author: RichaRDSON, Judge,

text:
    Riggins et al., Plaintiffs in Error, v. McClellan et al., Defendants in Error.
    1. In the year 1842, a testatrix, domiciled in the .state of Kentucky, died there. By her -will she made the following bequest: “I give and bequeath to my daughter, Margaret Dean, a negro girl named Hannah, for to be at her disposal during her natural life, then to go to the benefit of her heirs.”

      Held, that the daughter took an estate for life only, with remainder to her heirs, who would take under the will by purchase.
    2. The rule in Shelly’s case was not in force as law in the state of Kentucky in 1842 at the death of the testatrix.

      Error to Pettus Circuit Court.

      Adams, for plaintiffs in error.
    I. The will vested the title to the slave Hannah absolutely in Margaret Dean. The word “ heirs” in the fourth clause of the will is a word of limitation and not of purchase. That clause comes directly within the rule .in Shelly’s case. (2 ' Jarm. on Wills, 178 ; 4 Kent, 214; 4 Bibb, 890; 4 Monr. 199 ; 10 B. Monr. 60 ; 4 Har. & Jo. 481; Doe v. Colyer, 11 East, 548; Doe v. Jesson, 2 Bligb, 2 ; Doe v. Harvey, 4 Barn. & Cress. 610; Dott v. Cunnigton, 1 Bays, 458; Carr v. Porter, 1 McCord, 60 ; Polk v. Faris, 9 Yerger, 209 ; Ray v. Garnett, 2. Wash. 9; Lisle v. Diggs, 6 Har. & Johns. 364; 1 Dali. 139; 7 Watts Serg. 295; Bishop v. Sel-lick, 1 Days, 299; Hubert v. Hulbert, 21 Mo. 277.) As the domicil of the testatrix was in Kentucky at the time of her death, which occurred in 1842, the laws of that state would govern this case. (Story’s Conflict of Laws, § 390, 408 — 410; Spradling & Keeton v. Pipkin, 15 Mo. 118.)
    II. In any view of the case the judgment must be for the appellants, for, even if the rule in Shelly’s case did not ajjply, by the terms of the gift, the power to dispose of the fee was vested in Margaret Dean; and the deed of gift to the appellants was an execution of the power which passed the absolute estate in the slaves to them. The bequest was to Margaret Dean of the slave “ Hannah for to be at her disposal during her natural life, then to go to the benefit of her heirs.” Here was a complete power of disposition vested in Margaret Dean, and the supposed remainder was dependent upon the failure to exercise the power; but as the power was executed by the deed of gift to the appellants, the fee in the slave passed to them and the remainder could not take effect. (See Moore v. Webb, 2 B. Monr. 222; 3 Littell, 415; 4 Kent, Comm. 319 ; Ruby v. Barnett, 13 Mo. 5 ; Jackson v. Robins, 16 Johns. 587 ; 1 P. Wms. 149 ; Reed v. Shingold, 10 Yes. 370; Goodtitle v. Oterny, 2 Wills.-.)

      Byland fy Son, Muir 8p Drqffin, for defendants in error.
    I. By the law of Kentucky a person may give or bequeath slaves to one person for life and the remainder to such person’s heirs, and such remainder is lawful and effectual. In a devise of personal estate, the expression “ dying without issue” means, ex vi termini, issue living at the death of the first taker. (4 Monr. 199; Moore’s Trustees v. Howe, 4 Bibb, 390; 5 Dana, 427 ; 3 J. J. Marsh. 90; id. 889 ; 1 Marsh. 532 ; 3 Bibb, 39 ; 5 J. J. Marsh. 355 ; 3 Ben. Monr. 56,106; 7 B. Monr. 14; 12 B. Monr. 653 ; 3 Jarm. on Wills, 10 ; 4 Dana, 551; 1 Burrow, 162; 1 Bailey, S. C., 100 ; 4 Kent, 128 ; Tucker’s Comm. 90, 144; 1 Denio, 165 ; 8 Sim. 166; 7 Monr. 307 ; 3 Monr. 537 ; 9 Dana, 348; 6 J. J. Marsh. 595 ; 5 Dana, 427 ; Willes'Rep. 332 ; 2 Blackstone’s Comm. 379 ; Eearne on Cont. Remainders, 467 ; 10 Johns. 12; Cruise’s Digest, tit. 32, chap. 26, § 25, 26, 27; Cowper, 234; 2 Call, 313 ; 6 Pet. 72.)
   RichaRDSON, Judge,

delivered the opinion of the court.

The controversy in this cause turns on the construction of the fourth clause of the will of Mrs. Elizabeth McCutchen, which is as follows: “ I give and bequeath to my daughter Margaret Dean, a negro girl named Hannah for to be at her disposal during her natural life, then to go to the benefit of her heirs.” The testatrix died in the state of Kentucky in 1842, where she had her domicil, and where her will was executed and duly probated.

The defendants insist that the word “ heirs” in the fourth clause of the will is a word of limitation and not a word of purchase, and that by the rule in Shelly’s case the limitation over was void, and the absolute property in the slave vested in the first taker. Both of the parties concede that as the will only disposes of personal property, it must be interpreted according to the law of the domicil of the testatrix, and we must therefore look to the law of Kentucky for ascertaining the principles which must govern the case.

The rule in Shelly’s case “ that wherever the ancestor takes an estate for life and in the same conveyance a remainder is limited to his heirs or the heirs of his body, he will be vested with the fee and his heirs will take by descent and not by purchase,” has become firmly established in England as a rule of property; and though the policy and reason of it have long since ceased, it has resisted every assault, and the strict and technical sense of words is allowed to overrule the manifest and avowed intention of the parties to an instrument. If the word “ children” or “ issue living at the death of Mrs. Dean,” had been used, the limitation would have been valid; but it is said that the word “ heirs” is a word of limitation which was intended to mark the nature, extent and continuance of the estate, and as it denotes the whole line of the testatrix’s heirs in succession, and not particular designated persons, it must operate to expand a life estate in Mrs. Dean into an absolute estate.

But if the rule in Shelly’s case was ever recognized in Kentucky, it was made subservient to the intention of the parties, and its application was subordinate to the sense in which the word “ heirs” or “ heirs of the body” was used. The court of appeals, in Moore v. Moore, 12 B. Monr. 656, observed, “ that expositions are to be made according to common intendment is agreed by all. To whatever instrument we may be giving a construction, the words which have been employed by their author should be taken in the sense in which he understood them; and, in eases in which technical rules have been applied to particular expressions by the courts, if we are satisfied, after an examination of the instrument, these technical rules will not carry out but defeat the intention of the author, the technical rules must yield to the intention, and such a construction must be given as will effectuate it.” In Prescott v. Prescott’s heirs, 10 B. Monr. 58, it was admitted that the words “ heirs of the body” standing alone were appropriate words of limitation; but it was said that it was “ well settled by numerous decisions that not only ‘heirs of the body’ but the more general word, ‘heirs,’ or the more specific terms, ‘ heirs male, or heirs female of the body or of two bodies,’ may be used and operate as words of purchase.” And in a subsequent case, in the same volume, the words “ heirs of the body” were construed to mean children ; (Jarvis v. Quigby, 10 B. Monr. 106 ;) and a remainder created by these words hold good.

Not a case has been found, in the Kentucky Reports which was decided on the authority of the rule in Shelly’s case. In some of the cases the rule is recognized, but so modified that its force is impaired if not destroyed, and a growing feeling of dissatisfaction is manifested against permitting an arbitrary and technical rule to override the intention of the parties ; and whatever doubts may have existed previously as to whether the rule ever had any application in that state, are removed by the case of Turman v. White’s heirs, 14 B. Monr. 560, in which the rule is repudiated and its application denied. In that case the grantor David White, by a deed executed in 1803, in consideration of love and affection for Solomon White, and for the further consideration of one dollar, “ gives and grants to the said Solomon White during life, and then to his heirs or executors,” a tract of land described by its boundaries, “ to have and to hold the said tract or parcel of land unto the said Solomon White, his heirs and executors, against the claim of said David White, his executors and administrators, unto the said Solomon during life, then to his heirs forever.” The plaintiffs contended that Soloman White only took a life estate, and they sought to recover by force of the deed as purchasers under the designation of heirs. The defendant attempted to defend under a deed executed by Solomon White, purporting to convey the whole estate, and the turning point in the case was, whether Solomon White took by the deed a life estate only, or whether the term “ to his heirs” was a word of limitation" and not of purchase, and operated to enlarge a life estate into a fee simple. There could not be a clearer case for the application of the rule. In other cases the court had seized upon casual expressions in instruments for the purpose of ascertaining the actual intention of the parties and repelling the application of the rule, but in the case of White’s heirs there was nothing in the deed to indicate the purpose of tlio grantor beyond the words which are quoted, and the court was brought directly to the point, and was compelled to decide whether the word “heirs,” standing alone, could be construed, in violation of the rule in Shelly’s case, to be a word of purchase, and to mean children or descendants living when the life estate expired. It was held that upon the face of the deed it was clear that the grantor intended to give to Solomon White an estate for life only, and at his death to give the land to his heirs; and that as Solomon White only acquired a life estate, he could not convey a greater interest, and the grant to the heirs took effect at his death in favor of those who were his heirs. The rule in Shelly’s case was pressed on the court as decisive of the cause, but it was denied to have any practical application in Kentucky ; and Judge Marshall, delivering the opinion of the court, observed, “ as there is no reported case in which this court has applied the rule with the effect of determining by it the rights of property involved, it can not be said to have become a rule of property here, and especially as we believe it has not been so considered and acted on in the community. A single manuscript decision of recent date — Hum-phreys v. Ayres, January, 1852, and withheld from publication as if of doubtful authority — presents the only instance referred to in which the rule has been directly applied and carried out; and in the few cases in which its existence as a common law rule has been spoken of, the court, without any direct recognition of its authority as a binding rule here, but sometimes intimating the contrary, has evaded its application by seizing upon circumstances deemed sufficient to show that the case did not come within the rule.”

. The revised statutes of Kentucky, of 1852, give effect both to the limitation for life and to the subsequent limitation to the heirs, and the learned Judge further remarks, in White’s case, that “ we may presume that if this court had at any time before the enactment of the revised statutes decided that in case of a grant to one for life, and at his death to his heirs, the whole estate vested in the ancestor and that his alienation had passed it from his heirs, a statute similar to that just referred to would at once have been enacted.”

The question arose again in 1857, in the case of Williamson v. Williamson, 18 B. Monr. 329, on the following clause in the will of Gen. James Taylor, who died before the revised statutes were enacted : “ The tracts or lots which I give to my daughters, they are to have, hold and enjoy the rents and profits of the same for their separate use during their natural lives, and at their deaths the title of the same to vest in their heirs forever.” It was decided that the rule was not in force and had no application in Kentucky, and that the testator’s grand-children took under the will as purchasers.

We have examined all the Kentucky cases — which are very numerous — that relate to the subject, and we have decided this case on principles drawn from the decisions in that state. We have traced the current from its fountain and have found no difficulty in following it, for it has grown broader and deeper as it flowed, until it has swept away the last vestige of a rule which was only respectable for its antiquity. At first it was admitted that the rule existed; it was next qualified ; it was afterwards doubted, and finally overthrown.

We think that the testatrix in this case intended only to give the slave to her daughter for the term of her life ; for the expression “ during her natural life” clearly imports during her life only, and the adverb “ then” shows not only the period at which Mrs. Dean’s interest was to cease, but the time at which the slave was “ to go to the benefit of her heirs.” As Mrs. Dean only took an interest for life, she could not defeat the remainder by selling the slave, and the expression “ for to be at her disposal during her natural life” did not authorize her to dispose of any greater interest than she had, and was intended, we think, by an unskillful draftsman, only to confer the largest liberty in the use of the slave during her life and to the .extent of her interest. She had only a life estate, and with that interest she could do as she pleased; but her interest ceased at her death, and then the remainder passed to her children or their descendants, who were equally with herself the objects of the testatrix’s bounty. (Broach v. Kitchen, 23 Geo. 515.)

• It may be observed that the rule in Shelly’s case was abrogated in this state, in respect of limitations by will, by tbe eighteenth section of the statute of wills of 1825, and, in regard to conveyances, by the seventh section of the act of 1845 concerning conveyances

Judge Scott concurring, the judgment will be affirmed. ■Judge Napton absent.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    Welch, Respondent, v. Bryan, Appellant.
    1. An agreement to purchase an improvement on public land made before the entry of such land in the land office will, if entered into before the entry of the land, support an action; if such agreement be made after the entry of the land, it will be void for want of consideration.
    2. Where no cause of action is stated in a petition, the defect will not be cured by verdict; the objection may be taken by motion in arrest of judgment.

      Appeal from Dent Circuit Court.

      Pomeroy, Frazier 8f Waddell, for appellants.
    I. The court erred in overruling the demurrer and motion in arrest. There was no evidence of any contract between the parties. A promise to pay for improvements, made after the entry of the land, is a nullity. (

      Wingo 8f Williams, for respondent.
    I. This court will not interfere with the verdicts of juries on the ground that they are against the weight of evidence. (24 Mo. 97; id. 216 ; 20 Mo. 312.)
   Richardson, Judge,

delivered the opinion of the court.

The motion in arrest, in this case, presents the question, whether the petition was sufficient to support the judgment. It is stated in the petition that on or about the first of January, 1856, the plaintiff owned an improvement consisting of a dwelling-house, out-houses, and a field on a tract of land belonging to the United States ; that the defendant entered the land on the 18th January, 1856, and that the “ defendant at the time of said purchase and divers times since did undertake and faithfully promise to pay said plaintiff what said improvements were reasonably worth,” &c.

An agreement to purchase an improvement on public land before the land is entered will support an action ; (Burns v. Hayden, 24 Mo. 215 ;) but a promise made after the land is entered is void for want of consideration, and it was therefore necessary that the petition should state whether the agreement relied on was made before or after the land was purchased from the United States. The plaintiff of course knew, and, as it would have given him no trouble to have stated the time, there is no excuse for omitting an averment so material. The allegation that the promise was made at the time of the entry hardly means that it was made in the land office when the defendant was in the act of paying the purchase money and receiving the receiver’s certificate, but the ordinary meaning of such language is that the contract was made about'the time of the entry, either before or after, but whether at the one time or the other the plaintiff did not commit himself, and therein failed to state an essential fact to a right of action.

In determining motions of the kind, we must decide from the record only, and not from what took place at the trial; and though we may presume, after verdict, that every thing was proved which the averments in the petition will warrant, we can presume nothing more, and we can not suppose that a cause of action was proved when none is stated. Where no cause of action is stated, the omission is not cured by verdict ; for as no right of action was necessary to be proved, it can not be presumed that it was proved at the trial. It would be absurd to permit a party to take a judgment when he has no cause of action, and such an objection is not waived by the failure of the defendant to demur; for the statute, after stating the causes of demurrer, proceeds in the tenth section of the same article (R. C. 1855, p. 1231) to say, that, “ if no such objection be taken by demurrer or answer, the defendant shall be deemed to hare waived the same, excepting only the objection to the jurisdiction of the court over the subject matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action.”

The ninth clause of the 19th section (R. C. 1855, p. 1256) of the statute of jeofails, viz., “ for omitting any allegation or averment without proving which the triers of the issue of fact ought not to have given such a verdict,” is only a declaration of the common law that a verdict will aid a title defectively set out, but not a defective title. (2 Tidd’s Practice, 919.) . This rule is construed to mean that if a material fact, though not expressly stated, be necessarily implied from what is stated, the cause of action must be considered as only defectively stated and the defect will be cured by verdict; but if an essential fact to the plaintiff’s right of action is neither expressly stated nor necessarily implied from facts which are stated, the declaration must be considered as defective and the judgment will be arrested.' A verdict will not aid the want of consideration in the petition.

The motion in arrest ought to have been sustained; and the judgment will be reversed and the cause remanded with leave to the plaintiff to amend his petition ;

Judge Scott concurs. Judge Napton absent.


author: RichardsoN, Judge,

text:
    Bryan et al., Plaintiffs in Error, v. Miller et al., Defendants in Error.
    1. A verified statement upon which a confession of judgment is rendered must state concisely the facts out of which the indebtedness arose. If it state the execution of a promissory note to the plaintiíf; that “ said note was given for goods, wares and merchandise sold by the plaintiff to the defendant before the date thereof,” it will be materially defective.
    2. A judgment rendered upon such a statement, though not valid as to other judgment creditors, would be valid between the parties thereto. The defective statement might be amended, but not so as to affect rights of existing judgment creditors.

      Error to Clay Circuit Court.

      Hovey, for plaintiff in. error.
    I. The court below ought to have set aside the judgment by confession, because the statement sets out no particulars of the time, place, quantity, description or price of the supposed consideration of the note, and is a mere evasion of the statute under which it is made. (See Chappell v. Chappell, 2 Kerr. 215 ; Gilman v. Hovey et al., — Mo. 26.)

      Parsons and Edmu/nds, for respondents.
    I. The statement on which the judgment was rendered against Murray does set out concisely the facts out of which the debt arose; the statement shows the note was given for goods, wares, &c., sold before that time to Murray. It was not necessary to state the kind, description, or quality of the goods; the object of the law being to require the debtor to set out substantially the essence of the consideration only out of which the indebtedness arose. This has been done in this case. (R. C. 1855, p. 1282, § 2.)
   RichardsoN, Judge,

delivered the opinion of the court.

The plaintiffs, as subsequent judgment creditors of Murray, filed their motion to set aside a judgment confessed by Murray to the defendants, on the ground that the statement was not in compliance with the statute. The statement is as follows: The defendant Ephraim D. Murray states that he is justly indebted to the above named plaintiffs [Miller and others] the sum of sixty-eight dollars, and 'he asks the court here to render a judgment against him therefor in favor of said plaintiffs. He states that on the 27th day of August, 1857, he executed his promissory note to the said plaintiff for the sum of sixty-six dollars and sixty-five cents, due four months after the date thereof; that said note was given for goods, wares and merchandise sold by the plaintiffs to defendant before that date, and that no part of said note has been paid, but the whole of the principal and interest therein is still justly due and owing.”

The statute requires that a statement in writing must be made, signed by the defendant and verified by affidavit to the following effect: “ First, it must state the amount for which the judgment may be rendered and authorize the entering of judgment thereon; second, if it be for money due or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due or to become due.” (R. C. 1855, p. 1282, § 22.) This provision of our law was taken literally from the New York code, and though the inferior courts in that state differed for a while as to its construction, its meaning is now well settled. It is said that the policy in requiring verified statements to state concisely the facts out of which the indebtedness arose, is to point the other creditors of the debtor to the precise transaction out of which the confessed indebtedness arose, to enable them to inquire into its truth, and to confine the defendant and the creditors to whom the judgment is confessed to the particular matter set forth as the foundation of the judgment, in case its good faith should be attacked. (Gandal v. Finn, 23 Barb. 652.) And in Chappel v. Chappel, 2 Kern. 215, it was observed by the court of appeals that “ the object was to improve the condition of other creditors, by compelling the parties to spread upon the record a more particular and specific statement of the facts out of which the indebtedness arose, thus enabling them, by a comparison of that statement with the known circumstances and relations of the debtor, to form a more accurate opinion as to his integrity in confessing the judgment than was possible under the old system.” The same views are re-asserted in a recent case decided in the same court less than a year ago. (Dunham v. Waterman, 17 N. Y. Rep. 9.) We think these views are just and reasonable, and though their practical application in some cases may seem harsh, they will tend generally to prevent fraud and save the records of the courts from becoming instruments of injustice. It has been held that a general allegation that the debt was “ for goods sold and delivered,” or on account of a promissory note” of a certain date and amount, or “ on a note given for goods sold and delivered,” or on a note given on a settlement of accounts,” is insufficient.

In this statement the consideration is stated to be goods, wares and merchandise sold by the plaintiffs to the defendant before the date of the note, but no time is stated, nor the particular kind of property sold included in the general description of goods, wares and merchandise.” If the statement required to be made is to be of any service to the- other creditors of the judgment debtor, it ought to state — where the indebtedness is for property sold — when and what kind of property was sold, the price or the aggregate of the purchase, and the amount of payments, if any. It is not necessary that the statement should be as particular as a bill of particulars, but it ought to be sufficiently particular to afford a clew to a creditor, if there is fraud and he desires to investigate it.

The' judgment will be valid between the parties, though it may not be so as to other judgment creditors, and the statement may be amended, but not so as to interfere with the rights of other judgment creditors which may have attached in the mean time.

Judge Scott concurring, the judgment overruling the plaintiffs’ motion will be reversed and the cause remanded. Judge Napton absent.


author: Soott, Judge,

text:
    Ray, Respondent, v. Stobbs, Appellant.
    1. When the defendant in an execution is not a resident of the county in which the land sought to he sold is situated, the plaintiif in the execution should give notice to the defendant of the issuing of the same as required hy section 46 of the act regulating executions, fit. C. 1855, p. 766, § 46.} Should no such notice he given, and property he levied on and sold under the execution, the defendant may on the return day of the execution move the court to set aside such sale, and the court should set aside the same although the sheriff may have executed the deed to the purchaser before the return day of the execution.

      Appeal from DeKalb Circuit Court.

    William Ray obtained a judgment against William Stobbs before a justice of the peace of DeKalb county. A transcript of the judgment was filed in the office of the clerk of the De Kalb circuit court. An execution was issued by said clerk directed to the sheriff of Andrew county. Real estate .belonging to the defendant Stobbs, situate in Andrew county, was levied on and sold under this execution. The defendant was a resident of DeKalb county. The plaintiff did not notify the defendant of the issuing of the execution to Andrew county, nor did the defendant have notice thereof until after the sale by the sheriff. On the first day of the term to which the execution was returnable the defendant moved the court to quash the execution and set aside the sale thereunder on the ground, among other alleged irregularities, that the plaintiff had not notified the defendant of the issuing of said execution. The plaintiff and the purchaser resisted this motion. The court overruled it.

      Shambaug-h, for appellant.
    I. The defendant being a resident of DeKalb county, he was entitled to notice of the issuing of the execution to Andrew county. (R. C. 1855, p. 766, § 46.) For this reason the sale should be set aside. This point was not decided in the cases of Hobein v. Murphy, 20 Mo. 447, and Hobein v. Drewell, 20 Mo. 450.
   Soott, Judge,

delivered the opinion of the court.

We do not consider that the principle of the case of Hobein v. Murphy, 20 Mo. 447 — that a fair purchaser vho had paid the price and received a conveyance could not be affected by a failure of the plaintiff in an execution to cause notice to be served on the defendant in the execution, who was a nonresident of the county in which the land sought to be sold is situated — is applicable to the proceeding before us. (R. 0. 1855, tit. Execution, § 46.) That was an original petition to set aside a sale after the transaction was completed. Here the party comes in on the return day of the execution and moves the court to set aside the proceedings of the officer for irregularity on the part of the plaintiff in the execution. It is the undoubted duty of every court to see that its process is not abused and perverted to the oppression of individuals. At the return day of process courts will see that it has not been executed in an illegal or oppressive way, and will give summary redress. Every one taking title under the process of a court must be understood as taking subject to the approval by the court of the proceedings had under it. It does not appear when the sheriff executed a deed, but although the sale was made in another county and before the return day of the execution, yet the deed need not have been made until after the return day of the execution, and the making of it before could not take away the right of the defendant.

Judgment reversed and cause remanded ;

Judge Richardson concurs. Judge Napton absent.


author: Scott, Judge,

text:
    Bernard et al., Plaintiffs in Error, v. Callaway County Court, Defendant in Error.
    1. Under tlie general law eonoerning roads and highways, (R. C. 1855, p. 1390, § 20,) only those persons who own land through which the route of a state road is located and who consider themselves aggrieved by the assessment of the commissioners can object in the county court to the approval of the report of the commissioners locating the road.
    2. Parties aggrieved by the location of a state road have a right of appeal to the circuit court. Since, however, there is no provision authorizing the signing of bills of exceptions in such cases, the circuit court must affirm or reverse on the record alone.

      Error to Callaway Circuit Court.

    Hardin, for plaintiffs in error.
    I. Defendants had the right of appeal from the county to the circuit court. (The county of Cooper v. Geyer, 19 Mo. 257.)

      II. The appeal was taken in due form of law and the court committed error in dismissing the appeal.
   Scott, Judge,

delivered the opinion of the court.

This was a proceeding under a special act, passed February 16; 1857, (Sess. Acts, 1857, p. 811,) entitled “An act to establish a state road in Callaway and Audrain counties.” The act directed that the contemplated road should be opened and kept in repair under the law in force at the time in the counties in which it is located. It does not appear that any other than the general road law was in force in those counties. The commissioners appointed by the aforesaid act made their report to the Callaway county court at the December term, 1857; whereupon, as the record states, Thomas Bernard and others appeared by their counsel and objected to the approval of said report, but their objections were overruled and the report approved. An appeal was thereupon taken to the circuit court, where the appeal was dismissed, and this writ of error was sued out.

Admitting that the objectors wore entitled to a writ of error on the judgment of the circuit court, there is nothing-preserved in the record from which this court can see that they have been aggrieved by the action of the commissioners. The twentieth section of the second article of the act concerning roads and highways (R. C. 1855, p. 1390) provides that any person owning lands through which the route of a state road is located, who shall consider himself aggrieved by the assessment of - the commissioners, may, by himself or agent, at the next term of the county court after and to which the report of the commissioners may be made, file his objections to such assessment. The subsequent sections of the act prescribe the course, to be adopted upon the making of such objections. Now there is nothing in the record which shows that any objections to the assessment were made by those through whose land the road was located. Under such cirmimstances there was nothing for the county court to do but to confirm the report. Had the objections required by law been made in order to have a revision of the action of the commissioners, it would have been the duty of the court to have taken the course directed by the statute; but in the absence of all specific or even general objections to the assessment, there was nothing left to be done but to confirm the report.

As we consider the parties were entitled to an appeal to the circuit court, the appeal should not have been dismissed, but the judgment of the county court should have been affirmed, as on the appeal nothing was before the circuit court but the record of the county court, as the statute allowing appeals and writs of errors in such cases has as yet provided no way by which the evidence before the county court shall be preserved so as to be used in the circuit court. (Lewis v. Nuckolls, 26 Mo. 278.) But as, by dismissing the appeal, the same result has been attained as would have followed an affirmance of the judgment, we see no cause for disturbing the action of the circuit court.

Affirmed.

Judge Richardson concurs. Judge Napton absent.


text:
    Basye, Plaintiff in Error, v. Ambrose, Defendant in Error.
    1. Whether a sum stipulated to be paid in case of the breach of the provisions of a contract is to be regarded as a penalty or as liquidated damages must be determined by the nature of the contract and its provisions; if the whole scope of the instrument shows that it is stipulated for as a penalty, the parties can not constitute it liquidated damages by designating and stipulating for it as such.
    2. Where the agreement secures the performance or omission of various acts which are not measurable by any exact pecuniary standard, together with one or more acts in respect of which the damages on a breach of covenant are readily ascertainable by a jury, and there is a sum stipulated for as damages for a breach of any one of the covenants, such sum is a penalty merely.
    3. In every answer, amendatory or supplemental, the defendant must set forth, in one entire pleading, all matters which by the rules of pleading may be set forth therein, and which may be necessary to the proper determination of the defence. (B. 0. 1855, p. —, § 13.) The courts can not permit parties to dispense by agreement with the statutory provision bearing on this subject; as by agreeing that the original and amended answers shall be considered as one.

      Error to Callaway Circuit Cowrt.

    This was a suit instituted by Basye on a certain bond executed by the defendant Ambrose, in favor of said Basye and one Bachman.' The latter had assigned his interest in the contract to the plaintiff. The bond is sufficiently set forth below in the opinion of the court. Evidence was given bearing upon the question of the breach of the bond by the defendant. The court, among other instructions given and refused, gave the following at the instance of the defendant: “ The amount specified in the bond read in evidence is not liquidated damages, but a penalty; and if the jury find the facts necessary to enable the plaintiff to recover, it can only be for such damages as he may have actually sustained by the default of the defendant, which it would, in such case, be incumbent on him to find.”
    The plaintiff took a voluntary nonsuit, with leave, &c.

      Parsons and White, for plaintiff in error.
    I. The court erred in giving the second instruction. The court had no right to interfere with the measure of damages fixed by the parties. (2 Pars, on Contr. 434-5 ; 2 Sto. Eq. § 1313, 1318 ; 1 Mo. 149 ; Hemplen v. Snider, 17 Mo. 258 ; 4 Bun. 2228 ; 17 Wend. 447; Story on Contr. § 1021; 2 Greenl. Ev. § 257.) The defendant should, at least, have laid some foundation for the instruction, either by alleging that the amount claimed was wholly disproportionate to the injury, or by alleging fraud, imposition, accident or mistake, or something of that sort. (2 Sto. Eq. § 1316 ; 17 Mo. 260 ; 2 Sto. Eq. § 1223; Gower v. Saltmarsh, 11 Mo. 271; 7 Whea. 17; 2 Greenl. on Ev. § 258.)

      Lay and Gardenhire, for defendant in error.
    I. The law is well settled that the action of the court shall be defined or determined by the terms which the parties have seen fit to apply .to the sum named in the contract. (2 Pars, on Contr. 435.) The sum agreed upon will be treated as a penalty, unless it is payable for an injury of uncertain amount and extent, or unless it be payable for one breach of contract, or if for many, then unless the damages to arise from each of them, are of uncertain amount. (See 2 Pars, on Contr. 433 et seq.; Moore & Hart v. Platte Co. 8 Mo. 467 ; Gower t. Saltmarsh, 11 Mo. 271; Chiddich v. Marsh, 1 New Jer. 463 ; Bayley v. Peddit, 5 Sandf. 172 ; Crisdee v. Bolton, 3 Car. & Payne, 240.)
   Scott, Judge,

delivered the opinion of the court.

As none of the evidence is preserved in the.bill of exceptions but that which related to the breaches of the condition of the bond, the instructions given and refused concerning other matters can not be reviewed in this court, as, for any thing that appears, they have been rejected as irrelevant, not being warranted by the testimony. The main point presented for our consideration is whether the sums stipulated to be paid by the defendant for a violation of the condition of the bond was a penalty or liquidated damages.

They mistake the object and temper of our system of jurisprudence who, while maintaining that men in making all contracts have a right to stipulate for liquidated damages regardless of the disproportion to the sum resulting from a breach of the contract, insist that it would be hard if men were not permitted to make their own bargains. No system of laws would command our respect or secure our willing obedience which did not to some extent provide against the mischiefs resulting from improvidence, carelessness, inexperience and undue expectations on one side, and skill, avarice and a gross violation of the principles of honesty and fair dealing on the other. The folly of one in making a wild and reckless stipulation will not justify gross oppression in another. A just man when he sees one in a situation in which he is prepared to make a contract which must grind and oppress him, will not take advantage of his state of mind and enrich himself by his folly and want of experience. It has been remarked that in reason, in conscience, in natural equity, there is no ground to say, because a man has stipulated for a penalty in case of his omission to do a particular act (the real object of the parties being the performance of the act)', that if he omits to do the act he shall suffer an enormous loss, wholly disproportionate to the injury to the other party.

By the common law, if one bound himself in a penalty óf a greater sum for the payment of a less one — as if he bound himself in a penalty of two hundred pounds to pay at a given date one hundred pounds — if the less sum was not punctually paid at or before the day, the penalty was forfeited, and in an action at law upon the bond the whole of it was recovered. But courts of equity, seeing the hardship and oppression of this, interfered and granted relief on the payment of the sum really due with interest. This principle was so conformable to the dictates of natural equity, that Parliament, in the fourth year of Anne, incorporated it into the statute law and enabled courts of law to give the relief before only attainable in courts of equity; so, with regard to bonds by which the performance of other acts than the payment of money was secured by a penalty, at common law the failure to do the act, or any one of the acts whose performance was thus secured, caused a forfeiture of the penalty, and the whole of it was recovered in an action at law on the bond. Against these forfeitures courts of equity relieved the defendant upon his compensating for the damages he had actually sustained by reason of the breach of the condition of the bond. Here, as in case of bonds conditioned to pay money, Parliament, by statute, enabled a party to obtain in a court of law the relief which was afforded by courts of equity. The statute of .8 and 9 of William III. required, that in all actions upon any bond, or on any penal sum for nonperformance of any covenants or agreements contained in any deed or writing, breaches should be assigned, and that damages should be assessed for those breaches; and although judgment as formerly was entered for the penalty, yet if the defendant, after such judgment and before execution, paid into court the damages assessed, a stay of execution was awarded on the record ; or if, by reason of the execution, the damages and costs were fully paid, the defendant was discharged until a further breach of the condition of the bond. Upon this statute, Sergeant Williams (1 Saund. 58) remarks that the “ words c may assign,’ in the first part, and ‘ may suggest,’ in the subsequent part of the statute, are compulsory upon the plaintiff; for the act was made in favor of defendants and is a remedial law calculated to give plaintiffs relief up to the extent of the damages sustained, and to protect defendants against the payments of further sums than are in conscience due, and also to take away the necessity of proceedings in equity to obtain relief against an unconscientious demand of the whole penalty in cases where small damages only have accrued; and therefore it is not in the plaintiff’s power to refuse to proceed according to the statute, but he must assign the breach of such covenants as he proceeds to recover satisfaction for.” Wé have substantially incorporated into our code of laws the statutes of 8 and 9 William III., and of the 4th of Anne.

Although courts of equity relieved against penalties, yet they did not interfere where the damages were liquidated. But whilst they acted on this principle, they did not suffer their jurisdiction to relieve against penalties to be evaded by the introduction of the words into the agreement “ not as a penalty, but as liquidated damages.” They acted as they did in the case of mortgages, in regard to which — having declared that what was once a mortgage was always a mortgage — they treated as a nullity and utterly discountenanced any contract by which the mortgagor’s right of redemption was impaired, or in any way attemped to be taken away — as they would act in the case of a usurious contract, where the borrower expressly agrees that the excessive interest should not be so regarded, but deemed a compensation to the lender for his labor in handling and counting the money in making the loan. In such cases, they would never be restrained from affording relief to the oppressed by the claim that freemen should be permitted to make their own contracts. The doctrine would amount to this: that in all cases the victim of avarice and extortion might by a contract dispense with the law which afforded him protection against the cruelty of his oppressor. Story says that in cases of liquidated damages courts of equity will not interfere to grant relief, but will deem the parties entitled to fix their own measure of damages ; provided always the damages do not assume the character of gross extravagance or of wanton and unreasonable disproportion to the nature or extent of the injury. But, on the other hand, courts of equity will not suffer their jurisdiction to be evaded merely by the fact that the parties have called a sum damages which is in fact and in intent a penalty ; or because they have designedly used language and inserted provisions which are in their nature penal, and yet have endeavored to cover up their objects under other disguises. (2 Story’s Eq. § 1318.)

As the object of the statute, in requiring breaches to be assigned in actions on penal bonds conditioned to perform collateral acts, was to enable defendants to obtain that relief at law which had formerly only been afforded them by courts of equity, and as courts of equity, whilst they did not relieve against liquidated damages, yet would not suffer their jurisdiction to be evaded by calling a penalty damages, so courts of law, succeeding to the jurisdiction of courts of equity by virtue of the statute, will not permit the relief they are authorized to grant to be defeated by the shallow artifice of calling a penalty liquidated damages. The duty of the courts, in cases of this kind, is to ascertain when the sum stated is in fact a penalty and when it is properly intended as liquidated damages, as the just, appropriate and conventional amount sustained by the doing or not doing the act stipulated to be done or omitted.

It is obvious that every case occurring under this branch of tbe law must in a great measure be determined by its own circumstances. If courts were to hold that the parties, by adopting any particular form, might relieve their contracts from their supervision, the law would be entirely defeated, as nothing' would be easier than to adopt such form in every case. The nature and stipulations of the contract must determine whether the sum stipulated to be paid in case of its violation is a penalty or liquidated damages. The statute can not be evaded by arbitrarily calling a penalty liquidated damages. We shall not attempt to review the cases on this subject. They are numerous and not easily reconcilable. On such a question an entire concurrence of opinion could hardly be expected. But yet there are some rules on this subject which are generally concurred in, and those rules show that the sum stipulated to be paid in the contract before us is a penalty and not liquidated damages. The cases of Astley v. Weldon, 2 Bos. & Pul. 346; Davies v. Penton, 6 Barn. & Cres. 216; Komble v. Farren, 6 Bing. 141; Boys v. Ancell, 5 Bing., N. C., 390, and Moore & Hunt v. Platte County, 8 Mo. 167, show that where the agreement secures the performance or omission of various acts which are not measurable by any exact pecuniary standard, together with one or more acts in respect of which the damages on a breach of contract are readily ascertainable by a jury, and there is a sum stipulated as damages for a breach of any one of the covenants, such sum is held to be a penalty merely.

The case before us, when examined, will be found to come within the principle above stated. The defendant bound himself in the sum of one thousand dollars to Basye & Bach-man as liquidated damages, not as a penalty, in consideration of certain acts to be performed by them, to go with them to California to dig for gold; to make his own clothing and shoes ; to furnish himself with a good gun, two good knives, belt, tomahawk, and all such weapons as might be deemed necessary for the trip. After he had reached California, he was, if required, to aid them for two months in building a dwelling-house and lots for cattle, and to assist them in other necessary work about gold digging. He further bound himself to work for them for three years from the time of setting out for California; to do all things necessary and proper on their journey; to work diligently, constantly and faithfully; to make a full return to them of all the gold dug and discovered by him, and to give half thereof to Bachman ■& Basye. In case of a failure to comply with the contract, he obligated himself to pay Bachman and Basye, one thousand dollars as liquidated damages and not as a penalty, and in the event of their receiving damages over that sum he bound himself to pay whatever damages they might .sustain ; but in no event were the damages to be less than one thousand dollars. From this recital of the agreement, it is clear that there were acts to be performed the damages resulting from the nonperformance of which might be readily ascertained by a jury, and whose amount would be merely nominal, bearing no proportion to the sum stipulated as liquidated damages — a disproportion so great as would shock the moral sense of every one. What court would suffer a party to recover one thousand dollars from another as liquidated damges because he had failed to account for one dollar’s worth of gold dust, or because he had failed to furnish himself with a knife when he already had one ?

The thirteenth section of the ninth article of the practice act prescribes that in every petition, answer or reply, amen-datory or supplemental, the party shall set forth, in one entire pleading, all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defence. Nothing therefore could be more surprising than, in looking over the record in this case, to see an entry, that, by the agreement of parties, the original and amended answers are considered as one in the pleading. The provision is a very wise and salutary one, freeing courts and juries of great embarrassment and the parties from much unnecessary cost. It is hard to conceive how any court could arrive at the conclusion that it possessed the power, hy consent of parties, to dispense witli tbis section of tlie law. No reason is seen why, if the court can in such way dispense with this provision, it may not in like manner dispense with every law regulating its conduct and the making up of its records in suits between individuals.

Affirmed;

Judge Richardson concurs. Judge Napton absent.


text:
    Cason et al., Defendants, v. Cason et al., Plaintiffs in Error.
    1. Where a father gives money to his married daughter, though not to her separate use, and the husband purchases land therewith in his own name, such land will be deemed to have come to the husband in right of the marriage within the meaning of the third section of the dower act of 1845, (R. C. 1845, p. 430, § 3,) and if it remain undisposed of at the death of the husband, the widow will be entitled to it.
    2. Resulting trusts are not within the statute of frauds.

      Error to Callaway Circuit Court.

    This was an action for partition of lands commenced by the collateral heirs of Larkin Cason, deceased, against his widow. With respect to one tract of eighty acres the widow set up as a defence that it did not belong to said Larkin Cason, inasmuch as it had been purchased with money given to her by her father James Luggett to be invested for her in land. With respect to this matter the court found the facts to be as follows : “ That James Luggett, the father of defendant, after her intermarriage with the intestate Larkin Cason, gave to her the sum of two hundred dollars to purchase land, and that said fund came to the possession of said Larkin, who entered the east half of the north-west quarter of section 24, township 45, range 11, in his own name, with a portion of said fund; but, it not appearing to the satisfaction of the court that said money was given for the separate use of the defendant, it is considered and adjudged that the petitioners are entitled to partition thereof as heirs at law of said Larkin Cason.”

      Hardin, for plaintiff in error.
    I. The land in question came to the husband in right of his wife. The court erred in declaring the law of the case.

      Jones Hayden, for defendant in error.
    I. Whether there was a trust intended by James Luggett, the father of Mary Cason, was purely and simply a question of fact arising upon the oral testimony of the witnesses. It was a question peculiarly within the province of a jury or the court sitting as a jury, and this court will not disturb the judgment rendered in the cause. (Cadwallader v. Cadwal lader, 26 Mo. 76.) There was neither an express trust nor a resulting trust proved. (Thompson v. Renoe, 12 Mo. 158 ; Rotsford v. Burr, 2 Johns. Oh. 408, 444; 5 Johns. Oh. 19.) Before equity will compel the husband or his representatives to execute a trust, there must be clear and unequivocal evidence of the trust sought to be established. (Walker v. Walker, 25 Mo. 367.) There was no error in excluding the will of James Luggett from the consideration of the court. This land did not revert to the wife under the fifth section of the dower law. We insist that the statute was intended to apply only to the specific property of the wife remaining un-disposed of. Assuming even that there was a trust intended by the parties, there is authority for saying that even a resulting trust to James Luggett could not be proved by parol against the patent after the death of Larkin Cason, the alleged nominal purchaser. (1 Sand, on Uses and Trusts, 354; Roberts on Frauds, 99 ; Chalk v. Danvers, 1 Ch. Cas. 310.) The rule that money directed to be laid out in land is considered as land has no application to the fifth section of the dower act.
   Scott, Judge,

delivered the opinion of the court.

We are of the opinion that the facts found by the court do not warrant the judgment. The question involved in this controversy is not, whether the land in part sought to be divided is the separate property of the wife, or whether the money witb which it was purchased was given for her separate use as against purchasers and creditors according to the general principles of law regulating the marital rights of husband and wife; but the case involves the construction of the third section of the act concerning dower of the code of 1845. If a father give his daughter money, though not to her separate use, with which property is purchased by her husband, from the spirit of the section under consideration a use results to the surviving wife, although, as against purchasers and creditors, that property would not be regarded as belonging to her. We regard the section under consideration as intending to give the wife the property which came to the husband by means or in virtue of the marriage. The father never would have given the money but for the marriage. The wife was the meritorious cause of the acquisition of the property. In this sense it may be said that the property came to the husband, in right of the marriage. The object of the statute was to restore to the widow the property undisposed of, which came from her side or family, as there was no issue of the marriage. The plaintiffs here are collateral relations of the husband and have no claim founded in reason or in nature to property acquired by means of his wife, who is a stranger to them. The act of 1849 concerning married women exempted from the payment of the husband’s debts property acquired by the wife during the marriage, and which, according to general principles, belonged to the husband. So in the construction of the fourth section of the dower act, it has been twice held by this court that where a female slave is given to the wife, thereby by operation of law becoming the property of the husband, and issue is born of that slave during the marriage, such issue is property coming to the husband in right of his wife by means of the marriage, and the wife will be entitled to the same as dower under that section.

There is no principle on which the argument can be supported that the trust resulted to the father of the defendant as he advanced the money. So soon as the money was received it was clothed with a trust for the benefit of the wife. As the husband received the money as a gift to his wife, it became hers under the equity of the dower law ; and if he invested it in other property, a trust would result to her. Nothing is better settled than that resulting trusts are not within the statute of frauds or perjuries.

Reversed and remanded;

Judge Richardson concurs. Judge Napton absent.


text:
    Willoughby et al., Defendants in Error, v. Shipman, Plaintiff in Error.
    1. The court ought not, in proceedings instituted' under the act concerning mills and mill-dams, to give permission to erect, or increase the altitude of, a dam, if it appear that the mansion-house of any proprietor or other outhouses, curtilages or gardens thereto belonging, or orchard, -will he overflowed, or that the health of the neighborhood will be materially affected.
    2. A spring-house is an out-house within the meaning of the eighteenth section of said act.

      Error to Newton Circuit Court.

      E. B. Ewing-, (attorney general,) for plaintiff in error.
    I. The court erred in “ striking out” the issues which had been directed and refusing to order them anew upon defendant’s motion. The objections filed upon the return of the inquest, showed good cause for quashing the proceedings and setting aside the verdict. (R. C. 1845, p. 745, § 14 & 15 ; Payne v. Taylor, 3 A. K. Marsh. 116'8 ; 1 Bibb, 578 ; 4 Ben. Monr. 410 ; 7 id. 450.)

      Edwards and Ewing, for defendants in error.
    I. There is no error in the striking out the issues submitted to the jury. They were improperly submitted by the court and should have been struck .out on motion. If the plaintiff in error is damaged he has ample remedy against the defendants by his action at law under the limitations of the twenty-third section of said act. (R. 0. 1845, p. 747.)
   Richardson, Judge,

delivered the opinion of the court.

The objections filed by the plaintiff in error to the inquest of the jury furnished manifest reasons for framing issues to be tried under the direction of the court; and, if the objections are warranted by the facts, it would be a gross wrong to the plaintiff to impair the value of his property without compensating him with ample damages.

By the first section of the act concerning mills and mill-dams it was the duty of the jury to inquire, 1st, what damage such proprietor would sustain by reason of inundation consequent upon the raising of the dam; 2d, whether the mansion-house of any proprietor, or the out-houses, cur-tilages or gardens thereto immediately belonging, or orchard, would be overflowed thereby; 3d, whether ordinary-navigation and fish of passage would be obstructed; and, 4th, whether the health of the neighborhood would be materially damaged. The inquest returned by the sheriff stated, 1st, that Shipman would be damaged by inundation consequent on raising the dam $87.12J; 2d, that the mansion-house, out-houses, curtilages, gardens or orchards of no proprietor would be overflowed ; 3d, that ordinary navigation and fish of passage would not be obstructed ; and, 4th, that the health of the neighborhood would not be materially damaged by raising the dam to the height desired.” On the return of the inquisition Shipman filed objections to it, stating that the proposed increase in the height of the dam would seriously affect the health of his residence, would cause the overflow of his spring-house, and destroy the only spring on his place. Thereupon issues were made up to be tried as the statute directs, (secs. 14 & 15,) but after a jury had been empannelled and sworn the court ordered the issue to be stricken out and made an order granting the prayer of the petitioner.

This ruling of the court is only defended on the ground that Shipman had a remedy for any injury he might sustain by raising of the dam by action against the petitioners, and the twenty-third section of the act is cited to support that view. But it will be observed, on looking at that section, that the verdict of the jury is final and conclusive on all parties as to “ such injuries as were actually foreseen and estimated by that jury.” A spring-house is embraced in the term outhouses, and as the jury returned that no out-houses would be overflowed, Shipman might recover for any injury to his spring-house on the ground that such injury had not been foreseen or estimated by the jury. But as all the other injuries, which he charged would result from increasing the height of the dam, were enbraced in the first and fourth heads of the verdict, it could be insisted that they “ were actually foreseen and estimated by the jury,” and therefore for such injuries he could not recover in an independent action.

The court ought not to give permission to erect or increase the altitude of a dam if it appear that the mansion-house of any proprietor, or the out-houses, curtilages or gardens thereto belonging, or orchard, will be overflowed, or that the health of the neighborhood will be materially affected (sec. 18) ; and the public necessity for the erection of a mill ought to be very apparent to justify a court in inflicting injury on any person. ^ A never-failing spring of pure water is invaluable to the health and comfort of a family, and should not be destroyed by the sanction of a court unless the paramount necessities of the public for a mill demand the sacrifice.

The court of appeals of Kentucky said that where the public good is not concerned, a private injury of that kind was an insuperable objection to the erection of a mill. (Morgan v. Bonta, 1 Bibb, 579 ; Payne v. Taylor, 3 A. K. Marsh. 328.)

The judgment will be reversed and the cause remanded;

Judge Scott concurring. Judge Napton absent.


author: Eichardson, Judge,

text:
    Harris v. Buffington, Auditor of Public Accounts.
    1. The fees of the clerks of the county courts for services rendered hy them under the revenue act of Nov. 23, 1857, (Sess. Acts, Adj. Sess. 1857, p. 75,) are regulated hy that act and not hy the act of 1855 concerning fees. The clerks are entitled to receive five cents per hundred words and figures for making out and copying the tax books, abstract hooks, lists and all papers required to he copied or made out under said act of Nov. 23, 1857.

      Petition for Mcmdamus.

    This was an application to the supreme court in behalf of the clerk of the Callaway county court for a mandamus directed to the auditor of public accounts requiring him to audit a claim of said clerk to fees for certain services rendered by him under the revenue act of November 23,1857, and to issue his warrant on the treasurer. The clerk claimed fees at the rate of ten cents per hundred words for copies of the tax books ; the auditor was willing to allow five cents per hundred words and figures.

      Ha/rclen, for the complainant.

      Ewing, (attorney general,) for the auditor.
   Eichardson, Judge,

delivered the opinion of the court.

The only question in this case is whether the compensation to the clerks of the several county courts for services rendered by them under the revenue act of 1857 is regulated by that act or by the act concerning fees” of 1855.

The present revenue law is evidently designed to be complete within itself. It purports to cover the whole ground and seems to be provided with all the machinery necessary for its execution. New duties are imposed on the clerks not contemplated by previous acts and for which no compensation was allowed by the old law, but the comprehensive language of the sixth section of the seventh article prescribes the compensation for all the work of every kind whatever" to be performed by the clerks, and without it the law would manifestly be incomplete. That section is as follows: “ § 6. The county clerk shall receive five cents per hundred words and figures for making out and copying the tax books, abstract books, lists and all papers required to be copied or made out under this act.”

The only doubt on the subject is suggested by the caption to the seventh article, which would indicate that its provisions were only designed to affect St. Louis county.

The first four sections, which take up nearly the whole space covered by the seventh article, certainly have only a local application, but the fifth section directs the secretary of state to cause the act to be published in pamphlet form and to forward twenty copies thereof to each of the county court clerks in the state ; and as this is a general provision though placed under a local head, the scope of the sixth section ought not to be determined alone by its location. If provision was made elsewhere in the act regulating the compensation of the clerks, it would be proper to construe the sixth section as applying only to the clerk in St. Louis county ; but as that is the only section that touches the subject and prescribes the fees for services not embraced in former laws, we think it was intended to apply to all the county court clerks in the state.

The mandamus will be refused;

Judge Scott concurring. Judge Napton absent.


author: BichaRDSON, Judge,

text:
    Davis, Plaintiff in Error, v. Farmer, Defendant in Error.
    1. Where the plaintiff in a suit gives security for costs and the defendant prevails in the action, judgment may be rendered at the same time against the surety; should however judgment for costs against the surety be omitted, the defendant may sue the surety directly on his undertaking.
    2. The plaintiff in a suit gave security for costs by an instrument in the following form: “ I. S. v. N. A. D. Civil action. We, I. S. as principal, and W. B. IT. and B. S. L. as sureties, are held and firmly bound for the payment of all the costs that have accrued or may accrue in the above case. Witness our,” &e. Held, judgment having been rendered against the plaintiff for costs, that suit might be maintained on this instrument by the defendant against the sureties.

      Error to Greene Circuit Court.

    This was an action by N. A. Davis against W. B. Farmer on the following instrument: “ Isham Shoat v. N. A. Davis. Civil action in the Greene circuit court. We, Isham Shoat as principal, and W. B. Farmer and B. S. Lane as sureties, are held and firmly bound for the payment of all the .costs that have accrued or may accrue in the above case. Witness our hands and seals this 23d of June, 1852. [Signed,] Isham Shoat (seal), W. B. Farmer (seal), B. S. Lane (seal).” The petition alleged that the above instrument was executed during the pendency in the Greene circuit court of a suit in which said Shoat was plaintiff and said N. A. Davis defendant, and that the defendant prevailed in said suit and recovered costs against the plaintiff therein, Shoat. To this petition the court sustained a demurrer.
    Wright, for plaintiff in error.
    I. The guarantee to pay costs is in the language of the statute, and is sufficient to make the defendant liable to pay all costs which Davis' may have paid or is liable to pay in the suit in which said undertaking was filed.

      Hendrick, for defendant in error.
   BichaRDSON, Judge,

delivered the opinion of the court.

It was decided in Hamilton v. Moody, 21 Mo. 79, that when the plaintiff gives security for costs and the defendant prevails in the action, judgment for costs may be rendered at the same time against the surety. This is the most convenient practice and ought to be universally adopted; but if it should be omitted, there is no reason why the surety should escape liability on his undertaking.

The instrument declared on in this suit strikes the legal mind as anomalous in omitting to name an object, but it seems to be recognized by the statute as in proper form, (B. C. 1855, p. 441, § 2,) and is according to the form often used. (See B. C. 1855, p. 1626, Appendix, No. 46.) The apparent intention of tlie legislature would be defeated by applying technical rules to such instruments, and hence to give them effect it is necessary to construe the defendant in the suit in which the obligation is filed as the obligee, and to allow him, in the event that the plaintiff is condemned to pay the costs, to maintain an action in his own name for all the costs which the plaintiff is bound to secure.

The judgment will be reversed and the cause remanded;

Judge Scott concurring. Judge Napton absent.


author: Riohardson, Judge,

text:
    McManus, Plaintiff in Error, v. Jackson, Defendant in Error.
    1- Where the slanderous -words charged in a petition are not actionable in themselves, it is necessary to set forth, by way of inducement, those extrinsic facts and circumstances which make them actionable.
    2. It is not actionable to charge a person with swearing a lie unless it is showrn by proper averments that the plaintiff was sworn as a witness in a judicial , proceeding, and that the speaking of the offensive words had reference to such proceeding.
    3. It is not actionable to charge a person with giving a free pass to a negro, unless it be averred that the negro referred to was a slave; nor, if it be averred that the negro referred to was a slave, would such words be actionable unless it be also averred that the negro did not belong to plaintiff.

      Error to Bates Circuit Court.

    This was an action to recover damages for slanderous words spoken of the plaintiff. The petition contains three counts. The first count states that at a certain specified time the plaintiff was road overseer; that as such he notified the hands in ]fis district to work the roads ; that among the persons so notified were persons in the employ of the defendant; that the latter refused and failed to work on the road as the law directs; that the plaintiff returned a list of the persons so refusing to a justice of the peace to be dealt with according to law ; that it became and was material for'said justice to inquire whether said hands had any lawful excuse for failing and refusing to work said road; that the defendant in the hearing, &c., “ of and concerning the character of plaintiff, and of and concerning the supposed oath of plaintiff on this said trial and litigation before said Justice Lewis Speece aforesaid, maliciously spoke and published of and concerning plaintiff, and of and and concerning the supposed oath of plaintiff, the following false, slanderous and defamatory words following, to-wit: ‘ he (meaning plaintiff) swore a lie’ — ‘ Lawrence McManus (meaning plaintiff) had sworn a lie’ — &c., &c., then and there and thereby meaning, and was so understood by the citizens, to charge plaintiff with the crime of perjury,” &c.
    The slanderous words charged in the second count are: “ he (meaning plaintiff) once gave a negro a free pass” — “ I wonder if he is not the same man -who once gave a negro a free pass.” It was not averred that the negro was a slave. In the third count the words charged are similar to those charged in the second, and the negro referred to is averred to have been a slave, but it is not averred that he did not belong to the plaintiff.
    The court sustained a demurrer to the petition.

      Freeman and Wright, for appellant.
    I. In actions of slander the general criterion as to whether words are actionable in themselves is, that the words alleged to have been spoken, if true, would subject the party charged therewith to a criminal prosecution and for which corporal punishment might be inflicted. (26 Mo. 160.) But this is not an infallible rule ; thus, to charge a person with a felony barred by the statute of limitations, or with an offence committed beyond the limits of this state, would be actionable, although in neither case could the party charged be punished in this state, and in the former in no state or place. (Johnson v. Jackson, 25 Mo. 583.) By our statute any voluntary corrupt oath taken before any officer authorized to administer oaths is indictable and the punishment corporal and disgraceful. (R. C. 1855, p. 600, § 4.) The words as charged in the petition are actionable in themselves, for, if true, they would subject the plaintiff to a criminal prosecution and ignominious as well as corporal punishment. (5 Johns. 188 ; 13 Johns. 124, 274 ; 6 Wend. 76 ; 8 Pick. 384-5 ; 20 Mo. 330 — 37; 8 B. Monr. 525.) The second and third counts are sufficient, and the court erred in sustaining the demurrer to these counts.

      Bryant and Peyton, for defendant in error.
    I. The circuit court did right in sustaining the demurrer to both the original and amended petitions, 1st, because the words of the petition as charged are not in themselves actionable unless made so by such averments as would show that the crime imputed to plaintiff was such as, if true, would have subjected the plaintiff to a criminal prosecution; nor does the petition aver that any oath whatever had been administered to plaintiff. There was no colloquium in the petition, consequently it is bad. (See Harris v. Woody, 9 Mo. 112; Palmer v. Hunter, 8 Mo. 512 ; P\selly v. Bacon, 20 Mo. 330.)
    The second and third counts are too vague, general and uncertain, and charge no offence distinct and liable to punishment. It has been decided by our courts, and is now the law, that an amended petition takes the place of the original one and must set forth the true cause of action; and the same decision has been made on the New York code.
   Riohardson, Judge,

delivered the opinion of the court.

When the slanderous words used in the petition are actionable of themselves, it is not necessary to make any prefatory averments as to the circumstances to which they refer; but if the words do not per se convey the meaning which the plaintiff would assign to them, the petition must contain a statement of the extrinsic matter necessary to show that they are actionable, and whatever is necessary to be stated for that purpose must be proved. (1 Chitty Plead. 429 ; 2 Greenl. Ev. § 413 ; 1 Stark. Ev. 460.)

It is well settled that it is not actionable to charge a person with swearing a lie, unless the petition shows that the speaking of the offensive words had reference to a judicial proceeding. (Harris v. Woody, 9 Mo. 112.) The reason is that the words standing alone do not impute a crime, for a man may swear falsely without even having taken an oath in any court or before any officer authorized to administer one. Such words however may be rendered actionable, if by way of inducement it is set out that there had been a trial or other proceeding in which the plaintiff was sworn as a witness, and that the defendant in using the offensive words referred to such matter and intended to charge the plaintiff with the crime of perjury. The decision in Puselly v. Bacon, 20 Mo. 330, is not in conflict with this well established rule, because, as it was held that the words in that case were actionable per se, a prefatory statement of extrinsic facts was unnecessary.

The plaintiff in the first count of the amended petition recognized the propriety of connecting the slanderous words with other matter to show their point, but he omitted to aver that the plaintiff had been sworn as a witness, and in that respect he failed to state a fact material to a cause of action.

The second count is defective because it is not averred that the negro was a slave, to whom the plaintiff was charged with having given a free pass; and though the third count alleges that the defendant intended to charge the plaintiff with having given a free pass to a slave, it omits to state that the slave did not belong to the plaintiff.

At common law, when it did not appear, from the words themselves, to whom they were intended to apply, it was necessary by the aid of a colloquium to show that they applied to the plaintiff. But this rule has been changed by our statute, which declares that “ in an action for libel or slander, it shall not be necessary to state in the petition any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be not controverted in the answer it shall not be necessary to prove it on the trial; in other cases it shall be necessary.” (R. C. 1855, p. 1240, § 55.) That section has however a limited operation, for though it dispenses with the necessity of showing by extrinsic facts the application of the words to the plaintiff, it is still necessary when the words are not actionable, to show their meaning by proper averments in the inducement. (5 How. Pract. 174; 6 id. 99 ; Fry v. Bennett, 5 Sand. 54.) The demurrer was properly sustained and the judgment will be affirmed;

Judge. Scott concurs. Judge Napton absent.


text:
    Gillinwaters, Plaintiff in Error, v. Gillinwaters, Defendant in Error.
    1. The conduct of a husband toward a wife may be such as to warrant her in leaving him, although it would not entitle her to a divorce ; if her absence be caused by his misconduct, or if he place himself in such a situation as to prevent her return, he will not be entitled to a divorce, although she may have lived separate from him for a number of years.

      Ei-ror to Cass Circuit Court.

      Bryant and Peyton, for plaintiff in error.

      Chrisman fy Comingo, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

Nothing is seen in the circumstances of this case which should induce a court to separate the plaintiff and defendant as husband and wife. The ground on which the dissolution of the marriage is sought is the alleged absence or desertion of the wife. Although the wife has lived separate from her husband for a number of years, yet her absence may have been caused by his conduct. Having disposed of all of his property, without a house or home, being a mere boarder in another family, he can not complain that his wife has absented lierself and will not return. Let' him first provide a place to which she can return. The disposition of his property seems to have been made with a view to effect the very object he has attained and of which he now complains, and for which he would have a divorce. Although the wife may have acted improperly in leaving home when she did, yet that did not justify the husband in putting himself in a situation which prevented her return. The married state is not a state of war which will, for any the slightest fault by one party, justify the other in carrying measures to an extreme. Marriages are not made to be dissolved. Some of the most cherished interests of society are involved in the preservation of the marriage tie. It would be impossible to maintain the peace of families if every quarrel should lead to a divorce. Married parties must bear and forbear. For specific causes the married state may be destroyed, but he or she who is instrumental in producing the cause for a divorce can never avail himself or herself of it. If a wife voluntarily leave her husband and she is guilty of no wrong to him, and afterwards offers to return and he causelessly refuses to take her back, lie will be liable for necessaries furnished her after such refusal. The conduct of a husband toward his wife may be such as would warrant her in leaving him, although it would not entitle her to a divorce. The plaintiff would excuse or palliate all his declarations on the ground of heat, passion or indiscretion, and yet has not the charity to attribute those of his wife to like causes. He would hold to the assertion she made that she would not return, and make that a pretext for disposing of his home so as to prevent her doing so. It is clear that the plaintiff was as anxious for a separation as the defendant,, and the little arts he practiced in the hope of keeping the law on his side serve only to evince his real desire. The record does not show that he is an innocent and injured party, and therefore he can not be divorced.

Judgment affirmed;

Judge Richardson concurs. Judge Napton absent.


author: ■Scott, Judge,

text:
    Stewart et al., Defendants in Error, v. Brooks, Plaintiff in Error.
    1. The pi'ovisions of the act of February 13, 1847, (Sess. Acts, 1847, p. 122, § 31, 32, incorporated into the revised code of 1855, R- C. 1855, p. 1360, § 35, 36,) in so far as they regulate the redemption by minors of land sold for taxes, are complete in themselves and do not need the aid of the act of 1845. (R. C. 1845, p. 951, § 14.)
    2. To entitle a minor to redeem lands sold for taxes, as provided by sections 31 and 32 of the act of February 13, 1847, and by sections 35 and 36 of the revenue act of December 13, 1855, he must pay to the purchaser at the tax sale double, the amount of all the taxes and costs paid by him at the time of his purchase, together with fifteen per cent, per annum upon this amount from the date of the tax deed; he shall also refund to the purchaser the amount of taxes paid by him after the date of his purchase, together with interest thereon at the rate of six per cent, per annum from the times of payment respectively, whether before or after the date of the tax deed.

      Error to Moniteau Circuit Comt.

    On the 1st Monday in October, 1852, the defendant purchased a certain tract of land, at a sale of land for taxes in Moniteau county. The lands were sold for the taxes for the years 1849,1850 and 1851, assessed against the said tract as the property of W. .S. Garner, deceased. The defendant obtained a deed from the register of lands dated May 8,1855. Both the parties in whose behalf this proceeding is instituted were at the date of the defendant’s purchase minors. One attained her majority in the year 1856; the other has not yet attained her majority. The present proceeding was instituted on the 30th of September, 1858, to obtain a redemption of said tract, of land. The only matter in contest is the rule to be adopted in ascertaining the amount to be paid or refunded by the plaintiffs to entitle them to redeem. The court directed that the plaintiffs should pay into court double the amount of the taxes and costs paid by defendant up to the date of his tax deed, together with interest at the rate of fifteen per cent, per annum from the date of the deed. The court refused to order the plaintiffs to refund the taxes paid after the date of the tax deed.

      White, for plaintiff in error.

      Parsons, for defendants in error.
    I. The act of 1847 intended that the purchaser should receive back from the party entitled to redeem double the amount of taxes, costs, &c., incurred up to the date of the deed and fifteen per cent, on that amount to the date of redemption. The act does not provide for the payjffiW-of double the amount of taxes, costs, &e., incirrredfl0^3^PdSfce of the deed, but only for the fifteen per cei^oii^Iie amp currecl prior to the date of the deed. Trns^íe co^®Slowed| and therefore committed no error in rel^siñg t^aí taxes and costs accruing subsequent to tu^d^te ofiJ^derfE
   ■Scott, Judge,

delivered the opinion of tl^couxt

The act of 1847 amendatory of an act entitled “ An act to provide for levying, assessing and collecting the revenue,” approved March 27,1847 (Sess. Acts, 1847, p. 117), repeals all acts and parts of acts inconsistent therewith. The provisions of the act of 1847 in relation to the redemption of lands sold for taxes differ in some respects from those contained in the act of 1845 to provide for levying, assessing and collecting the revenue. (R. C. 1845, p. 947.) Where there is such conflict the prior law must give way. The act of 1847 on the subject of the redemption of lands is complete within itself and does not need the aid of the act of 1845. The expression of one thing is the exclusion of another, and the 31st section of the act of 1847, by prescribing the terms on which minors might redeem their lands when they had been sold for the taxes, necessarily excluded any term or condition not therein contained.

In proceeding on the petition to redeem provided for by the thirty-second section of the act of 1847, the circuit courts are directed to be governed “ by the principles and practices of courts of chancery.” It is a well-settled rule of equity that he who wants equity must do equity; and upon this rule if a mortgagee has two debts due from the same debtor, one' of which is secured by a mortgage and the other is not, the mortgagor will not be permitted to redeem without first satisfying both debts. A mortgage given as a counter security to a joint obligor, shall stand as a security for a second joint bond entered into by the ,same persons afterwards, without any agreement for that purpose, and the heir shall not redeem without saving harmless as to both. (FonbfEq. book 3, chap. 1, § 9.) This proceeding affirms the validity of the sale made to the defendants. If the sale was valid, he was then rightfully the owner of the land and was bound to pay the taxes assessed upon it, which the law made a lien, and it would be a great hardship if, while the validity of the sale is affirmed, the purchaser should be compelled to yield up his purchase without receiving the taxes which he had been obliged to pay and for which the plaintiffs themselves would have been liable had not their land been sold. This is not like the case where land has been sold for taxes and the original owner sues in ejectment and recovers it. Such a proceeding disaffirms the legality of the sale, and the judgment is based on its nullity for the want of conformity to law in the proceedings. The purchaser acquiring no title by his purchase, he would pay the taxes without any right, and is in the situation of any other person who voluntarily and without any authority pays money for another. The fact that the plaintiffs were minors can not affect the question. The land of minors is subject to taxation as well as that of adults. As the defendant has lawfully paid the taxes which the plaintiffs would have been compelled to pay had they remained the owners, “ the principles and practices of a court of chancery” forbid that they should be allowed to redeem without first indemnifying the defendant for the legal charges to which he has been subjected by reason of his purchase.

We do not find any provision in the act of 1847 which would warrant us in allowing more than the legal rate of interest on the several amounts paid for taxes, to be computed from the times of payment respectively. This of course is to be understood of the taxes paid after the purchase. It would be an arbitrary construction of the thirty-first section of the act to hold it to apply only to taxes paid before the date.of the deed. We consider that section as only applying to the taxes for which the land was sold. This view seems to be confirmed by the twenty-third section of the act of 1847, which, in authorizing a redemption of land sold for taxes, makes no provision for the refunding of taxes paid by the purchaser subsequently to the sale. The taxes paid after the sale and before the execution of the deed would not be stated in it, and there is no reason why those paid after the date of the deed should not be refunded as well as those paid after the sale and before its execution. In fixing the date of the deed as the period from which the fifteen per cent, per an-num was to be calculated, it must have been intended that the deed would show the amount on which the penalty was given. The ground on which we base the right of the purchaser to the return of the taxes paid after the sale is the provision in the thirty-second section of the act, which requires the circuit courts, in proceedings of this nature, to be governed by “ the principles and practices of courts of chancery.”

Upon the whole, our opinion is, that the plaintiffs are entitled to redeem upon the payment of double the amount of taxes and costs incurred by the purchaser by reason of his purchase, with fifteen per cent, per annum thereon from the date of the deed, and by refunding the amount of taxes paid by the purchaser since the sale, with six per cent, interest thereon from the times of payment respectively.

Reversed and remanded;

Judge Richardson concurs. Judge Napton absent.


text:
    Young, Defendant in Error, v. Smith, Plaintiff in Error.
    1. Where a tenant, after the termination of the time for which the premises are demised to him, willfully holds over, no demand in writing is necessary to enable the landlord to maintain an action for unlawful detainer against him.

      2. Where the term of a tenant is to end at a time certain, no notice to quit is necessary, whether the term is for less or more than a year.
    3. To authorize the maintenance of an action for unlawful detainer, it is not necessary that the plaintiff should have been in the possession of the premises ; a grantee can maintain such action if his grantor could.

      Error to Jackson Circuit Court.

    This was an action for an unlawful detainer. The plaintiff adduced in evidence an instrument in writing, dated September 16, 1857, by which it was stipulated, among other things, that Smith, the defendant in this suit, “ is to retain the occupancy of the house and grounds now in his possession and rented heretofore from John Lewis, until the first day of January nest, at which time the rents, &c., * * * * It is understood that said Smith is to give the said Young-peaceable possession of the said premises without delay on the first of January, 1859.” Upon this instrument, with proof of possession on the part of defendant, and of the value of the use and occupation, the plaintiff relied to support the action. The defendant offered to prove that he leased the premises from one John Lewis for one year from January 1, 1857. The court excluded the evidence. There was evidence bearing upon the existence of an agreement subsequent to January 1,1858, for a prolonged occupancy on the part of Smith. The court refused the following instructions ashed by defendant: “1. Unless the jury believe from the evidence that plaintiff before the commencement of this suit made a demand in writing for the possession of the premises in dispute from defendant, they should find for the defendant. 2. The agreement in writing between the parties does not show that Smith leased the premises from the plaintiff ; and unless the jury believe from the evidence that Smith did lease the premises from plaintiff, they should find for defendant, although they may believe that Hiram Young is the legal owner thereof. 4. Unless the jury believe from the evidence that before the commencement of this suit plaintiff had possession of the premises in controversy, they will find for the defendant.” The jury found for the plaintiff.

      Ewing, (attorney general,) for plaintiff in error.
    I. The court erred in excluding evidence of a lease of the premises from Lewis to defendant. If there was such lease either for a definite time or at will, plaintiff could acquire no right of action or of possession under the agreement read in evidence.
    II. There was no evidence in writing by plaintiff for the possession of the premises prior to the commencement of the suit, and the court therefore erred in refusing the first instruction asked by defendant. (R. C. 1855, p. 787, § 3.)
    III. If the agreement in evidence was a lease, it being for less than one year, defendant was entitled to one month’s notice to quit, and the second instruction given for plaintiff was wrong. (R. C. 1855, p. 1912, § 13.) This notice is necessary in all cases of a tenancy at will, sufferance, or for less than one year. Notice is dispensed with where the term is to end at a certain time, if it exceeds a year. (R. C. 1855, p. 1011, § 13,14.)
    IY. The agreement was an attornment to a stranger, can not affect the possession of the landlord, Lewis, and is void, a nullity. (R. C. 1855, p. 1013, § 15.) If defendant originally entered under the title of Lewis, the taking a lease from plaintiff was a fraudulent attornment, by which Lewis, the lessor, can not be prejudiced. It was an absolute nullity, and did not create the relation of landlord and tenant. (Jackson v. Harper, 5 Wend. 249.) Whether the instrument in evidence is a lease or an attornment, defendant might have disputed plaintiff’s title if there was a subsisting lease with Lewis when it was entered into, and it is no infringement of the rule that a tenant shall not dispute the landlord’s title. (Cornish v. Seavell, 8 Barn. & Ores. 475 ; Blue v. Sayre, 2 Dana, 213.) Plaintiff never having had possession of the premises, and not being the vendor or assignee of the landlord Lewis, nor holding title otherwise from or under him, can not maintain this action of forcible entry and de-tainer. (R. C. 1855, p. 794, § 36, 37, 38; Holland v. Reed, 11 Mo. 605.)

      Ryland, 8f Son, for defendant in error.
    I. By’ the agreement read in evidence, the defendant Smith acknowledged Young as his landlord, and by said agreement fixed the time to surrender the possession of the premises to the plaintiff. This time was agreed upon and consequently the renting or occupancy was to expire at a stated day, and no notice was necessary requiring the defendant to quit. (R. C. 1855, p. 1012, § 14.) The agreement read in evidence was a clear and plain acknowledgment by defendant of the plaintiff as his landlord, and consequently the evidence offered by defendant showing that he had previously rented the premises of John Lewis, was irrelevant, and offered nothing by way of defence to the plaintiff’s action and was properly excluded. The testimony 'on the part of the defendant tending to show that he had made a subsequent agreement with plaintiff to the one read in evidence, was, under proper instructions, left with the jury, and their verdict shows that there was no such agreement.
   Scott, Judge,

delivered the opinion of the court.

The third section of the act concerning forcible entry and detainer describes two modes by which the wrong of an unlawful detainer may be committed.'’ To entitle a plaintiff to remedy for an unlawful detainer in the manner first mentioned in that section, no demand in writing is necessary. If the tenant holds over the premises after the termination of the time for which they were demised or let to him, he is subject to a suit for an unlawful detainer without any demand in writing for the delivery of the possession. This is evident from the words of the statute. A demand in writing is only necessary when any person wrongfully and without force shall obtain and continue in possession of the lands of another.

We do not see what a lease from Lewis to the defendant has to do with the case, as he acknowledged the plaintiff to be his landlord. There was no evidence given or offered that Lewis denied the right of the plaintiff. On the contrary, the. circumstances raise a strong presumption of a conveyance or sale of the premises by Lewis to Young, the plaintiff, and there is no pretence that there was any misrepresentation on the part of the plaintiff. There is no foundation in the evidence for the application of the law relative to the attornment by a tenant to a stranger. So far from it, the case furnishes an instance in which the rale is applicable, that a tenant can not dispute the title of h'is landlord. (Hall v. Butler, 2 Perry & Dav. 374 ; 10 Adol. & Ellis, 204.)

"When the term of a lease is to end on a precise day, there is no occasion for a notice to quit previously to bringing an ejectment, because both parties are equally apprised of the determination of the term. (Cobb v. Stoke, 8 East. 358.) In this case the lease was for a less term than one year. (Messenger v. Armstrong, 4 Term, 54; ib. 162.) Although the thirteenth section of the act concerning landlord and tenant, among other tenancies, allows a tenancy for less than one year to be terminated by a month’s notice to quit, yetj the section immediately succeeding enacts that no notice to' quit shall be necessary to or from a tenant whose term is to end at a certain time, or where by agreement notice is dispensed with. This is nothing but a principle of common law,1 and it is applicable to all tenancies without regard to their duration.

The doctrine of the case of Reed v. Holland, 11 Mo. 605, and others like it, that he only who has been in possession of land can maintain a suit for a forcible entry and detainer or of unlawful detainer, was changed at the last revision; (R. C. 1855, p. 794, § 36 ;) and now heirs, devisees, grantees and assigns may have these remedies.

Judgment affirmed;

Judge Richardson concurring. Judge Napton absent.