text:
    IDA C. SMITH, Appellant, v. DAVID H. BLACK and D. A. GENTRY.
    Division One,
    December 23, 1910.
    1. DESCRIPTION OF LAND: By Section Numbers: No Mention of County. An administrator’s application to the prohate court for an order to sell land to pay debts, which describes the land as “N. E. of N. E. Sec. 11, Township 24 north, Range 6 east, and other land, in all 80 acres,” describes land in Butler county, and a sale made in pursuance thereof is not void for that it does not say the land is in Butler county. Courts take judicial cognizance of land descriptions in Government surveys, and also of political subdivisions of the State, and know that section 11 in township 24 north, of range 6 oast, is situated in Butler county,

      2. ADMINISTRATOR'S SALE OF LAND: At Private Sale: For Less Than Three-Fourths of Value. A sale by the administrator of land at a private sale at less than three-fourths of its appraised value will not be held in a collateral proceeding (such as ejectment) to be void. The probate court had jurisdiction of the subject-matter, and power to approve the sale, and hence power to decide wrongfully as well as rightfully, and therefore its order is not void on its face, and hence not subject to collateral attack.
    Appeal from Butler Circuit Court. — Hon. J. C. Sheppard, Judge.
    Affirmed.

      Abington & Phillips and Overfield <& Cole for appellant.
    (1)- The petition for the sale of. the property of the estate of the plaintiff’s, father did not conform to the requirements of See. 147, R. S. 1879. (2) The sale made pursuant to the petition conveyed no title to the purchaser at all, for the reason that the said land was sold for less than three-fourths, of its appraised value. R. S. 1879, sec. 166.

      David W. Hill for respondents.
    (1) The description of the land in the petition for the sale thereof being otherwise specificanddefinite, and showing that it could be located nowhere except in Butler county, it was unnecessary for the petition to specifically state that the land was located in Butler county. Sutherland v. Holmes, 78 Mo. 400; Norfleet v. Russell, 64 Mo. 176; Howe v. "Williams, 51 Mo. 252; Long v. Wagoner, 47 Mo. 178. (2) Furthermore, the petition for the sale of real estate filed in the probate court states the venue. This, was sufficient to show the location of the land sought to be sold. R. S.. 1899) sec. 620. (3) The filing of the petition for the sale of the real estate to pay the debts of the deceased gave the court jurisdiction. Overton v. Johnson, 17 Mo. 442; Grayson v. Weddle, 63 Mo. 537; Pattee v. Thomas., 58 Mo. 163. (4) At the time the land in controversy was sold by the administrator, the statute did not make such sale void, even if sold for less than three-fourths of the appraised value, and at most, such sales were only voidable in a direct proceeding timely instituted, and the probate court having had jurisdiction of the parties and the property and having confirmed the sale, it was a final judgment, and no appeal having been taken it is binding upon all concerned, including the plaintiff in this case. Mitchell v. McMullen, 59' Mo. 252; Price v. Real Estate Assn., 101 Mo. 107; Macey v. >Stark, 116 Mo. 481; Rogers v. Johnson, 125 Mo. 202; CoVington v. Chamblin, 156. Mo. 587. (5) Even if the defendant Black had only acquired the equitable title, he would have'been entitled to a decree quieting his title against the plaintiff. Howell v. Junk, 140 Mo. 452.
   WOODSON, J.

This is a suit in ejectment for the recovery of the possession of a certain forty acres of land, situate in Butler county, State of Missouri. The judgment was for the defendants, and the plaintiff appealed.

The petition was in the usual form. The answer consisted of a general denial and a plea that defendant Black purchased the land in good faith for a valuable consideration, and prayed that the title to the same be quieted in him. The reply was a general denial.

The facts of the' ease are undisputed, and are as follows:

William Henley was the common source of title, who died seized of the land in controversy in the year 1871 or 1872. The plaintiff, then a minor of eleven years of age, was the only heir-at-law of said Plenley. The defendant Black claims title to said land through mesne conveyances from said Henley under a sale thereof by the administrator of his estate by order of the probate court of Butler county, based upon the following petition presented to said probate court by the administrator, ashing for an order of sale of the real estate for the payment of debts of the deceased, to-wit (formal parts omitted):

“In the Matter of the Estate of William Henley, Deceased.
“Josiah Harper,' administrator of the estate of the said William Henley, deceased, comes and prays the honorable the probate court of said county to order a sale of the real estate of the said William Henley, deceased, or so much thereof as may be sufficient to pay the debts of the said deceased, and states to the court that he has sold the personal estate of the deceased, as appears by the sale bill already filed, and that the proceeds of said personal estate, goods and chattels, and payments of debts for said estate, were as follows, to-wit: As shown by my settlements filed in this court, in my hands, as shown by my last settlement, $425.35, which consists of an unavailable note and an erroneous charge in said last settlement, leaving nothing available in my hands.
“And there remains unpaid allowances of court as follows:
1 allowance's. R. Harviell...... $57.90
1 allowance Cohen.............. 20'.31 $78.21
“It is further stated by the administrator that of debts due to the deceased I think there will be realized not more than the sum of anything so that there will not be found in the hands of the administrator suffir cient to pay the debts of the deceased, without selling the whole or part of the real estate inventoried, as follows: N. E. of N. E. Sec. 11, Township 24 north, Range 6 east, and other land, in all 80 acres.
“And recommends that the same be sold- for the payment of debts due by the deceased, or so much of the real estate as may be sufficient for that purpose.
“All of which is respectfully submitted.”

After said petition was duly- considered by the probate court, it duly appointed three disinterested freeholders to appraise the land. They took the prescribed oath, viewed and appraised the land at the sum of one hundred and twenty dollars, and made a report thereof in proper form to the .court. Thereupon, the court ordered the administrator to sell the land at private sale. In pursuance to that order, the administrator sold the land on the 17th day of March, 1884, to the Poplar Bluff Lumber Manufacturing Company for the sum of eighty dollars. This sale was reported to the court, and it was by the court confirmed. In due time the administrator executed a deed to the purchaser. The land was wild and uncultivated, and was in the actual possession of no one until about three years prior to the institution of this suit, at which time the defendant Black took possession thereof.

I. There are but two propositions presented by this record for determination: First, that the petition filed by the administrator asking the probate- court for an order to sell the land to pay debts did not properly describe the land, and for that reason the probate court acquired no jurisdiction over the land, and for that reason the order of sale was void, and, consequently, no title passed by virtue of the sale made by the- administrator ; and, second, that the land was sold, at private sale, for less than three-fourths of its appraised value, which was in violation of section 166, Revised Statutes 1879.

We will consider these two propositions- in the order stated.

As regards the first, it will be observed from reading the petition, praying for the order of sale, that it fails to state in express words that the land was located in Butler county and State of Missouri. Counsel for appellant contend that this omission is absolutely fatal and the probate court for that reason acquired no jurisdiction of the subject-matter, and, consequently the order of sale is absolutely void, and no title was conveyed to the Polar Bluff Lumber Manufacturing Company by virtue of said deed.

In our opinion that contention is untenable. The petition describes the lands as being the northeast quarter of the northeast quarter of section 11, township 24, range six east, and other land — in all eighty acres. That description is sufficient to show that the land was situate in Butler county.

In the discussion of that question, Judge Valliant, in Myher v. Myher, 224 Mo. l. c. 637, in speaking for the court, clearly and tersely said: “But even without that oral testimony we think the description contained in the will is sufficient to show that the land lies in Adair county, Missouri. This court takes judicial cognizance of land descriptions in the Government surveys, and we also take judicial cognizance of 'the political subdivisions of the State. We know that sections 13 and 14, township 62, range 16, are in Adair county. It is argued that those numbers of sections, township and range may be found in other counties in other States; that may be, but we have no judicial cognizance of such matters jn other States and even if the fact were proven we would not go abroad to hunt for such a fact fo,r the purpose of rendering uncertain a description which is certain enough when applied to land within our purview. This point was practically so decided in Long v. Wagoner, 47 Mo. 178.”

II. The second insistence of counsel for appellant presents a more serious proposition, to-wit: That the sale is void for the reason that the administrator sold the land in question at private sale for a sum less than three-fourths of its appraised value, in violation of section 166, Revised Statutes 1879'. That section, so far as material, reads: “No real estate sold for the pay- meat of debts shall be sold at private sale for less than three-fourths of its appraised value.”

This question has never been directly passed upon by this court, or by either of the courts of appeal, so far as I have been able to ascertain. We must, therefore, approach it more upon principle than from authority.

The case that comes the nearest to passing upon this question is that of Price v. Springfield Real Estate Assn., 101 Mo. 107. In the discussion of that case, Judge Black, in speaking for the court, on page 116, said:

1. The plaintiff insists that, in order to sustain the administrator’s sale, it devolved upon the defendant to show that the administrator filed a petition for the sale of the real estate, to produce an order of the court directing notice to be given to all parties in interest of the filing of such petition, and to show that the administrator caused the property to be appraised. These objections are all based upon the proposition that the county courts are courts of special and limited jurisdiction, and that all these matters must be shown in support of the administrator’s deed. Early cases are cited giving some support to the proposition, but the doctrine has long since been exploded. Formerly county courts had, and probate courts now have, exclusive original jurisdiction in matters concerning the administration of estates of deceased persons. It is now well-settled law that the orders and judgments of these courts are entitled to the same favorable presumptions and intendments that are accorded to the judgments of circuit courts. The proceedings of our . probate and county courts are no more open to. collateral attack than are the proceedings of any other courts. [Camden v. Plain, 91 Mo. 117; Rowden v. Brown, 91 Mo. 429, and cases cited.] Here the defendant put in evidence the deed, order of sale, and the order approving the same. It was not necessary for the defendant in the first instance to make any other or further proof. From the deed and those orders it will be presumed that all requisite antecedent steps had been duly and timely taken, until the contrary is made to appear. These observations dispose of all of the objections before named.
“2. It is true the administrator became the purchaser at his own sale. He had a right, under the law as it then stood, to purchase, at his own sale, whether private or public, by- paying not less than three-fourths of the appraised value of the property. For the reasons before stated, it will be presumed that his bid was at least three-fourths of the appraised value. ’ ’

It is-clearly indicated in the last paragraph quoted that Judge Black was of the opinion that if it had appeared from the record that the land had been sold for less than three-fourths of its appraised value, the sale would have been void. Those remarks are obiter, as no such question was presented by the record.

A kindred subject arising under sections 149 and 150, Revised Statutes 1879, which deal wdth the same subject-matter as that mentioned in section 166 was before this court in the case of Stark v. Kirchgraber, 186 Mo. 633. Those sections read as follows:

“Sec. 149. Upon proof of publication, the court shall hear the testimony, and may, if necessary, examine all parties, on oath, touching the application and make an order for the sale of such real éstate, or any part thereof, in this State, at public or private sale.
“Sec. 150. If such executor or administrator do not make such application any creditor or other person interested in the estate, may make such application, giving twenty days’ notice to the executor or administrator. ’ ’

The question there presented was the validity of a. sale of the i*eal estate to pay debts, ordered by the probate court, based upon the petition of a purchaser of the interest of two of the. heirs who had inherited the land from the deceased.

In discussing that question, Judge Fox, on page 644, in speaking for the court, said:

“This leads us to the only remaining proposition involved in this cause. That is, upon the record, as made by the probate court, was the sale made by the administrator of the estate of Huida Jarrett, deceased, of the land in dispute a valid one, and did his deed under such sale convey to Lizzie Kirchgraber, the appellant in this cause, the legal title to the premises? A correct answer to this question must be the solution of this proposition. That the order of sale, and the .sale made in obedience to it, was made upon the application of the appellant in this cause, under the provisions of section 150', supra, there can be no dispute. The entire record demonstrates that fact. ’ ’

(Then follows a copy of the section as before set out.)

“It is obvious from that section that the authority to make the application for the sale of land of a deceased person, is limited to a ‘creditor or other person interested in the estate.’ It is equally clear that the term ‘other person interested in the estate’ contemplates persons who have an interest in the distribution of the estate, or who have a right to participate in such distribution, such as an heir, or one who is made a legatee by will, or the guardian or curator of one of the heirs of the estate, or other persons who may be entitled to a distributive share of the estate. That the appellant in this .case had no such interest in the estate of Huida Jarrett, deceased, as authorized her to make that application for the sale of the real estate, in our opinion, is too plain for discussion.

•“Her purchase of the interest of the two children of the deceased in the land, which descended to them, falls far short of creating any interest in the estate, as contemplated by the section of tbe statute upon which' the proceedings to sell the land were predicated.

“Upon the death of a party who dies intestate, his or her lands descend directly to the heirs, and, technically, are no part of the estate which goes into the hands of the administrator for distribution, and in the administration of the estate the administrator has nothing to do with such lands, except as it may be subjected to his control under the provisions of law, which subjects lands to the payment of the debts of the deceased.

“If-the appellant does not fall within the terms other persons interested in the estate, ’ then it follows that the order of sale by the probate court was without authority and is void. But it is- insisted by appellant that the order of sale; and the sale made in obedience to it, and its approval by the court, was a final judgment, and cannot be attacked in this collateral proceeding. This is true, where the record upon its face shows that the court had jurisdiction.

“Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and, third, the point decided must be, in substance and effect, within the issue. [Munday v. Vail, 34 N. J. L. 422.]

‘ ‘ It was legitimate and competent for the plaintiffs in this case to introduce the entire record of the probate court in the proceedings to sell this land. An examination of that record convinces us that one of the essentials necessary to confer jurisdiction upon that court was entirely absent. In other words, the proper parties were not before the court, and this is shown upon the face of the record in this, that the appellant who instituted the proceeding for the sale of the land, was neither a creditor nor was she interested in the estate, within the provisions of the statute.

“That want of jurisdiction may be ascertained by the consideration of the whole record, was clearly settled by this court in Hutchinson v. Shelley, 133 Mo. 400. In the discussion in that case of the same contention that is now urged in the case at bar’, the court said:

‘ ‘ ‘ But it is urged by counsel for defendant that the judgments and orders of probate courts in the administration of estates are accorded the same presumptions in favor of their regularity as are indulged in favor of courts of general jurisdiction, and they are correct in this assumption. [Camden v. Plain, 91 Mo. 117; Price v. Springfield Real Estate Assn., 101 Mo. 107; Rowden v. Brown, 91 Mo. 429, and cases cited.] But the judgments of the circuit courts and other courts of general jurisdiction may be overthrown by other portions of their records of equal dignity and importing the same verity, which demonstrate that their recitals in their judgments are untrue, and a party attacking a judgment of such a court collaterally may introduce the whole record in the given cause to show that the court had no jurisdiction, either over the person or subject-matter, and when it so appears its judgment is void. [Cloud v. Pierce City, 86 Mo. 357; Adams v. Cowles, 95 Mo. 501.]'
“It appearing upon the face of the record that the probate court did not have the authority to entertain the proceeding instituted by appellant for the sale of ■ this land nor to make the order of sale, it follows that the sale made in obedience to such order, as well as the deed executed to defendant in pursuance to such sale, were void and conveyed no title to the land in dispute. ’ ’

In the case at bar, the administrator’s report of sale showed upon its face that he had sold the land for less than three-fourths of its appraised value. Upon that state of the record, counsel for appellant contend that when the probate court came to make the order ' and judgment approving the sale, it was confronted with the provisions of said section 166, which in all cases absolutely prohibited any real estate belonging to the estates of deceased persons being sold at a sum less than three-fourths of its appraised value; and that according to the test before stated by Judge Fox, it is further contended that the probate court in the case at bar had no more power or authority to approve the report of sale which had brought less than three-fourths of its appraised value than the probate court had in that case to order it sold on the petition of one who had purchased the interest of two of the heirs. In that case the court properly held that the probate court had no jurisdiction over the person of the petitioner.

But counsel for respondent contend that a different rule applies to the facts of this case, that is, that the filing of the petition in the probate court, asking for the order of sale, gave that court jurisdiction over the land; and that while the order and judgment approving the sale may have been and was erroneous, nevertheless. the court had jurisdiction to make the order; and not having been appealed from, it became a valid final judgment, and cannot be questioned- in this collateral proceeding.

Under the statutes of this State the real estate of a deceased descends to the heir, and the probate court has no jurisdiction over the same except to order it leased or sold to pay debts. That proposition has been so often announced by this court that it would be useless to cite authorities in support thereof.

This court at a very early date held, that it was the filing of the petition asking for an order to sell the real estate to pay debts that gave the probate court jurisdiction over the same, and that the omission of the administrator to file with the petition the inventory, appraisement, lists and accounts of the estate, as required by the statute in such cases, did not deprive the court of jurisdiction, and that such failure would not render the sale void. [Overton v. Johnson, 17 Mo. 442.] That case has been affirmed by this court in the cases of Pattee v. Thomas, 58 Mo. 163, and Grayson v. Weddle, 63 Mo. l. c. 537-8.

In disposing of this question, we should not over-" look two well-settled rules regarding the jurisdiction of courts to render judgments and decrees in certain cases:

First, where the Constitution or statute absolutely prohibits a court from doing a particular act, then the order or judgment of the court made or rendered in violation thereof is absolutely void for want of jurisdiction, and may be assailed in a collateral proceeding.

Second, where the Constitution or statute authorizes such court to do a particular thing, but at the same time prohibits the court from doing that until certain other things stated are performed, or where the power of the court to act is subject-to certain limitations named, then the judgment of the court rendered in violation of the things stated, or contrary to the limitations named, is not void for want of jurisdiction, but voidable only, and if not corrected by timely motion or appeal, will become absolute and valid, and not subject to collateral attack. [Seaman v. Levee District, 219 Mo. 1; Sparks v. Jasper Co., 213 Mo. 218; Bank v. Lyons, 220 Mo. 538; State ex rel. v. Williams, 221 Mo. 227; Simpson v. Stoddard Co., 173 Mo. 421.]

If we test the case at bar by the rules thus announced it will be clearly seen that the probate court acquired jurisdiction of the subject-matter, the real estate in- question, by the filing of the petition asking that it be sold to pay debts; and, having acquired that jurisdiction, the order of. sale, which was expressly authorized by statute, was regular and valid in every particular; and the mere fact that the administrator violated section 166, and sold the land for less than three-fourths of its appraised value, did not affect the jurisdiction of the probate court over the subject-matter; and while the order and judgment approving the sale was erroneous, yet it was not void, for the reason that the. court had the jurisdiction to make the order, which necessarily includes the power to decide wrongfully as well as to decide rightfully. No appeal was taken from that order, nor was it otherwise set aside or modified. That being true, we must accord to that order of approval the same presumption of regularity and validity that is accorded to judgments of courts of general jurisdiction. For that reason the order approving the sale cannot be questioned in this collateral proceeding. [Camden v. Plain, 91 Mo. 117; Price v. Springfield Real Estate Co., supra; Stark v. Kirchgraber, supra.]

The rulings of the circuit court were in harmony with the views here expressed; and for that reason the judgment should be affirmed. It is. so ordered.

All concur.


source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    JOSEPHINE KREITZ and CLARA KREITZ, Appellants, v. JOHN M. EGELHOFF et al.
    Division One,
    December 23, 1910.
    1. DAMAGES: Good Faith in Offer to Perform: Demurrer. Whether or not plaintiffs’ offer to perform their contract of lease was made in good faith, was for the jury in the lessees’ suit for damages for being denied possession, and not for the court upon the lessor’s demurrer to their case.
    2. LEASE: Loss of Possession by Bankruptcy: Right to Possession Under Future Lease. Where the lessees’ contract was that, while they were in possession under a first or existing lease, they were to reconstruct and enlarge the buildings, and they lost the first lease by voluntary bankruptcy and ceased to pay rent thereunder, and the possession passed to another tenant, they were not entitled to possession under the second lease until they first performed their contract to rebuild during the life of the first lease; and having voluntarily thrown away their right to perform during that time, their rights to possession and profits under the new lease were lost. And it makes no difference that, after they had by their voluntary acts lost the first lease, and possession thereunder, they demanded possession during the life of that lease in order that they might build. Having voluntarily failed to perform, they cannot recover damages from the lessor for refusal of possession.
    Appeal from Jackson Circuit Court. — Hon. E. E. Porterfield, Judge.
    Aeeiejvibd.

      Heed, Attvood, Tates, Mastin é Harvey for appellants.

      McCune, Harding, Broion & Murphy for respondents.
   LAMM, P. J.

Plaintiffs sue for fifteen thousand dollars damages for defendants’ failure to comply with^ a covenant to deliver possession of certain premises and to carry out other terms of a -written lease.

The petition alleges and the answer admits the execution of the lease on the 3d day of September, 1904. This lease demised to plaintiffs a certain brick building and basement, known as 1029 Main street, Kansas City, Missouri, for a term of five years, commencing on the 1st day of February, 1906, at a rental of seven hundred dollars per month. It contained provisions as follows for a renewal term of five years: ‘ ‘ Provided plaintiffs would agree to pay as much as any other party making a bona fide offer to lease such premises; ’ ’ that the premises were leased “in the present condition thereof;” for repairs, keeping the premises free from filth, nuisances, danger of fire and against carrying on any unlawful business; for forfeiture on violating any covenant or agreement, including default of payment of rent; for surrender of peaceable possession at the end of the term; and for regulating liability for rent in case of fire, etc. As a further consideration, the lessees covenanted to erect at their own proper expense, doing all the necessary excavating for a'cellar at the rear of the building now on the premises, “a two-story or higher brick building about 24 feet by 55' feet with 18-inch foundation walls and 13-inch brick walls and gravel roof,” within one year from the date of the lease, that is, within one year of the 3d day of September, 1904 — these betterments and improvements to be and remain the absolute property of lessors.

The petition alleges and the proof shows the lease contained a provision that .the lessees would not convey or assign it without the written consent of lessors. Further, that neither it nor the premises should pass ‘ ‘ by operation of law nor by any species of conveyances by the parties of the second part or their heirs.”

The answer denies that plaintiffs owned the lease or had any right, title or interest therein. It avers that all such right, title and interest prior to the 1st day of February, 1906-, passed out of plaintiffs and was vested in defendants. It further alleges (and the proof shows) that about two months after the lease was executed, to-wit, on the 7th day of November, 1904, plaintiffs, as individuals and as copartners, filed their voluntary petition in bankruptcy and on said date by virtue of such proceeding in the United States District Court for the Western District of Missouri were declared bankrupts as individuals and as copartners. The answer also alleged (and the proof shows) that plaintiffs listed their assets under oath as individuals and copartners in said bankrupt proceeding. It further alleges (and it is contended on one side that the proof shows, on the other that it does not show) that the right, title and interest of plaintiffs in said leasehold as individuals and as copartners was listed as an asset, was sold by virtue'of the bankrupt proceeding to defendants, who became the owners'of the lease— this sale being made by the trustee in bankruptcy in due course of law and duly approved by proper authority. The petition alleges and the answer denies performance on the part of plaintiffs. The petition alleges the value of the leasehold at $15,000 over and above the rent reserved to be paid and the betterments and improvements to be made. The answer denies such or any value or that plaintiffs were damaged at all.

At the close of plaintiffs’ case, defendants asked an instruction in the nature of a demurrer to the evidence, which instruction was allowed and a verdict accordingly thereby coerced. On due steps, plaintiffs come here by appeal.

The case can be disposed of without setting forth the testimony. It may proceed on the theory it tended to show that on the 3d day of September, 1904 (the date of the lease in question, which for convenience we will call the second lease), plaintiffs held possession of the premises under a former lease, which we will call the first lease. The term of the first wa,s from February 1, 1901, to February 1, 1906 — the second commencing where the first ended. During the life of the first lease (i. e., before the bankruptcy) plaintiffs conducted a millinery store in the demised premises. The building was two stories high in front, but did not extend that high all the way to the rear — the last fifty-five feet back to the alley being only one story high. The walls of the one-story part were too old, thin and weak to support a second story. There was a basement or cellar under the front part of the building, but it was unconnected with the outside and could not be rented. Under the one-story part there was no basement. The building was in a region where leaseholds were in demand and rents stiff. Plaintiffs were paying $375 monthly rent during the term of the first lease. While things were in this fix and their term had yet nearly a year and a half to run, they made the second lease.. That lease contemplated a rather ambitious plan of improvement at the expense of the tenants, viz.: The walls of the one-story part of the old building were to be razed, excavating was to be done for a basement under that, which was to be connected with the basement of the front part. Access, to the basement from the street was to be provided. Then a new building 24 by 55' feet was to be erected, two stories high, so as to make a two-story building from street to alley — remodeling it and making the building rentable from top. to bottom and from end to end. The working theory indulged was that the rear of the first story could be rented for a saloon; that one-half of the front of the first story could be rented for a jewelry store; that plaintiffs could conduct their millinery business in the other half of the front; that the basement could be rented for a turkish bath establishment; and that the second story could be rented, the front to dentists and the back part to a “first class manicurist and dressmaker.” The evidence tends to show that before or presently after the second lease was made some negotiations, never consummated, began with a jeweler in Des Moines, Iowa; that some negotiations, never consummated, began with a colored man named Lucas to run turkish baths in the basement; that some were commenced and never consummated with a brewer to establish a tippling shop in the rear of first story — all when reconstructed. There was trouble in obtaining a license and the projected dram-shop died of some prenatal illness.

At that time plaintiffs had prepared paper plans and specifications for the remodeling, but presently fell over the brink of insolvency and began proceedings in the Federal court to be relieved of their pecuniary liabilities. It creeps into the casethatthey were discharged as bankrupts in October, 1905', though no certificate appears. It is conceded the first lease was listed as an asset and sold. It is not as dear as it might be how possession was held of the premises after plaintiffs’ failure — we mean whether under plaintiffs’ first lease so sold a» an asset, or whether it was held by virtue of a new lease between defendants and tenants then put in possession. But we gather that the old lease was forfeited ; that plaintiffs left possession; that the premises were not at all times occupied; that finally they were rented, first to Mr. Moore, and then to a Mr. Green, for $525 per month, and were in the latter’s possession when performance was put on foot by certain acts, viz., plaintiffs made an oral contract with one Miller to do the excavating for the new two-story part of the building. No sum was mentioned, but he was to superintend the work for so much per day, and was to hire men to do the digging, and teams to remove dirt and debris, to be paid by plaintiffs. Miller, prior to employing men, went to Green, defendants’ tenant, and demanded the right to commence work — a work necessarily involving the destruction of the back fifty-five feet of his store room. Green refused permission. Having consulted counsel, on July 3d, 1905', plaintiffs telegraphed the agent of defendants they would begin work on the building according to their lease on July 5th. They followed that telegram on July 6th, with a registered letter referring to their telegram and notifying defendants that Green had stopped them from building and from removing the old building, closing with the inquiry: “What are you going to do about it? An answer will oblige. ’ ’ Following the matter up smartly, on July 10th they sent another registered letter, recounting the terms of tbeir telegram and former letter, concluding with: “We demand that you permit us through your tenant to enter on the premises to the end that we may erect the building agreeable to our contract. We shall hold you to a fulfillment of your contract.. An early answer will oblige.” Some, if not all, of these communications, we take it, were prepared by counsel and were intended as such offers of performance as would be effective in a lawsuit if refused. It will be observed, as said, that the building was to be completed by the 3d day of September, 1905'. and tlie evidence tends to show that plaintiffs were laboring under the notion that defendants were entitled to sixty days’ notice. On January 30', 1906, plaintiffs by registered letter sent to the agent of defendants to Olathe, Kansas, a certified check for $700 as and for the first month’s rent on the second lease due on the first of February following. Accompanying this check was a letter under their counsel’s letter head, referring to the second lease by date, parties and description of property, and defendants were not only asked to receipt for the payment, but were notified that plaintiffs demanded possession of the premises on February 1st, agreeable to the lease — a lawsuit to follow if the demand was not acceded to. This letter with the enclosure was returned by the postmaster after being opened by the agent of. defendants. None of the other communications were answered. Suit following on February 12th. We do not see that any steps.were taken towards performance after the bankrupt proceedings were begun in November, 1904, until in July, 1905'. Some of the testimony falling from the lips of plaintiff, Josephine, indicates that the second lease was not listed. This was put on the theory that it was not yet a live lease and the trustee in bankruptcy had no business with it. It seems to have been sent to the State of Kansas and held there during the bankrupt proceedings. There is other testimony bearing the construction that Josephine, who transacted the business for plaintiffs, did not know whether or not the second lease was listed as an asset. The records of the bankrupt court were not introduced in this behalf by plaintiffs. Josephine, when on the stand, admitted she had heard the second lease had been sold as an asset; that ‘ ‘ a piece of money passed” in regard to it. Plaintiffs’ testimony also tends to show that if the new building had been completed and the property renovated and put in good condition, the basement would have been rentable at one hundred dollars per month, with a street entrance, and the first and second stories could have been rented at a figure, including the basement rent, in excess of the seven hundred dollars monthly rent reserved in the second lease. Miss. Josephine Kreitz testified the leasehold under the second lease had a considerable money value at the time it was executed. She considered it an asset, but that the law did not make it part of the bankrupt estate. She represents one of the defendants, shortly after the adjudication of bankruptcy, as estimating it worth one thousand dollars, presently, in the same conversation as worth two thousand dollars, and presently as proposing to her to have it burned and got out of the way. He asked for the lease but its production was excused because she 'did not have it with her. We infer he claimed it was inoperative because of the bankruptcy. But the vagueness of the testimony on this score prevents much substance being made out of it. There was a rough estimate of the cost of remodeling the building — whether of the whole cost when ready for occupation from basement to top, we cannot make out. Plaintiff Josephine further testified that she had some arrangement for the money with which to perform through a man in St. Louis, who was willing to take security on the rental income. No contract to that effect was offered in evidence. The certified check for the first month’s rent was drawn against the “family savings.” Plaintiffs’ estate paid twenty-three per cent on their indebtedness and they asserted their ability and readiness to perform in good faith. An attorney, Mr. White, was present at the bankrupt sale. Plaintiffs, without producing a report of that sale or any proceedings of the bankrupt court, undertook to show by him that he attended the sale of all the assets and the second lease was not offered for sale and was not sold. His testimony being excluded on objection, the point was saved. This, with the ruling on the demurrer to the evidence, is now assigned for error.

We have reached the conclusion the demurrer was well decided. This because:

(a) Some doubt, arguendo, is thrown on the good faith of plaintiffs’ acts looking to performance. Plaintiffs, before final discharge in bankruptcy, but presumably having faith in that discharge forthcoming, claim to have hired Miller to raze the walls of the old and excavate and haul away the dirt and debris for the new building — all this by virtue of the terms of the second lease. At that time they had been adjudicated bankrupts, but were still in court in that proceeding. Nevertheless, though ground bare and dean of property by a bankrupt-mill, they seek performance of an onerous lease which contemplated a heavy outlay of ready cash. To that end they demand possession. As we grasp the run of the argument, counsel doubt the good faith of the tender of performance; they doubt present ability to perform; they suspect the tender of performance to be a cloak for the real purpose of pressing a •thorn in defendants’ side, thereby spurring them to a compromise settlement; they suspect the offer to perform was merely intended to impale defendants on the horns of a dilemma, viz., a lawsuit with them, for one horn, or the destruction of the one-story part of their building for a season and the consequent loss of rent from their then tenant and damages for ousting him from possession, for the other. But whatever substance there may be in that line of argument, it was for the jury and not for us. Respondents took the issue of good faith from the jury where it belonged, and may not bring it here where it does not belong. Whether there was a bona fide offer to perform was for the triers of fact.

(b) But there is a larger and deeper phase of the matter of performance, fairly arising on this record, which seems an impassable obstacle to recovery. That phase is this: Plaintiffs sue at law for damages for non-performance, of a contract. Defendants were not obliged to perform except on condition that plaintiffs. performed. That he who sues at law for damages for non-performance must allege and prove his own performance is elementary. Recognizing that principle, plaintiffs allege performance on their part in so far as they were able to perform. They concede there was not full performance, but they excuse themselves because of the wrongful acts of defendants in preventing fnll,performanee in rebuilding. Now, if defendants wrongfully prevented full performance, they may claim nothing by virtue of so much of the non-performance as was brought about by their own. wrongful act. Assuming so much as good doctrine, how does the case stand?

In contracts the subject-matter and the object to be attained should be looked to. In other words, the scope, purview and intendment of the contract have to be kept in mind as. prerequisites to its interpretation and to ascertain and settle rights thereunder. Now, the broad fact is that when plaintiffs made the second lease, they were already (and were to continue) in possession of the premises under the first. It was not intended that in order to perform the contract to rebuild they should intrude on the rightful possession of another. Per contra, their own rightful possession under the first lease was contemplated during the whole time they were to perform that part of the contract requiring the walls of the one-story part of the building to be razed and a new building built. During that time their rent under the first lease was to accrue from month to month to defendants. It is obvious, then, that under the contract the burdens of not only all expense and outlay in remodeling, but of detriment to the possession in making the existing building' unfit for business purposes, were on the shoulders of plaintiffs. They carried it all, ex necessitate rei. But there had been a vital change in that regard when plaintiffs sought to perform in July, 1905'. They had then long ceased to pay rent under their first lease, and were relieved from such liability by their voluntary act in seeking the shield of bankruptcy. So, too, their first lease was forfeited. They were no longer in possession. Possession passed to another tenant, who, in turn, had assumed the rent-paying burden they had lightly and voluntarily thrown off. In this condition of things, plaintiffs sought under the guise of performance to recover possession and destroy the new tenant’s leasehold, interrupting his business, throwing upon him and upon defendants the grave annoyances and burdens to the possession incident to tearing down and rebuilding. "We cannot well write the law to be that plaintiffs were entitled to the remarkable advantage of' so remarkable a shift in contractual position. Whether they could have kept the first lease alive, retaining possession in order to perform the contract under the second lease, is not necessary for us to decide. This case proceeds on the theory they did not keep life in the first lease nor retain possession. The situation, whatever it was, the, bitter with the sweet, was theirs. They made it, ergo they must face it and bow to it. Having gone out of possession of their own choice, they may not come in again during the term of the first lease except through defendants.’ choice. As they had no right to tear down and rebuild, except during the term and time of their own possession under the first lease, with rent-paying as an incident, they were not entitled to possession for rebuilding purposes at a time- they were paying no rent whatever, and when they would oust the lawful possession of another. As they were not entitled to possession under their new lease unless they first performed their contract to rebuild within the year mentioned (i. e., during the term of the first lease), and as they voluntarily threw away their right to perform during the term, we see no escape from the conclusion that their right to possession and profits under the. new lease were lost, when they lost the right to performance, and with that loss falls their locus stancli, their right to damages. "We so hold, and this holding determines the case.

(c) Learned counsel well and ingeniously argue nice propositions of bankrupt law. For instance:

It is argued for plaintiffs that as defendants plead in their answer that the second lease was listed as an asset in bankruptcy, passed to the trustee and from him under the hammer to the purchaser at the bankrupt sale, the burden was assumed by defendants of proving those facts. They say defendants did not well carry that burden. Contra, defendants’ counsel argue that there is inferential proof of the allegations, but they rely mainly on the proposition that since the trustee is presumed to do his duty the presumption is that it was listed and was dealt with as an asset. They argue, further, that it makes no difference whether it was listed or not, that the title to the lease passed by operation of the bankrupt law to the trustee and either remains in him or passed off to a stranger. On the other side it is argued that under the peculiar phraseology of this lease it could not pass by operation of law to the trustee. To this, defendants ’ counsel say that the title passed to the trustee cum-onere, that is, burdened with contractual conditions, such as obtaining the consent of the lessors to a transfer. Other contentions are made; for example: By plaintiffs’ counsel that the trustee had the right to elect whether he.would take over an onerous lease as an asset, and he had the further right to abandon it as an asset, in either of which events the title would remain in the bankrupts. Counsel for defendants concede as much, but they say the burden is upon the plaintiffs to show such election o.r abandonment — in other words, the presumption is that the trustee performed his full duty in the first instance, and, as plaintiffs testify that the leasehold was of great prospective value, the burden rests on them to show it was not taken over by tbe trustee or was abandoned.

The administration and exposition of tbe Bankrupt Act is tbe peculiar province of Federal courts, and tbe appellate courts of a State bave no call to expound that law, except where it becomes necessary to determine a bankruptcy question in a case witbin its own jurisdiction. As tbe instant case bas been allowed to break on a previous paragraph of tbe opinion, therefore it is not one of that sort. Accordingly we reserve tbe questions discussed. It will be time enough to decide them when they arise in a case turning on them,

Tbe views expressed also preclude tbe need of passing on tbe assigned error relating to tbe exclusion of tbe testimony of Mr. White.

Let the judgment be affirmed.

All concur.


author: KENNISH, J.

text:
    THE STATE v. JOHN WITHERSPOON, Appellant.
    Division Two,
    December 27, 1910.
    1. ARRAIGNMENT. An arraignment of defendant upon a criminal charge is a prerequisite to a legal trial; but where the record shows that defendant was arraigned and “for his plea says he is not guilty of the charge in said indictment,” it shows a sufficient arraignment.
    2. CHANGE OF VENUE: Disqualification of Judge. Where the application for a change of venue, alleging the disqualification of the judge, is not supported by the oath of defendant and the affidavit of two or more reputable persons, it cannot be granted. The right to a change of venue is statutory, and it was competent for the General Assembly to prescribe the terms upon which it shall be granted; and when those terms are met, the judge has no discretion to refuse it, but no power to allow it until they are.
    3. -: -: Agreed Statement: Issue of Fact: No Affidavit or Oath. Defendant’s motion to the judge to disqualify himself to sit in the forgery case, alleging that he had been of counsel in a civil suit based upon the deed of trust defendant is charged, in the indictment with having lorged, and that hy reason thereof he was disqualified from hearing and determining the cause, signed only by counsel, hut not verified hy affidavit, nor even signed hy defendant, but supported hy an agreed statement of facts and hy evidence introduced hy defendant in support thereof, should he overruled. The law does not contemplate an issue of fact upon an application for a change of venue on account of the'disqualification of the judge, to he heard and determined hy the judge alleged to he disqualified; and, therefore, the evidence offered in support of the motion, together with the agreed statement of facts, are not properly in the case and cannot he considered; and the motion cannot he considered, because not supported hy the requisite oath and affidavits.
    4. INDICTMENT: Forgery: Variance: Deed of Trust. Variances between the deed of trust set out in the indictment and the instrument introduced in evidence, which amount to mere clerical inaccuracies, are immaterial and do not affect the merits.
    5. FORGERY: Evidence: Deed of Trust: Check for Money. Where defendant is charged to have forged a deed of trust on land, it is not an essential element of the crime charged, that the forger obtained the money upon the forged deed; hut a's the sole purpose and object of the forgery was to secure the money, it was competent for the State to prove, as a part of the transaction, the manner in which the money was obtained, and for that purpose to introduce in evidence the check hy which it was obtained, signed hy the same name hy which the deed of . trust was forged — and that independent of any question of handwriting.
    6. -: -: Handwriting: Comparison: Expert. Where defendant did not object to witness, admittedly an expert, testifying that the handwriting of the name on the check hy which the money was drawn out of the hank was the same as that in which the same name was written on the deed of trust, defendant cannot object on appeal that the witness was permitted to give his opinion on that point.
    7. WITNESS: Wife: Incompetency: Testimony Stricken Out: Instruction Necessary. A wife cannot testify against her husband who is the defendant in a criminal case; and where she states she was married to him, her testimony not only should upon motion he stricken out, hut the court should give an instruction asked telling the jury to disregard her testimony. And it matters not that after she testifies she was married to him, she also testifies that she was not his wife, because she had learned after marriage that he had previously been married and had not been divorced.

      8. -: Incompetency: Voir Dire Examination. It is a wise and judicious course of procedure, when a question is raised as to the competency of a witness, and the circumstances of the case are such that the voir dire examination of the witness may have an influence on the minds of the jury upon the issues before them, to exclude the jury from the court room pending such examination,
    9. REMARKS OF ATTORNEY: Not Preserved in Motion. Reference by the attorneys for the State to the fact that defendant’s wife had testified against him, whose testimony had been stricken out, although excepted to at the time, cannot be reviewed on appeal unless made a ground of the motion for a new trial.
    10. FORGERY: Deed of Trust. The forgery of a deed of trust on real estate is a forgery of “a deed or other instrument” under Sec. 4636, R. S. 1909, and therefore is forgery in the first degree.
    Appeal from. Bates Circuit Court. — Hon. G. A. Benton, Judge.
    Reversed an;d remanded.

      G. J. Henry and B. G. Chastain for appellant,
    (1) Judge Denton was disqualified from hearing this case. The issue was the forgery of the deed of trust, and the record shows that M. Goss, whose name was forged to the mortgage, brought in 1899 a suit against the Walton Trust Company to cancel the mortgage on the grounds of forgery. Judge Denton was one of the attorneys for the Walton Trust Company in the case, and upon the trial the mortgage was cancelled as a forgery. It certainly appears that he should not sit in the trial of a cause wherein the forgery of the identical instrument was in issue. The issue of forgery has once been decided adversely to his firm and. that being true it could not be said that be was unprejudiced or unintrested in this cause. R. S. 1899, sec. 2594. (2) The court erred in the admission of testimony on the part of the State in the following instances: (a) The alleged forged deed of trust should not have been admitted in evidence, for the reason that the same is pleaded by tenor in the indictment and the State was thereby held to strict proof thereon. There are a great number of words spelled differently in the deed as pleaded and as offered in evidence. These differences constitute a variance and violate the rule of strict proof. 19 Cyc. 1397; 1 Bishop on Crim. Proc. (3 Ed.), sec. 562; Yol. 2, lb., sec. 398; State v. Fitzgerald, 20 Mo. App. 408; State v. Smith, 31 Mo. 120; State v. Pay, 65 Mo. 490; State v. Chamberlain, 75 Mo. 382. The case of Bennett v. State, supra, involves many of the same variances complained of and is on all fours with this case. In addition to the above complained variances, in the acknowledgment to the same the date appears as 12, while in the indictment the same appears as 12th; further, in the one appears the word “Missouri” while the other has “Mo.,” and in one appears at the place for the notary’s seal, “ls,” while in the other the same is “John E. Hales, Notary Public Bates County, Missouri.” While it is recognized that the acknowledgment is not a necessary part of the instrument, yet being on the same instrument on a question of the identity of the same, the acknowledgment is material as a mark of identification, (b) Under the common law rules this check was not sufficiently identified and Walton was not a competent witness as to it. S-tate v. Clinton, 67 Mo. 385; State v. Thompson, 132 Mo. 321. If admissible at all it became so under Sec. 4679, E. S. 1899, which permits an examination and comparison with an instrument admitted to be genuine or shown to the satisfaction of the judge to be genuine. This statute being in derogation of the common law is to be strictly construed. Bank v. Huffman, 74 Mo. App. 203. The statute does not contemplate that an instrument, the genuineness of which is involved in the case in'issue, may be used as a standard of comparison. Sankey v. Cook, 82 Iowa 125. (3) The court should not have allowed the witness Mrs. Cook to be sworn and testify. Counsel for the State knew she was the wife of the defendant and that she had testified to that fact at the previous trial, and in the presence of the State’s counsel objection was made to her taking the stand, for it was a delicate attempt on the State’s part to prejudice the jury by showing’ that defendant had married the witness under the name of Cook. The evidence of the witness bears this out and shows the purpose of the State. And the court erred in thereafter refusing to instruct the jury not to consider any testimony she gave and in refusing to withdraw the same from the consideration of the jury. R. S. 1899, sec. 2637; State v. Willis, 119 Mo. 485. (4) A deed of trust in Missouri is recognized as a security for a debt and not of the same class or dignity as a deed to real property. A deed of trust is not ejusdem generis with a deed to real property and hence is not included in the term “other instrument,” which instruments must be of the same general class and nature as a deed to real property State v. Schuchman, 133 Mo. Ill; State v: South, 136 Mo. 673; State ex rel. v. Press, 159 Mo. 466; State v. Carpenter, 164 Mo. 588; State v. Gilmore, 98 Mo. 213; Dooley v. Greening, 201 Mo. 354; Ex parte Neet, 157 Mo. 527; Shirk v. People, 11 N. E. (111.) 68.

      Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
    (1) ■ The only way by which a judge may be disqualified from sitting in the trial of a cause is by compliance with the provisions of Secs. 5198 and 5199, R. S. 1909, and then only because of the existence of one or more of the causes mentioned therein. State v. Moore, 121 Mo. 521. A consideration of the statutory causes entitling an accused to a change of venue makes it manifest that appellant was not entitled to the change unless he filed a verified application in' proper form, together with the affidavits of at least two reputable persons. State v. Brownfield, 83 Mo. 451; State v. Neiderer, 94 Mo. 81; State v. Richardson, 194 Mo. 336; State v. Spivey, 191 Mo. 87. Appellant’s motion cannot be treated as his own application to disqualify the judge, but the most that can be said of it is that it is a mere suggestion addressed to the discretion of the trial court to the effect that he voluntarily disqualify himself. This suggestion the court did not see fit to adopt, and with the exercise of that discretion this court will not interfere. State v. Gilmore, 110 Mo. 1. (2) In the case at bar, by overruling the demurrer to the evidence, and by giving and refusing the instructions it did, and by overruling the motion for new trial, which again directly submitted this question to the trial court for decision, the court found and affirmatively declared that the alleged variance was not material or prejudicial, and this court will adhere to the action of the trial court on this finding. State v. Kerrigan, 210 Mo. 371; State v. Decker, 217 Mo. 321; State v. Jackson, 221 Mo. 478; State v. Barker, 64 Mo. 285; State v. Smith, 80 Mo. 520. (3) The check had been identified as the one upon which the money deposited by appellant had been paid by the bank, and had been admitted without objections or exceptions. The signatures on the deed of trust and note had been positively identified and proven to be that of defendant. The magistrate who took appellant’s acknowledgment to the deed of trust had testified positively that appellant had in his presence signed the name “M. Goss” to both the note and deed of trust. Under such circumstances it was perfectly proper to compare the signature attached to the check with appellant’s signature to the deed of trust and note “which had been proven to the satisfaction of the judge to be genuine.” R. S. 1909, sec. 6382; S-tate v. Tompkins, 71 Mo. 613; State v. Stark, 202 Mo. 210 ;_State v. Thompson, 141 Mo. 408; Cook v. Strother, 100 Mo. App. 622. (4) To say that a deed of trust in the form of the one forged by this appellant does not in any way affect or change any right or interest in real estate would be taldng an unpardonable liberty with the language, and completely nullifying a statutory enactment. State v. Jackson, 221 Mo. 4.78. The terms “deed or other instrument” are used in both the first and second divisions of the section, and this court has held, when applying the second subdivision, that such terms include a deed of trust. State v. Tompkins, 71 Mo. 613; State v. Sharpless, 212 Mo. 176.
   KENNISH, J.

On the 12th day of June, 1900', the grand jury of Bates county, Missouri, returned into open court an indictment jointly charging defendant and Jesse Roe and Cap Neff, alias Jones, with the crime of forgery in the first degree, the subject of the forgery being a deed of trust for $870 on certain real estate located in Bates county, Missouri, and owned by M. Goss, whose act and deed the forged instrument purported to be.

Owing to the absence of the defendant and the inability of the State to apprehend him, the cause was not taken up until the regular May term, 1909, of the circuit court of that county, at which time the defendant was arraigned and a plea of not guilty entered. Thereafter, to-wit, at the regular October term, 1909, defendant filed a motion praying for a change of venue, in which he sought to disqualify the regular' circuit judge, Hon. O. A. Denton, alleging therein that he had been of counsel in a certain civil action in which the genuineness of the deed of trust alleged to have been forged by defendant was in issue. A statement of facts relative to the matters set out in the motion was agreed upon by counsel for the Slate and defendant, and the motion was thereupon overruled. Defendant was then put upon his trial, which resulted in a verdict of guilty and the assessment of punishment at im prisonment in the penitentiary for a term of ten years. After motions for a new trial and in arrest were filed and overruled, defendant was sentenced pursuant to the verdict, and an appeal to this court was granted.

On the part of the State the testimony tended to prove that during the month of March, 1898, Mr. J. W. Jameson was acting in the capacity of agent and making loans at Rich Hill, Missouri, for the Walton Trust Company, a banking institution, which had its principal business office at Butler. At that time appellant, who was unknown to Jameson, appeared in person and made application to Jameson for a loan of $800, stating that he was M. Goss; that he lived at Merwin, and was the owner of certain designated real estate on which he would give a deed of trust to secure the loan he was seeking. Mr. Jameson communicated with the trust company relative to making the loan and gave the .officers of that institution a description of the premises offered as security, whereupon he was. authorized to make the loan and was furnished with the note and deed of trust for M. Goss’s execution. After the papers had been received, appellant appeared at Rich Hill and with Mr. Jameson went before John R. Hales, a notary public of that county, and being introduced to the notary by Mr. Jameson as M. Goss, appellant, in that name and in the presence of the notary and Mr. Jameson, signed and executed the note and deed of trust for the sum of $870, money borrowed and the cost and commission on the loan. The sum of $848.25 was then delivered to appellant, who deposited it in the bank at Rich Hill in the name of M. Goss, and after-wards checked it out under the same name. Defendant then disappeared and was not again seen in the county until after his. arrest, which was about eleven years later.

The discovery that the signature of M. Goss was not genuine was made about one year after the instrument was executed, and after M. Goss, the true owner of the land, was notified by the trust company to make payment of the accrued interest. Appellant’s true name was John Witherspoon and his home was in Kansas. M. Goss, whose name the appellant forged, ,resided in Merwin, and was in fact the lawful owner of the premises on which the deed of trust was given. He had never executed a deed of trust on the land in question, and had given neither appellant nor any other person any authority to do so, or to use his name for any such purpose.

The appellant was identified by two witnesses as the person who executed the forged note and deed of trust, and was also proven by other witnesses to have been in Rich Hill and vicinity about the time the instruments -were forged.

A few days before applying to Mr. Jameson for the loan appellant made an application to Mr. Duval of Butler, who was loaning money, representing to him that he was M. Goss and the owner of the land in question. Mr. Duval informed him that he would lend him the money on the land, but since he was not personally known to him, he would send the note and deed of trust to Mr. Catron at Merwin, near where the land- was located, and where M. Goss, the true owner, was known, and that appellant could go there, execute the instruments and get the money. Appellant did not go to Merwin as directed and Mr. Duval heard nothing further from him.

Appellant was a witness in his own behalf. He denied signing the trust deed and testified that on the 11th and 12th days of March., 18-98, he was one mile west of Ponca City, Oklahoma. The deposition of Oscar Taylor of said Ponca City, was read to the jury, in which he testified that on the 11th day of March, 1898, the defendant was- working for him on his- farm one mile west of said Ponca City.

The State in rebuttal offered evidence tending to impeach witness Taylor by assailing his reputation for truth and veracity.

I. Appellant’s first assignment of error is that the record fails to show an arraignment of the defendant.

The arraignment of a defendant upon a criminal charge is so indispensable a prerequisite to a legal trial-under our law that, as appellant states, it is unnecessary to cite authorities in support of the proposition. However, the weakness of appellant’s contention upon this point lies in the fact that the record plainly shows that the defendant was arraigned and “for his plea says he is not guilty of the charge in said indictment.”

II. Error is assigned in the refusal of the judge of the court, upon defendant’s motion, to disqualify himself to sit in the case. The motion alleged that the judge of that court had been of counsel in a civil suit based upon the trust deed which the defendant was. charged with forging in the indictment in this cause and that by reason thereof he was disqualified from hearing and determining the case. The motion was signed by counsel for defendant, but was not verified, no.r even signed, by the defendant. What purports to be an agreed statement of facts appears in the record in support of the motion, and evidence was also introduced by the defendant for the same purpose.

It is provided by section 5198, Revised Statutes 1909, that the judge of any court in which an indictment or criminal prosecution is pending shall be deemed incompetent to hear and try the cause in either of the cases therein enumerated, one of which is the following: “Third, when the judge is in anywise interested or prejudiced or shall have been counsel in the cause.”

The next succeeding section, to-wit, section 5199, provides that “whenever, in any criminal cause, the defendant shall make application under oath, and supported by the affidavit of two or more reputable persons, not of kin or counsel for defendant, to the truth of the allegations in such application for a. change of venue, for any of the reasons stated in the next preceding section, it shall be lawful for the judge to hear and determine such application, ’ ’ etc.

The right to a change of venue is statutory and it is competent for the Legislature to provide the terms upon which it shall be granted. [State v. Sanders, 106 Mo. 188; State ex rel. v. Wofford, 119 Mo. 408.] And “the only way by which a judge may be disqualified from sitting in the trial of a cause is by reason of the existence of some one or more of the causes mentioned by section 4174, Revised Statutes 1889, and by a compliance with its provisions.” [State v. Moore, 121 Mo. l. c. 521.]

There is not a semblance of compliance with the requirements of the statute governing the right to a change of venue in this case. The law does not contemplate an issue of fact upon an application for a. change of venue on account of the disqualification of the judge, to be heard and determined by the judge alleged to be disqualified, and therefore the evidence offered in support of the application, together with the agreed statement of facts, were not properly in the case, and should not have been considered. When the application is properly made and supported by affidavit as required by the statute the judg’e has no discretion; he cannot sit in judgment upon the question of his own qualification, but must grant the change as applied for. [State v. Spivey, 191 Mo. 87, and cases cited.] For the reasons stated we hold the court was not in error in overruling the motion for a change of venue.

III. Appellant next assigns error in the action of the court in overruling his application for a continuance. The application was based upon the ground, of absent witnesses and failed to conform to the requirements of the statute governing continuances in at least four essential particulars, and for that reason it was properly refused by the court. [State v. Richardson, 194 Mo. l. c. 336; State v. Blitz, 171 Mo. 530; State v. Cummings, 189 Mo. 626.]

IV. The indictment charges the defendant with the forgery of a certain deed of trust, which instrument is set out in the indictment according to its tenor. "When the State offered the deed of trust in evidence it was objected to by the defendant upon the ground of variance. The objection was overruled and appellant now assigns error in such ruling.

A number of variances between the instrument as set out in the indictment and the instrument introduced in evidence have been pointed out by appellant, but they are all mere clerical inaccuracies, and so far as having any effect upon the merits^ of the case they are of the most immaterial character. As an example of these variances attention is called by appellant to the fact that in the description of the land the words -and figures “eighty (80) acres” are used in one instrument and the words and figures “80 acres” in the other; the words “party of the first part” in the one and the corresponding words “first party” in the other; the word “fails” in the one instrument and the corresponding word “failed” in the other, and so on.

To reverse a case and grant a new trial upon such clerical mistakes — mistakes which could not have prejudiced the defendant in his substantial rights, would prove a great hindrance to the enforcement of the law and would not be promotive of the ends of justice. The statute forbidding an acquittal on the ground of a variance not deemed material to the .merits of the defense, was enacted to cover just such a case as we have under consideration, and we rule that the court did not err in admitting the deed in evidence. [R. S. 1909, sec. 5114; State v. Burlingame, 146 Mo. l. c. 225; State v. Jackson, 90 Mo. l. c. 158; State v. Flora, 109 Mo. l. c. 296; State v. Decker, 217 Mo. l. c. 321-322; State v. Jackson, 221 Mo. 478.]

V. It had been shown in evidence that after the' forgery of the trust deed and note and after the proceeds of the loan had been placed in the bank at Rich Hill to the credit of “M. Gross,” the name which the forger had falsely assumed, a check was drawn on the bank at Rich Hill for the full amount thus placed on deposit, except the sum of $1.25'. This check had been cashed or deposited for collection in a bank at Olathe, Kansas, and following the course of commercial paper had passed through other banks, finally reaching the bank at Rich Hill upon which it was drawn and was there paid.

Walton was a witness for the State, and qualified as an expert on handwriting. Over the objection of the defendant he was permitted to give his opinion that the same person who executed the deed of trust also signed the name “M. Gloss” to the check. The cheek was then introduced in evidence over defendant’s objection and'the questions are now presented as to whether the court, in permitting Walton to give his opinion after making the comparison, and then in admitting the check in evidence, committed reversible error.

It was not an essential element of the crime charged that the forger obtained the money upon the forged trust deed, but as the sole purpose and object of the forgery was to secure the money, we are of the opinion that independent of any question of handwriting- it was comptent for the State to prove as a part of the transaction the manner in which the money was obtained, and for that purpose to introduce in evidence the check on which the money was paid, signed by the same name in which the deed was forged.

In the case of State v. Soper, 148 Mo. 217, a letter signed in the name of the defendant was found a.t the scene of the crime and was introduced in evidence without proof that it was his handwriting. On error assigned it was said by this court: “In such circumstances, to require proof of defendant’s handwriting before reading the letters in evidence would be to disregard and fly in the face of the most obvious and reasonable inferences drawn from closely surrounding facts.”

That the signatures “M. Goss”.to the deed of trust and the check were forged was not disputed at the trial, and it is self-evident that the person, whether the defendant or another, who signed the forged name to the deed of trust also signed the same name to- the check and thereby secured the money, the very object for which the forgery of the deed was. committed. These facts were a part of the same transaction and were so closely related to each other that we think it was comptent for the State to introduce the check in evidence to be considered by the jury as a circumstance in the case.

We shall next consider the question whether reversible error was committed by the court in permitting the witness Walton to give in evidence, over the defendant’s objection, his opinion that the signature to the. trust deed and the signature to the check were in the handwriting of the same person.

There are three recognized modes of proving a disputed handwriting in this State; first, where the witness testifies that he was present and witnessed the act; second, where the witness knows the handwriting of the person alleged to have written the writing in dispute, and testifies from such knowledge; and, third, by expert testimony as provided by section 6382, Revised Statutes 1909, where the witness is authorized to give his opinion as to the identity of the handwriting in dispute with any writing proved to the satisfaction of the judge to be genuine. Neither of the first two- modes requires expert testimony, but both require antecedent knowledge of the subject on the part of the witness.

Walton had no knowledge to qualify him as a witness under either of the first two modes, but he did qualify as an expert on handwriting and gave in evidence his opinion as to the identity of the handwriting based upon a comparison of the signature of the check with the signature of the deed of trust, the latter being the handwriting in dispute. This character of evidence, the proper foundation being laid, is expressly authorized by the statute.

The objection madé and renewed to this expert testimony was as follows:

“By Mr. Chastain: Defendant objects, to it, for the reason that the witness hasn’t qualified as an expert in this case; and has never seen M. Goss or anybody else sign this name ‘M. Goss,’ but is simply judging from the appearance of these two hands as to whether they are the same, and the jury are just as good judges of that ultimate fact; and we further object for the reason that this exhibit here, check on the Farmers & Merchants Bank, is not in evidence, and isn’t competent for any purpose in this case.”

It is apparent that the objection thus made, so far as the handwriting is concerned, was limited to the qualification of'Walton as a witness to prove the disputed handwriting under one of the first two modes, and that it did not go to his testimony as an expert under the third mode, namely, that the writing with which the disputed writing was compared had not been proved to be genuine.

It is well settled that objections must be specific and call the attention of the court directly to the ground upon which the objection is made, and it is also settled that appellant will not be permitted to broaden the scope of his objection on appeal beyond that made in the trial court. [State v. Johnson, 76 Mo. 121; State v. Gonce, 87 Mo. 627; Kinlen v. Railroad, 216 Mo. 145; Russell v. Glasser, 93 Mo. 353; Griveaud v. Railroad, 33 Mo. App. 458.]

As the defendant did not make his objection to the testimony of Walton in the trial court upon the ground that the writing used as a standard of comparison had not been proven to the satisfaction of the court to be genuine, he cannot be heard to object on that ground in this court.

VI. It was. brought out by defendant on the cross-examination of Walton that the latter had proceeded against two men, Rowe and Nipp, as having been implicated in the forgery of the trust deed with the defendant, Witherspoon. No reference to this fact had been made by the State in his examination in chief. On redirect examination Walton was asked why he proceeded against these men and explained that it was because he had evidence that Nipp was a partner of Witherspoon. As the defendant had gone into this subject on cross-examination it was clearly competent for the witness to explain on redirect examination why he did proceed against those persons, and the defendant has no just ground of complaint.

VII. It was entirely competent for the State to prove by Walton the efforts which had been made to locate the defendant after the discovery of the crime and the defendant’s concealment under an assumed name, and in proving the admissions of the defendant which were competent evidence in the case, we are not aware of any principle of law which would preclude the State from showing when and where such admissions were made. [12 Cyc. 395; 1 Wigmore on Evidence, sec. 276; State v. McLaughlin, 149 Mo. 19; State v. Harrold, 38 Mo. 496.]

VIII. Appellant complains of the ruling of the court in permitting the wife of the defendant to testify as a witness on the part of the State, and of the failure of the court, upon defendant’s .request, to instruct the jury that they should not consider the testimony of such witness.

Mrs. Cook was sworn as a witness for the State, and counsel for defendant immediately objected, and reminded the court that on a former trial the defendant claimed that this witness was his wife, and objected to the matter being brought before the jury. The court answered that it could not take cognizance of the relationship' until it was shown. Oounsei then objected at length on the ground that the witness had testified at a former trial that she was the wife of the defendant, and that she was being placed upon the witness stand by the State for the purpose of showing that the defendant had married her under the name of Cook, and thus, to prejudice the jury against the defendant. Counsel for defendant then asked the witness if she was the wife of the defendant, and she answered she was not. She was then examined by counsel for the State, and testified that defendant had represented to her that his name was Cook and had married her under that name, but that she was not his wife; she was asked for an explanation of that fact and answered, “Well, I found out after he had deserted me that he had a living wife that he had never been divorced from. ’ ’ Upon objection by the defendant the court ordered the answer quoted stricken out. Mrs. Cook .was then asked by counsel for the State if she knew the defendant’s handwriting, and defendant objected to “.any testimony on the part of this woman because of the fact that she has stated she was married to this defendant.” The court sustained this objection. Counsel for the State continued his examination of the witness as to her competency, and counsel for the defendant made the following objection and motion: “I object to these questions-; we now move that all the testimony of the witness be stricken out and the jury admonished not to consider her presence in the matter, for the reason that she is shown to have been the wife of the defendant.” This request was denied by the court and the defendant excepted.

At the close of all the evidence the defendant requested the court to instruct the jury upon certain questions of law, one of which, was “to instruct the jury that they cannot take into consideration in arriving at a verdict the presence of the defendant’s wife upon the witness stand, or any testimony she may have given or any statements she may have made relative to the defendant;” but the court failed to give such an instruction. •

In the argument to the jury special counsel for the State said: “A little woman was brought up here by the name of Cook and offered as a witness and objected to because she was a wife of this man. She protested that she wasn’t his wife; that he had married her under the name of Cook.” The defendant objected to the language quoted for the reason that it was outside of the record and improper argument. The court overruled the objection, stating that there was evidence of that character and the defendant excepted.

It should be noted in passing that while the defendant properly objected and excepted at the time to the remarks made by counsel for the State in his argument to the jury, he has not preserved his objection in the motion for a new trial, and therefore this objection need not be further considered. It is referred to merely for the purpose of showing the use that was made of the testimony of the wife on her examination as to her competency as a witness in the case.

At common law the husband and wife were not competent witnesses for or against each other in a criminal proceeding, except in the case of a prosecution of one for a criminal injury to the other, in which case the injured spouse was competent as a witness for the State or for the defendant. This rule of the common law is still in force in this State, with this exception that by statute, at the option of the husband or wife on trial, the other may be a witness on his or her behalf. [R. S. 1909, sec. 5242; State v. Kodat, 158 Mo. 125; State v. Willis, 119 Mo. 485; State v. Evans, 138 Mo. 118.]

No citation of authorities is necessary in support of the well-recognized principle of law that the competency of a witness is a question for the court and not for the jury, and in this case the court did find and rule that the witness was. incompetent.

When in the course of a trial a question is raised as to the competency of a witness and the circumstances of the case are such that the voir dire examination of the witness by the court may have an influence on the minds of the jury upon the issues before them, this-court has commended it as a wise and judicious course of procedure that the jury he retired from the courtroom pending such examination. [Stetzler v. Railroad, 210 Mo. l. c. 709.]

The rule as to. the proper course to be taken when the incompetency of a witness is disclosed in his or her examination is stated in' 1 Wigmore on Evidence, sec. 485, as follows: “After the witness has. been sworn the progress of his direct examination or cross-examination may disclose his incapacity and then he may be stopped and his preceding testimony ordered expunged.” The rule just stated doubtless, has reference to the testimony given by the witness bearing upon the issues of the causé, but it should apply with equal force to testimony given by the witness on an examination as to his competency in the presence of the jury when the testimony is of such character as might reasonably be considered to have an influence upon the minds of the jury as to the issues of the case on trial.

The testimony given by Mrs. Cook cannot be considered otherwise than as being most damaging and prejudicial to the defendant. That it was so considered and made use of is shown by the reference made thereto in the argument'by special counsel for the State. And as all of the evidence given by the witness was upon the issue of her competency alone, and therefore-addressed to the court, and not for the consideration of the jury, the court should have directed the jury not to consider such testimony, as requested by the defendant. This request having been refused by the court the defendant was clearly entitled to an instruction, which he requested the court to give, withdrawing such evidence from the jury.

It cannot be doubted that the testimony of Mrs. Cook, under the circumstances of this case, was most harmful and prejudicial to the defendant, and we are constrained to hold that after the court had determined . that she was incompetent as a witness in the ease by reason of being the wife of the defendant on trial, reversible error was committed in not directing the jury ■ that they should not take into consideration such testimony in arriving at their verdict.

X. It is contended that the court erred in giving instruction numbered 1, for the reason that it submits to the jury the law on forgery in the first degree, and that the forgery of a trust deed is not included within the language of the statute defining that offense.

The statute upon which this prosecution is bottomed is section 4636, Revised Statutes 1909'. By that section it is provided that “every person who shall forge, counterfeit or falsely alter . . . first, any will of real or personal property, or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property shall be or purport to be transferred, or in any way changed or affected . . . or, fourth, any certificate or indorsement of the filing or recording any such will, deed or other instrument, which by law may be recorded, . . . with intent to defraud, shall, on conviction, be adjudged guilty of forgery in the first degree. ’ ’

It is urged by appellant that the words “deed or other instrument” as used in the statute do not include such an instrument as a deed of, trust, and many authorities are cited as supporting that proposition. We shall not enter upon a consideration of the contention thus advanced as to the proper construction of those words in determining whether or not they are broad enough to include such an instrument as the deed in controversy, for the reason that we think the question has been practically settled by a former decision of this court. In case of State v. Tompkins, 71 Mo. 613, it appears that the defendant was prosecuted and convicted under the section of the statute upon which the indictment is- based in this case. The particular offense charged in that case was the forgery of a certificate of a recorder showing the filing and recording of a deed of trust, and it was held by this court that the indictment was properly based upon what is now said section 4636. If the forgery of a certificate of the filing and recording of ‘ ‘ such deed or other instrument” included such certificate on a deed of trust it necessarily follows that the statute also covers and includes the forgery of the deed of trust itself upon which such certificate was indorsed.

Other alleged errors are assigned in appellant’s brief which have been duly considered, but as they do not contain prejudicial error, and in view of the disposition made of this case, we do not deem it necessary to give them special consideration in this opinion.

The evidence of defendant’s guilt is strong and convincing, but because of the error heretofore indicated, the judgment is reversed and the cause remanded for a new trial.

Gantt, P. J., concurs; Burgess, J., deceased since the submission of this cause.