text:
    MARY V. TERRY et al. v. LOUISA GLOVER, MARTHA KENNEY et al.; LOUISA GLOVER, Appellant.
    Division One,
    July 1, 1911.
    1. ABSTRACT: Evidence Not Preserved. A deposition admitted and read in evidence, but not set out in the abstract, which contains nothing of either its contents or substance, cannot be considered on appeal, neither can the court take into account 'what counsel state the witness testified.
    2. DEED: Delivery: Grantee as Witness. The grantee in a deed, under which she claims a life estate in the land sought to be partitioned, is not a competent witness to prove that the deceased grantor delivered the deed to her, although she be his widow.. In such case the deed is “the contract in issue and on trial.”
    3. -: -: Deposited in Place to Which Grantee Had Access. An instrument intended to be a deed is not a deed until the grantor delivers it to the grantee or to some other person for the grantee. It is essential to a valid delivery that the grantor part with the possession of the instrument without reservation and with the intention that it take effect at that time and operate as a transfer of the title. An instrument granting, bargaining and selling certain lands to grantor’s wife, and reciting that it is “not to go into effect until after the death of the said” grantor, placed by him in a tin box, on which his name was printed and.in which he kept his valuable papers and which he placed for safe keeping in the vault of a bank where he kept his bank account, and to which she always had access, and the key to which she carried, and- from which she as administratrix took it after his death, cannot be said to have been delivered to her.
    4. -: Testamentary In Character. A deed reciting on its face that it is not to take effect until after the grantor’s death, even though it be delivered, is testamentary in character, and not being executed according to the requirements of law for the execution of a will, is invalid, both as a will and as a deed of conveyance. A deed takes effect immediately upon its execution or not at all. It may be delivered to a third person to be delivered by him to the grantee, and it is valid although not delivered to the grantee in person until after the death of the' grantor, but in such case the deed takes effect from the first delivery and passes the title at that time. ■
    Appeal from Linn Circuit Court.— Hon. John P. Grover, Judge.
    Affirmed.

      Lewis A. Chapman and Frank Sheetz & Son for appellant.
    (1) The deed read in evidence from George Glover to Louisa Glover was a valid conveyance. Wilson v. Carrico, 49 Am. St. 213; Olds v. Coombs, 124 Ind. 62; Lyles v. Lecher, 108 Ind. 382; Wall v. Wall, 64 Am. Dec. 147; Johnson v. Heins, 31 Ga. 720; Rawlings v. McRoberts, 95 Ky. 346; Cates v. Cates, 135 Ind. 272; Chandler v. Chandler, 55 Cal. 267; Graves v. Atwood, 52 Conn. 512; Owen v. Williams, 114 Ind. 179; Abbott v. Holway, 72 Me. 298; White v. Hoppins, 80 Ga. 154; Webster v. Webster, 33 N. H. 18; Bunch v. Nicks, 50 Ark. 367; Wyman v. Brown, 50 Me. 139; Shackelton v. Sebree, 86 111. 616; Lauck v. Logan, 45 W. Va. 251; Love v. Bland, 48 L. R. A. 257; Hunt v. Hunt, 68 L. R. A. 180; West v. Wright, 115 Ga. 277; Abney v.-Moore, 106 Ala. 131; Latimer v. Latimer, 174 111. 418; Owen v. Williams, 114 Ind. 179; Brice v. Sheffield, 118 Ga. 128. (2) Louisa Glover, the widpw of George Glover, was a competeüt witness; and especially to prove delivery of' the deed in question and any act of her husband. ShanMin v. McCracken, 140 Mo. 348.

      J. M. Davis & Son and Bresnehen & West for respondents.
    (1) The “deed” from George Glover to Louisa Glover is testamentary in character because it provides, “This deed not to go into effect until after the death of George Glover.” And it is therefore void as a deed of conveyance, Murphy v. Gabbert, 166 Mo. 596; Griffin v. McIntosh, 176 Mo. 398; Chew v. Kellar; 171 Mo. 222; Aldridge v. Aldridge, 202 Mo. 572; Givens v. Ott, 222 Mo. 411; Pinkham v. Pinkham, 55 Neb. 729; Charleton v. Cameron, 54 Tex. 72; Leaver v. Gauss, 62 Iowa, 314; Turner v. Scott, 51 Pa. St. 126; Cunningham v.-Davis, 62 Miss. 366; Donald v. Nesbitt, 89 Ga. 290; 19 Cent. Law Jour., p. 47; 1 Devlin on Deeds, sec. 309; 3 Wash', on Real Prop., p. 266. (2) George Glover, the maker of the instrument in question, never having delivered it, and the same being found in his possession and under his control at the time of his death, and defendant, Louisa Glover, having secured possession of it by reason of being administratrix of his estate, she could thereby acquire no title thereunder. Griffin v. Miller, 188 Mo. 327; Seibel v. Higham, 216 Mo. 131; Williams v. Husky, 192 Mo. 550. The maker of the instrument never having parted with dominion and control over it there was no delivery. Huey v. Huey, 65 Mo. 689; Mudd v. Dillon, 166 Mo. 119; Gaines, v. Keener, 35 S. E. (W. Va.) 856; Fifer v. Racheal, 62 N. E. (Ind.) 68. (3) Louisa Glover being one of the original parties to the contract in issue and on trial (the “deed”) and George Glover, the other original party thereto, being dead, Louisa Glover was not a competent witness in her own behalf. R. S. 1899, sec. 4652; R. S. 1909, sec. 6354; Smith v. Smith, 201 Mo. 547.
   YALLIANT, J.

— This is a suit for partition of land in Livingston county. The parties are the children and widow of George Glover, who was the owner of the land and who died intestate August 2, 1905. The petition avers that on the death of George Glover the land deeended to his children in fee, subject to the widow’s homestead and dower. The only controversy in the case arises out of an instrument in writing which the widow claims to be a deed executed by George Glover, October 12, 1903, whereby, she contends, he reserved to himself a life estate and conveyed the remainder in fee to her. The instrument on its face makes no mention of a life estate or of a remainder, but purports to be a conveyance in fee by the grantor to his wife. The language of the deed is: “That the said party of the first part [George Glover] in consideration of the sum of one hundred dollars and love and affection to him paid by the said party of the second part [his wife Louisa Glover], the receipt of which is hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part, her heirs and assigns, the following described lots, tracts or parcels of land lying being and situate in the county of Livingston and State of Missouri, to-wit:” Then follows a description of the land which we will omit; after that description comes this sentence: “This deed not to go into effect until after the death of the said George Glover.” The widow insists that those words constitute a reservation of a life estate in the grantor and that the preceding words of grant, bargain and sale convey to her an estate in fee in remainder. In her answer she says that such was the intention of her husband when he executed the deed, and if the language employed does not express that purpose the scrivener who wrote it made a mistake, and she prays that the deed be reformed to express that intention. The plaintiffs contend that the.deed correctly expresses the purpose of the grantor and that it is therefore ineffectual as a deed, is testamentary in character, and, not being executed as a will, is without force; and they say that the widow having caused it to be recorded as a deed since the death of her husband, it casts a cloud on their title, which they ask to be removed; they also deny that the instrument was delivered as a deed. The deposition of the man who wrote the alleged deed was offered in evidence by the defendant Louisa Glover,' ,and admitted over the objection of the plaintiffs; yet, although it is stated in the abstract that this deposition was read in evidence, it is not set out in the record and there is nothing in the abstract showing its contents or substance. Counsel for plaintiffs in their brief say that the witness testified that he wrote the deed just as the grantor requested, but we cannot take that statement into account because there is nothing in the record before us to show what the testimony of the witness was.

The court found the issues in favor of the plaintiffs; found that the instrument in dispute had never been delivered, that it was testamentary in its character, but ineffectual as a will because it was not executed as a will, that the widow acquired no right or title under it, that it was a cloud on the plaintiffs’ title and should be cancelled as such; that the widow was entitled to a homestead and dower in the land described in the petition, that the land was not susceptible of partition in kind according to the rights of the parties in interest. Commissioners were appointed to set apart the homestead and dower of the widow, and thé rest of the land was decreed to be sold for partition and division among the children of George Glover deceased. From that judgment the widow appealed.

There being no evidence to support the allegation in the answer and cross-bill of the appellant that the scrivener made a mistake in writing the instrument, that issue is out of the case, and we have only two questions, one of fact and the other of law, namely, was the instrument in fact delivered? If delivered was it in legal effect a deed of conveyance- in praesenti?

I. The only express testimony on the question of delivery was that of appellant herself who testified that her husband handed the deed to her and she received it as such. When this witness offered to testify on this point plaintiffs objected on the ground that she was incompetent as a witness to prove the delivery of the deed, under the provisions of section 4652, Revised Statutes 1899, now section 6354, Revised Statutes 1909, but the court overruled the objection. The objection should have ‘been sustained. The alleged deed was “the contract. ... in issue and on trial” and-the other party to it being dead, the living party was incompetent to prove its execution. Proof of delivery of a deed is proof of an essential point in its execution.

Other testimony on the question of delivery on the part of plaintiffs was to the following effect: George Glover had a tin box, on which his name was painted, in which he kept his valuable papers and which he placed for safe keeping in the vaults of the bank where he kept his bank account. After his death appellant went to the bank and requested that the box be delivered to her, but the bank people refused to give it to her, saying that as George Glover was dead the box should be delivered only to the administrator of his estate. Thereafter appellant qualified as administratrix of the estate, and again made application to the bank for the box and it was delivered to her; she opened it in the presence of witnesses, took therefrom the deed in question and caused it to be placed on record. On the part of appellant the testimony on this point was to the effect, that she had bought the box and in it were kept not only papers belonging to her husband but papers in which they were both interested, and she always had access to the box in his lifetime; she carried the kéy to the box and sometimes went to the bank and opened it when occasion required; she had authority to draw checks over her own name on her husband’s bank account and the bank honored her cheeks. One of the children, Charles Glover, a witness for his mother testified as follows: “Q. When did you first learn form your father about the deed to your mother? A. I didn’t know anything about that he had made a deed, but he told me at the time that he wanted the business fixed up so that the son-in-law wouldn’t beat mother out of it, so that she could have it after he was gone. Q. When was that? A- It was about 1903, I think, about October 14th, somewheres,along there, in that year any way.” The last years of his life her husband was in poor health and appellant transacted the most of his business for him.

The most that can be made out of the testimony for appellant on this point is that her husband placed the deed where she had access to it, but where he also had access to it.

An instrument intended to be a deed is not a deed until the grantor delivers it to the grantee; the delivery may be made through the agency of a third person, as where the grantor delivers it to a third person to be delivered to the grantee. It is essential to a valid delivery that the grantor part with the possession of the instrument without reservation and with the intention that it take effect at that time and operate as a transfer of the' title. [Standiford v. Standiford, 97 Mo. 231.] If this instrument had been actually delivered to Mrs. Glover by her husband and she had put it in the tin box with his papers and deposited it in the bank for safe keeping, where he had access to it and might have taken possession of it, that fact would not have had the effect to destroy it as a deed. [Sneathen v. Sneathen, 104 Mo. 201, l. c. 209.] If it had once taken effect as a deed its character conld not be changed by a mere physical possession taken of it by the grantor. And it is also true that if it had not been delivered to Mrs. Glover by her husband with the intention of having it take effect and pass the title in praesenti, the fact that it was put into the tin box to which she had access would not constitute a delivery. [Huey v. Huey, 65 Mo. 689.] In Scott v. Scott, 95 Mo. 300, l. c. 308, it was said that “the lodgment of a deed properly executed and acknowledged by the grantor in a- place to which the grantee has access, and from which he can without hindrance transfer it to his own possession, with the intent •on the part of the grantor that the grantee may, after his death, take it and have it recorded, does not constitute delivery of the deed.”

Construing' the circumstantial evidence in this case and applying it to the instrument in question which says on its face that it is not to take effect until after the death of the grantor, we are satisfied that the learned trial judge was justified in finding that there had been no delivery of the paper in question as a deed.

II. But even if the instrument had been delivered it was invalid as a deed of conveyance, because, by its own terms, it was not to take effect until after the death of the grantor, it was testamentary in its character and, not being executed according to the requirements of law for the execution of a will, it is invalid as such.

Appellant’s learned counsel have presented a very able brief and argument in support of their contention that an instrument limited, as this is, to take effect only after the death of the grantor, is valid as a deed of conveyance, and they have cited cases from other states which so hold, but that is not the law of this State. The decisions of this court draw the distinction between a deed of conveyance and a will; the one takes effect immediately on its execution and during the lifetime of the grantor, the other after his death. A deed may be delivered by the grantor to a third person to be by him delivered to the grantee and it is valid although not delivered to the grantee in person until after the death of the grantor, but in such case the deed takes effect from the first delivery, and passes the title at that time. [Sneathen v. Sneathen, 104 Mo. 201; Allen v. DeGroodt, 105 Mo. 442.] An instrument to be valid as a deed of conveyance must have the effect to pass the title in praesenti; it cannot be made to take the place of a will; it is not valid as a deed if it is not to take effect until after the death of the grantor. The law seems to be otherwise in some states, but such is the law in Missouri, as this court has several times decided. [Murphy v. Gabbert, 166 Mo. 596; Griffin v. McIntosh, 176 Mo. 398; Aldridge v. Aldridge, 202 Mo. 565; Givens v. Ott, 222 Mo. 395, l. c. 411.]

The trial court had the correct understanding of this case. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    WILLIAM E. EDGAR, Administrator, v. STEPHEN E. EMERSON et al.; ARTHUR HUFF, Administrator, Plaintiff in Error.
    Division One,
    July 1, 1911.
    1. PARTIES: Administrator: Record Showing. Although there is no order of court shown in the abstract showing plaintiff in error to be a party, yet if the pleading filed by him recites that it was filed by leave, and in the final decree the court recognizes him as a party and adjusts his rights, and plaintiff’s petition recognizes that the estate he asserts he represents is interested in the questions in suit, it will be held, on appeal, that as administrator he was and is a party to the suit.

      2. WRIT OF ERROR: No Motion for New Trial: Agreed Statement of Facts. Where plaintiff in error filed no motion for a new trial or in arrest and no hill of exceptions, the evidence is not for review, and it will be held that, in so far as the decree rests upon an agreed statement of facts or evidence of facts, there was sufficient evidence in both to justify the findings of facts, and only the pleadings and the decree can be reviewed.
    S. --: -: Pleading: Will Copied Into Petition. As a rule documents which are mere evidence should be pleaded by their legal effect and not copied into the pleading; but that rule does not apply to a suit in equity the purpose of which is to obtain a judicial interpretation of the instrument, such as a will. In such case the instrument is properly copied into the petition and forms a part of the pleading and record proper and will be construed on appeal or writ of error, though there be no motion for a new trial or in arrest and no bill of exceptions.
    4. WILL: Life Tenant: Power of Disposal. A will which gives the entire estate to the widow for and during her natural life, “with full power to sell and convey the same in fee,” and gives to a brother “all of my property, real and personal, not sold and conveyed by her before her death,” bestowed on her the right to use so much of the estate as she wished and power to sell any of it she chose; but whatever of the original corpus of the estate was left at her death went to the brother or remainderman.
    5. -: -: -: Income. Everything in the nature of income or profits accruing during the continuance of the life estate belongs to the life tenant, and on her death, if not otherwise disposed of by her, passes to her legal representatives or heirs. So that where the will gave a life estate to a wife, with full power in her to sell any part of the estate and she sold none of it, all interest on notes, all dividends on stocks, all rents on lands, and all other income arising from the property during her life, belonged to her, and went upon her death, without a will, to her heirs; but so much of the corpus of the estate as belonged to testator at the time of his death that had not been used up or sold by her, at her death went to the remainderman, and all income arising therefrom after her death, such as the interest, dividends and rents, belong to him, or if he has died leaving a will, to his legatees.
    Error to Iron Circuit Court.— Hon.-, Judge.
    Affirmed,

      J. H. Raney and K. C. Weber for plaintiff in error.
    (1) Sarah M. Emerson took only a life estate under the will of her husband. John W. Emerson, because the will clearly shows the intention of the testator was tp make provision for both his wife and his brother to enjoy this estate in turn, and when this is the case there may be a power of disposal in fee by the first taker, yet he has only the life estate. Harbison v. James, 90 Mo. 411; Lewis v. Pitman, 101 Mo. 281; Cornwell v. Orten, 126 Mo. 355; Evens v. Polk, 125 Mo. 397; Schorr v. Carter, 120 Mo. 409; Munro v. Collins, 95 Mo. 33; Conrad v. Wolff, 148 Mo. 553; Russell v. Eubanks, 84 Mo. 83; Bean v. Henmuir, 86 Mo. 666. (2) The will, while creating a life estate in Sarah M. Emerson, created a vested remainder in George P. Emerson in all the property devised under the will to .Sarah M. Emerson. Jones v. Waters, 17 Mo. 589; Hill v. Barnard, 9 L. R. A. 211; Wengard’s Appeal, 13 L. R. A. 360; Smith v. Bell, 6 Peters (U. S.), 65; Rodney v. Landan, 104 Mo. 251; Waddel v. Waddell, 99 Mo. 342; Chew v. Keller, 100 Mo. 300. (3) All property and proceeds of all property, and all increase from all property which belonged to John W. Emerson at the time of his death, now remaining, which includes all the property enumerated in the agreed statement of facts, should go to the intervenor. The effect of the will was to convert his property into the trust fund to be used by Sarah Emerson perfectly freely, as far as' she desired, and in the end the remainder of it was to be turned over entire to George P. Emerson, and the latter’s death did not affect the title to the property, which should now be turned over to the intervenor. Harbison v. James, 90 Mo. 411; Lewis v. Pitman, 101 Mo. 281; Monro v. Collins, 95 Mo. 33; Cornwell v. Orten, 126 Mo. 355; Schorr v. Carter, 120 Mo. 409; Evans v. Polk,' 125 Mo. 397; Campbell v. Cole, 136 Mo. 201; Redman v. Barger, 118 Mo. 568; Bramell v. Adams, 147 Mo. 70; Underwood v. Power, 176 Mo. 1; Barford v. Allridge, 165 Mo. 419.

      Martin L. Clardy, Edward A. Rosier, and Silver & Dumm for defendants in error; White, Mdbie & Conhey and John A'. Irrmann of counsel.
    (1) The writ of error should be dismissed or the decree affirmed because of noncompliance with rules 7, 12 and 13 of this court. This case is one of equitable jurisdiction and the evidence adduced was not preserved by bill of exceptions. Documentary evidence (where there was a dispute as to its legal effect) is not preserved by bill nor is any attempt made to state its legal effect; the will of John W. Emerson, deceased, which plaintiff in error seeks to have construed is not properly presented to and cannot be considered by this court; the wills of Sarah M. Emerson, deceased, George F. Emerson, deceased, and Harriet H. Emerson, deceased, referred to in the pleadings, the alleged agreed statement of facts and the decree are not before the court; the alleged agreed statement of facts cannot be considered by the court because it is not preserved in the record by bill of exceptions; no motion for a new trial has been properly preserved; no bill of exceptions whatsoever has been filed; Wilbrandt v. Gas Co., 135 Mo. App. 220; State v. Harris, 216 Mo. 392; State v. Crites, 215 Mo. 91; State v. Baker, 206 Mo. 695; State v. Parnell, 206 Mo. 723; Reed v. Colp, 213 Mo. 577; Collins v. Barding, 65 Mo. 496; Flowers v. Raupp, 87 Mo. App. 454; Utley v. Hill, 155 Mo. 232; Bank v. Hill, 155 Mo. 279; Haas v. Garnett, 155 Mo. 568; Bank v. Garnett, 155 Mo. 569; State ex rel v. Merriam, 159 Mo. 655; Kennedy v. Merry, 11 Mo. 214; Smith v. Smith, 111 Mo. App. 683; Murrell v. McGuigan,-148 Mo. 334; Cunningham v. Railroad, 110 Mo. 208; Garrett v. Mining Co., Ill Mo. 279; Brand v. Cannon, 118 Mo. 595; Snyder v. Free, 102 Mo. 325; Long v. Long, 96 Mo. 180; Craig v. Scudder, 98 Mo. 664; Halsted v. Stone, 147 Mo. 649; Butler County v. Grundy, 152 Mo. 441. (2) The will of John W. Emerson, deceased, which the plaintiff in error seeks to have construed, is not before the court and there is nothing for the court to construe. Supreme Court Rules 7 and 13; Utley v. Hill, '155 Mo. 232; Bank v. Hill, 155 Mo. 279; Haas v. Garnett, 155 Mo. 568; Bank v. Garnett, 155 Mo. 569; State ex rel v. Merriam, 159 Mo. 655; Kennerly v. Merry, 11 Mo. 214; Smith v. Smith, 111 Mo. App. 683; Butler County v. Grundy, 152 Mo. 441. (3) By mere operation of law the income from the property held by a life tenant becomes vested in the life tenant and is his separate estate. Sevier v. Woodson, 205 Mo. 202; Burford v. Aldridge, 165 Mo. 419; Lewis v. Davis, 3 Mo. 133; 16 Cyc. 621; Bramel v. Cole, 136 Mo. 201. (4) The life tenant of property, real or personal, is entitled to the interest, income and increase of said property during his life, and upon his death any portion of said income, interest and increase not expended by him during his lifetime does not become part of the corpus of the estate but is treated as the separate property of the life •tenant and is so distributed. Sanitarium v. McCune, 112 Mo. App. 332; Lewis v. Davis, 3 Mo. 133; 16 Cyc. 621; Sevier v. Woodson, 205 Mo. 202; Burford v. Aldridge, 165 Mo. 419; Waterman v. Alden, 42 111. App. 294; Richardson v. Richardson, 75 Me. 570; March v. Railroad, 43 N. H. 515; Coleman v. Oil Co., 51 Pa. 74. (5) All dividends upon corporate shares, where an interest for life is therein created, go to the life tenant, and in the event of his death are distributed as the separate property of the life tenant, and do not become part of the corpus of the estate. Sanitarium v. McCune, 112 Mo. App. 332; Thompson on Private Corporation, see. 2172; 16- Cyc. 621; Houser v. Richardson, 90 Mo. App. 134; Price v. Mining Co., 83 Mo. App. 477; Rose v. Barclay, 45 L. R. A. 392; Bramel v. Adams, 146 Mo. 70; Cook on Corporations, sec. 539;. Waterman v. Alden, 42 111. App. 294; In re Kernochan, 104 N. Y. 618; Brundage v. Brundage, 60 1ST. Y. 544; Johnson v. Iron Co., 14 Gray, 274; Richardson v. Richardson, 75 Me. 570; Phelps v. Bank, 26 Conn. 269; Coleman v. Oil Co., 51 Pa. 74; Nickals v. Railroad, 15 Fed. 575; Thompson on Corporations, sec. 2192; March v. Railroad, 43 N. H. 515. (6) The purported will of John W. Emerson did not give to George F. Emerson, and hence to his heirs, all property remaining in the hands of Sarah M. Emerson, at the time of her death,, but the will gave the property to Sarah M. Emerson “to have, hold and enjoy during her natural life, with full power to sell and convey the same in fee,” and upon the death of Sarah M. Emerson after certain specific legacies gave to George F. Emerson absolutely, “all the residue of my estate — not sold or conveyed by Sarah M. Emerson before her death,” therein and thereby expressly limiting George F. Emerson to the corpus of. the estate and giving him no right to the income, interest or accretions thereon.
   VALLIANT, J.

— Plaintiff, ¥m. E. Edgar, administrator de bonis non with the will annexed, of the estate of John W. Emerson, deceased, filed this suit for the purpose of obtaining a judicial construction of the will. The defendants named in the petition are the brothers and sisters, the half brothers and sisters, and nieces of the testator, certain legatees named in the will, and the unknown heirs of Hattie Emerson, deceased, who was the widow of George F. Emerson, deceased, who was a brother of the testator.

The testator left a considerable estate in Iron county; he had no child and by the terms of his will he . left his whole estate to his wife Sarah M. Emerson for life, remainder in fee to his brother George F. Emerson. Sarah, the widow, qualified as executrix "and assumed the administration of the estate. After the death of the téstator George F. Emerson, the remainderman, died, leaving no child, but leaving his widow, Hattie Emerson, who has since died. After the death of George F. Emerson, Sarah M., the widow of testator died, without having made final settlement of the estate, and thereupon the plaintiff Wm. R. Edgar was appointed administrator d. b. n. with the will annexed. After this suit had been pending for a while Arthur Huff filed a petition in the cause showing that he had been appointed by the probate court of Iron county adminstrator of 'the estate of Harriet Emerson (called in the plaintiff’s petition Hattie Emerson) deceased, late widow of George F. Emerson, and asking to be made a party. After that he filed a pleading, which recites on its face that it is filed by permission of the court, in which he states that George F. Emerson died leaving a will, in which all his property, including his interest in the estate of John W. Emerson, was given to his widow Harriet, and that Harriet had since died and the pleader Huff had been duly appointed administrator of her estate by the probate court of Iron county; the pleading concludes with a prayer that all the estate now in the hands of the plaintiff administrator d. b. n., be decreed to belong to Huff administrator and that plaintiff in his final settlement turn the whole estate over to him. All of the defendants were non-residents and were brought in by publication; one of them being a minor, a guardian ad litem was appointed for her, and an answer in the usual form of a minor by her guardian ad litem was filed. The defendant Huida E. Kirby entered her appearance, but filed no answer. The only pleadings filed in the case were the plaintiff’s petition, the pleading of Huff administrator of Harriet Emerson, and the answer of the minor by her guardian ad litem.

The cause was submitted to the court on the pleadings, and, as the decree recites, an agreed statement of facts which was signed by attorneys for the plaintiff, the attorney for Huff, and the attorney for one of the defendants, .Mary F. H. Young. The will to be construed was copied in full in the petition and it will be presently set out in this statement.

The agreed statement as it is copied into the abstract contained facts not stated in the petition, relating to the estate of the testator and the personal relationship of the parties; it contained a list, of the assets belonging to the estate, notes, stocks, etc., showing interest accrued, dividends earned, etc., and the dates thereof, and upon those facts the court based its decree, adjudging the interest accrued on the notes, bonds, etc., and dividends earned up to the death of the testator’s widow, to belong to her estate, and the interest accrued and dividends earned after her death to belong to Huff, administrator of the estate of Harriet Emerson, and (except the specific legacies) the rest of the estate in the hands of the administrator d. b. n. also to belong to Huff administrator.

The decree, which is very long and which recites the findings of the court in detail, is based, as it "is expressed on its face, upon “the evidence offered by the plaintiff, and the agreed statement of facts filed in this cause by the plaintiff, and other persons claiming to be interested in this cause, including Arthur Huff, administrator of the estate of Harriet H. Emerson, intervenor herein, and upon the uncontroverted averments in the plaintiff’s petition.”

At the trial none of the defendants appeared except Huff the intervenor, and Mary P. H. Young, whose appearance consisted in the signing of the agreed statement of facts, and the minor whose appearance consisted in her answer. After the rendition of the decree, Stephen E. Emerson, who had not previously appeared, filed a motion for a new trial, which was overruled, and time given him to file a bill of exceptions, but no bill was ever filed and no appeal taken; there was no motion for a new trial by either of the other parties, and no action subsequent to the rendition of the final decree, until the writ of error was sued out by Huff, administrator.

I. Although there is no order of court shown in the abstract admitting Huff to be a party, yet the pleading filed by him recites that it was filed by leave and in the final decree the court recognizes him as a party, he was treated by the court and the plaintiff as a party and his rights as such were adjudged. Besides, the plaintiff’s petition recognizes that the estate of Harriet Emerson is interested in the question in suit, and her unknown heirs are made parties defendant. We hold that under those circumstances Huff as administrator was a party. But granting that he has been properly made a party to the suit, and was entitled to his writ of error, the question arises what does his writ of error bring up for review? He filed no motion for a new trial or in arrest of judgment; and no bill of exceptions. The agreed statement of facts referred to in the final decree is not before us in such form that we can examine it nor is any of the evidence on which the court acted before us. The agreed statement and the evidence could only be brought up by a bill of exceptions. In such condition of the record, in so far as the decree rests on the agreed statement of facts or evidence of facts, we must presume that there was sufficient in both to justify the findings .of fact. Our review of the record therefore must be confined to the plaintiff’s petition and the decree.

II. As a rule documents which are mere evidence should be pleaded by their legal effect and Pot copied into the pleading, but that rule does not apply to a suit in equity the purpose of which is to obtain a judicial interpretation of the instrument. In such case the instrument is properly copied into the petition and forms a part of the pleading. The will of John W. Emerson therefore, which is copied in the petition, is before us for construction. That will or so much of it as is necessary for our purpose is as follows:

“I devise and bequeath to my beloved wife, Sarah M. Emerson, all of my estate, real personal and mixed, wheresoever situated, to have, hold and enjoy during her natural life, with full power to sell and convey the same in fee; but all of my property, real and personal, not sold and conveyed by her before her death, I devise and bequeath as follows:
“1. I give to each of my three nieces, Lilly, Grace, and Helen Emerson, two hundred and fifty dollars. And to my niece Lilly Winter, one gold watch to cost one hundred dollars. I give to my nephew, Henry Emerson, five hundred dollars.
“2. I give to my-adopted sister, Mrs. E. Butler Johnson, one gold watch with pearl or stone settings, and chain and' ring to cost two hundred and fifty dollars.
“3. All the residue of my estate I devise and bequeath to my brother, Dr. George F. Emerson, of Boston, Mass., absolutely; and I hereby appoint him, said George F. Emerson, and my wife, Sarah M. Emerson, executors of this my last will and testament, without bond, as I owe no debts, and there is no occasion for any accounting in or through the probate court.”

By this will the testator gives to his wife a life estate-in all his property of every Mnd whatsoever and in addition to the estate so given he bestows on her a power to sell and convey in fee all of the property of which he died seized or possessed. By the exercise of that power the widow could affect the estate in remainder by selling any of the property that she might see fit to sell but whatever was left at her death was to be used, first to pay or discharge the special legacies named, and then to go in fee to the testator’s brother, George F. Emerson. It does not appear however that she ever exercised that power or sold any of the property. The income of the property during the life of the widow belonged to her; it was hers to spend or give away or dispose of as she saw fit, and if at her death any of- it had not been spent or disposed of it passed to her personal representatives. She could accumulate an estate for herself by saving or investing the income arising from her life estate; that income was as much her own as if it had arisen out of property of which she owned the fee. “Everything in the nature of income or profits' accruing during the continuance of the life estate belongs to the. life tenant, and at his death, if not otherwise disposed of by him, passes to his representative.” [16 Cyc. 621.] At the death of the fife tenant her interest in the corpus of the estate of her husband ceased, and that estate, together with the income that has arisen out of it since her death, goes to the remainderman; it would have gone to George F. Emerson if he had been living at that time, but being dead it went by his will to his widow Harriet, and on her death it went to her (administrator, who is the plaintiff in error. But the plaintiff in error claims that he is not only entitled to the corpus of the estate and the income that has arisen from it since the death of the life tenant, but also to that portion of the income that arose during the lifetime of the life tenant, which she had allowed to accumulate and was on hand at her death. The trial court held that he was not entitled to that and the trial court was right. That is the sole complaint of the plaintiff in . error. The decree of the trial court gave the plaintiff all that he was entitled to.

The judgment is affirmed.

All concur.


author: FERRISS, J.

text:
    J. W. GASKINS et al. v. IYEY WILLIAMS et al. Appellants.
    Division Two,
    July 1, 1911.
    1. DEDICATION: For Court House Purposes: Exclusive. A dedication on a duly recorded plat of a town, by the owners of land, of a certain block to the county “for court house purposes” was, under the statute, a dedication for that purpose and no other; and the county thereafter held the block in trust for court house purposes, and for no other use or purpose, public or private.
    %--: -: Impossible Use: Abandonment. Property unconditionally dedicated to a particular public use reverts to the original owner when the execution of the use becomes impossible. And by an impossible use is not meant only the utter physical impossibility of the use prescribed, but a complete abandonment of that use due to a present impossibility of exercising it.
    S. -:-:-: Delay. Mere delay in making use of the property dedicated to a specific public purpose will not work a reversion if the specific use will come in time; but where the delay is equivalent to a complete abandonment it will work a reversion.

      4. -: -: Location of a Court House Elsewhere. Where the owners of land laid out and platted a town and on the recorded plat dedicated a block to “court house purposes,” it being at that time generally believed that the county seat would be located at that place, but by a vote of the people it was located elsewhere, and the county has made no attempt to use it for such purpose, and the county court, by an order equivalent to a declaration of complete abandonment, has declared the block will not be used for that purpose, the use is impossible of execution, and the property reverts to the original donors or their heirs.
    5. -: -: Deed to Donors Ordered by County Court. An order by the county reciting that since the dedication of a block in a new town for court house purposes the county seat had been permanently located at another place and that the land cannot be used for that purpose, and appointing a commissioner to convey the property to the donors, and the deed of the commissioner in pursuance thereof, are void. But if the pleadings are sufficient to support a decree declaring a reversion to the donors on account of the impossibility of executing the use, such decree will be entered.

      Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
    Revebsed and demanded (with directions).

      G. G. Shepard, Sam J. Corbett and Vance J. Higgs for appellant.
    (1) The plat shows on its face that it was not a gift to the county of the land in question, but a conditional offer to give to the county, the condition being that the county use the land for court house purposes, that is,, place a court house on this land, and until the offer was accepted by the county on the terms on which it was offered, the title did not pass to the county. Landis v. Hamilton, 77 Mo. 555; Baumán v. Boeckler, 119 Mo. 189; Kemper v. Collins, 97 Mo. 644; Baker v. Yanderburg, 99 Mo. 378; .Miller v. McCaleb, 208 Mo. 562. (2) The owners of the land had the right to name the terms on which they would part with the title, and the fee did not pass until the terms named by them were complied with, which was the county using the property for court house purposes. It was left to the option of the county as to whether it would, or would not accept the offer; it chose to reject, and not accept the offer. Baker v. Yanderburg, 99 Mo. 378; Kemper v. Collins, 97 Mo. 644; Canpbell v. Kansas City, 102 Mo. 326; Rosenberger v. Miller, 61 Mo. App. 426; Bauman v. Boeckler, 119 Mo. 189. (3) Nothing more than a base, qualified, or conditional fee passed to the county,, which was defeated when the county failed to comply with the conditions of the grant. Tebow v. Dougherty, 205 Mo. 315. (4) When the county failed to use the property for the purpose for which it was given, the fee reverted to the donors. Campbell v. Kansas City, 102 Mo. 326; Robbins v. White, 42 So. (Fla.) 841. (5) If the fee simple title vested in the county at the time the plat was filed, then the county had the right to dispose of said property when it thought it was to its interest to do so, and the commissioners deed to these defendants vested the title in them. See. 903, R. S. 1899; Simpson v. County, 173 Mo. 421. We do not claim that the title passed to the county at the time the plat was filed, or at any time, but we do claim,' that if the title did so pass, then the commissioners deed vested the title in these defendants. (6) Non-user of land given for a certain purpose for the same length of time as would give title by limitation gives the title back to the original grantor. State v. Young, 27 Mo. 259; State v. Culver, 65 Mo. 609.

      J. B. Brewer for respondent.
    (1) The dedication was a statutory dedication and not a common law dedication and conveyed the whole fee, and there was nothing left in the dedicators to revert to them or their heirs, even if the county seat was afterwards located at Caruthersville. Reid v. Board of Education, 73 Mo. 295; Brown v. Carthage, 128 Mo. 17;Busehmanv. St. Louis, 121 Mo. 536. (2) No acceptance by the county was necessary, and the dedication was complete by the recording the plat, and was irrevocable. Reid v. Board of Education, supra; Busehmann v. St. Louis, supra. (3) The dedication of block 29 for court house purposes was a dedication in trust and the county court of Pemiscot county could not lawfully convey or authorize its commissioner to convey this land as by his deed as such commissioner. Regents v. Painter, 102 Mo. 471. (4) The fact that the county of Pemiscot has failed to use said block 29 for a court house does not make the dedication a conditional one or a base fee. Reid v. Board of Education, supra.
   FERRISS, J.

— In 1895, Granville M. Hayes and other owners of certain lands in Pemiscot county caused said lands to be surveyed and laid off into town lots, establishing the town of Gayoso City, now Hayti, in said county. Said owners caused a plat to be made, designating thereon the streets, alleys, blocks and lots; among others, a block known as, Block 29, which said block, as it appeared on said plat, had inscribed thereon the following: “Dedicated to Pemiscot county for court house purposes.” The following indorsement was placed on the plat and signed by the owners: “We, the undersigned, hereby declare the above to be a true and correct plat of Gayoso City, and forever dedicate to the public the streets therein named. We also dedicate and give to Pemiscot county, for court house purposes, block 29, and for jail and calaboose purposes, lot 5, block 43. We also dedicate for public school purposes, block 34. Witness our hands and seals January 22d, 1895.” This plat was duly acknowledged on the 24th day of January, 1895, before the clerk of the circuit court, and on the next day was filed for record.

It is admitted that at the time this dedication was made the county seat-question was in agitation; that it was known that it would have to be changed, but not known where it would be located.

The evidence shows -that it was the impression of the owners of this ground that the county seat would be located in the new town of Gayoso City, sought to be established by this dedication, and that block 29 was dedicated to the county for courthouse purposes, in the belief and with the expectation that the county seat would be so located. It appears that some lots were purchased in this new town, and adjacent to block 29, in the belief that the courthouse was to come there. It does not appear that any sales were made upon representations by the dedicators as to the future use of the block. It seems to have been the common impression that the county seat would be located in that town. As a matter of' fact, the county seat was not located at Hayti (Gayoso City), but was located at Caruthersville.

On April 1, 1901, the county court of Pemiscot county made an order appointing a commissioner, and directing him to execute a deed to said block 29, and lot 5 in block 43, to the legal heirs of the original dedicators, conveying all the right, title and interest of Pemiscot county therein.- This order recited that, “Whereas since the dedication to said county, the county seat thereof has been, by vote regularly had and carried and by legal procedure regularly had, permanently located at Caruthersville, in said county, and the parcels of land cannot be used by said Pemiscot county for the purposes and use for which the same were dedicated by said Granville M. Hayes and others, and the title in equity in and to said land is of right and ought to be in the parties named, or their legal heirs,” etc. Pursuant to this order, the commissioner appointed by the court executed his deed to the heirs of G. M. Hayes and the other original owners, relinquishing the land in question. The deed was filed for record on Apribl3, 1903, and recites substantially the same clause above quoted from the county court’s order; but states further that “the purpose for which the same was set apart and dedicated by the grantors aforesaid has been thus and thereby rendered impossible.” The record fails to show that any use has been made of this block 29 by anybody, and is very barrén of testimony showing what has taken place so far as the settlement of the city of Hayti is concerned. • It does show that a few lots were sold, and two or three buildings erected. The above-mentioned order of the county court was made pursuant to a petition filed in that court by the heirs ‘of the original owners. It appears that the city of Hayti subsequently instituted condemnation proceedings against the defendants as owners of this property, and procured judgment, but failing to take the property and pay the compensation awarded, suit was ‘brought by these defendants to divest the title out of the city of Hayti to this block which the city claimed through said condemnanation proceedings; that this suit by the heirs was prosecuted to final judgment, and a decree was entered ■divesting the title ont of the city of Hayti and vesting title in the defendants in this suit. It also appears from the original petition filed in this case, and which was put in evidence by the defendants, that these defendants filed a partition suit, and that an order of sale was made; but we infer that that order has never been •carried out, and that the partition suit was interrupted •and suspended by this present proceeding.

This proceeding was instituted September 20, 1905, by a petition in which the plaintiffs claim an equitable interest in and a right to use said block 29. The petition sets out the dedication referred to above, and alleges that lots had been sold relying upon such dedication; sets out the fact of the making of the commissioner’s deed in behalf of the county to the defendants referred to above; sets out the partition suit; charges that block 29 is about to be sold and used for other purposes than that for which it was dedicated, and prays the court to determine the estate, title and interest of the parties respectively in said real estate; to set aside the commissioner’s deed aforesaid, and to decree and :adjudge that the defendants have no claim or title to •said block, other than an interest in common with the public, and that they be debarred from asserting any private right or ownership, and for other and further relief. On December 12, 1905, an amended petition was filed by these plaintiffs, in which they state that they sue for themselves and others similarly situated, ■as tax-paying citizens of Pemiscot county. The amended petition sets out the dedication aforesaid, the order of the county court directing its commissioner to quit-claim the property to defendants, and the making of such deed by the commissioner, charges that the making of said deed was in excess of the power of the county court, and a violation of the trust created by the dedication, and prays the court to declare the order of the county court aforesaid and said deed to be void •and of no effect, that the title in and to said land be divested out of the defendants and vested in Pemiscot' county, as trustee, that the nature of the trust be-declared, and for further relief.

The answer of defendants denies each and every-allegation not admitted or specifically pleaded to;admits that the dedication was conditioned that said courthouse should be moved to Hayti in 1896; admits, the execution of the deed by the commissioner; avers, that the county court never accepted the dedication, nor exercised any right over said land asi trustee or-otherwise; that the land has never been used for courthouse purposes or any other public purpose; charges the-institution of the condemnation proceedings above referred to, failure of the city to pay the award, and the successful suit by defendants to divest the title out of' the city of Hayti; charges laches on the part of plaintiffs, and estoppel by reason of their knowledge of the proceedings above referred to; also pleads that the-former suits between the city of Hayti and defendants, are res adjudicata.

It further appears that upon the trial of this casein the circuit court, after all the evidence for.plaintiffs, and part of the evidence for the defendants had been taken, the plaintiffs smended their amended petition,, but we are unable to determine from the record in what respect said petition was amended. The reference is to the pages and paragraphs of the petition itself. As these-pages do not correspond with the pages of the record nor with the pages of the printed abstract, it is impossible-for us to determine what matter was .stricken out, and we will therefore consider the case upon the amended petition as it appears in the abstract. The amended petition is directed primarily to the commissioner’s deed,, executed pursuant to the order of the county court, releasing all claims of the county in the block in controversy to the defendants, and prays the cancellation of' that deed. There is, however, a further prayer that the. court declare the nature of the trust by which Pemiscot county holds the lands, and a prayer for further relief.

The defendants pray the court to declare that the right, title and interest in and to said block is in the defendants, and for further relief.

The court, in its judgment, finds the dedication as above stated, and finds and declares that the order of the county court directing the commissioner to make the deed, and the deed'itself, were in violation of the trust imposed on the county by' the dedication. It was ordered and decreed that said order of the county court and the deed by said commissioner be declared null and void, and that whatever title the heirs of the original donors acquired by said deed be divested out of them and be vested in the county of Pemiscot for courthouse purposes.

The record shows that this case was tried in what might be called a very sketchy manner. The evidence is meager, but enough appears to show substantially that this dedication for courthouse purposes was made; that the entire community expected the county seat to be established at this point; that, fading to secure the county seat, the county court regarded the equitable title as in the defendants, and that the purpose for which the dedication was made had become impossible of realization; that the county had never attempted in any way to use this block, and claimed no right to it; that subsequent legal proceedings, to which, however, neither the county nor these plaintiffs'' were parties, recognized the ownership in these defendants. It also appears that the county seat has been established at Caruthersville, and, so far as present intentions go, is permanently located there.'

I. If we should content ourselves with simply deciding whether or not the deed from the commissioner, upon the order of the county court, to the defendants is a valid instrument, divesting all right, title and interest out of the county, we would have no hesitancy in holding that the county court had no authority to order said deed, and that such deed is without force or effect. This block was not owned by the county in fee absolute, but was held in trust for a specific use. Therefore, the statute and decisions referred to by the defendants, authorizing such deed, do not apply. If, however, we were simply to decide this question, it would leave the real question in dispute to be settled by further litigation. It is our desire to put an end to litigation whenever we may properly do so. We think the pleadings are broad enough to subinit the substantial question as to the present ownership of this block of ground, and we shall proceed to consider such question.

The dedication in this case was made under chapter 97, Revised Statutes 1909. Section 10294 of that chapter provides that a duly acknowledged, certified and recorded plat “shall be a sufficient conveyance to vest the fee of such, parcels of land as are therein named, described or intended for public uses in such city, town or village, when incorporated, in trust and for the uses therein named, expressed or intended, and for no other use or purpose.”

According to the designation in the plat in this case, block 29 was dedicated to Pemiscot county for courthouse purposes. It is so named, expressed and intended on the face of the- plat. Under the statute, therefore, the county held such block in trust for courthouse purposes, and for no other use or purpose. The effect is the same, taking the plat and statute together, as if the plat and accompanying dedicatory words had provided in terms that this block should be used for courthouse purposes, and for no other use or purpose. This statute has been construed by this court and held to limit the use to the use expressed in the dedication. The county cannot use the land for any other public use than the one expressed, and it has no power, of course, to divert the land to any private use. [Board of Regents v. Painter, 102 Mo. l. c. 470; Price v. Thompson, 48 Mo. l. c. 365; Cummings v. City of St. Louis, 90 Mo. l. c. 263; Thomas v. Hunt, 134 Mo. l. c. 402; Snoddy v. Bolen, 122 Mo. l. c. 491.]

Counsel for respondents cites and strongly relies upon Reid v. Board of Education, 73 Mo. 295. In that case the block in controversy had written on it in the plat the words “public square. ’ ’ Under the head of ‘ ‘references,” number 8, on the plat, appeared the following: “Block number 9 declared public property for the purpose of containing the courthouse, should the town be selected for county seat.” The quitclaim deed, on the reverse side of the plat, after mentioning streets and alleys, says “also block number 9, according to the within plat or plan of the town which shall be and remain the property of said county of Lewis for the purposes aforesaid forever.” The court held that, considering all that appeared on the face as well as the reverse side of the plat, the block, nine, was dedicated to general public use. In that case it was a question of construction to determine what use was specified. The court properly construed the plat to dedicate the block to public use. In the case at bar there is no such question. It is clear., that the use was specified and limited to courthouse purposes. It is equally clear that under the statutes and the decisions of this court, the county court could not hold the land for a different use.

The real question in this case is, when, if at all, does the land conveyed to the county by the statutory dedication revert to the donor. First, does it revert under any circumstances? Dillon on Municipal Corporations (4 Ed.) vol. 2, section 653, lays down this rule: “Property unconditionally dedicated to public use or to a particular use does not revert to the original owner except where the execution of the use becomes impossible. If the dedicated property be appropriated to an unauthorized use, equity will cause the trust to be observed or the obstructions removed.” This rule has been approved by this court.

In Goode v. St. Louis, 113 Mo. 257, Sherwood, P. J., cites and approves this rule, but holds that upon the facts in the case, which showed that the Specified use was feasible, there was no impossibility of its exercise; that in case of a nuisance the city could be compelled to comply with the terms of the dedication and in such case there would be no reversion. Here we are dealing not with a question of misuse, but with the question of the impossibility of execution, or abandonment of the use. In Campbell v. City of Kansas, 102 Mo. 326, a certain square in the plat had marked thereon “donated for graveyard.” It was so used for years. Subsequently, by ordinance, it was discontinued as a graveyard, the remains of those buried there removed, and the place converted into a park. The court held that the use was not perpetual, and that as the original use had terminated, the fee vested in the heirs of the original donors, free from the use. Judge Sherwood, commenting on this case in Goode v. St. Louis, supra, says that by the action of the municipal authorities “the execution of the use had become impossible.” Yet it was still physically possible to restore this park to its original specified use.

If, as this court has decided, the complete abandonment of a use, such abandonment being ordered by lawful authority, is equivalent to impossibility of use, it must follow that when the legal situation is such that the county cannot begin the specified use, such use becomes impossible of execution.

It is quite true, as contended for by the learned counsel for respondents, that mere delay in the use will not work a reversion. The cases cited to support this contention, however, present facts which show that the specified use is certain to come in time, and will be essential to the natural and harmonious development of the city or town. There is a difference between delay and total failure. The ease of City of St. Louis v. Mo. Pac. Ry., 114 Mo. 13, cited by respondents, presents facts showing that the city owned the property in controversy for a street which, when improved, would effect a continuation of the street on the river front. It was properly held that mere delay in the improvement, certain to come some time in the natural growth of the city, did not affect the city’s rights, and that the time when the improvement should be made was a mere matter of discretion with the city authorities.

The vital question, therefore, is, has it become impossible to use this land for the purpose expressed by the donors in the dedication? The cases cited above refer to situations where there has been an abandonment of the specified use, such abandonment being held to be equivalent to an impossibility. Here we have a case where such use has never been effected or attempted. We do not doubt that when this plat was filed the fee in block 29 passed to the county in trust, to be used for courthouse purposes, and so long as the property might be so used the fee remained in the county as such trustee. It is not, however, as respondents contend, an absolute, unqualified ownership in the county. It cannot be such if, as stated above, the property may revert by a complete abandonment or impossibility of use. When this plat was filed, there was what appeared to the owners of the ground, and to the community, every indication that the county seat would be there located, and, of course, the dedication was made in consideration of such expected location; but when the county seat was permanently located at Caruthersville, did it not become impossible for the county to execute the trust by using this block for courthouse purposes? We think it did. It is to be presumed that the county seat will remain where it is.

But even if this presumption should fail, there is no ground suggested to support any reasonable expeetation that in ease the county seat is changed in the future it will go to Hayti City. The possibility that the block may be used at some time in the future for courthouse purposes is too remote to be regarded as a substantial basis for the trust to rest upon. As a practical proposition, the execution of this trust has become impossible, and, under the authorities above cited, the land reverts to the heirs of the original donors.

We hold that the county court could not divest itself of the trust by a deed back to the heirs. But the fact) that the authorities made the order, with the recitals above quoted, shows that they regarded the county seat as permanently located at Caruthersville, and that the trust thereby became impossible of execution.

Under all the facts in this casé as shown by the record, we hold the execution of the use impressed upon the land by the dedication to be impossible as that term should properly be construed.

The finding of the trial court that the order of the county court, and the deed made pursuant thereto, were null and void, was correct; but if the judgment of that court as a whole should be affirmed, it would leave the matter, as we stated at the beginning of this opinion, still open for litigation. In order to establish now, finally, the right of ownership in said block 29, the judgment is reversed and the cause remanded, with directions to the circuit court to enter a decree vesting the title to said block 29 in the defendants.

Kennish, P. J., and Brown, J., concur.


author: KENNISH, P. J.

text:
    ALEXANDER O. SCOTT v. WILLIAM FERGUSON and GEORGE WHEELER, Partners, Doing Business Under the Firm Name of FERGUSON & WHEELER, Appellants.
    Division Two,
    July 1, 1911.
    T. RESULTING TRUST: Purchase Money: Advanced for Another. If lumber merchants advance the purchase money for land for a saw-mill owner, and take a warranty deed to themselves but do this wholly on the account and credit of -the saw-mill owner, they hold the title upon a resulting trust for him.
    -2, -: -: -: Running Account: Warranty Deed Held to Be a Mortgage. The owner of a saw-mill agreed with the owners of the land -in suit to buy it for $2,000, and defendants, lumber merchants, agreed to find or advance the money for him, and take a warranty deed to themselves to be held by them as security for the purchase money advanced, and they were to furnish him money as needed in carrying on his sawmill business, and he was to market all the lumber cut and sawed from this land through them, and they were to receive ■a commission of one dollar per- thousand feet for the lumber so marketed. Th land was conveyed to them by warranty deed, ■and they opened an account upon their books with him, charging him $2,000 as the purchase price of the land, and he paid them the amount in lumber and continued to sell them lumber until they notified him that they had heard he was selling a part of the lumber to other dealers and would furnish him no more money and would take no more of his lumber. He denied that he had sold any of the lumber from this land to any other ■dealer until after they had notified him they would take no more 'lumber from him. The court found that when their dealings ■ceased he owed them (with interest) $784.90 on account. Selct, 'that, though the purchase money was paid by defendants, it was paid for plaintiff’s benefit and on his account, and in pursuance of the agreement that the warranty deed was to indemnify them against loss for the money so paid, and thereby a resulting trust was created, and the title will be decreed to be in him, subject to a lien in their.favor for the balance due on account.
    :3. INTEREST: Balance on Account: Demand. A creditor is entitled to interest on an account after it becomes due and demand of payment has been made. But he is not entitled to interest unless he shows such demand.

      4. -: -: -: No Remedy on Appeal. But where the debtor did not appeal from the judgment allowing defendants interest on the balance due on account, which, there being no demand, was erroneously allowed, and he offered to pay and tendered the money found due by the court, he is in no position in the appellate court to ask a modification eliminating the item of interest.
    Appeal from Mississippi Circuit Court.— Hon. Henry C. Riley, Judge.
    Affirmed.

      James F. Green and Ernest A. Green for appellants; William N. Barron of counsel.
    (1) To create a resulting trust, the purchase money must be paid by the cestui que trust, and the title taken in the name of the alleged trustee. 15 Am. & Eng. Ency. Law, 1132-1137; Shaw v. Shaw, 86 Mo. 598; Sill v. West, 125 Mo. 631; Richardson v. Champion, 143 Mo. 538; Hardware Co. v. Horn, 146 Mo. 129; MeMurray v. McMurray, 180 Mo. 526; Kelly v. Johnson, 28 Mo. 251; Crawley v. Crafton, 193 Mo. 421; Coates v. Woodworth, 13 111. 656; Pinnock v. Clough, 16 Vt. 504; Reed v. Sperry, 193 Mo. 167. (2) The plaintiff sued to declare a resulting trust, but was permitted by the trial court to try, against the objection and exception of the defendants, urged throughout the trial, a ease in specific performance, of which the defendants had no notice. A party cannot sue upon one cause of action and recover upon another. Reed v. Bott, 100 Mo. 62; Bank v. Assurance Co., 106 Mo. App. 625; Bank v. Armstrong, 62 Mo. 65; Lenox v. Harrison, 88 Mo. 495. (3) The court erred in taxing any part of the. costs against the defendants. Schumacher v. Mehlberg, 96 Mo. App. 598; Turner v. Johnson, 95 Mo. 431.

      David W. Hill for respondent.
    (1) The petition is broad enough to cover a resulting trust or for specific performance, or both, and it was, therefore, immaterial who signed the purchase money notes. The slight variation between the allegation in the pleadings and the proof is wholly immaterial. See. 655, R. S. 1899;. See. 659, R. S. 1899. (2) Plaintiff’s petition states a cause of action for specific performance. See. 592, R. S. 1899; Pomeroy v. Fullerton, 113 Mo. 440; Waddington v. Lane, 202 Mo. 387; Eggert v. Dry Goods Co., 102 Mo. 512; Bales v. Roberts, 189 Mo. 49. (3) Defendants now, in this court, insist, however feebly so, that plaintiff’s petition and evidence to sustain the same were all within the Statute of Frauds. In reply to that, plaintiff suggests that this case must be tried in this court on the same theory as in the court below. (4) It would be unfair and a gross injustice to permit the defendants to hold the title to the land in controversy after the plaintiff, as the owner, has been in possession of the land for ten years, and has fully paid for it; and too, the Statute of Frauds cannot be invoked to uphold a fraud. Asbury v. Hieklin, 181 Mo. 673. (5) The defendants, time after time, refused to settle with the plaintiff, refused to let him see their books and on two occasions plaintiff was cursed out of defendants’ office, and Wheeler told plaintiff to sue; plaintiff had to sue and did sue and being compelled to do so, as a result of the actions of the defendants, and having been awarded a judgment as pleaded, the costs in this case were properly assessed against the defendants. See. 1547, R. S. 1899; Sec. 1552, R. S. 1899; Bender v. Zimmerman, 135 Mo. 53.
   KENNISH, P. J.

— This is a suit instituted in the circuit court of Ripley county by the respondent, Alexander O. Scott, against the appellants, William Ferguson and ■ George B. Wheeler, partners, doing business under the firm name of Ferguson and Wheeler. The object and purpose of the suit was to have this court declare the defendants holders of the legal title to the real estate described in the petition, as trustees of a resulting trust for the benefit of the plaintiff. On the application of the plaintiff the venue of the case was changed to the circuit court of Mississippi county, where on a trial of the issues the circuit court rendered a decree in favor of the. plaintiff, from which the defendants appealed to this court.

The petition alleged substantially the following facts: That on the 10th day of June, 1899, the Howard heirs, whose names are fully set out in the petition, were the owners and in possession of the southwest quarter of section twenty-six and the northeast quarter of section twenty-five, in township twenty-three north, of range four east, in Ripley county, this State; that on or about the said 10th day of June, 1899, plaintiff contracted with the owners for the purchase of said land, for the price and consideration of two thousand dollars, with the understanding and agreement that the legal title should be conveyed by the said owners to the defendants Ferguson and Wheeler, in trust for the plaintiff; that the legal title to said real estate, pursuant to said agreement, was on the said 10th day of June conveyed to the defendants, in trust for plaintiff; that the consideration for the said real estate was wholly paid by the plaintiff and that the legal title thereto was conveyed to the defendants to secure them as. sureties on plaintiff’s promissory notes for the sum of' two thousand dollars borrowed to pay for said land; that the defendants agreed that they would convey said real.estate to plaintiff as soon as said promissory notes were paid; that said notes and the interest thereon, have been fully paid by the plaintiff and that plaintiff has; demanded that defendants convey to him the legal title; to said real estate, but that the defendants have failed and refused and still refuse to convey said title, as requested, and as they were in duty bound to do; that ever since the conveyance of said lands to defendants, plaintiff has been and is now in possession thereof and is entitled to the conveyance of the legal title to him by the defendants. The prayer of the petition is that the court declare the defendants holders of the legal title as trustees of a resulting trust for the benefit of plaintiff and require the defendants to convey the legal title to said real estate to the plaintiff, and for general relief.

The answer, after an admission of the partnership, was' a general denial.

It was adjudged by the circuit court that plaintiff was entitled to have the legal title to the land vested in .him upon the payment to defendants of $784.90 due •¡them on open account.

There is substantial agreement in the evidence as to the material facts of this case concerning the contract of purchase of the land in controversy. The plaintiff owned a saw-mill and was engaged in the manufacture of lumber. The defendants were merchants and lumber dealers at Poplar Bluff, Missouri. Plaintiff had been dealing with defendants in lumber transactions for a period of several years preceding the year 1899. In June, 1899, plaintiff negotiated for the purchase of the land in controversy, with the owners thereof, and finally agreed upon the purchase price, which was the sum of two thousand dollars. Plaintiff did not have the money to pay for the,land and made an arrangement with the defendants by which they were to assist him in borrowing the money and the legal title was to be conveyed to the defendants, to be held by them as security for the purchase money advanced.' The land was purchased and the title by warranty deeds was ■conveyed to defendants. Plaintiff at once went upon the land, claimed it as owner and began improving it •and cutting, sawing and marketing the timber thereon. And he so continued to occupy the land as owner and •was so in possession of it at the time of the filing of this suit. As part of the arrangement between the plaintiff and the defendants for the purchase of the land it was agreed that the defendants were to furnish money as needed by plaintiff in carrying on the saw-mill business and plaintiff was to market all the lumber cut and sawed from this land through defendants. Defendants were to receive a commission of one dollar per thousand feet for the lumber so marketed by them. An account with plaintiff was at once opened upon the defendants’ books, which account was introduced in evidence. This account showed that the defendants paid the notes and charged the plaintiff with the full amount so paid and plaintiff was given credit for the sums due him for lumber sold to defendants in accordance with the agreement.

In the year 1900 the defendants heard that plaintiff was selling part of the lumber cut from the land so purchased to other dealers and they notified plaintiff by letter that they would furnish him no more money and. would take no more of his lumber. Plaintiff denied, that he had sold any of the lumber from this land to-any person other than the defendants, until after they had notified him they would no longer continue to furnish him money and take his lumber in accordance-with the arrangement made. Plaintiff claimed that he had fully paid the defendants all he owed them and that there was a balance due from them to him and demanded that a settlement be made and that defendants make him a deed to the land. Defendants twice refused to settle and ordered plaintiff out of their place of business. -Plaintiff then brought this suit.

When Ferguson, one of the defendants, was on the stand testifying in his own behalf, the following occurred:

“The Court: This land -was contracted by Mr. Scott or by you gentlemen from the Howard heirs?
“A. Mr. Scott. We had been figuring with Mr. Horrell, but for another party as I testified earlier, and I knew the tract of land and was perfectly familiar with the conditions, and I mentioned it to Mr. Scott myself.
“The Court: Scott negotiated this trade? A. Yes, sir.
“The Court: Then what yon gentlemen paid on this land was paid for Mr. Scott? A. Yes, sir, that was the intention.
“The Court: That was the intention at the time yon made the trade? A. Yes, sir.
“The Court: The only difference now is as to the amount that Scott may owe you?
“A. Yes, sir, and the difference of amount of stumpage.
“The Court: That is all.”

There can be no doubt, under the uncontradicted facts in this case, that, when the defendants took title to the land conveyed to them by the Howard heirs, a trust resulted in favor of plaintiff, subject to their right to hold the title until the amount advanced for plaintiff had been paid. It is contended by appellants that as the purchase money was not paid by plaintiff but by appellants, a resulting trust was not created for plaintiff’s benefit. We cannot agree with that view of the law. It is undisputed that plaintiff made the purchase of the land and that the title was placed in the defendants merely to secure them for becoming responsible for the purchase money. Plaintiff was charged on the defendants’ books with the full amounts of the notes given for such purchase money and the plaintiff paid the defendants in lumber as agreed, so long as defendants permitted him to carry out the terms of the contract.

The law applicable to such a state of facts, as found in 1 Perry on Trusts and Trustees (6 Ed.), p. 208, is stated as follows: “On the other hand, if one should advance the purchase money and take the title to himself, but should do this wholly upon the account and credit of the other, he would hold the estate upon a resulting trust for the other. And if partly on the account and credit of another, he would hold as trustee pro tanto.”

Many cases are cited in support of the text. In one of them, Powell v. Powell, 114 Ill. 329, the court held, as stated in the fourth syllabus, as follows: “A contract was made for the purchase of a lot of ground for $900, $100 of which was to be paid down, and eight notes given for the balance, bearing six per cent interest. The purchaser being unable to make the first payment, induced his father to advance the same, and give his individual notes for the balance, and the contract for the deed was made directly to the father as a security for the money so advanced, and to indemnify him against liability on his notes for the remaining purchase money. The son afterward repaid his father the sum so advanced, went into possession of the lot, paid the taxes, and made valuable improvements thereon, and paid the interest on the notes. It was held, that the father held the bond for the deed in trust for the son.”

In a foot note to the text of Perry on Trusts, supra, the following statement of the law, found in the case of Herlihy v. Coney, 99 Me. 469, is quoted with approval: “A resulting trust arises by implication of law when the purchase-money is paid by one person out of his own money, and the land is conveyed to another. It may be paid by the cestui que trust himself. It may be paid by another for him. It may be paid for him by the trustee. But the money must belong to the cestui que trust in specie, or by its payment by the hands of another he must incur an obligation to repay, so that the consideration actually moves from him at the time. He may take money from his purse, or he may borrow it, and he may borrow it from the trustee. And if the lender pays the money borrowed for the borrower, the borrower pays it. The test is whose money pays the consideration for the purchase.”

The facts of this ease bring it clearly within the doctrine of the foregoing authorities and we think the trial court was fully warranted in decreeing the title in the plaintiff, subject to the lien of the defendants for the balance found due on account.

We have considered appellants’ complaint that there was a variance between plaintiff’s pleading and proof, and we hold that there was no variance which was material or affected the substantial rights of the defendants.

We are urged by respondent to modify the judgment by deducting the sum of $101.95, interest on plaintiff’s account, which the court included in the amount found due from plaintiff to defendants. Section 7179, Revised Statutes 1909, provides' that a creditor shall be entitled to interest on an account after it becomes due and demand of payment has been made. We have failed to find any evidence in the record showing a demand made by the defendants for the balance due on their account, and it follows that there is no basis for the allowance of the item of interest against the plaintiff. However, as respondent did not appeal from the judgment, but offered to pay and tendered the money found due by the court, he is not in a position to ask a modification of the decree in this court.

For the reasons given we hold that the judgment should be affirmed. It is so ordered.

Ferriss and Brown, JJ., concur.