text:
    Schultz et al., Appellants, v. Lindell, et al., Respondents.
    1. A survey of the out-boundary line of the town of St. Louis — the plat of which is commonly known as K Map X” — is not conclusive upon persons claiming title under confirmations by virtue of the first section of the act of Congress of June 13,1812; the said act is operative to confirm to individuals common field lots, out-lots, &c., as well without as within the said out-boundary line as established by said survey. (Milburn v. Hortiz, and Tayon v. Hardman, 23 Mo. 532, 539, affirmed.)

      Hppeal from St. Louis Land Court.

    This was an action in the nature of an action of ejectment for the possession of a portion of a tract of one by forty arpens, situate in the Grand Prairie common field, near St. Louis, which said tract of forty arpens “was cultivated and possessed by Jean B. Provenchere, prior to the 20th day of December, 1803, as a common field lot of the Grand Prairie common fields - adjoining and belonging to the town of St. Louis,” &c. It was admitted that the land in controversy lies outside and westwardly of the outboundary line of the town of St. Louis, as established in the year 1840. The court gave the following instructions : “ 1. The title of the legal representatives of William Bizet originating in the concession of the date of February 7, 1769, and confirmed by the act of Congress of July 4,1836, is a better title to the land in said concession and confirmation mentioned than any title that is or can be set up by the plaintiffs as originating in and derived from the mere fact that John B. Provenchere possessed and cultivated said. land for several years prior to the 20th day of December, 1803 ; provided the jury find that the land in question lies outside and beyond the outboundary of the town of St. Louis, as shown in ‘ Map X.’ 8. Upon the case made in evidence by the plaintiffs, they are not entitled to recover in this action.”
    The plaintiff took a non-suit, with leave to move to set the same aside.

      Jf. Holmes, for appellants.
    The instructions given were erroneous. (Milburn v. Hor-tiz, 23 Mo. 532 ; City of St. Louis v. Toney, 21 Mo. 243.)

      E. Bates (with whom were Hill, Grover & Hill,') for respondents.
    I. This suit is based entirely upon the fact that Jean B. Pro-venchere cultivated and possessed the land sometime more than fifty years before the commencement of this suit, without any statement or testimony tending to show that either he or his heirs ever afterwards possessed the land or exercised actual control over it, or that he had any “ right, title or claim” to it at any time. The petition shows on its face that the land was granted by the Spanish government to another man (William Bizet), and that the United States recognized that grant, and confirmed the title to the legal representatives of said Bizet by the act of July 4, 1886. By the concession the title of Bizet, was prima facie good as against Spain, and the title of Bizet’s representatives is absolutely good as against the United States. (Strother v. Lucas, 12 Pet. 410 ; Harrold v. Simonds, 9 Mo. 382.)
    H. J. B. Provenchere, under whom the plaintiffs claim, if now alive, and the plaintiff here, would have no show of right without showing a confirmation to himself by virtue of the act of June 13, 1812. This he could not do for several obvious reasons. The act of 1812 does not make and does not profess to make original simple donations of lands to the people who might have possessed or cultivated them in Spanish times. All it does, and all it professes to do, is to confirm existing “ fights, titles, and claims” to lots, &c. It is apparent that the representatives of Bizet had a “right, title or claim” to the lot as old as the concession to their ancestor in 1769, and that the lot was “inhabited, cultivated and possessed” prior to December 20, 1803. If these facts be sufficient to operate a confirmation by force of the act of 1812, then the confirmation to the same parties by the act of 1836 is merely cumulative. Both confirmations show title out of, and adverse to, Proven-chere. The allegation of the petition is that Provenchere cultivated and possessed the land prior to December 20, 1803 ; the proof is that he did so cultivate it; that he married Bizet’s widow, and got the lot by his wife. The presumption both of law and honesty is that he culivated it fairly under the prior existing right and claim, and not for the purpose of getting a title for himself and thus cheating the heirs of the grantee out of their inheritance.
   Scott, Judge,

delivered the opinion of the court.

It does not appear to us that any other point was decided by the court, of which the plaintiffs have a right to complain, than that the lot in controversy, not being within the survey of the outboundary of the town of St. Louis as represented on the “ Map X,” was not confirmed by the act of June 13, 1812. Since this opinion was expressed, the question has received the determination of this court, and it is now regarded that the out-boundary as laid down on that map does not affect a title of a a claimant under that act. For the 2d and 3d instructions given by the court below, the judgment will be reversed. We do not believe that this case has been submitted to us in a shape in which we can determine it on its merits without incurring the risk of doing injustice to the parties. In plain cases, where parties have submitted to a non-suit, and it is clear that they can not recover, this court has refused to reverse the judgment of the court below, although erroneous instructions had been given against them. But we do not consider that this is a case of that character. Being of the opinion that the cause in the court below turned on the question to which reference has been made, the judgment will be reversed and the cause remanded ;

Judge Ryland concurring; Judge Leonard absent.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    McCune et al., Appellants, v. Hull et al., Respondents.
    1. Calls for boundaries may be controlled by other words of description in a deed.

      Appeal from St. Louis Land Court.

    The facts are set forth in the opinion of the court.

      Whittelsey, for appellants.
    I. The deed of the executor of Robert N. Moore did convey the land sued for. The deed is to be construed to refer to facts existing at the date of its execution, and the boundaries referred to, therefore, would be the boundaries existing at the date of the order and sale, and the survey for Laclede would therefore be the United States survey No. 1584, that being the “ land conveyed for Laclede” at that date. (Jones v. Johnston, 18 How. 150-6; Lamb v. Rickets, 11 Ohio, 811 ; Gi-raud’s Lessee v. Hughes, 1 Gill & Jo. 249.) The plaintiffs are entitled to all the land within the boundaries called for, although its quantity be greater than stated in the deed. (Marshall v. Bompart, 18 Mo. 84 ; 5 Mete. 15 ; Jackson v. Defen-dorf, 1 Caines, 478.) There are three parts to this description, and apparently the different parts do not agree together. 1st. It is to be three arpens in front, and is to be bounded southwardly and northwardly by lands surveyed for Laclede. The land sued for is bounded south'by Laclede, as surveyed by the United States ; but there is no land surveyed for Laclede on the north. 2d. But to make it more certain, it was to be the land surveyed for Gagnon, as appears from Livre Ter~ rien; but no such survey is found ; and the United States survey No. 1591 gives only one and a half arpens front; so we have Gagnon’s land, one and one-half by forty arpens, and one by forty arpens on the south, to have the land bounded south by land surveyed by Laclede. 3d. It was to be also the same land conveyed to Philip Fine and wife to the Moores, and the same sold by commissioners to R. N. Moore and others ; and it may be admitted that they did not intend, nor suppose themselves, to divide and sell the land sued for, although the calls for boundaries embrace it. If the plaintiffs’ construction of the order of sale and deed is right, the only error in the actual description will be the call for the three arpens front. Courses, and especially distances, yield to calls for ascertained and settled boundaries. (Campbell v. Clark, 8 Mo. 553; McKee v. Somers, 15 Mo. 84; Jackson v. Ives, 9 Conn. 661.) The first part of the description being more definite, will pass all within the boundaries of a tract, although the latter description of the land conveyed or sold may not pass it. (Jackson v. Remsen, 18 Johns. 107 ; 5 Mete. 15 ; Jackson v. Barringer, 15 Johns. 471.) The line of a tract of land is a call as well as a natural object. (Carroll v. Harwood, 5 Harr. & Johns. 168 ; Pennington v. Bordley, 4 Harr. & Jo. 457.) The land surveyed for Laclede is an actual boundary, as shown in evidence, and that call appeared upon the plats of the United States surveys, to which purchasers would go for reference as to the actual location of the tract sold and its bounds.

      Cline & Jamison, for respondents.
   Scott, Judge,

delivered the opinion of the court.

Robert N. Moore died in 1849, having devised all his real estate to his wife Mary Ann. In September, 1850, his widow, Mary Ann Moore, intermarried with James M. Lyon. Hugh Garland was the executor of R. N. Moore, and as such procured a sale of real estate belonging to his testator. On the 17th November, 1851, James M. Lyon bid off the real estate thus sold. On the 29th March, 1852, by a deed duly recorded, Lyon, and his wife claiming as devisee, conveyed to Joseph S. Hull, one of the defendants, their interest in the lot in dispute. Lyon being unable to comply with the terms of the sale made by Garland (the executor), conveyed the interest acquired.at said sale to the plaintiffs, McCune & Vandeventer, on.the 21st September, 1853, and on the same day the executor gave them a deed for the land purchased originally by Lyon. McCune and Vandeventer, the plaintiffs, claim that the deed received by them from the executor of R. N. Moore conveyed the interest to them in the lot which Lyon and his wife had coneyed to Joseph S. Hull, the defendant. This interest is the subject of this controversy.

The lands in controversy consisted of three common field lots belonging to the Grand Prairie, north-west of St. Louis. Two of these lots were one and a half arpens by forty arpens in width, and constituted a tract or parcel of three arpens in front by forty in depth. The other lot was one arpent in front by forty in depth, and constituted another tract or parcel. The two tracts adjoined each other and formed a parallelogram of four arpens in front by forty in depth. The -whole parallelogram was under one enclosure at the time of the executor’s sale, and made the homestead of the Moore family — the dwelling-house being on the one by forty arpens. Some of the witnesses were of opinion that at the sale the whole four arpens front were sold. The two tracts composing the entire parallelogram had been acquired by the Moore family at different times by distinct purchases from different vendors — the three arpent lot from Philip Pine, and the one arpent lot from the heirs of Benito Vasquez — and by this description it was conveyed by Lyon and wife to Joseph S. Hull, the defendant. The deed under which the plaintiffs claim, being the deed of Garland, R. N. Moore’s executor, contains the following description of the land : “ A tract or parcel of land situate in the Big Prairie, about three miles north of the town of St. Louis, containing three arpens, more or less, in front, by forty, more or less, in depth ; bounded southwardly and northwardly by lands surveyed for one Laclede, being the same tract surveyed for one Philibert Gagnon, otherwise called Laurent, under the name of Laurent, as appears by Livre Terrien, No. 2, p. 49, book T, p. 171, being the same land conveyed to Alex. Moore, Nelson Moore, Robt. Moore, Elizabeth Moore and Jas. Moore, by Philip Fine and Sarah his wife, by deed dated April 25, A. D. 1828, and being the same tract deeded in 1837 by M. P. Leduo, Jos. Oorbit and Joseph Oharless, as commissioners in partition, to Robt. N. Alexander and Elizabeth Moore.” The deed then only calls for a lot three by forty arpens. The appraisement of the land, made preparatory to the sale, described it as a lot of three by forty arpens, and the appraisement was not in the lump but by the arpent. In the order of sale the land was described as it was in the plaintiffs’ deed. The deed referred to in the above description as made by the commissioners in partition, Leduc, Oorbit and Oharless, shows that only one hundred and twenty arpens were divided by them, being the area of the three by forty arpens lot. The deed from Fine to the Moores, also mentioned in the foregoing description, conveyed a parcel of land containing three arpens, more or less, in front, by forty arpens, more or less, in the rear.

This seems to us a very plain case when the facts are understood. The plaintiffs have the quantity in the number of arpens they supposed they were purchasing when they took their deed. This does not satisfy them. They insist that the boundaries in their deed entitle them to one hundred and sixty arpens instead of one hundred and twenty, the quantity they supposed they were buying. The plaintiffs claim under a deed which calls for a lot of three by forty arpens, more or less. This lot has three different descriptions in their deed. Two of these descriptions show the lot to be three by forty arpens, thus corresponding with the deed referring to them. The plaintiffs would have us reject these two descriptions corresponding with their deed, and adopt the other one, which would give them a lot variant in its dimensions from that called for by their deed — a lot of four by forty arpens. This too is insisted on, while the boundaries of this last description are not ascertained, but depend on evidence by no means satisfactory. On what principle of interpretation can we reject the two descriptions which answer the call in the deed, and adopt the other which does not correspond with it, and whose boundaries are merely conjectural ? After thus fixing the boundaries of this description, by force of the “ more or le'ss” they would include another common field lot in their deed. Whoever heard that the words “ more or less,” when used in a deed describing a common field lot of one of the usual dimensions, should be so construed as to include another common field lot? The words “more or less” used in describing the front of a lot mean no more than they do in describing its depth. They mean that the lot conveyed may be in size more or less than the dimensions given, but not that they may be so extended as to include a separate and distinct lot. The doctrine of quantity yielding to ascertained and fixed boundaries has nothing to do with such a case, even if there were such boundaries. But this is not all. The plaintiffs claim this lot, or an interest in it, although the individual from whom they claimed had, by a deed recorded, conveyed away the lot before they received their conveyance from him. It is impossible to read the evidence in this case and not come to the conclusion that the plaintiffs not only have no title to the lot in question, but it would be unjust to give them any. They have as much land as they bought, and with what face can they ask that another lot may be added to their quantity? If we throw aside the deeds and go into the extrinsic evidence, the testimony of Charless, the commissioner in partition, who swears that he did not divide the lot in dispute, consequently that it is not included in the plaintiffs’ deed, is at least an equipoise for all that in support of the plaintiffs’ pretences. But such evidence can not affect this case. It stands upon the deeds in evidence, and they, beyond all doubt, show that the plaintiffs have no claim.

We deem it unnecessary to review the instructions, as from the face of the papers the plaintiffs can not make a case on which they would be entitled to recover.

Judge Ryland concurring,

the judgment will be affirmed ;

Judge Leonard absent.


author: Rylakd, Judge,

text:
    Martin, Appellant, v. Maddox, Respondent.
    1. An assignment of a stock of goods to a trustee for the benefit of certain designated creditors which provides that the grantor shall he allowed to remain in the possession of the property assigned, and to sell and dispose of the same in the usual course of business until default, is void upon its face as a matter of law as against creditors. (Brooks v. Wimer, 20 Mo. 503; Walter v. Wimer, ante, p. 63, affirmed.)
    2. Such a deed of assignment will be held valid as against creditors who have assented to and affirmed it.

      Jlppeal from St. Louis Court of Common Pleas.

      Rrum & Harding, for appellant.
    I. The court erred in excluding the proof which appellant offered to make, because the assent of the beneficiaries named in said deed cured any defect which might arise from the terms and provisions thereof, and testimony to prove such assent was competent to rebut alleged fraud, whether constructive or actual.
    II. Upon the whole case as proved and offered to be proven, the judgment should have been for the plaintiff.

      JY. D. & G. P. Strong, for respondent.
   Rylakd, Judge,

delivered the opinion of the court. ’

The plaintiff brought his action against Maddox, the defendant, who, as sheriff of St. Louis county, had seized and taken, by virtue of an execution to him directed, certain property which the plaintiff claims by virtue of a deed of trust made by True W. Hoit to the plaintiff as trustee for the benefit of certain creditors of Iioit named in the deed.

The following is the deed of trust: “This deed made this '20th day of November, 1854, by and between True W. Hoit, •party of the first part, Missionary E. Martin, party of the second part, both of the city and county of St. Louis and state •of Missouri, and the persons and firms, creditors of said party •of the first part, hereinafter named, parties of the third part, witnesseth: that.the said party of the first part, for and in consideration of the debts and trusts hereinafter named and -created, and of the sum of one dollar to him paid by said party ■of the second part, does by these presents grant, bargain, sell, assign, transfer and set over unto said party of the second part and his legal representatives or assigns, all and singular the •goods, wares and merchandise, store fixtures and furniture, constituting the stock in trade of him, the said party of the 'first part, in his business asa retail and wholesale dry goods 'merchant, which goods, wares and merchandise, store fixtures and furniture, are at present situated in the store No. 155, on Third street, in the store Nos. 212 and 214 Broadway, in the store No. 218 Broadway, and in the store at the south-east «corner of Main street and Washington avenue, all in said city -of St. Louis ; also all and singular the goods, wares and mer-ehandise, store fixtures and furniture that may hereafter be added to said stocks in either or all of said stores, whether by purchase or otherwise ; and said party of the first part further agrees with said party of the second part, and his legal representatives or assigns, that he, the said party of the second part, and his legal representatives or assigns, shall have a valid lien for all the uses and purposes hereinafter named, upon all and singular the goods, wares and merchandise, store fixtures and furniture, wherever situated, that said party of the first part may hereafter add to his present stock in trade, whether by purchase or otherwise. To have and to hold the above conveyed property unto him, the said party of the second part, and to his legal representatives or assigns, forever, in trust nevertheless for the following uses and purposes, viz: Whereas said party of the first part is justly indebted to said parties of the third part, (being the persons and firms hereinafter named,) in various sums, which indebtedness is partly evidenced by notes of said party of the first part, and in part remains in open account; and whereas said party of the first part has undertaken and agreed to pay and discharge such portions of said indebtedness as is hereinafter set out, in the space of one year from the date of these presents ; and whereas he has undertaken and agreed not to sell or dispose of said property herein-before conveyed, excepting in the usual course of business : Now, therefore, if the said party of the first part shall well and truly pay to each of the said persons and firms the sums hereinafter directed to be paid to them, respectively, within one year from the date of hereof, and if he shall also well and truly keep his said agreement not to sell or dispose of said property except as aforesaid, then this deed shall be void ; but if he shall fail to pay said sums or any of them, or any part of either, or if he shall fail to keep his said agreement last above mentioned, then and in either case this deed shall remain in force ; and in such case, said party of the second part shall forthwith proceed to seize and take possession of the whole or any portion of the goods, wares and merchandise, store fixtures and furniture, above conveyed or named, wherever the same may then be found, and shall proceed to sell the same at public vendue, at any convenient place in said city of St. Louis, to the highest bidder, for cash, first giving ten days’ notice, by advertisement in some newspaper published in said city, of the time, terms and place of sale, and a general description of the property to be sold ; and shall deliver the same to the purchaser or purchasers thereof, and shall collect and receive the proceeds of such sales, out of which he shall pay, first, the cost and expenses of executing the trusts hereby created; second, he shall pay to the following named persons and firms (being said parties of the third part) the sums set against their names, respectively, if so much be then due them from said party of the first part, and if not, then such portion thereof as may remain unpaid, viz : To Woods, Christy & Co., of St. Louis, $444 06 ; to Blanchard, Converse & Co., of Boston, Mass. $4289 01 ; [here follow the names of many persons, with the amounts due each] ; provided, nevertheless, that if the proceeds of said sale should not suffice to pay the above named sums, or so much thereof as may then be unpaid, in full, said party of the second part shall apply said proceeds to the pro rata payment thereof. Said party of the first part shall be allowed to remain in the possession of said property hereinbefore mentioned, and to sell and dispose of the same in the usual course of business until default made as aforesaid ; and if a sale shall be made by the party of the second part as hereinbefore provided, and there shall be a surplus after paying the costs and expenses and said debts aforesaid, such surplus shall be paid to said party of the first part or his legal representatives; and said party of the second part hereby covenants faithfully to perform and execute the trusts herein created. In witness whereof,” &c.

The plaintiff also offered to prove as preliminary to offering the deed made by Iloit to plaintiff, dated November 20, 1854, the same just set out above, “ that the several parties and firms mentioned in said deed as cestui que trusts or beneficiaries had actual notice of the making said deed, and verbally assented to the terms and conditions thereof before the defendant in this case seized the property in question ; that the property is a part of the same mentioned and described in said deed, and is of the value of $6000 ; that the defendant seized and took away the property in question as stated in plaintiff’s petition; that the property at the time of the seizure was in the store or warehouse mentioned in the deed ; and that the plaintiff at the time was in the employment of Hoit, in said store, and engaged in the actual management and control of said property for the purpose of selling the property and carrying into effect the terms and conditions of said deed.” The defendant objected to this evidence. The court excluded it, and plaintiff excepted.

The defendant gave in evidence the execution in favor of Blanchard and others against Hart. It recited that, “ Whereas, John A. Blanchard, James A, Converse, William H. Harding, Joseph H. Gray and Edmund W. Converse, on the 23d day of November, 1854, at our Circuit Court, recovered against True W. Hoit the sum of forty three hundred and forty-one dollars and eighty-four cents,” &c., commanding the sheriff to make the debt and costs, of the goods, &c., of said Hoit. The cause was tried by the Circuit Court without a jury ; the court found the issue for the defendant, and judgment was rendered for him accordingly. The following is the finding of the court: “ That the only title or interest in the goods, wares and merchandise sued for, which the plaintiff has, is under and by virtue of the deed offered in evidence ; that the goods, wares and merchandise sued for were part of those described and included in said deed, and were of the value of $6000 ; that said goods, wares and merchandise were, at the commencement of this suit, in the possession of the defendant as sheriff of St. Louis county, under and by virtue of the writ of execution against True Worthy Hoit mentioned in the answer of the defendant.” The plaintiff brings the case here by appeal. In this court the appellant’s counsel has made two points on which he relies for the reversal of this judgment; 1st, the court below erred in excluding the proof which the appellant offered to make, because the assent of the beneficiaries named in the deed cured any defect which might arise from the terms or provisions thereof, and testimony to prove such assent was competent to rebut alleged fraud, whether constructive or actual; 2d, upon the whole case, as proved and offered to be proved, the judgment should have been for the plaintiff.

The deed in this case from Hoit to Martin is void as is seen by its face. (Brooks v. Wimer, 20 Mo. 503.) Indeedit is not pretended by the plaintiff’s counsel that the deed is otherwise, but they contend that the knowledge of the making of such deed, of its terms and provisions, and of the acceptance of the same, and the assent thereto by the creditors of Hoit, the beneficiaries in the deed, make it good as to such beneficiaries and creditors ; it is not made to defraud them when made by their knowledge and consent. Grant that such is the law in such cases, still it remains to be seen if the facts in this case come within it. The principle is well established. In Hone v. Henriquez, 18 Wend. 243, the Chief Justice, in delivering the opinion of the court, asked the question: “ Why is an assignment by a debtor fraudulent? It is only so because the effect of it is to delay or defeat creditors in the collection of their demands. It is a proceeding therefore adverse to the interests and wishes of creditors ; but if all the creditors assent to such assignment, and agree voluntarily to take their proportion of the assigned property and discharge the debtor, there is no fraud in such a transaction, and of course such an assignment, executed with the assent of all the creditors, would be valid, not void.” An assignment confessedly fraudulent is good as to creditors who assent to it. (Burrill on Assignments, 406.) It may be valid in favor of such creditors who choose to affirm it, and voidable against such who disaffirm it. In Burrows et al. v. Alter et al., 7 Mo. 424, this court held the same doctrine. Admitting such to be the law, and that the deed of trust in this case is not fraudulent and void as to the beneficiaries and creditors accepting and affirming it, still the question to be looked at is, did the offered and rejected proof show that the plaintiffs in the execution, under which the defendant seized the goods in controversy, had ever assented to or affirmed the act of Hart in making this deed of trust? We nowhere find that such evidence was offered. The name Blanchard, Converse & Co., of Boston, Mass., is among the names of others in the list of creditors. Their debt is put down at $4289. The proof was not offered that the plaintiffs in the execution under which the goods were seized were the same mentioned in the list of creditors. The judgment recited in the execution is for a different amount; it is for $4841 84. We can not say that they were the same. The judgment too as recited was rendered on the 23d day of November ; the deed is dated the 20th of November. The evidence was not made to bear on the creditors in the execution, and was properly rejected. Then in such a state of the ease the court was right in declaring the deed void as. to the creditors in the execution, and, so far as this action is concerned, gave the plaintiff no right to maintain it against the sheriff.

On the second point we think from the whole case the court below could not have rendered judgment otherwise than it did. Its judgment therefore is affirmed;

Judge Scott concurring; Judge Leonard absent.


author: Rylato, Judge,

text:
    Martin, Appellant, v. Rice & Maddox, Respondents.
    1. A deed of assignment of a stock of goods to a trustee for the benefit of certain designated creditors, which, provides that the grantor shall be allowed to remain in the possession of the property assigned, and to sell and dispose of the same in the usual course of business, being void upon its face as a matter of law as against creditors, ^will not be made good, as against a creditor who has not assented thereto, by a subsequent deed of the grantor relinquishing to the trustee all the rights and privileges reserved to the grantor by the above provision, and providing that the trustee “ may, at any time when he shall see fit, seize and take possession of the said property or any part thereof, wherever he may find the same.”

      Jlppeal from, St. Louis Court of Common Pleas.

    This was an action for the delivery of personal property. The plaintiff claimed to have a special property in the goods as trustee for the creditors of True W. Hoit. The plaintiff relied upon two deeds from Hoit to himself — one dated November 20, 1854, and the other dated December 12, 1854. On the 8th day of February, 1855, Rice, one of defendants, obtained a judgment against Hoit; execution was issued thereon, and on the 12th day of March, 1855, defendant Maddox, who was the sheriff of St. Louis county, levied the same upon the goods in question. The answers of defendants allege that said deeds are fraudulent on their face and void. The first of said deeds is set forth in the opinion of the court in the case of Martin v. Maddox, ante, p. 575. The second of said deeds is as follows : “ Whereas by deed dated November 20th, 1854, and recorded, &c., I, True W. Hoit, did convey unto Missionary B. Martin certain goods, wares and merchandise therein described, in trust to secure to some of my creditors the amounts due to them, as set out in said deed; and whereas it is -in said deed provided that I shall have the right to remain in possession of said property, and to sell and dispose of the same until default made as in said deed set out: Now therefore, for divers good and valuable considerations moving thereunto, I do hereby release and relinquish unto the said Missionary B. Martin all my rights and privileges reserved to me by the provision aforesaid, so that he may, at any time when he shall see fit, seize and take possession of said property, or any part thereof, wherever he may find the same. In witness whereof, I have hereto set my hand and seal this 12th day of December, 1854. [Signed] True W. Hoit. (Seal.)”
    The defendants objected to the introduction of the above deeds on the ground that said deeds and each of them were void and of no effect as against the defendants. The court sustained the objection, and refused to allow the same to be read to the jury. Tho plaintiff then offered to prove that “ the property specified in tbe plaintiff’s petition was a portion of tbe property and merchandise mentioned in tbe said deed made by True W. Hoit, dated November 20, 1854 ; that tbe plaintiff was in possesssion of tbe property described in bis petition at tbe time tbe same was taken and carried away by tbe defendant Turner Maddox ; that Charles Rice, one of the defendants, directed and instructed bis co- defendant Maddox to take and carry away the property in question at tbe time it was taken— be, tbe said Rice, having first indemniSed said Maddox against damage for such taking; and further, tbe plaintiff offered to prove that tbe several creditors mentioned in said deed made by T. W. Hoit aforesaid, dated November 20, 1854, [the name of Rice does n'ot appear in said deed] assented to said deed and tbe conditions thereof before tbe defendant Rice recovered bis judgment against Hoit.”
    ■ All tbe testimony so offered by plaintiff was excluded by tbe court on tbe motion of tbe defendants. The plaintiff thereupon submitted to a non-suit, with leave to move to set tbe same aside.

      Krum & Harding, for appellants.
    I. The court below erred in excluding tbe evidence offered by tbe plaintiff below, as well as that which is embraced in bis offer to prove. If the first deed was fraudulent under tbe act concerning fraudulent conveyances (R. C. 1845), the second deed, coupled with the possession of tbe property by tbe trustee, remedied tbe defect.
    II. Tbe assent of the creditors to tbe first deed took away all objection thereto.
    IH. Although tbe first deed may have been absolutely void as a conveyance, yet tbe second deed, by referring thereto, made it a part of itself, and tbe two form one instrument not void or voidable on its face taking effect prior to tbe levy in this case.
    Hill, Grover & Hill, for respondents.
    I. Tbe deed of November 20, 1854, was in trust for the use of tbe grantor, and therefore absolutely void as against Rice. (R. C. 1845, p. 525 ; 15 Mo. 459; Brooks v. Wimer, 20 Mo. 506; Coalter v. Robertson, 14 S. & M. 18 ; Scott v. Duffey, 14 Penn. State R. 18 ; Bouck v. Albee, 26 Verm. 184; Barton y. Port Jackson & Union Falls Plank Road Co. 17 Barb. 197; Hyslop v. Clark, 14 Johns. 458 ; Austin v. Bell, 20 Johns. 449; Mackie v. Cairns, 4 Cow. 457.) The court committed no error in excluding it from the jury. (20 Mo. 507; 15 Mo. 467.)
    II. The second deed is inoperative by itself, and can not be used in aid of the first deed. A void deed can not be ratified. (14 Penn. State S. 18 ; 17 Barb. 397 ; 26 Verm. 174 ; 14 S. & M. 18.)
    III. The petition rests the plaintiff’s right to recover upon his claim of special property by virtue of the deed. The question of actual possession- therefore was immaterial, and could not affect this right.
    IV. No assent of creditors can give vitality or validity to a void deed. Rice is not named in the deed, nor is his assent pretended. The points may all be narrowed down to the single proposition, can a deed for illegality of certain provisions be made valid by a subsequent deed in relation to the same subject matter which incorporates and becomes a part of the same deed, but waives the performance of the illegal provisions ? The answer of the law is — void in part, void in the whole. Whenever the original illegal contract is so involved in the contract on which the action is brought that the two can not be separated, and whenever they seem to be but a continuation of the same agreement, no action can be supported on either. But if the subsequent agreement be totally disconnected from the original, it may be enforced. (1 Sto. on Cont. § 622.) In the case before the court, it is impossible to disconnect the two papers.
   Rylato, Judge,

delivered the opinion of the court.

The first deed offered, dated 20th November, 1854, by IToit to Martin, is admitted to be fraudulent on its face. The provision that the said Hoit should keep possession of the goods and property mentioned in the deed, and should sell and dispose of the same in the usual course of business, without being accountable to any person for the proceeds of the goods in the mean time, is unqestionably a vice that renders this deed fraudulent and void as to creditors.

The subsequent deed did not cure this vice. There is nothing attempted to be conveyed by it. It recites the obnoxious provision in the first deed, and then proceeds to release and relinquish unto the said Martin all the rights and privileges reserved to Hoit by the said provision in the first deed — “ so that he may at any time when he shall see fit seize and take possession of said property, or any part thereof, wherever he may find the same.” Now there is not the slightest evidence here that Rice, the plaintiff in the execution under which Maddox seized the goods in controversy, ever assented to these deeds of trust. The first deed being fraudulent against creditors, let us see if the second deed has cured the fraud. Without pretending to determine what would be the effect of a second deed upon a prior one, if the second had been so made as to be itself without objection, yet in this case the second deed does not cure the vice in the first, being itself vicious. This second deed does not alter the relations of Hoit and Martin. The deed does not pretend to convey the goods to Martin for the creditors of Hoit; it simply releases his (Hoit’s) rights reserved by the provision of the first deed, and leaves it at the option or discretion of Martin to take the goods into his possession whenever he may see fit. How suppose Mr. Martin, a clerk in the employment of Hoit, does not see fit to take the goods, then Hoit proceeds to keep possession and sell on in the usual course of business : the second deed does not cure the defects of the first, and that being fraudulent and void as to all creditors not assenting to it and affirming its provisions, and Rice, plaintiff in the execution under which Maddox seized the goods, never having assented thereto, it is void as to him, and the plaintiff below was properly non-suited. Let the judgment therefore be affirmed ;

Judge Scott concurring ; Judge Leonard absent.


author: RtlaND, Judge,

text:
    Peters, Defendant in Error, v. The St. Louis & Iron Mountain Railroad Company, Plaintiff in Error.
    1. A laborer employed in the construction of a railroad by a sub-contractor is entitled to the benefit of the 12th section of the “Act to authorize the formation of railroad associations and to regulate the same,” approved February 24, 1853. (Sess. Acts, 1853, p. 128.)
    2. It is not necessary that the thirty days’ labor, for which a railroad company may be held liable under said act, should be performed upon thirty consecutive days.
    3. Demands against a railroad company under section 12 of the act of February 24, 1853, (Sess. Acts, 1853, p. 128,) were assigned to an assignee in order that he might collect them either by suit in his own name or otherwise ; for his services, he was to receive twenty-five per cent, of the amount collected, and the remainder he was to pay over to the assignors ; he was to pay all costs and charges that might accrue in the collection of the claims or in their attempted collection. Held, that the assignee might sue for said claims in his own name.

      Error to St. Louis Law Commissioner’s Court.

      S. A. Holmes, for plaintiff in error.
    I. A laborer employed by a sub-contractor is not entitled to the benefit of the statute. The object of the notice required is that the company may be enabled to protect itself against the contractor in case he fails to pay his hands. This object would be defeated by holding that the hands of a sub-contractor were entitled to this remedy. The word “ contractor,” by which must be intended the contractor with the company, is alone made use of in the statute. Had the legislature intended to enlarge the remedy so as to embrace employees of a sub-contractor, it would have so said. This is done in the case of mechanics5 liens, and all special remedies of this kind. The statute is-in derogation of the common law and ought tobe strictly construed.
    II. The notices were insufficient. They claimed for work done in periods of from forty to sixty days. The statute gives tho remedy for thirty or any less number of days’ labor, and requires that such notice shall be in writing, and shall state the amount and number of days’ labor, and tbe time when tbe said labor was performed. Tbe notice itself should show that the party is entitled under the statute, and that the work was performed within the period of thirty days, otherwise the company is not bound to take any notice of it. (Sess. Acts, 1853, p. 128.)
    III. The claimants themselves should have been made parties. The finding shows that the plaintiff was a mere agent to collect for a mere compensation agreed upon.
    Casselberry, for defendant in error.
   RtlaND, Judge,

delivered the opinion of the court.

This case was before this court at our March term, in the year 1856, and was then reversed and remanded. (23 Mo. 107.) The decision then given does not expressly embrace some of the points now raised. We shall then proceed to notice them. The plaintiff in error, that is, the Railroad Company,contends that a laborer employed by a sub-contractor is not entitled to the benefit of the statute. This point has been ruled otherwise in New York, and our statute is a literal copy, so far as the 12th section is concerned, of the New York act. We are fully satisfied with the construction given by the Court of Appeals of New York, and, with that court, we hold that this 12th section extends to workmen hired by parties to whom the original contractor had sub-let a portion of the work. This point is so ruled expressly in the case of Kent v. New York Central Railroad Company, 2 Ker. 628. This case is cited in the opinion delivered in March. 1856, and we supposed our approbation then might have been implied so far as to settle this point.

The next point brought to our consideration is the notice which was given. The court finds : “ That on or about the 28th March, 1855, and within twenty days after the performance of the labor on said road, for which the said laborers alleged they were unpaid by said Ribhan, those of them hereinafter mentioned caused notices in writing to be served on the defendant, which notices were directed To the Iron Mountain Railroad Company and to the officers, agents and servants thereof,’ and stated the amount and number of days’ labor, and the time when it was performed, and the name of the contractor from whom due; that is to say, Ernst Hain’s notice, signed by himself, stated that he labored for said Ribhan thirty-one and three-fourth days, between the 20th January and 20th March, 1855, at one dollar per day, and claimed $31 75; Christian Eichhorn’s notice, signed by himself, stated that he had worked thirty and a half days for Ribhan, between the 1st February aud 20th March, 1855, eleven days, at one dollar per day, and the remainder at one dollar and twenty-five cents per day, and claimed $84 87 ; Frederick Eger’s notice, signed by himself, stated thiit he worked for Ribhan twenty-five days, at one dollar per day, between 7th February and 20th March, 1855, and claimed $25 ; Val entine Neureiber’s notice, signed by himself, stated that he worked fifteen and a half days for Ribhan, at one dollar per day, between 12th February and 10th of March, 1855, and claimed $15 50 ; John Behland’s notice, signed by himself, stated that he worked twenty-eight and a half days for Ribhan, at one dollar per day, between the 1st of February and the 20th of March, 1855, and claimed $28 50. These notices were served on one Kelly, who was an engineer and superintendent employed by the defendant below, and had charge of that section of the road on which the said labor was performed, by delivering the same to him personally.” The act requires the notice to be in writing, to state the amount and number of days’ labor, and the time when the labor was performed for which the claim is made, and the name of the contractor from whom due, and shall be signed by such laborer or his attorney, and be served on an engineer, agent or superintendent employed by the company having charge of the section of .the road on which such labor is performed. Now, here the notice was in writing, signed by the laborer, given to the engineer and superintendent of the section of the road on which the work was done, stating the time when it was done, and the number of days’ labor, and the price. Now, although the law permits no more than thirty days’ labor thus to be enforced as a lien, and two of these notices were for claims exceeding thirty days, by a small amount, yet the petition was so amended on the trial as to fix the period of time not exceeding thirty days. We think the notices were sufficient. It -does not require certainty beyond that of a common intent. In our opinion, the thirty days’ labor need not be thirty consecutive days, unbroken by a day or a week even. But there can not be more than the labor of thirty days allowed as a lien against the company; yet there may have elapsed fifty days in which the labor of thirty may have been performed. We think there is nothing in the omitting of the full name of the corporation. “ The Iron Mountain Railroad Company” fully designated the road, the corporation. Upon the whole, then, we consider the notices sufficient.

As to the last point, that the laborers themselves should have sued, we also think that point must be ruled against the plaintiff in error. The finding of the court on this point is as follows : “The court finds that after the service of the said notices, the said Ernst Hain, Christian Eichhorn, Frederick Eger, Valentine Neuriber and John Behland, by their agents respectively, who had the authority for that purpose, assigned or transferred to the plaintiff all their right, title and interest of, in and to their said demands respectively. Their claims were transferred to the plaintiff that he might collect them, either by suit in his own name or otherwise ; and for his services he was to receive twenty-five per cent, of the amount collected, - ' ' r remainder he was to pay over to the respective claimsjjjrts^ plaintiff (Peters) was to pay all costs and charges w|)aír might accrue in the collections of said claims, or in their $,tt$d • |t|teppi3i collection.” We are satisfied that the plaintiff below&ould sue in his own name on these accounts under our new cook. In See Grinell et al. v. Schmidt et al., 3 Code Rep. 19; Walker v. Manor, 18 Mo. 564; Webb & Zepp v. Morgan, McClung & Co. 14 Mo. 428.)

Upon.the whole record, we think the court below committed no error. The judgment is therefore affirmed, with the concurrence of the other judges.


text:
    Hallowell et al., Respondents, v. Page, Appellant.

    1. A sheriff’s return of process, regular on its face, is conclusive upon the parties to the suit; its truth can he controverted only in an action against the sheriff for a false return.
    2. Should a defendant permit the time for answering to expire, it is not an unsound exercise of discretion to refuse to permit him to file an answer not showing a meritorious defence to the action.
    3. To entitle the holder of a dishonored hill of exchange to the damages allowed hy the statute, it must be expressed to he “ for value received.”

      Jlppeal from St. Louis Court of Common Pleas.

    This was an action against D. D. Page, H. D. Racon, T. Brown, and E. Wyman, as drawers of a bill of exchange. The bill was drawn by Page & Bacon, of St. Louis, which firm was composed of defendants, upon the Bank of America, New York, in favor of Morris L. Hallowell & Co. Process was duly served upon Bacon, Brown and Wyman. The sheriff made the following return : “I further executed this writ on the 15th day of September, 1855, by leaving a copy of the writ and petition, as furnished by the clerk, at Daniel D. Page’s usual place of abode, with a white person of his family over the age of fifteen years, in St. Louis county.” Bacon, Brown and Wyman answered, putting in issue the alleged presentment, refusal and notice, also the allegation that plaintiffs were partners under the name and style of Morris L. Hallowell & Co. They also denied that plaintiffs were the legal holders and 'owners of the- bill. Page moved the court to quash the return of the sheriff, or to require him to amend the same according to the facts, and filed an affidavit, stating therein in effect that a copy of the writ in said case was not left with any white member of his family above the age of fifteen years, as in the return of the sheriff to said writ is alleged ; that such copy was not left at his usual place of abode ; that at the time of the pretended service no member of his family was present in the county of St. Louis. He prayed to be permitted to establish these allegations by proof. At the hearing of this motion to quash, the court refused to permit the plaintiff to prove the truth of the matters stated in • the affidavit, and overruled the motion to quash the return of the sheriff; whereupon said Page then moved the court for leave to enter his appearance, and file generally an answer in said cause within a reasonable time thereafter, no answer being then prepared. The court overruled this motion, remarking that if an answer were prepared and shown to the court, it would then decide whether it should be filed, as it must be known whether the answer was to the merits before leave could be granted. The defendants then asked leave to amend the answer already filed, by inserting therein the name of said Page so as to make it the joint answer of all the defendants. The court overruled the motion. The court thereupon, on motion of plaintiffs, dismissed the cause as to Bacon, Brown and Wyman, and rendered judgment by default against Page.

      JV". D. & G. P. Strong, for appellant.
    I. The court should have quashed the sheriff’s return, if it was false or irregular on its face. Its truth should have been inquired into when called in question at this early stage of the case. (Butts v. Francis, 4 Oonn. 424 ; 8 Blackf. 179 ; Pollard v. Rogers, 1 Bibb, 478 ; St. John v. Tombeckbee Bank, 3 Stew. 146 ; Cunningham v. Mitchell, 4 Rand. 189 ; Thompson v. Morris, 2 B. Mon. 35 ; Dobbins v. Thompson, 4 Mo. 118 ; Blanton v. Jamison, 3 Mo. 39.)
    II. The court should have allowed the defendant leave to answer, or at least have permitted the answer on file to be amended. The defendant Page was not in default strictly speaking. At the earliest moment he had filed his motion to quash the sheriff’s return. The motion to quash, and proceedings thereon, was equivalent to a plea in abatement to the writ demurred to by plaintiffs, and demurrer sustained. In such a case the spirit of the practice act, if not to its letter, would require the court to permit the party, where plea was thus held bad, to answer over. (Sess. Acts, 1849, p. 80-5; R. C. 1855, p. 1237, § 40, 41, 42.) The answer filed did put in issue material facts, and the court should have permitted the amendment of.it so as to make'it the answer of Page as well as the other defendants. (Wales v. Chamblin, 19 Mo. 500; Davis y. Christy, 8 Mo. 569.) •
    III. The bill or check sued on does not contain the words •“for value received,” and is not such a bill as makes the -drawer liable for ten per cent, damages on failure to pay. (R. id. 1845, p. 173, § 7 ; Riggs v. City of St. Louis, 7 Mo. 438.)

      Glover & Richardson, for respondents.
    I. As between the parties to a suit the sheriff’s return is conclusive and can not be impeached. The court will not try on affidavits whether the return is false, even though a case of fraud is made out. (Gwinne on Sheriff', 473, and cases cited.)
    II. After the defendant allowed the time for answering to expire, he could not claim the right to answer without showing a •m.eritoi'ioKS defence. He did not offer to file an answer, but asked for time for that purpose, which being refused, he then asked for leave to join in the answer of his co-defendants. This answer was purely technical. The only averment that touched upon a substantial defence was the denial that the plaintiffs were the legal holders of the bill, and the reason for that \ denial given in the answer was that the plaintiffs had endorsed ^the bill to J. Purnell. -The reason is a bad one, for though they may have endorsed the bill, they afterwards had possession of it, and had the right to sue on it.

         The following cases—Clark v. Page, Campbell v. Page, Tutt & Dougherty v. Page, Smith et al. v. Page, Chadbourne v. Page, Berry v. Page et al., Campbell v. Page et al.—decided at this term, involved the same questions determined in the case of Hallowell v. Page. Judge Leonard, beingrelated to Mr. Brown, a member of the firm of Page & Bacon, was incapacitated to sit on the determination of certain of the above cases in which Mr. Brown was a party. The statute is peremptory. It should also have been noted in the report of the case of the City & County of St. Louis v. Alexander et al., 23 Mo. 428, that for the same reason Judge Leonard was incapacitated to sit on the determination of that case. The following list embraces, it is believed, all the cases decided at the March term, 1857, at the hearing of which Judge Leonard sat: The State v. McDonald, The State v. Moody, The State v. Timmerberg, The State v. Devlin, The State v. Rucker, City of St. Louis v. Jackson, Bouldin v. Page & Bacon, Clark v. Humphreys, Fagin v. Connolly, Biddle v. Boyce, Wainwright v. Rowland, Wesson v. Horner, Steamboat Virginia v. Kraft et al., Porter et al. v. Bobb, Grimm v. Gamache, Meyer v. Witter, Dunn v. North Missouri Railroad Co., Deickman v. McCormick, Peters v. St. Louis and Iron Mountain Railroad Co., Gilbert v. Boyd et al., Glasgow v. Nicholson.

   Scott, Judge,

delivered the opinion of the court.

The defendant has no right to controvert the truth of the sheriff’s return. That return was regular on its face, and its truth could only be impeached in a collateral action against the officer for its falsity. To permit the parties to an action to controvert the truth of the return of the officer deputed by law to serve the process would produce great delay and embarrassment in the administration of justice. Hence it is the general rule that, as between the parties to the process or their privies, the return is usually conclusive, and is not liable to collateral impeachment. This rule, it is said, is one necessary to secure the rights of the parties, and give validity and effect to the acts of ministerial officers, leaving the persons injured to their redress by an action for a false return. (2 Hill & Cowen’s Notes, 1087, and cases cited.) None of the exceptions to this rule help this case.

As it did not appear from the affidavit of Page that he had any meritorious defence to the action, we can not say that the ■ court, considering the time the application was made, exercised its discretion unsoundly in refusing him leave to file an answer, or in joining in the defence made by the other defendants, as it did not appear that théir defence was a just and meritorious one. The party asked a favor and the court could impose terms.

As the bill or check sued on does not contain the words for value received,” and is not such a bill as makes the drawer liable for ten per cent, damages on failure to pay, the judgment will be reversed, and such judgment as ought to have been entered below will be entered here, the respondents paying the costs of this court.

Judge Ryland concurring ; Judge Leonard absent.


text:
    Bouldin, Respondent, v. Page & Bacon, Appellants.
    1. Hallowell v. Page, ante, p. 590, affirmed.
    2. ^Notice of the dishonor of a bill of exchange given to one member of a partnership firm is notice to all.

      Jlppeal from St. Louis Court of Common Pleas.

      JV. D. & G. P. Strong, for appellants.

      T. Polk, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This being an action on a bill of exchange drawn in San Francisco, California, on parties in St. Louis, Missouri, against the drawers for its dishonor, the law with respect to interest and damages was settled in the case of Price v. Page & Bacon, 24 Mo. 65.

The printed volume, which by consent was to be read in this court as if incorporated in the bill of exceptions, purports to contain the laws of California ; it was then, under the 6th section of the act concerning evidence (R. C. 1845), prima facie evidence of the statutes of that state.

The drawers of the bill composing a firm, notice to one of them was notice to all. Beyond all controversy Chambers and Haight resided in San Francisco, California, and being members of the firm of Page, Bacon & Co., notice to them was enough to render the other partners liable. (Byles on Bills, 217.) The other judges concurring, the judgment will be affirmed.


text:
    Page, Respondent, v. Page & Bacon, Appellants.
    1. In the case of a dishonor of a hill of exchange, the damages in a suit against the drawers are regulated by the law of the place where the bill is drawn.

      H. Hallowell v. Page, ante, p. —, affirmed.

      «ftppeal from St. Louis Court of Common Pleas.

      JY. D. & G. P. Strong, for appellants.

      Breckenridge and Page, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The question as to the law that is to govern in the assessment of damages and interest in cases where bills are drawn in California on places east of the Rocky Mountains was determined in the case of Price v. Page & Bacon, 24 Mo. 65. That was an action against the drawers for the dishonor of the bill drawn by them.

As to the matter of contradicting the sheriff’s return, and the refusal to give leave to plead, see the case of Hallowell et al. v. Page, decided at this term of the court. There was no objection specifically made to the reading of the statutes of California, nor are they preserved in the record ; besides, the default admitted them.

Judge Ryland concurring,

the judgment will be affirmed;

Judge Leonard absent.


author: Soott, Judge,

text:
    Sawyer, Respondent, v. Page, Appellant.
    1. Certificates of deposit are not within section 7 of the act concerning bills of exchange (R. C. 1845, p. 173) ; consequently no damages are allowable thereon by said act in case of non-payment.

      Appeal from St. Louis Court of Common Pleas.

      JY. I). & G. P. Strong, for appellant.

      T. C. Reynolds, for respondent.
   Soott, Judge,

delivered the opinion of the court.

As the judgment was entered for a greater sum than was due upon the instrument sued upon, its being a bare certificate of deposit and not a negotiable promissory note, it will be reversed and a proper judgment will be entered. The instrument does not contain the words necessary by the statute to entitle the holder to damages for its dishonor.

The points in this case were determined in the case of Hallowell et al. v. D. D. Page, at the present term. Judgment reversed and another judgment entered here ;

Judge Hyland concurring ; Judge Leonard absent;

the respondent to pay the costs of this court.


author: E.YLAND, Judge,

text:
    Deickman, Plaintiff in Error, v. McCormick, Defendant in Error.
    1. A petition alleged that the plaintiff and defendant “jointly leased” certain premises of one A., and that the defendant collected 1he rents and failed to account to plaintiff for his share, one-half, of said rents. Upon the trial plaintiff offered in evidence a lease of said premises from a third person to said A. and an assignment by A. to plaintiff and defendant. Held, that this was a variance, and that the court might properly refuse to receive the assignment in evidence unless the plaintiff would amend his petition so as to correspond with the proof.

      Error to St. Lovis Law Commissioner’’s Court.

      Woods and Buckner, for plaintiff in error.

      L. M. Shreve, for defendant in error.

       A motion for a rehearing was made in this cause, and overruled.

   E.YLAND, Judge,

delivered the opinion of the court.

The plaintiff states in his petition that defendant and himself jointly leased of Hunter and Burrows a certain lot in the city of St. Louis, which he describes in his petition : and that defendant collected the rents, one-half of which were due plaintiff; and that defendant refused to pay the same to plaintiff, although often requested. The answer of defendant denies that the plaintiff and defendant jointly leased of Hunter and Burrows a lot of ground described in plaintiff’s petition, and denies that plaintiff’s interest is one-half of the rents and profits of the property described in said petition ; denies that half of the rent is one hundred and fifty dollars. Defendant says that he has never received any rents and profits of property leased from Hunter and Burrows ; but says he has received rents, but not from that source referred to, of which plaintiff is entitled to the sum of $116 67; but that he has laid out and expended about said property, for which plaintiff is liable, the sum of $174 90, leaving a balance due defendant of fifty-eight dollars and twenty-two and a half cents ; and files an account as an exhibit showing the particulars of the set-off.

The plaintiff replied denying the justice and correctness of the defendant’s set-off. At the trial the plaintiff offered a lease from John Biddle to Thomas Hunter, and an assignment or sale of the lease by Hunter to the plaintiff and defendant. The lease may be for part of the same lot described in plaintiff’s petition. The lot mentioned in the lease is said to be thirty-two feet seven inches front on Sixth street. The lot in the petition is stated to be thirty-seven and a half feet front on Sixth street; the other boundaries agree.

The defendant objected to the lease and also to the assignment being given in evidence. The court permitted the lease to be read to the jury, but sustained the objection to the assignment, and excluded it upon the ground that said assignment was not relevant to any issue in the case. The court then informed the plaintiff’s counsel that he was at liberty amend his petition so as to correspond with the proof offered, to-wit, the assignment of said lease, which he refused to do, but excepted to the ruling of the court in excluding said testimony.

The plaintiff then introduced Mr. Hunter as a witness, and ashed him if he and one Burrows did not lease the property, mentioned and described in tbe lease, to the plaintiff and defendant. He answered, “No, we did not lease it to them; we sold the lease to them ; the sale was in writing.” The witness identified the assignment offered in evidence as the sale to which he referred. The court refused to permit the witness to testify concerning the contents of the assignment, to which the plaintiff at the time excepted. The witness further testified that the possession of the premises described in the lease was delivered tp the parties. The plaintiff then introduced Mrs. Kelly, and offered to prove by her that she had paid rent to the defendant for the premises mentioned in the petition and within the time mentioned therein, but the court refused to permit such evidence unless the plaintiff would amend his petition in the particular above mentioned ; plaintiff refused so to amend, and the court refused to proceed further with the trial, and the plaintiff topi: a non-suit. He afterwards moved to set the non-suit aside, which being overruled, he excepted, and brings the case here by writ of error.

According to the plaintiff’s own statement, ho should have amended his petition. He averred that he and defendant jointly leased a lot of ground, and that defendant had received rent for the lot, half which belonged to plaintiff. The defendant denied this statement. The proof showed that the plaintiff' and defendant had jointly bought a lease of a lot of ground; had not leased it, but had bought the lease or term of Hunter. Here was a variance. In Beck v. Ferrara, 19 Mo. 30, the petition stated that defendant was indebted to plaintiff for stall No. 20 in the North Market, which was purchased by the plaintiff from a third party for defendant at his special instance and request. The proof was that the plaintiff bought the stall for himself and afterwards sold it to defendant. This was held to be an entire failure of proof of the cause of action alleged in the petition, and not a mere variance. Now in the case before us the plaintiff has misdescribed his title. He attempts to set forth his title, and by that title to show his right to demand so much of defendant. Defendant denies his right. The plaintiff fails to prove it as declared on, and when he is permitted and even advised by the court to amend, which could have been done in a few minutes, he refuses to do so, and seeks his redress by his writ of error. We will not encourage such obstinacy. He ought to have embraced the opportunity to amend when offered, and not have come here for redress. He had it in his own hand below,,but being determined to pursue his own way he must abide by the consequences. He now says before us that this is all surplusage — all immaterial, and could be stricken out, and still leave his cause of action. We do not agree with the plaintiff in this particular. His right of action depends upon his right to the rent, and he must show some right to the lot or to its possession — some title or claim to the rent, before he can sue for it. The plaintiff sets forth his right to claim rent. He says he was a joint lessee with defendant of the lot from Hunter and Burrows ; instead of being a lessee, he offers to show himself a joint purchaser of the lease which Hunter had from Biddle. Now it is necessary to show that he had some title or right to the possession of the premises with the defendant, or he could not in law demand of the defendant his portion of the rent. ITe must show title in some way to the money arising as rent. He does offer to show a purchase, when he only sets forth a lease. His proof varies, and the remedy was to amend. He has a cause of action, but not in the manner set forth by him. The variance is technical, yet being a variance, the testimony was properly rejected. His description of his tenure was different from his proof. He would not amend. He was properly nonsuited. The idea of proving his title by Hunter, after Hunter’s stating he had sold his lease, and assigned it in writing, identifying the assignment which had been rejected by the court, by stating the contents of the assignment, was preposterous to say the least of it. Mrs. Kelly’s evidence would have been proper if he had shown his right to demand the rent of the defendant for the lot. Upon the whole record there is nothing requiring us to reverse the judgment below. The plaintiff’s own conduct has placed him out of court and there we will leave him. The judgment is affirmed ;

Judge Scott concurring.


author: Ryland, Judge,

text:
    Rey, by his next friend, Respondent, Toney, Appellant.
    1. An agister of cattle can not be rendered liable for the loss of a horse committed to his charge upon the mere proof of the loss of 1he horse; negligence must be shown.

      •Appeal from, St. Louis Law Commissioner’s Court.

      J. B. Goff, for appellant.

      L. M. .Shreve, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The finding of the facts by the court in this case will not warrant the judgment rendered thereon. The following is the finding : “ The court finds from the evidence that in the spring of the year 1855, the defendant was an agister of cattle near the city of St. Louis; that the plaintiff by his agent delivered the horse mentioned and described in his petition to the defendant, to be by the defendant pastured and cared for, at the rate of two dollars per month during the time the defendant should pasture said horse ; that the plaintiff paid to the defendant two dollars at the time he delivered the horse to the defendant in advance for the first month; that some three or four weeks af-terwards the plaintiff by his same agent demanded the horse from the defendant at the place where the horse was left, but did not receive him ; that prior to the demand the horse had either been taken away by some one, or had broken out of defendant’s enclosure and strayed away ; that the said horse was the property of the plaintiff, Christopher Rey, and at the time he was delivered to the defendant was of the value of one hundred and fifty dollars. The court does not find that said horse was delivered to the defendant with the express understanding, and received by the defendant with the condition, that defendant was not to be in anywise responsible for the safe keeping of said horse; nor that said defendant under a contract suffered him to feed upon the grass growing upon his land without any stipulation for care or attention on the part of defendant; nor that said horse escaped or was removed from defendant’s premises without the knowledge or consent of defendant. Upon the facts as found the court declares the law to be that the plaintiff is entitled to recover, and that the measure of damages is the value of the said horse at the time he was delivered to the defendant, with interest from the time of the demand made for the same.”

Now an agister of cattle is not an insurer of the safe keeping, and is answerable only in case of negligence. In the case of Broadwater v. Blot, Holt’s Rep. 548, the defendant was a farmer, and had received the plaintiff’s horse to agist at a stated price. The horse had strayed out of the defendant’s field and was lost. Chief Justice Gibbs said:'“All the defendant is obliged to observe is reasonable care. He does not insure, and is not answerable for the wantonness or mischief of others. If the horse had been taken from his premises, or had been lost by accidents, which'he could not guard against, he would not be responsible. I admit that particular negligence must be proved by occasion of which the horse was lost, or gross general negligence to which the loss may be ascribed in ignorance of the special circumstance which occasioned it. If there was a want of due care and diligence generally, the defendant will be liable. The question is, were the defendant’s fences in an improper state at the time the horse was taken in to agist ? Did he apply such a degree of care and diligence to the custody of the horse as the plaintiff who entrusted the horse to him had a right to expect? I shall leave it to the jury.” The finding is entirely silent as to the care or negligence of the defendant. There is nothing said in regard to the very matter on which alone the defendant can be considered liable, if at all — that is, either particular negligence by which the horse was lost, or gross general negligence. The finding therefrom will not warrant the judgment, and the case must be reversed. “In all cases where the defendant is bound only to ordinary care, and is liable only for ordinary neglect, the plaintiff can not recover upon the mere proof of loss of the articles entrusted to the bailee. He must give some evidence of the want of care in the bailee or his servants.” (Foot v. Stors, 2 Barb. 329.) “ Deposits for hire — bailees of this class are responsible like other bailees who receive a reciprocal benefit from the bailment,- for ordinary care and diligence, and are responsible only for ordinary negligence. Of this class are agisters of cattle, warehouse-men, forwarding merchants, and wharfingers.” (2 Story on Cont. § 742, p. 133.)

These bailees are bound only to take reasonable and ordinary care of the bailment. Unless the theft of this horse grew out of the negligence of the defendant, he is not liable ; or unless he was lost to plaintiff by the want on the defendant’s part of ordinary care and diligence. The finding here shows no want of care or diligence. The judgment must be reversed and the cause remanded for further proceedings in accordance with this opinion;

Judge Scott concurring; Judge Leonard not sitting.


author: BROWN, J.

text:
    THE STATE v. ERNEST JAEGER, Appellant.
    Division Two,
    February 6, 1912.
    1. INFORMATION: Verification: Several Counts. A single verification of an information in four counts, in three of which defendant is charged with a violation of the Local Option Law, and in the. fourth with a violation of the Dramshop Act, is sufficient. The counts are not so inconsistent and contradictory as to render the one verification no verification in fact.
    2. VENUE: Violation of Local Option Law: No Proof. Where the only proof of the venue was that one witness bought wine from the defendant, on the day. named, in Newton county, and paid for it, and the information alleged and the proof showed that local option was in force in Newton county outside of Neosho, a city of over 2500 inhabitants, and the State failed to prove, even inferentially, whether the sale was made within or without the operation of the law, there was no proof of venue made, and the judgment of conviction cannot stand.
    3. LOCAL OPTION LAW: Adoption in County: City of 2500 Inhabitants Shown by Census After Order Made. The Local Option Law means that the county court shall ascertain before making an order of election for its adoption by the county whether any city in the county has on that date 2500 inhabitants or over, and if so it must be excluded. If it designates what cities are excluded, and declares no other has that number of inhabitants, a city embraced within the territorial operation of the order cannot, before the day of the election, by taking a census showing it has over 2500 inhabitants, exempt itself from the operation of the law if adopted; nor will the adoption of the law he invalid, either as to it or the rest of the territory embraced within the court’s order. The law applies to all cities: which on the date the order for the election is made do not have 2500 inhabitants. [Overruling State ex rel. v. Mitchell, 115 S. W. 1098, never officially reported, and State ex rel. v. Cass County Court, 137 Mo. App. 698.]
    Appeal from Newton Circuit Court.- — Hon. Argus Goxf " “Judge. -
    Reversed and remanded.

      M. E. Benton and .John T. Sturgis for appellant.
    (1) Tire evidence in this case clearly shows that the city of Granby had a population of over 2500 at the time of holding the local option election for New.ton county, and yet that city was included and voted on the question along with the county. This would render the election void. State v. Webb, 49 Mo. App. 407; State ex rel. v. Cass County Court, 137 Mo. App. 698; State ex rel. v. Mitchell, 115 S. W. 1098. Whatever may have been the population of Granby according to the United States census in 1900, the census taken by the city in 1904 and on file with the county .clerk at the time the local option election was held, showed it to have a population of over 2500'. Where the record of an inferior court shows a positive finding of a jurisdictional fact, such finding is conclusive, but if the court acts on the supposition that such fact exists, but leaving its record silent as to any finding, then there is only prima facie evidence of the existence of such fact which is open to rebuttal. State v, McCord, 124 Mo. App. 67. (2) The State did not prove the venue of the alleged sale. The evidence goes no further than to prove that the sale was within Newton county, and wholly fails to show that it was outside the limits of the city of Neosho. The venue of the offense is within the county and without the city, and it is just as essential to prove that the sale was outside the limits of the city as inside the county. State v. Prather, 41 Mo. App. 451. It is elementary law that a failure to prove the venue is fatal to the prosecution. State v. ILottle, 104 Mo. App. 34; State v. King, 111 Mo. 576; State v. Schuerman, 701 Mo. App. 518; State v. Hartnett, 75 Mo. 251. (3) The information in this ease is had. It contains two inconsistent and repugnant counts; the one for selling intoxicants in violation of the Local Option Law, and the other in violation of the dramshop law. Both laws cannot be in force at the same time in the same county. The proof of the one offense necessarily disproves of the other, and in fact the proof of one is a defense to the other. State v. Beam, 51 Mo. App. 368; Éx parte Handler, 176 Mo. 383; Butler v. State, 25 Pla. 347; State v. Weyland, 105 S. W. 660. The information in this ease is bad and will not support a conviction for the reason that it contains inconsistent and absolutely contradictory counts with one verification only, which amounts to no verification. State y. Weyland, 126 Mo. App'. 723; State v. Graves, 135 Mo.' App. 171.

      Elliott W. Major, Attorney-General, and John M. Datuson, Assistant Attorney:General, for the State.
    Appellant complains that Granby contained more than 2500 inhabitants, as shown by the census filed on June 4, 1904, and was not entitled to participate in said local option election, notwithstanding that on May 2d the county court found that Neosho was the only city in said county containing more than 25001 inhabitants. Section 7238, R. S. 1909, specifically provides that the county court is to determine upon the petition filed (at the date of said filing) what cities contain a population of 2500 inhabitants, and this fact is jurisdictional, and Sec. 7243-, R. S. 1909, providing a penalty for the violation of the said Local Opinion Law, provides: “It shall not be lawful for any person within the limits of said county (trying outside the corporate limits of any city or town having at the date of such order of election a population of 2500 inhabitants or more), or city, as the case may be, etc. The presentation on May 2, 1904, to the county court of Newton county of a petition for a local option election, gave the court jurisdiction of the subject-matter. State v. McCord, 207 Mo. 519; Baubie v. Ossman, 42 Mo. 505 ; State ex rel. v. Wilson, 216 Mo. 215; Halter v. Leonard, 223 Mo. 286. The county court having acquired jurisdiction of the subject-matter, the validity of its proceedings is not subject to collateral attack, and when jurisdiction is lawfully adjudged, the court may proceed to final judgment. It cannot be ousted by subsequent events or facts arising in the case, unless some constitutional statutory provision operates to divest the court of its jurisdiction. 11 Cyc. 690; Shea v. Shea, 154 Mo. 599; Seibel v. Simeon, 62 Mo. 255. The lawmaking power of the commonwealth has, in its wisdom, placed the jurisdiction, as provided in Sec. 7238, R. S. 1909, in the county courts of the various counties of the State, and gave that court, alone, exclusive jurisdiction in that behalf, and their acts, as well as the local option election provided by their acts, is not subject to collateral attack. Ryan v. Wooten, 1391 Mo. App. 231. The census of Granby, taken and certified to the-county clerk, did not add to or detract from, or in any way effect the jurisdiction of the county court in its finding that Neosho was the only town of over 2500 inhabitants, and ordering the local option election in all parts of Newton county outside the corporate limits of said city.
   BROWN, J.

This is a prosecution for selling intoxicating liquors in Newton county, in violation of the Local Option Law alleged to be in force in that county.

The defendant was tried in October, 1907, in the circnt court of Newton county, and from a judgment imposing a fine of three hundred dollars, appealed to the St. Louis Court of Appeals. The St. Louis Court of Appeals affirmed the judgment of the trial court on November 16, 1909, but subsequently sustained a motion for a rehearing, and then transferred the appeal to the Springfield Court of Appeals.

Said last named court of appeals heard said appeal and on June 11, 1911, the Hon. Edgar P. Mann, acting as a special judge of said court, filed therein the following opinion:

“Appellant’s firs; Contention is that since he was charged in three coup , / of the information, with a violation of the Local Option Law, and in the fourth count thereof with a violation of the Dramshop Act, all under one verification, the counts are so inconsistent and contradictory that the verification amounts to no versification in fact, and that his motion in arrest, upon the authority of State v. Weyland, 126 Mo. App. 723, should have been sustained.
“In the Weyland case there were three counts in the information under one verification. The first count charged that defendant was a dramshop-keeper, and that he sold liquor on Sunday. Another count charged that he sold liquor on Sunday, saying nothing about his being a dramshop-lceeper. The other count charged that he was not a dramshop-keeper, and that he sold liquor on Sunday. The court held that the two counts, expressly charging in the one that defendant was a dramshop-keeper and in the other that he was not a dramshopi-keeper, were so flatty contradictory of each other that the truth of both could not consistently be verified under one general affidavit. It did not hold that the remaining count was improperly verified with either ,of the others under one oath. If it had so held the case would have been in point here, or had the prosecuting attorney charged in one count of the information under consideration that the Local Option Law was in force in Newton county, and in either of -the others that it was not in force in such county, the case cited would have been in point. As the case stands, we find no such contradiction in the counts of this information as renders their verification under one oath inconsistent.
“Appellant’s contention that no proof of venue was offered or made by the State is correct. Only one witness testified to the sale, and he merely said that he bought wine on the day named of the defendant, in Newton county, Missouri, and paid for it.
“The information alleges, and the proof shows, that local option was in force in Newton county outside of the city of Neosho, which had a population of over twenty-five hundred. The State entirely failed to prove, even inferentially, whether the sale was made within or without the limits of the operation of the law, and for this failure alone the cause must be reversed and remanded for a new trial.
“Appellant further contends, however, that the undisputed record in this cause discloses affirmatively the fact that the Local Option Law was never adopted in any part of Newton county, and therefore he cannot be convicted of its violation. It is necessary to dispose of that question here and now. Touching appellant’s contention in this behalf, it is not necessary to go into every detail further than to say that at the trial the State offered no proof of the publication of the notice of the local option election, but it did offer the record evidence, unchallenged as to its sufficiency or competency, to show that on May 2, 1904, a proper petition was filed with the county court for the eleo tion, and that on said May 2, by record entry, the court made all the necessary findings, including a proper finding that Neosho alone was the only city on that date in the county having a population of over twenty-five hundred, and ordered an election for all that part of the county outside the corporate limits of'said city to be held June 8, 1904; that the election was held in conformity with the order, returns properly cast up by the county court, showing that all of the county outside of the corporate limits of Neosho, including the fourth class city of Granby," had participated in said election, and that local option had carried by a majority of one hundred and forty-six votes, and showing due publication of the result thereof. In fact, appellant admits that local option was, or would have been lawfully adopted in said county on said June 8, 1904, but for the further following facts shown by the defendant by competent evidence at the ■trial. We might put it in this way: That the record in this case contains an agreement that on June 3, 1904, thirty days subsequent to the order of the election by the county court, the city of Granby properly caused a census of its inhabitants to be taken under the provisions of section 3028, Revised Statutes 1809 (now Sec. 7239, R. S. 1909), and filed a proper statutory certificate thereof with the clerk of the county court on June 4, 1904, four days before the election, showing that said city of Granby had, according to said census, which is not attacked in any way, two thousand five hundred and fifty-seven inhabitants.
“Said census was also taken in conformity with the provisions of section 6300, Revised Statutes 1899 (now Sec. 9639, R. S. 1900), which section requires all ■courts to take judicial notice of the population so shown by said census. Appellant contends that the case stated brings the facts and the law squarely within the terms of State ex rel. v. Mitchell (St. Louis Court of Appeals), 115 S. W. 1098, never officially reported, and State ex rel. v. Cass County Court, 137 Mo. App. 698 (Kansas City Court of Appeals); that the facts in the three cases are identical, and that upon the authority of the two cases mentioned the taking and filing’ of the census by the city of Granby after the date on which the election was ordered and before the day of election ousted the county court of jurisdiction' to proceed with the election, receive and cast upon the returns, and publish and declare that local option had carried within the territory inclusive of the corporate' limits of the city of Granby, because the county court was bound to take judicial knowledge of the census of said city filed with the clerk four days prior to said election, and that the census showed the city, having then over twenty-five hundred inhabitants, could not be controlled in the premises by other than the vote of its own inhabitants. Appellant also contends that as the whole township of Granby, outside as well as inside the city limits thereof, voted at the same precinct, it could not then, and cannot now, be determined whether the proposition carried by excluding the vote of those residing within the city limits, and the whole election fails. If I felt that the two cases cited correctly declare the law, there would be nothing to do but to sustain appellant’s contention, hold that local option had never been legally adopted in Newton county, and reverse this case outright. Both the Mitchell case and the Cass County case assume as the premise for all the .deductions therein that a local option election under the statute is held for the purpose of determining’ whether intoxicating’ liquors shall be sold in all that portion of the county outside of the cities thereof having a legally ascertained population of over twenty-five hundred on the day of election'. If I believed the statute intended that the legally ascertained population on the day of the election, or on any day subsequent to the day on which the election was ordered,- governed, then I would concede the reasoning and conclusions reached in these two cases to be sound. In my judgment, however, the opinion in each of those causes overlooks the plain provision, or least meaning and intent of the Local Option Law, article 3, chapter 22, Revised Statutes 1899, in force when these elections were all held (now art. 3, chap. 63, R. S. 1909), which when we consider all the sections thereof together, in order that if possible all may stand, plainly provides for a local option election to be held for the purpose of ascertaining whether intoxicating liquors shall be sold in all that portion of the county outside the corporate limits of any city thereof whose population has been legally ascertained by the county court to be over twenty-five hundred at the date of such-order of election, and that if at the date of the order of election by the legal standard of determination any city of the county has less than twenty-five hundred inhabitants, then no matter how many inhabitants it may have by such legal standards of - determination on the day of the election, it remains included in the order, is entitled to participate in the election, and is bound by the result thereof. This plain intent of the statute in question is first evinced in section 3027, Revised Statutes 1899 (now Sec. 7238, R. S. 1909), which provides for the calling of an election upon application by petition signed by one-tenth of the qualified voters of any county who shall reside outside of the corporate limits of any city or town having at the time of such petition a population of twenty-five hundred inhabitants or more. The Mitchell case announces the doctrine that if subsequent to the order of election, and prior to the day of - election, a city theretofore having less than twenty-five hundred inhabitants files its 'census report, as provided by law, with the county clerk, showing more than that number, such city must be excluded from the operation of the law until such time as it votes for itself upon the proposition, but that nevertheless if by excluding the vote of such city from the returns the count shows the adoption of the Local Option Law, it was properly declared carried in the territory outside of such city. If this be correct, what then becomes of the fact that at the time of the filing of the petition and ordering the election, the voters of such city were competent petitioners and were necessarily counted in determining whether the necessary one-tenth had petitioned for the election? The ascertaining of this fact is jurisdictional. With such a city in the count when the petition is considered by the court, and out of the count when the election is held, and out of the territory to be affected by the election, how can it be determined whether the necessary number have petitioned for the election who were legal voters in the territory over which the law, if adopted, would be permitted to operate? Then, too, we have the anomalous condition of permitting an election to be ordered and held upon the petition of voters residing in a territory over which the election can have no force and effect, which condition the Legislature clearly never intended should exist, because by the section named it expressly excludes those residing in that part of the county not to be affected from the right of petition, and properly so. But the intention of the Legislature is more clearly evinced by the’ provisions of section 3032, Revised Statutes 1899 (now Sec. 7243, R. S. 1909), a section of the Local Option Law not noticed in either the Mitchell or the Cass County cases. This section is as follows:
“ ‘If a majority of the votes cast at any election held under the provisions of this article shall be “against the sale of intoxicating liquors,” it shall not be lawful for any person within the limits of such county (lying outside the corporate limits of any 'city or town having, at the date of said order of election, a population of twenty-five hundred inhabitants or more) or city, as the case may be, to directly or indirectly sell, give away or barter in any manner whatever, any kind of intoxicating liquors or beverage containing alcohol, in any quantity whatever, under the penalties hereinafter prescribed.’
“I think this is an express declaration that the election authorized by the Local Option Law is to bé held for the purpose of determining whether intoxicating liquors shall be sold in that part of the county outside of the corporate limits of any town or city .having a population of twenty-five hundred or more on the date of the order, according to the legal standard of determination at that date. And that since it is not contended, but the record shows, that on May 2, when the petition was filed with the county clerk of Newton county, and the order for the election entered of record, the city of Granby, according to thé legal standard of determination, had on that date less than twenty-five hundred inhabitants, it properly participated in said election and local option was legally adopted in all of that county, including the said city of Granby, save alone the city of Neosho, having a population according to the order and to the date thereof, of over twenty-five hundred. The census taken and filed after the date of the order did not in any manner affect the status fixed by the order.
“It has been suggested that the fact that the Legislature fixed the qualifications of voters at local option elections as of the day of election is indicative of the legislative intent that the day of election and- not the day the election is ordered governs the status of the territory to be affected. I do not think so. It is true that the Legislature has fixed the qualifications of voters as of the day of election. In doing so it simply followed the usual rule. It is competent for the Legislature to fix .the qualifications of voters at any election as of any day it sees fit. So, also, it was competent for the Legislature to fix the day the election was ordered as the time when it should be ascertained ■what territory is to be affected by the result of the election when held, and this it seems to me, it particularly did by the section of the statute last quoted.
“Whether or not the city of Granby, after filing its census showing over twenty-five hundred inhabitants, could have called an election later, within the four years, and voted itself out of the operation of the law is not involved here, and not necessary for us to decide.
“The judgment is therefore, reversed, and the cause is remanded for failure of the Stat.e to prove the venue.
“The opinion being in conflict with State ex rel. v. Mitchell, 115 S. W. 1098, decided by the St. Louis Court of Appeals, and State ex rel. v. Cass County Court, 137 Mo. App. 698, decided by the Kansas City Court of Appeals, this cause is hereby certified to the Supreme Court, in accordance with- the mandate of the Constitution.

Gray, J., concurs in result; Nixon, P. J., concurs in a separate opinion.”

After a careful consideration of the issues involved in this appeal, we have reached the conclusion that the law is correctly announced in the foregoing opinion of Special Judge Mann, and the same is adopted as the opinion of this coutt.

The judgment of the circuit court in this case is reversed and the cause remanded for a new trial.

Ferriss, P. J., and Kennish, J., concur.