hand, all in Kansas City, Jackson county, Missouri; that the said Lilly Maud Evans died without .any child or other lineal descendant in being capable of inheriting; that at the time last aforesaid, the land in Hyde Park in plaintiff’s petition described, was encumbered by a deed of trust given by the said Lilly Mand Evans and her said husband to Benjamin F. Wollman, trustee for Henry Wollman, on September 19, 1902, to secure one principal note for $1,500', due three years after date, and six interest notes for $45 each; that at said time the land in the West Kansas Addition, number one, in plaintiff’s petition described, was encumbered by a deed of trust given by the said Lilly Maud Evans and her said husband to Benjamin F. Wollman, trustee for Henry Wollman, on June 18, 1902, to secure three principal notes payable-years from date, two of said notes being for $1,000 each, and the remaining one for $2,000', together with twelve interest notes for $30 each and six for $60 each.
“It is hereby further agreed that the said Lilly Maud Evans was' killed by the said George EVans without lawful provocation or excuse; that the said Lilly Maud Evans left surviving her, as her only next of kin, two sisters, Mrs. P. W. Strawbridge and Mrs. J. A. Thompson, and her mother, Caroline Perry, who are the only legal heirs except as to snch rights of inheritance, if any, as might under the circumstances aforesaid, or as may be shown on the trial in addition thereto, have accrued to her husband, the said George Evans; that the said George Evans left surviving him, as his sole heirs at law, two children by a former wife, Callie Evans and Zora Lee Evans; that Bdie Evans is the legal guardian of the person and estate of the said Zora Lee Evans, a minor. ’ ’

The court ascertained and decreed title and ascertained the rights and interests of the mortgagee. This decree vested an undivided one-sixth interest in the plaintiff and an undivided one-sixth interest in each of the defendants, Mrs. Strawbridge and Mrs. Thompson. It also vested an undivided one-fourth interest in each of the defendants, Callie and Zora Evans.

After unsuccessful motions for new trial and in arrest of judgment, the defendants, Mrs. Strawbridge and Mrs. Thompson, and the plaintiff appealed.

The only question is as to.what construction shall be placed upon section 2938, Revised Statutes 1899', in a case involving the admitted facts herein disclosed.

This is an exceedingly interesting case. The question for determination, bluntly stated, is, Can a husband who murders his wife inherit the one-half part of her estate under section 2938, Revised Statutes 1899 ? To this State it is a new question, and, with few exceptions, a new one in all the States. But few courts of last resort have been called upon to pass upon the question as to what effect the criminal act. of a prospective legal heir will have upon his or her rights, under positive statutes governing descents and distributions. Of those which have passed upon it, we frankly confess that the holdings of a majority thereof are against the views which we entertain and will hereafter express. fWe are not satisfied with the reasoning of those eases and have been unable to reach the conclusion that a mere prospective legal heir, or devisee in a will, can make certain that which was uncertain, by his own felonious act, in the cold-blooded murder of the party from whom he or she expects to inherit. We do not believe that these courts have fully applied and used the canons of statutory construction which we have the right to use and ought to use to avoid a result so repugnant to common right and common decency. The construction as has been given such statutes bruises and wounds the finer sensibilities of every man. In the case at bar, the murdered woman, younger in years, might have outlived the prospective heir. The property involved in this very suit might have been used by her for her own comforts even though she had died1 first. Being hers it might have been sold and the proceeds disposed of by gift or otherwise. Can it be said that one, by high-handed murder, can not only make himself an heir in fact, when he had but a mere expectancy before, but further shall enjoy the fruits of his own crime? To us this seems abhorrent to all reason, and reason is the better element of the law./' With these preliminary remarks, we will now dispose of the several contentions involved here, as well as assign our reasons for the views we entertain upon the main proposition.

I. It is suggested in one of the briefs for respondents that the appellants have failed to file a sufficient abstract of the record and we take it for that reason they would have us affirm the judgment. We have examined the record carefully and conclude that it is sufficient to meet the requirements of the law and the rules of the court. It is also urged that there is no separate assignment of errors in the brief as required by Rule 15 of this court and for that reason there is a failure to comply with the rules. The same question was before us and fully discussed in Collier v. Catherine Lead Co., 208 Mo. 246, where we held contrary to the contention of respondents here. This leaves for onr consideration only the merits of the case.

II. It is earnestly pressed by counsel that under section 2938, Revised Statutes 1899, the husband cannot take unless he would have been entitled to curtesy. They contend that sections 2938 and 2939 are companion sections and inasmuch as we have held under the latter that the wife cannot take unless she was entitled to dower, we should hold that the husband cannot take unless he was entitled to curtesy. We have no doubt said that these are companion sections and in a way they are, and we have also' said that the purpose of the Act of 1895, now section 2938, was to equalize the rights of husband and wife in their respective' estates, but it does not follow from this that the husband must have a curtesy estate before he can take under section 2938, supra. Prior to the Act.of 1895, if a childless wife died leaving an estate, however large, the husband not being entitled to curtesy, got nothing. But if a childless husband died prior to this time, the wife got one-half absolutely, subject only to the debts. It is true that by section 2938 she was given a dower interest, but by section 2941 she is given the right to elect as to how she will také. To our mind the Act of 1895 was for the very purpose of making provision for a husband in the event he was not entitled to curtesy. [Ferguson Estate v. Gentry, 206 Mo. 203, and Ferguson v. Gentry, 206 Mo. 189, and cases therein cited.]

This contention of appellants is not sustained.

III. Of our present Statute of Descents and Distributions, the first five sections, 2908' to 2913 inclusive, had their origin in the Territorial Laws of 1807. Sections 2913, 2915, 2916, 2917 and 2918 had their origin in the Act of 1822. Section 2914 had its origin in 1855, and the remaining two sections, 2919 and 2920, had their origin in Acts of 1864-5. Onr dower section 2933 originated with the Act of 1807, supra, and section 2941, giving the widow of a childless husband one-half of the property, first came to light in 1835.

The section of our statute, Revised Statutes 1899, section 4151, which adopted the common law in Missouri, was first enacted January 18, 1816. Of the Act of 1807, adopted prior to the adoption of the common law, Leonard, J., in the case of Cutter v. Waddingham, 22 Mo. l. c. 261, said: ‘ ‘ The Act of 1807 was the first American law of descents introduced here; it superseded the Spanish law of succession, and was a complete scheme, which provided for the whole subject and left nothing to he supplied by any other code. It was the work of men familiar with the common law and strangers to the Roman law, and was no doubt adopted by our Territorial lawgivers from the written laws of the older States of the Union, and not constructed here with any special reference to the existing law of this country.”

These original laws of descents and even our present statutes were borrowed largely from the common law. They are with some modifications expressive of the common law. In other words the general scope of our laws of descent and distribution is along the line of the common law, and this is true in most of the American states.

Bingham in the preface to his work, ‘ * The Laws of Descent,” says: “The laws of descent were an organic part of the feudal system; and, so far as the general principle of succession is involved, have come down to us unchanged. Important alterations have been made in the order and lines of succession. The course of descent has also been subjected to he entirely defeated by the alienation of the ancestor while alive, and by his testamentary alienation to take effect at and after Ms death. His estate has also been made liable to the payment of his debts, and the fulfillment of his personal obligations, after the succession of the heir. Otherwise, the heir succeeds the ancestor in the ownership of the estate, precisely as he did under the feudal law, in all the States of this country; that is, his right of succession is based upon the samé principle, which regulated succession under purely feudal organizations.” [See, also, 14 Cyc. p. 24.]

In Missouri we began to modify in favor of the wife by the Act of 1835, when we gave her half when the husband died childless. Later we have the several Married Woman’s Acts giving to her peculiar rights in both personal and real property. The husband up to 1895 had been holding his common law rights, shorn down, by the acts aforesaid, when for the first time, by the Act of 1895 aforesaid, the wife dying childless, he was made an heir to one-half of her estate absolutely. We have in ways changed the lines of descent, both as to the husband and other heirs at law, and have changed the quantum of the estate which descends to each, but with it all, our laws are yet expressive of the common law in the matter of descent and distribution in a large degree.

When we took unto ourselves the common law, as we did in 1816, and in later reiterations of that statute, we took the body of all the common law, which could be made applicable under our constitutions, State and Federal, and such is the law of the State except where repealed, changed or modified by statute.

In the case of Box v. Lanier, 112 Tenn. l. c. 409, the Supreme Court of Tennessee said: “It has been well said that there are certain general and fundamental maxims of the common law which control laws as well as contracts. Among these are: ‘No one shall be permitted to profit by his own fraud, or to take advantage of Ms own wrong, or to found any claim upon Ms own iniquity, or to acquire property by his own crime. These maxims are adopted by public policy, and have their foundation in universal law administered in all civilized countries.’ These maxims embodied in the common law, and constituting an essential part of its warp and woof, are found announced both in text-boolfs and in reported cases. Without their recognition and enforcement by the courts their judgments would excite the indignation of all right-thinking people. The first of these maxims is applied in order to prevent one from taking the benefit of his own fraud. Why should not the last be enforced so as to forbid a party receiving the fruits of his own crime?”

And Earl, J., for the New York Court of last resort, in Riggs v. Palmer, 115 N. Y. l. c. 511, said: “Besides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.” Farther on in the same opinion he says: ‘ ‘ These maxims without any statute giving them force or operation, frequently control the effect and nullify the language of wills. A will procured by fraud and deception, like any other instrument, may be decreed void and set aside, and so a particular portion of a will may be excluded from probate or held inoperative if induced by the fraud or undue influence of the person in whose favor it is. [Allen v. McPherson, 1 H. L. Cas. 191; Harrison’s Appeal, 48 Conn. 202.] So a will may contain provisions which are immoral, irreligious or against public policy, and they will be held void. ■

“Here there was no certainty that this murderer would survive the testator, or that the testator would not change his will, and there was no certainty that he would get this property if nature was allowed to take its course. He, therefore, murdered the testator expressly to vest himself with an estate. Under such circumstances, what law, human or divine, will allow him to take the estate and enjoy the fruits of his crime ? The will spoke and became operative at the death of the testator. He caused that death and thus by his crime made it speak and have operation. Shall it speak and operate in his favor? If he had met the testator and taken his property by force, he would have had no title to it. Shall he acquire title by murdering him? If he had gone to the testator’s house and by force compelled him, or by fraud or undue influence had induced him to will him his property, the law would not allow him to hold it. But can he give effect and operation to a will by murder, and yet take the property? To answer these questions in the affirmative, it seems to me, would be a reproach to the jurisprudence of our State, and an offense against public policy.

“Under the civil law evolved from the general principles of natural law and justice by many generations of jurisconsults, philosophers and statesmen, one cannot take property by inheritance* or will from an ancestor or benefactor whom he has murdered. [Domat, part 2, book 1, tit. 1, par. 3; Code Napoleon, par. 727; Mackeldey’s Roman Law, 530, 550.] In the Civil Code of Lower Canada the provisions on the subject in the Code Napoleon have been substantially copied. But so far as I can find, in no country where the common law prevails had it been deemed important to enact a law to provide for such a case. Our revisers and lawmakers were familiar with the civil law, and they did not deem it important to incorporate into our statutes its provisions upon this subject. This is not a casus omissus. It was evidently supposed that the maxims of the common law were sufficient to regulate such a case and that a specific enactment for that purpose was not needed. ’ ’

These maxims of the common law are expressly made a part of our laws by the statute of this State, first adopted in 1816, as we have hereinabove indicated. They are a part of the law of the State by force of section 4151, Revised Statutes 1899, unless they have been repealed, changed, modified or wiped out by statute law. Have we by statute either expressly or impliedly chang-ed or modified the maxims discussed in the Tennessee and New York cases, supra? Has the common law in this respect been repealed, changed or modified? We think not. If not, they are a part of our law. If not, then this statute must be read in connection therewith, and when so read the father of appellees acquired no interest in the estate in controversy and appellees have none. “Statutes in derogation of the common law are to be strictly construed, unless as in some states there is a statutory provision to the contrary.” [8 Cyc. 376, and cases cited.]

The common-law rule is tersely stated in section 665 of Wharton on Homicide (3 Ed.), thus: “To permit a person who commits a murder, or any person claiming under him, to benefit by his criminal act, would be contrary to public policy. And no devisee can take under the will of a testator whose death has been caused by the criminal and felonious act of the devisee himself. And in applying this rule, no distinction can be made between a death caused by murder and one caused by manslaughter. Nor does the common-law right of succession by descent operate in favor of one who willfully takes the life of his ancestor for the purpose of succeeding to his property rights. And the common-law right of a man to succeed to the property of his wife upon her death does not operate in favor of one who murders his wife. And the rule that the common-law doctrine of succession to property does not operate in favor of one who willfully takes the life of his ancestor should apply against any person claiming through or under the slayer. Nor does a rule of law that a common-law right of succession to property does not operate in favor of one who willfully takes the life of his ancestor contravene a constitutional provision that a conviction of crime shall not work a forfeiture of the estate. ’ ’

To our mind our Statute of Descents and Distributions is so largely expressive of the common law that we must consider these maxims and the whole body of the applicable common-law doctrines; that we must read them together as parts and parcels of the same system, and when so read there can be but one answer to the query suggested by the facts of this ease.

For these considerations alone we think this case should be reversed, but we take up next a discussion of this statute.

IY. But leaving out of consideration the conclusions above reached, i. e., that our statutes of descents and distributions, and the liv.e parts of the common law, constitute one system of laws in this State upon that subject, and that the statutory law must be construed with reference to that live portion of the common law, and going to this statute itself, how shall we construe it? Must we give a construction abhorrent to reason, or should we give it a construction in harmony with the reason and spirit of the law? Shall we stick in the bark and adhere to the strict letter of the law, or shall we say that whilst the case may fall within the letter of the law, yet it does not fall within the spirit or reason, or within the reasonable legislative intent? The courts in this State and elsewhere have not been remiss in finding rules of construction for statutes in character such as the one before us. The statute we are called upon to construe, reads: “When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife’s debts.”

Statutes should be read in the light of the common law, and this statute should be read in that light. Chancellor Kent, 1 Kent’s Commentaries (14 Ed.), p. 464, says: “Statutes are likewise to be construed in reference to the principles of the common law; for it must not be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age; and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction.”

In Black on Interpretation of Laws, page 233, it is said: “No statute enters a field which was before entirely unoccupied. It either affirms, modifies or repeals some portion of the previously existing law. In order, therefore, to form a correct estimate of its scope and effect, it. is necessary to have a thorough understanding of the laws, both common and statutory, which heretofore were applicable to the same subject. Whether the statute affirms the rule of the common law upon the same subject, or whether it supplements it, supersedes it, or displaces it, the legislative enactment must be construed with reference to the common law; for in this way alone is it possible to reach a just appreciation of its purpose and effect. Again, the common law must be allowed to stand unaltered as far as is consistent with a reasonable interpretation of the new law. ’ ’

Our statutes of descents and distributions, as we have seen, both affirm and modify the common law,, but nowhere specifically mention that rule or doctrine of the common law which precluded the murderer from inheriting from his victim. This latter is not so inconsistent with the statute as to call upon ns to say that such portion of the common law, previously existing, was repealed or changed by the Act of 1895.

Our own court adheres to the same rule in Johnson v. Fluetsch, 176 Mo. l. c. 468, where we said: “Statutes are read and construed in the light of the common law. ‘Rules of interpretation and construction are derived from the common law, and since that law.constitutes the foundation and primarily the body and soul of our jurisprudence, every statutory enactment is construed by its light and with reference to its cognate principles. [Sutherland on Stat. Cons., sec. 289.]”

And statutes in derogation of the common law are to be strictly construed. [See Brown v. Dressler, 125 Mo. l. c. 593; State v. Clinton, 67 Mo. 380; Judson v. Smith, 104 Mo. 61; Rozelle v. Harmon, 103 Mo. 339.] And this is especially true where the statute is in derogation of common right and common decency, as well as the common law. The construction contended for by the appellees is one which shocks both common right and common decency, and no court should be inclined to other than a construction which would make the statute comport with reason and the fundamental maxims of the law.

It is true, strictly speaking, that the old idea of equitable construction of statutes is no longer recognized by the courts, but in speaking upon this point Mr. Black in his most excellent treatise entitled Interpretation of Laws, truthfully says: “But nevertheless many of the cases which were decided on what was called the ‘equity of the statute’ would now be decided in precisely the same way, though not avowedly on that principle. This is because there was a just and reasonable idea at the base of the principle in question, and this, so far as it is applicable to modern conditions, has survived. This idea was that a given case should not be taken to be within a statute, though apparently covered by its comprehensive terms, unless it is within the spirit and reason of the law.” The same learned author at page 48 lays down this rule: “A statute should be construed with reference to its spirit and reason; and the courts have power to declare that a case which falls within the letter of a statute is not governed by the statute, because it is not within the spirit and reason of the law and the plain intention of the Legislature.” This rule finds support in case after case as we read them in the books.

The case of Sams, etc. v. Sams’ Admr., 85- Ky. 396', is one of such cases. The facts were that Leroy Sams was lawfully married to a woman by whom he had four children. During the life of the first wife he was hav: ing illicit relations with another woman by whom he had two children. These were bom one eight and the other ten years prior to the death of his wife. Upon the death of his wife he married the mother of these two children, who also had five others which had been born out of wedlock. Sams recognized these two as his children. In that State the statute provided, “If a man having had a child by a woman shall afterwards marry her such child, or its descendants, if recognized by him before or after marriage, shall be deemed- legitimate.” Counsel in that case contended as do able counsel in this case. They said the statute makes no exception and the courts are powerless to make it, but' Pryor, C. J., followed that rule of statutory construe-. tion which should be followed iu all such eases. In an able opinion he says:

“It is insisted by counsel for the appellants that the meaning and intention of the statute is so plain that but one interpretation can be given it; and although the children were begotten by the intestate when he was the lawful husband of another, his adulterous practices with an unchaste woman, and unfaithfulness to his own wife and children, cannot be considered in determining the rights of those who were not participants in the wrong, and whose rights the statute was enacted to protect.
“If the case before us, or that class of cases where the husband has violated his marriage vows, and become the father of children by an adulterous sexual connection with another woman during the marital relation, had been the subject of legislative thought, it can scarcely be supposed that any law would have been enacted by which the children of the adulterous intercourse would be made legitimate, that they might inherit with the children of the lawful wife equal parts of his estate. Such a statute, if so construed, would only invite the husband to desert his wife, and the woman of easy virtue to encourage the violation of his marriage vows, that she might some day become his lawful wife and her children the rightful heirs of his estate. The motive to supplant the love of a true woman by the lewd practices of degraded women would be found in such a statute, and the law, instead of securing to the innocent offspring an interest in the estate of the father, and encouraging the latter to make reparation for the wrong committed by marrying the mother, would invite the commission of great moral wrong, and hold out an inducement to the guilty parties to remove those who stood in the way of legitimizing their children by the consummation of the contract of marriage. . . . It is a well-settled rule of construction, that the letter of a statute will not be followed when it leads to an absurd conclusion; but, on the contrary, the reason for the enactment must, enter into its interpretation, so as to determine what was intended to be accomplished by it.”

If the courts can invoke this rule of construction to disparage and condemn adultery and its attendant evils, can’t we invoke it to prevent the legal creation of an heir, and an estate for such heir, by murderous hands? Our statute is no more explicit in terms than the Kentucky statute. The language of the one is as broad as the other.

The Supreme Court of the United States has likewise dealt with the same rule of statutory construction in the case of Church of the Holy Trinity v. United States, 143 U. S. 457. This case construes the Federal Act of February 26th, 1885, which was, “To prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States,” etc. The first section reads:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passage of this act it shall be unlawful, for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners into the United States, its Territories, or the District of Columbia, under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its Territories, or the District of Columbia. ”

Plaintiff in error was a corporation and had made a contract with an alien residing in England, one E. Walpole Warren, to come to New York and serve it in the capacity of a minister of the G-ospel. There were exceptions in other portions of the act, bnt ministers were not included in these exceptions, so that the statute is, if anything, more absolute than is the statute under review here. It shows that the legislative mind in fact considered exceptions, whilst our statute does not so show. Mr. Justice Brewer, who wrote the opinion, says:.

“It must be conceded that the act of the corporation is. within the letter of this section, for the relation of rector to his church is one of service, and implies labor on one side with compensation on the other. Not only are the general words labor and service both used, but also, as it were to guard against any narrow interpretation and emphasize a breadth of meaning, to them is added ‘of any kind;’ and, further, as noticed by the circuit judge in his opinion, the fifth section, which makes specific exceptions, among them professional actors, artists, lecturers, singers and domestic servants, strengthens the idea that every other kind of labor and service was intended to be reached by the first section. While there is great force to this reasoning, we cannot think Congress intended to denounce with penalties a transaction like that in the present case. It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or the absurd results which follow from giving such broad meaning to the words.. makes it unreasonable to believe that the legislator intended to include tbe particular act.”

To like effect are Lau Ow Bew v. U. S., 144 U. S. 47; Rodgers v. U. S., 152 Fed. 346; Henry v. Tilson, 17 Vt. 486; Ryegate v. Wardsboro, 30 Vt. 746; Ingraham v. Speed, 30 Miss. 410; Jackson v. Collins, 3 Cowen 89; People v. Utica Ins. Co., 15 Johns. 358; Ex parte Ellis, 11 Cal. 222; Osgood v. Breed, 12 Mass. 525; U. S. v. Kirby, 74 U. S. 482; Hanger v. Abbott, 73 U. S. 532; Braun v. Sauerwein, 77 U. S. 218. See, also, the numerous cases, both ancient and recent, discussed in Black on Interpretation of Laws, under his rule No. 29, pages 48 to 55, inclusive.

Nor has this rule of statutory construction failed of ample recognition by the courts of this State. Our Dower statute, section 2933, Revised Statutes 1899, provides that the widow has her dower in all lands of which her husband was seized during the' marriage unless she has relinquished such dower “in the manner prescribed by law.” This manner was by deed. Yet we have held under this statute that a deed to a railroad right of way signed by the husband alone, or condemnation proceedings against the husband alone, would prevent an action for dower by the widow. [Venable v. Railroad, 112 Mo. 103; Chouteau v. Railroad, 122 Mo. 375.] This statute does not say, “endowed in all lands except such as has been conveyed or condemned for public purposes.” Yet we have so construed the statute.

Our Statute of Frauds, section 3418, Revised Statutes 1899, reads: “No action shall be brought. . . . upon any contract made for the sale of lands .... or any lease thereof .... unless the agreement upon which the action shall be brought .... sbjn be in writing and signed by the party to be charged therewith.” Yet, under the maxims of the common law, how many cases have we exempted from the strict letter of the law. Both Bench and Bar are so familiar with the case law under this section that citation thereof would be superfluous.

Again, in the very recent case of Keeney v. McVoy, 206 Mo. 42, a case with many more obstacles and difficulties, the identical rule of construction which we have announced was announced by this court In Banc, which decision puts the present case at rest — peacefully, justly and righteously. The question there was the right of the widow to elect to take a child’s part, Mrs. McYoy was the widow of Brice McYoy. At the death of Brice McYoy he had no child living, and of course his widow had no “child or children by such husband living.” They did have a grandchild, the child of a deceased daughter, which daughter had departed life prior to the death of Brice McYoy. The statute we were then called upon to construe reads: “When the husband shall die, leaving a child or children or other descendants, the widow, if she has a child or children by such husband living, may, in lieu of dower of the one-third part of all lands whereof her husband died or shall die seized of an estate of inheritance, to hold and enjoy during her natural life, elect to be endowed absolutely in a share of such lands equal to the share of a child of such deceased husband. The provisions of this section shall be subject to the payment of her husband’s debts.” [Sec. 2944, R. S. 1899.]

Lamm, J.,

after reviewing all the Missouri cases involving constructions of the character we have before us now, as well as many outside cases, concludes an exhaustive and elegant opinion in this language: ‘ ‘ Other cases to like effect might be cited. The Lower Act hut supplements the Descents and Distributions Act. They must be taken and construed together. Oases illuminating the one, throw light on the other, and based on the reasoning aforesaid, and in the light of the foregoing authorities, we have no difficulty or hesitation in construing the word ‘children’ in section 2944, supra, to include grandchildren. Any other construction would lead to absurd and unjust results and be obviously without the legislative intent. ’ ’

In Verdin v. St. Louis, 131 Mo. l. c. 163, this court In Banc announced in explicit terms its approval of the rule of construction we have adopted in the case at bar. The language of that case is: “This view is sanctioned by abundant authorities which hold that the letter of a statute may be enlarged or restrained, according to the true intent of the framers of the law. [Whitney v. Whitney, 14 Mass. 92; State ex rel. v. Emerson, 39 Mo. 80; State ex rel. v. King, 44 Mo. 283; Riddick v. Walsh, 15 Mo. 519.] In. such cases, the reason of the law prevails over its letter, and general terms are so limited in their application as not to lead to injustice, oppression, or an absurd consequence, the presumption being indulged that the Legislature intended no such anomalous results. [United States v. Kirby, 7 Wall. 482; People ex rel. v. McRoberts, 62 Ill. 38; Fusz v. Spaunhorst, 67 Mo. 256; Sutherland, Stat. Constr., p. 288.] ”

In fact, the pathway of judicial literature from the earliest period down to the present is literally strewn with cases, which like beacon lights have guided the hand of justice in preventing unjust, unrighteous, absurd, unreasonable and abhorrent results from the use of general words and expressions in statutes. To cite and quote more would be but to become tedious. We have gone thus far on account of the newness of the particular question of this case. Under these authorities we should not and will not hold, that “widower” as used in section 2938, supra, means one who has created a condition by murderous hands and heart. This case is without the statute. “Widower” as there used means one who has been reduced to that condition by the ordinary and usual vicissitudes of life, and not one who, by felonious act, has himself created that condition.

Y. Nor do we think that this construction violates section 13, article 2 of our Bill of Rights. That section says: '' That no person can be attainted of treason or felony by the General Assembly; that no conviction can work corruption of blood or forfeiture of estate.”

Suppose the Legislature had put in section 2938 the exception which appellees say the court can not read into the section, i. e., “her widower, except he be such by his own felonious act, shall be entitled,” etc., then according to counsel’s present contention the statute would be violative of the Bill of Rights. In other words we are damned if we do and likewise damned if we don’t.

In the case of Box v. Lanier, supra, the court said: “The provision in question is that 'no conviction shall work corruption of blood or forfeiture of estate.’ This provision has no connection whatever with the devolution of property, but it is intended in its last clause to prevent a forfeiture of an estate of a criminal on account of his offense; but we hold that, under the facts found in this record, the surviving husband never acquired an estate in this property, and therefore there was nothing upon which this constitutional provision could operate.”

We concur in these tersely expressed views. This construction of the existing statute, or even an express statute, as they have in Iowa, prohibiting a murderer from inheriting from his victim does not violate our constitutional provision. There is no forfeiture of an estate which he has, but it is simply preventing Mm from acquiring property in an unauthorized and unlawful way, i. e., by murder. It takes nothing from Mm, but simply says you cannot acquire property in this way. Nor does such a statute prevent Ms heirs from inheriting through him property rightfully his at the time of his demise. The state cannot hy law take a criminal’s property, hut it can say to every individual citizen you cannot acquire property hy designated unlawful means. Such statutes violate no constitutional provisions, either State or Federal.

As we stated in the outset, our views are not in harmony with a majority of the adjudicated cases. We were convinced of the righteousness of the views expressed by the courts of New York and Tennessee, and the first opinion by Cobb, C. J., in a Nebraska case, which was later decided to the contrary by Ryan, Commissioner. In opposition to these cases are cases from Pennsylvania, Ohio, North Carolina, Iowa and Kansas.

A discussion of the opinions in these cases would serve no good purpose. To our mind the reason is against them, and they have not given full weight to the rule of statutory construction so often and so recently recognized and enforced hy this court. Nor do they give that weight to the maxims of the common law, which in our humble judgment should he given in determining a case involving this particular question.

Prom these views it follows that the judgment herein should he reversed and this cause remanded to the circuit court with directions to enter a judgment and decree vesting the property in dispute in the plaintiff, and the defendants Mrs. P. W. Strawbridge and Mrs. J. A. Thompson, subject to the mortgage -rights of the defendant Wollman, and which said judgment and decree should further adjudge and decree that defendants Callie Evans and Zora Evans have no title or interest in said property. Cause reversed and remanded with the directions aforesaid.

All concur.