author: BROWN, C. PEE CUEIAM.

text:
    A. A. THUMMEL, Appellant, v. JOHN T. SURPLUS.
    Division One,
    December 19, 1914.
    1. ASSAULT AND BATTERY: Self-defense: Instructions: Error Invited by Complainant. A plaintiff in an assault case who asked and was given instructions submitting the issue of self-defense, will not he heard to contend upon appeal that that issue was wrongfully injected into the trial.
    2. -:--: -: Threatening Language: Evidence. Where, in an action for assault and battery, the defendant testified that when he alighted at the plaintiff’s gate, after saying he had come to dig potatoes, the plaintiff “stepped right up and said, ‘No you won’t dig them,’ ” and that then they both drew back and struck at each other and the plaintiff went down, the trial court did not err in instructing the jury to inquire whether the plaintiff used violent and threatening language toward the defendant, and in an angry and threatening manner and within striking distance drew hack his hand to strike him. In judging whether the language was violent and threatening the jury were not confined to the tone of voice in which the words were uttered, hut could take into consideration the acts and' gestures accompanying it and even its culmination in immediate violence, the real question being whether it gave the defendant reasonable ground to believe, and he did believe, that the plaintiff intended to. do him bodily harm.
    Appeal from Nodaway Circuit Court. — lion. William G. Ellison, Judge.
    Abbiemed.

      Cook, Cummins d Dawson for appellant.
    (1) The court erred in giving defendant’s instruction 1. This instruction is error, for it told the jury that the “Plaintiff approached the defendant and used violent and threatening language and in an angry and threatening manner,” and there was evidence that the plaintiff used any violent language or threatening language, or was even angry. Felver v. Bail-road, 216 Mo. 195; Dee v. Nachbar, 207 Mo. 680. (2) The court erred in giving defendant’s instruction 2. This record shows there was no self-defense in this ease. Defendant went upon plaintiff’s premises, and, according to his own testimony, voluntarily entered into the difficulty, hence he cannot now avail himself of the plea of self-defense. State v. Walker, 196 Mo. 73; Johnson v. Dailey, 136 Mo. App. 593; State v. Gamble, 119 Mo. 427; Shellabarger v. Morris, 115 Mo. App. 566.

      Shinabarger, Blagg <& Ellison for respondent.
    (1) The acts and conduct of the plaintiff when he spoke the words “No, you won’t dig them,” as testified to by the defendant, clearly indicated that he was angry, and the accompanying gesture when he drew back his arm to strike made them imply a threat. To say the least, if the evidence of the defendant did not fully establish that the plaintiff spoke the words in an angry and threatening manner, it was sufficient to support an inference that they were so spoken. If it did, the defendant was entitled to the benefit of that inference and had the right to have the jury pass upon it under an appropriate instruction — and the form of the instruction is not questioned by appellant. Linderman v. Carmín, 255 Mo. 62. (2) It is hardly consistent for appellant to complain that the issue of self-defense was submitted to the jury when he himself submitted two instructions on the same issue. His instructions 2 and 3 were on the question of self-defense. Bail-road v. Kemper, 256 Mo. 279; Lange v. Bailroad, 208 Mo. 475; Kinlen v. Met. St. By., 216 Mo. 166.
   BROWN, C.

Suit for damages from assault and battery committed July 22, 1907. Tbe defense pleaded was son assault demesne. The evidence showed that the plaintiff and defendant were both farmers and neighbors living in Nodaway county. In addition to the farm on which he was living the plaintiff had another near by, upon which a woman named Mrs. Jocelyn had been living that summer and had planted a vegetable garden, which contained- some potatoes which had attained the esculent age. Mrs. Jocelyn, being about to leave this particular field of her activities, Mrs. Surplus, the wife of defendant, negotiated with her for the potatoes, and the week before the trouble, which occurred on Monday, she saw Mr. Thummel, who told her it would be all right for her to buy them, which she did, completing the transaction and paying for them on Saturday. Monday morning she took the notion that she wanted some new potatoes for dinner. Taking a hoe and a sack she got on her horse and rode over to the Thummel farm, a mile away, hitched her horse at the gate, and, with hoe and sack, went into the yard, where Mr. Thummel met her. She told him that she had bought the potatoes on Saturday and had come over to dig some. He told her that he had traded some chickens for them on Friday. The delicate courtesy that may have attended the giving and receiving of all this information does not appear, as Mr. Thummel in his testimony confines himself to an unembellished statement of what he seems to consider the important facts, while Mrs. Surplus did not testify. Mr. Thummel, however, grows more interesting and circumstantial in Ms relation of the subsequent proceedings. He says Mrs. Surplus went home and that soon afterward Mr. Surplus rode up. He met him at the garden gate and said, “Good morning, Mr. Surplus.” The latter did not condescend to answer, but without saying a word got down from his horse, took something from his pocket that he thought was steel or iron, perhaps a cold chisel or something or other, and struck him over the eye, which knocked him cold the first lick. When he came to, Mr. Beattie and Mr. Antrin, who had been plowing corn in the field near by, had brought some water and were washing his face. He was a sight; “just blood from head to foot.” He had nine gashes of different sizes and depth about his head and face, one eye was just.about closed, his jaw was hurt, his ribs felt like they were knocked loose from his backbone, the whole hide was knocked off his hand, two teeth were out and another was so badly jarred that he said it was still loose at the trial.

Mr. Surplus’s tale of the same occurrence was that his wife came home crying and he got on his horse and went over to get the potatoes. Mr. Thummel met him at the gate. They spoke to each other and Mr. Surplus said he came to get some of the potatoes and asked him why he wouldn’t let the woman dig them. Mr. Thummel said that “the old lady owed him and didn’t pay him — went off and never paid him the money.” Mr. Surplus said he came up after the potatoes and was going to have them — was going to dig them, and got off and took the sack with him. Mr. Thummel stepped right up and said, “No you wouldn’t dig them.” He then drew back and Mr. Surplus did likewise. They both struck, Mr. Surplus getting in his blow with such force that it knocked Mr. Thummel down. He rose to a sitting posture and Mr. Surplus struck him two or three times more. He declined to swear that he did not kick him, but said he did not think he did. He said he would not have hit Mr. Thummel if the latter had not attempted to strike him first, and that he had nothing in his hands, but used his naked fists.

Mr. Thummel’s statement as to the character of his injuries was very much modified by his doctor, while his own character was considerably modified by evidence introduced for that purpose. Mr. Surplus admitted that after the trouble he had conveyed his farm to a neighbor without consideration to put it beyond the reach of a judgment and that this had afterward been corrected.

As to the details of the difficulty the jury had the testimony of both parties before it. To aid them in its consideration the plaintiff asked the court to give them the following instructions:

“2. The court instructs the jury that if they believe from the evidence that the defendant, on or about the 22nd day of July, 1907, did willfully and wrongfully make an assault upon and beat, strike and bruise the plaintiff, not in a necessary defense of his person, as defined in other instructions, then the jury will find for the plaintiff.
“3. The court instructs the jury that if they shall believe from the evidence that the defendant Surplus provoked and brought on the difficulty with the plaintiff Thummel, then defendant Surplus cannot avail himself of the right of self-defense in order to shield himself from the consequences of beating and assaulting his adversary, no matter how imminent any danger in which he may have found himself during the progress of the fight, and if in this case the jury shall believe from the evidence that the defendant Surplus prepared himself previous to his assault on the plaintiff and brought on the fight in order to wreak his malice, or satisfy any private vengeance upon the plaintiff, then there was no self-defense in this case.”

The court gave number two as asked, and modified number three by inserting, after the word Thummel, the words “with intent to do him some bodily harm,” giving it as modified. The other instructions asked and given were not pertinent to this inquiry-

The petition asked for $3000 actual and $5000 punitive damages' The verdict was for the defendant, and from the judgment entered thereon this appeal is taken by the plaintiff.

The appellant insists in substance that error was committed because (1) there was no self-defense in the case,, so that that issue ought not to have been submitted to the jury; and (2) that instruction number one given at the instance of the defendant is erroneous because it submits to the jury as a condition of such defense that “plaintiff approached the defendant and used violent and threatening language toward him” when in fact there is no evidence in the record of the use of violent or threatening language by plaintiff and therefore no evidence on which to base the instruction.

I. While we do not wish to be understood as holding that when a party, in submitting his cause to the jury, is driven to a false issue by erroneous instructions given by the court at the instance of his adversary and against his protest, he may not try to have such issue fairly submitted without waiving his right to object to the erroneous action of the court, it is evident that he ought not to be permitted to take advantage of such error when committed at his own invitation. The appellant had, in- this case, before the court had spoken upon the subject, asked it in his request for two distinct instructions to submit the question of self-defense to the jury, instead of asking it, as he might have done were his present position well taken, to find for the plaintiff upon the admitted assault and battery, leaving nothing for their determination except the quantum of damages. Having invited this issue he cannot now complain that the defendant accepted it, nor that the court submitted it to the jury. [Rourke v. Railroad, 221 Mo. 46, 62; Smart v. Kansas City, 208 Mo. 162, 204; Barr v. Hays, 172 Mo. App. 591, 600 and cases cited.]

II. The other point made by the appellant is that the court erred in permitting the jury to inquire whether the plaintiff used violent and threatening language toward the ■ defendant, and in an angry and threatening manner and within striking distance drew back his hand to strike him, because there was no evidence of either violent and threatening language or an angry and threatening manner on the part of plaintiff.

The testimony was that the plaintiff “stepped right up and he said, ‘No, you won’t dig them.’ ” He drew back and struck at plaintiff, who says, in his cross-examination, that the blow hit him,- although that fact is immaterial in this connection. The jury had both parties before it, heard them relate the circumstances, and might take into consideration their personal appearance as well as their manner in relating so exciting an episode, to aid them in determining the impression its enactment was calculated to produce on the defendant. In judging whether the language was “violent and threatening” they were not confined to the tone or voice in which the words were uttered but could take into consideration the acts and gestures accompanying it, and even its culmination in immediate violence. The real question was whether it gave the defendant reasonable ground to believe, and he did believe, that in striking him the plaintiff intended to do him bodily harm, or simply to give exuberant expression to his good will toward a neighbor.

We see no error in the record which has not been fully concurred in by the plaintiff and accordingly affirm the judgment.

Blair, G., concurs.

PEE CUEIAM.

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: BLAIR, C. PEE CUEIAM.

license: Public Domain

text:
    HENRY B. SEAMAN, Appellant, v. CLEMENTINA HELLMAN.
    Division One,
    December 19, 1914.
    TAX DEED: Necessary Recitals: Sale by Collector Under Act of March 30, 1872. The Act of March 30, 1872, provided for a special term of the county court in July of each year for the enforcement of tax liens against' realty, but also provided that the collector might apply to a subsequent regular term if for any good cause he could not obtain judgment at the special term. Held, that a collector’s deed reciting proceedings and judgment of sale for taxes at the October term, 1872, without any showing of cause for application to that term, is invalid. [There is, furthermore, no showing in this case, either in the deed or elsewhere that the requisite notice of the day of sale or of the intended application to the October term was given by the collector.]
    Appeal from 'Shannon Circuit Court. — Hon. W. N. Evans, Judge.
    Affirmed.

      H. Chouteau Dyer for appellant.
    (1) The sale of tlie property in question was by virtue of a judgment, and not by the collector by virtue of Ms officé. Wagner’s Statutes 1872, chap. 118, sec. 182, and following. (2) The judgment of the county court is not subject to collateral attack. Leonard v. Sparks, 117 Mo. 103; Yoeman v. Younger, 83 Mo. 424. (3) The collector’s deed in question was sufficient to convey a good title. Raley v. Guinn, 76 Mo. 263. (4) The recitation in the deed that “ public notice in the manner required by lavr” was given was sufficient. Blodgett v. Perry, 97 Mo. 263; Ivy v. Yancey, 129 Mo. 501; Kane v. McCown, 55 Mo. 181; Norton v. Quimby, 45 Mo. 388; Littlefield v. Ramsey, 181 Mo. 613.

      J. W. Chilton for respondent.
    (1) A tax deed made by the collector based on a judgment rendered at a term subsequent to the July term must show on its face the good cause of such collector for his failure to obtain judgment at the July term, else it is void. Wagner’s Statutes 1872, secs. 182 and 183; Laws 1872, .p. 119; Kinney v. Forsythe, 96 Mo. 414; Spurlock v. Dougherty, 81 Mo. 171. (2) The Revenue Laws of 1872, as well as prior similar enactments, required that a sale of land by a collector for delinquent taxes must have been preceded by notice of such sale, and prescribed the manner of giving-such notice. Under these enactments this court has uniformly held that a collector’s deed must show on its face the manner in-which notice of such intended sale was given by the collector, and that it was not sufficient to simply state that notice of such sale was given “according to law;” and that a deed which did not show on its face the manner of giving notice of such intended sale, was absolutely void as a matter of law. Moore v. Harris, 91 Mo. 616; Lagroue v. Rains, 48 Mo... 536; Bingham v. Birmingham, 103 Mo. 345; Spurlock v. Allen, 49 Mo. 178; Abbott v. Dolling, 49 Mo. 302; Yankee v. Thompson, 51 Mo. 234; Large v. Fisher, 49 Mo. 307.
   BLAIR, C.

In a suit to quiet the title to the north half of section 23, township 29, range 5, west, in Shannon county, judgment went for defendant, and plaintiff appealed.

The parties agree that the sole question here is whether a collector’s deed in evidence is valid. If valid, the judgment is wrong; if invalid, as the circuit court held, the judgment is right and should be affirmed.

The deed in question is dated December 3, 1874, and recites that the taxes on the land above described (and other lands) “remained due” the county and that “whereas, the collector . . . having on the seventh day of October, 1872, advertised said real estate for sale according to law to pay and satisfy said taxes and penalties; and, whereas, the said taxes and penalties due and unpaid on the 7th day of October, 1872, on which day judgment was rendered according’ to law by the county court of said county against said real estate for the taxes, interest and costs due thereon;, and whereas” the. clerk issued his “precept” ordering the property sold, pursuant to which “precept” the collector on November 16,1872, exposed to sale the tract described and sold the same to Thomas Reynolds on said day, “having previously given at least four weeks’ public notice in the manner required by law of said sale of forfeited land,” and there having been no redemption thereof within two years, Thomas Reynolds became, etc. Then follow the usual clauses of conveyance by the collector to Reynolds.

The recitations concerning the time of the judgment of the county court and the notice of sale are above set out in full.

The collector proceeded under the Act of March 30,1872 (Laws 1872, p. 119). That act provided for a special term in July of each year for the enforcement of tax liens against realty but also provided that the collector might apply to a subsequent regular term if from any good cause he could not obtain judgment at the July special term. The collector’s deed does not show that “any good cause” existed justifying the application made for judgment to the October term, 1872, nor is there anything anywhere in the record supplying that omission. In practically identical circumstances this court in Kinney v. Forsythe, 96 Mo. 414, held a collector’s deed void. That decision is sound. Reference to it is made for the reasons upon which the ruling was founded and which induce a like conclusion here. Neither does the collector’s deed in this case disclose that tlie requisite notice of the day of sale or of the intended application to the October term of the county court (Moore v. Harris, 91 Mo. l. c. 620-621) was given by Mm, and there is no other evidence such notices were given.

In these circumstances the judgment of the county court, if one was rendered, was and is void and the sale was ineffectual and the deed invalid.

The judgment is affirmed.

Brown, G., concurs.

PEE CUEIAM.

The foregoing opinion of'Blair, C., is adopted as the opinion of the court.

All the judges concur.


author: WOODSON, P. J.

text:
    CITY OF KIRKSVILLE, Appellant, v. ANNIE FERGUSON.
    Division One,
    December 19, 1914.
    1. SIDEWALK: Changing Grade: City of Third Class. Secs. 9258 to 9275, R. S. 1909, provide in detail every step to be taken in 'order to assess the damages and benefits that may accrue on account of the change of the grade of a street and the construction of a sidewalk in front of abutting property..
    2. -: Change in Grade. The ordinance ordering the sidewalk to be constructed must be read in connection with the one authorizing the assessment of damages and benefits; and while it may simplify matters if the one authorizing the assessment also establishes the grade or proposed change of grade of the sidewalk, yet if the one ordering the sidewalk to be built says that the top surface of the walk to be constructed “shall, when finished, conform to the grade stakes of the city engineer now set and in place,” it will not be held that the grade is so uncertain and indefinite as to- authorize a dismissal of the proceeding.
    3. ' -: : Removal of Stakes. The fact that the stakes fixed by the city engineer to mark the grade of a sidewalk may be removed or destroyed and are not permanent does not authorize the court to rule that the grade of the sidewalk whose top surface is required by the ordinance to “conform when finished with the grade stakes of the city engineer now set and in place” is so indefinite and uncertain that the proceeding brought by the city to construct the sidewalk must be dismissed. The permanency of grade monuments is a matter to be addressed to the city government, and not to the courts; and their purpose is to indicate the grade line to the commissioners who assess the damages and benefits, and to inform the contractors where to place the surface of the sidewalk.
    4. -: Constitutional Questions: Not Passed on Below. Only the rulings of the trial court can be reviewed on appeal. Where the trial court did not try the exceptions • filed by the landowner to the commissioners’ report, but, upon his motion, dismissed the proceeding on the ground that there were no statutes authorizing it and that the ordinances did not definitely fix the grade of the sidewalk, constitutional questions regarding the damages and benefits to be assessed, for and against whom they should be assessed, and the amount of land that should be embraced in the benefit district, cannot be considered by the Supreme Court on an appeal by the city.
    Appeal from Adair Circuit Court. — Hon. Nat M. Shelton, Judge.
    Reversed and remanded (with directions).

      A. Doneghy for appellant.
    (1) The court erred in sustaining the motion to quash, for the reason that all of the proceedings are in strict conformity to the requirements of the statute, and the statute is definite and certain. R. S. 1909, secs. 9258 to 9275. (2) The court erred in dismissing the case, for the reason that the proceedings being in strict conformity to the statute it was the duty of the court to proceed by a new inquest of damages. Statutes, supra. (3) The court erred in rendering final judgment against the petitioner for the reasons aforesaid. Statutes, supra. The grade or elevation at which the walk was to be constructed was not only sufficiently definite but was very accurately designated by reference to the grade stakes then in place, something which the council could see and data from -which the commissioners or contractors could know definitely. The definite character of such designation is attested by the fa Jt that the defendant in her exceptions to the report of the committee informs the court from an obser vation of the grade stakes, exactly what the new elevation of the walk will be. McCoy v. Eandall, 222 Mo. 24. Nowhere does the statute applicable to cities of the third class prescribe any particular method of ascertaining or prescribing how the elevation of a sidewalk shall be designated. Nowhere does it say .that the walk must be laid to any particular grade or elevation. All of that is left to the wisdom of the local authorities, and it is a well-known fact that few sidewalks are made to conform to the grade established by ordinance for the roadway of the street. Nor does the statute now provide for any plans or specifications. Chap. 84, Art. 4, E. S. 1909, as amended by Laws 1911, pp. 337, 341.

      Campbell £ Ellison and Higbee £ Mills for re-’ spondent.
    (1) This proceeding is not authorized by law. The second paragraph of Sec. 9254, E. S. 1909, empowers cities by ordinance to construct sidewalks, and to exercise exclusive control over streets and establish grades therefor. The city had no power by ordinance to define a benefit district consisting of two or three lots including defendant’s, which should be charged for all the loss or damage that plaintiff’s property might sustain by changing the grade of the sidewalk in front of her property. If the damages sustained by defendant came within the provisions of section 9258, that section simply means, as applied to this case, that the damages are to be assessed by three commissioners appointed in the manner provided by section 9262, who should assess her damages. Benefit districts are to be defined where some proposed public improvement like the establishment of a market place, public park, or public square, is contemplated, that will particularly benefit a portion or district of a city. It certainly never was contemplated that when a city should change the grade of a sidewalk in front of a residence property that a benefit district should be defined, and the damages resulting from such change should be assessed upon such district. If the city may define a district containing two or three lots, then it may declare that all the damages shall be paid by the particular lot in front of which the change of grade has been made, and thus make the lot owner pay all the damage. Where the city takes or damages private property for public use, it, and not the lot owner, or two or three lot owners, must first pay the damages. Sec. 21, Art. 2, Constitution; Householder v. Kansas City, 83 Mo. 488; ITickman v. Kansas City, 120 Mo. 123. (2) The ordinance does not establish the proposed change of grade. It is indefinite, uncertain, and void. Appellant admits ■that the ordinance required a change of the grade; the sidewalk in front of defendant’s property to be brought to the grade stakes of the city engineer then in place. It does not refer to any profile or specification on file in the office of the city clerk to which reference could be made. A grade can only be established by ordinance. McCoy v. Randall, 222 Mo. 40. An ordinance like any law must be certain and definite. It may refer to plans and specifications permanently on file where they can be seen at any time. Stakes are usually set for temporary guidance. To make temporary stakes that ai*e liable to be lost or knocked out at any time, or thrown out by frost, and are at best subject to speedy decay, is not to make a permanent monument or'record. The maxim “Id cerium est quod cerium reddi potest” might as well be invoked in favor of an ordinance written in the sand. Becker v. Washington, 94 Mo. 375. The establishment of a grade line is the exercise of a legislative function. 27 Am. & Eng’. Ency. Law (2 Ed.), 122d. (3) This proceeding is an ingenious attempt on the part of the city to charge plaintiff’s property with a part at least of the damages that she would sustain by reason of the change of the grade, and is violative of section 21, article 2 of the Constitution, that requires that her damages' shall be ascertained by a jury or board of commissioners, and same shall be first paid to her before her property or proprietary rights shall be disturbed. McElroy v. Kansas City, 21 Fed. 259; St. Louis v. Hill, 116 Mo. 527; Sheeley v. Railroad, 94 Mo. 574.
   WOODSON, P. J.

This suit was begun in the circuit court of Adair county, by the city of Kirksville, a city of the third class, against the defendants, to have the damages and benefits assessed that might accrue to certain property situate therein, on account of the proposed change of the grade of the sidewalk in front thereof.

After hearing the case in full, the circuit court, on motion of the defendants, dismissed the suit, and the city appealed the cause to the Kansas City Court of Appeals. On motion, that court, because of certain constitutional questions involved, transferred the cause to this court for decision.

The petition, omitting formal parts, was as follows :

“To the Honorable Nat. M. Shelton, Judge of said. Court, in Vacation:
“The petitioner herein, the city of Kirksville, respectfully shows that on the 3rd day of July, 1911, the mayor and council of said city did duly pass ordinance numbered 1457 providing for the improvement of a part of the sidewalk portion of Jefferson street, a public highway of said city, by grading the sidewalk portion and constructing a concrete sidewalk along the south side of said street on the north front of a tract of land described as all of lot eight in block twenty-six original town, now city, of Kirksville, Missouri, except a strip of land twenty-five feet in width off of the east end of said lot eight. And that thereafter on the same date the said mayor and council did duly pass an ordinance numbered 1458 wherein the limits in which private property should be assessed to pay damages by reason of said improvement was defined, a certified copy of both of which said ordinances is filed herewith and hereto annexed. The names of the owners of the several lots, tracts or parcels of land included in said district are as follows, to-wit: John H. Janisch owns lots one and two in block twelve, Railroad Addition to said city, and Annie Ferguson owns a tract of land described as lot eight in block twenty-six original town, now city, of Kirksville, Missouri, except a strip of land twenty-five feet in width off of the east end of said lot eight, and L. F. Poehhnan owns all of lot six and a strip of land twenty-five feet, in width off of the east end of lot eight in said block twenty-six.
“Wherefore your petitioner prays that three disinterested commissioners, freeholders of Adair county, be appointed to ascertain the compensation to be paid for damages to said property and to apportion the same against the several parcels of land in said benefit district.”

The ordinance fixing the boundaries of the benefit district included the lot of the defendant Ferguson and two lots just west and one lot and a fraction of another just east of hers on the same side of the street.

There was another ordinance passed providing for the construction of a sidewalk upon the grade to be so established, which among other things provided that the top surface of the walk should “conform to the grade stakes of the city engineer now set and in place,” etc.

All the defendants were served, and the circuit court in vacation, at the time and place contained in the summons, appointed commissioners to assess the damages, etc. The three commissioners met and after viewing the property returned into court their written report under oath, finding that no one would he damaged by the improvement, and thereupon the clerk of the court gave written notice to each of the defendants of the filing of said report and its contents. Prior to the first day of the next term of court the defendant filed exceptions to said report, alleging that the improvement would raise the grade of the sidewalk in front of her property something like twelve inches (which was the fact), and that surface water would be thrown on her premises, and she would be under the necessity of raising her house and would be damaged by the improvement in the sum of five hundred dollars, and she prayed that a new inquiry as to her damages be made.

During the October, 1911, term of court the case came on for hearing and the defendant Ferguson filed a motion to quash or dismiss the proceedings, said motion being as follows, to-wit:

“Defendant moves to quash this proceeding for the reason:
“First. It is not authorized by law.
“Second. The alleged grade or change for the proposed sidewalk is indefinite, uncertain and not determined in any definite or certain manner.
“Third. The alleged condemnation of defendant’s present sidewalk is unauthorized and an attempt to take her property without due process of law and in violation of section 30, article 2, of the Constitution of this State, and in violation of section 21 of said article 2.”

The court, as previously stated, sustained the motion, dismissed the proceedings and rendered final judgment against the petitioner, which duly appealed, as before stated.

I. Counsel for appellant contends that the action of the circuit court in sustaining the respondent’s motion to quash the proceedings or to dismiss the case was erroneous. This contention is controverted by counsel for respondent, who insist that there is no law authorizing such proceedings.

This insistence of counsel for respondent is untenable, for sections 9258 to 9275, both inclusive, Revised 'Statutes 1909, fully authorize this proceeding, and provide in detail each and every step that must be taken in order to assess the damages and benefits that might accrue on account of the change of the grade of a street or sidewalk; and fully authorizes the construction of the walk.

We, therefore, decide this insistence against the respondent.

II. Counsel for -appellant next insist that the court erred in dismissing the suit for the reason stated m the motion, that “the alleged grade or change of grade for the proposed sidewalk is indefinite, uncertain and not determined in any definite or certain manner. ’ ’

We are of the opinion that this insistence is well founded, for the reason that when we read the ordinance ordering the sidewalk to be constructed, which must be read in connection with the one authorizing the assessment of damages and benefits, it is seen that it provides that the top surface of the walk to be constructed, shall, “when finished, conform to the grade stakes of the city engineer, now set and in place. ’ ’

While these two ordinances refer to different matters, yet they were enacted at the same time, and with one common design, namely, to construct the sidewalk mentioned, which under the Constitution of this State, could not be done until the damages and benefits which might accrue by the change of grade have been assessed and paid.

It might have simplified matters if the ordinance authorizing the assessment of damages and benefits had also established the grade of the sidewalk; but we have been cited to no authority holding that the grade could not be fixed by the ordinance ordering the walk constructed.

This question is also decided against the respondent.

Counsel for respondent also assails the validity of the proceedings because the stakes fixed to mark the grade of the walk are not permanent — easily moved or destroyed.

That is true, but the permanency of grade monuments is a matter to be addressed to the city government, and not to the courts. Their purpose is to indicate the grade line, in order that the commissioners may know the change to be made, and the damages or benefits that will result to the property by reason thereof; also to inform the contractors where to place the surface of the sidewalk.

The walk after having been constructed will of itself constitute a permanent monument of the grade line thereof; as much so as almost any monument the city could establish.

The United States surveys of this vast domain are marked by stones, stakes, trees and such other materials as the Government saw proper to use, all of which may be easily and readily removed or destroyed, as is shown by the thousands that have been moved or destroyed.

Moreover, all the streets of cities and the roadbeds of the various railroads are graded according to stakes or other monuments set by engineers.

In onr opinion this insistence of appellant is well founded. But suppose that it should be conceded that respondent is correct regarding this matter, still that would be no ground for dismissing the suit.

III. Counsel for both parties have presented and discussed several constitutional questions regarding the damages and benefits to be assessed, arL(^ f°r and against whom they should be assessed; also the amount of land that g^ouid be embraced in the benefit district, etc.

None of these questions is properly before this court, because the circuit court, instead of trying the exceptions filed by the respondent to the report of the commissioners, dismissed the entire case, without passing upon any of these questions.

This court can only review the rulings of the court below, and since that court did not pass upon the matters here presented, we have no authority to rule upon them.

For the reasons stated, the judgment is reversed, and the cause remanded with directions to the circuit court to set aside the order dismissing the cause and reinstate the same, and to proceed with the trial of the exceptions filed; and if it is of the opinion that the exceptions are not well founded, then to render judgment confirming the report of the commissioners; but upon the other hand, if the court should be of the opinion that the exceptions are well taken, then the exceptions should be sustained and a new order made appointing other commissioners to assess damages and benefits, etc., and thereafter proceed with the case as is provided for by law and the statutes mentioned.

All concur.


author: BEOWN, C. PER CURIAM.

text:
    ALICE M. STOCKWELL et al., Appellants, v. MAJOR A. STOCKWELL et al.
    Division One,
    December 19, 1914.
    1. PARTITION: Conveyance in Tail: Life Tenant Living: Contingent Remainders. Under Sec. 2872, R. S. 1909, providing that one who by the laws of England would have become seized in fee tail of lands, shall be deemed to be seized for his life only, the remainder to pass in fee to those to whom the estate would have first passed by the common law at his death, and Sec. 2874, which provides that the remaindermen shall take as purchasers, the grantee in a deed reading to her and her “body heirs” cannot, without statutory authority, have the land sold for partition between her and her children and thus destroy the reversion.
    2. -: -: -: -: Sec. 2559, R. S. 1909. Sec. 2559, R. S. 1909, providing that where lands are held in joint tenancy, tenancy in, common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy and in dower, any of the parties interested may maintain a suit for partition, affords no authority to a grantee in a deed to her and her bodily heirs to maintain partition between her and her children.
    3. -: -: -: -: Sec. 2612, R. S. 1909. Sec. 2612, R. S. 1909, providing that if in any case, from the nature and amount of the property to be divided, and the number of the owners, partition in kind cannot be made without great prejudice to the owners, an order of sale may be made without the appointment of commissioners, leaves to Sec. 2559 the designation of the title necessary to maintain the proceeding, and gives a contingent remainderman no right to a sale for partition.
    4. -: -: -: -: Representation of Expectancies. The fact that the law allows partition of joint tenancies and tenancies in common, each possessory holder being regarded as the representative in the partition proceedings of the owners of expectant estates, whether vested or contingent, limited upon his interest, affords no authority for partition, while the first taker lives, by the joint tenants of a contingent remainder under a conveyance in tail, especially where the owner of the reversion is not joined.
    Appeal from Eay Circuit Court. — Hon. Francis H. Trimble, Judge.

      Aeeirmed.

      Carolus & Wilcox for appellants.
    (1) The court erred in overruling plaintiffs’ demurrer to the new matter contained in defendant’s answer, “that under the law this estate cannot be partitioned and that the heirs of James M. Stockwell are necessary parties.” Robertson v. Brown, 187 Mo. 462. (2) The court erred in its finding and judgment that the estate described in plaintiffs’ petition could not be partitioned, and in dismissing plaintiffs’ petition and denying partition. Reinders v. Koppleman, 68 Mo. 482; Preston v. Brant, 96 Mo. 552; Godman v. Summons, 113 Mo. 122; Sikemeier v. Galvin, 124 Mo. 367; Sparks v. Clay, 185 Mo. 393; Acord v. Beaty, 244 Mo. 126.

      Frank B. Fulkerson and Frederick D. Fulkerson for respondents.
    (1)‘ Mrs. Stockwell, having under the conveyance a life estate only, holding the entire forty acres of land so long as she lives, could not bring a partition suit for the reason that she had nothing to partition. She has it all, so long as she lives, with a right to do as she pleases with it. Hayes v. McReynolds, 144 Mo. 348; Atkinson v. Brady, 114' Mo. 200. The other plaintiff, Edith Grace Stockwell, has a contingent remainder only. Her interest depends entirely upon her surviving her mother. The interest which plaintiff Edith Grace Stockwell takes cannot become vested until after her mother’s death. Respondent contends that because Edith Grace Stockwell did not have at the time the suit was brought (nor has she yet) a vested estate she is not a proper party plaintiff. If neither plaintiff could alone bring this suit surely both of them together cannot bring it. In order to successfully bring partition the plaintiff must have a present, definite, fixed and vested interest in the land. It is not possible for this or any other court at the present time to determine who the bodily heirs of Alice M. Stockwell are, nor can that fact be determined until after her death. The moment Alice M. Stockwell dies the remainder or remainders that now must be considered contingent will immediately become vested. If Edith Grace Stockwell should die before her mother the entire estate now contingent will be vested in-the defendant, Major A. Stockwell, thus demonstrating the futility of this partition proceeding. (2) Under the statutes of this State plaintiffs neither singly nor collectively are authorized to bring partition. Sec. 2559, E. S. 1909; Eutherford v. Eutherford, 115 Am. St. 799; McConnell v. Bell, 130 Am. St. 770; Field v. -Leiter, 125 Am. St. 997; Brown v. Brown, 28 L. E. A. (N. S.) 125; Smith v. Smith, 57 S. W. 198; Johnson v. Johnson, 170 Mo. 58; Collins v. Crawford, 214 Mo. 167; Sullivan v. Sullivan, 66 N. Y. 37; Stephens v. Endns, 13 N. J. L. 271; 2 Sharswood & Bndd, Am. Law of Eeal Property, p. 375.
   BEOWN, C.

This is a suit for partition. The petition was filed in the Eay County Circuit Court February 25, 1911, and states that James M. Stockwell on June 27, 1905, being the owner in fee of the northeast quarter of the northeast quarter of section 28, township 54 of range 29 in said county, conveyed it by general warranty deed to the plaintiff Alice M. Stockwell and her bodily heirs; that said grantee is now fifty years old and has two children only, plaintiff Edith Grace Stockwell and defendant Major A. Stockwell, and that there is no living descendant of any deceased child; that Major Á. Stockwell.is a minor and the defendant D. B. Kelley is his guardian and curator of his estate; that the interest of plaintiff Edith Grace is subject to a mortgage executed by her to Henry S. Kelley for $175, and Henry S. Kelley is now deceased and defendant D. B. Kelley is his administrator; that the land is not susceptible of division in kind. It asks for partition and that it be sold and the proceeds divided among the parties entitled according to their respective rights and interests, and that the present value of the life interest of Alice M. Stoekwell be computed and paid to her in cash.

The answer admits the facts so stated, denies the right to partition the land, and states that the interest of Alice M. Stoekwell is subject to mortgage secured by her to Ralph R. Kelley to secure $200 with interest at eight per cent; and that the heirs of James M. Stock-well, of whom there are several, are necessary parties. Demurrers both to the petition and new matter in the answer having been overruled the cause went to trial upon an agreement substantially as set forth in the pleadings, and judgment was given for the defendants, the court holding that the estate was not subject to partition and that the heirs of James M. Stock-well were necessary parties.

I. The parties present but one question in this appeal. It is whether the life tenant and one of the two contingent remaindermen may maintain an action ■ against the other remainderman for the sale of the land in partition under our statute, upon this title. We have'used the words “under our statute” because the appellant, in his argument, distinctly invokes the statute as the authority for the proceeding, and we find nothing in the law authorizing the life tenant to call upon a court of equity to exercise its beneficent jurisdiction for the sole purpose of cutting off, by sale, the right of the contingent remainderman without giving a reason why. Nor have we been more fortunate in finding, in the principles and rules of equity, authority for his co-remainderman to do the same thing. We treat the suit as a simple proceeding for the sale of the land, because all parties in their pleadings agree that it is not susceptible of physical division.

All the parties claim hy deed from the owner of the fee to plaintiff Alice M. Stockwell, mother of her co-plaintiff and the defendant Major A. Stockwell, who are her only descendants. The defendant conveyed the land to the grantee “and her body heirs.” That this is equivalent to “her bodily heirs,” or “the heirs of her body” is evident, and unquestioned by the parties. In determining the estate taken by these words it is unnecessary to trace the rise and fall of the estate tail from the Statute De Donis, which probably created it so long ago as the year 1285, through the struggle to judicially maintain its evident purpose exemplified in the famous case of Wolfe v. Shelley, 1 Co. 88, into our own Statute of Uses which built a new structure upon the same old foundation. [R. S. 1909, secs. 2872, 2874.] To understand this modern structure in its application to this cause it is necessary to keep in mind its ancient foundation. The Statute De Donis (13 Edw. I, c. 1) recited that “where one giveth land to another and the heirs of his body issuing” it seemed hard to the givers and their heirs that their will so expressed in the gift should not be observed, and that “after issue begotten and bom between them (to whom the lands were given under such condition) heretofore such feoffees had power to alien the land so given, and to disinherit their issue of the land, contrary to the minds of the givers, and contrary to the form expressed in the gift; and further when the issue of such foeffee is failing, the land so given ought to return to the giver or his heir by form of the gift expressed in the deed, though the issue, if any were, had died; . . . yet the donors have heretofore been barred of their reversion; ’ ’ and it accordingly enacted that “they to whom the land was given under such condition shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert nnto the giver or his heirs if issue fail either by reason that there is no issue at all, or if any issue be it fail by death, the heirs of such issue failing.” We have quoted so liberally because in this statute we find the best and most perfect expression of the law of entail by which inalienable titles to lands were transmitted from parent to child, subject to the law of primogeniture, to the. most remote generation, and reverted to the original donor or his heirs upon failure of issue.. In this form the estate tail came to America with the common law of England.

Modified Missouri Law. By the Revised Statutes of Missouri 1845 (p. 219, sec. 5) our Legislature enacted: “That from and after the passage of this act, where any conveyance or devise shall be made, whereby the grantee or devisee shall become seized in law or equity, of such estate, in any lands or tenements, as under the statute of the thirteenth of Edward the First (called the statute of entails), would have been held an estate in fee tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over, and right in such premises, and no other, as a tenant for life thereof would have by law, and upon the death of such grantee or devisee, the said lands and tenements shall go and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common, in fee, and if there be only one child, then to that one, in fee, and if any child be dead, the part which would have come to him or her, shall go to his or her issue, and if there be no issue, then to his or her heirs.”

This statute, it will be observed, referring to the. Statute De Douis by another name, swept the estate tail which it created out of existence so effectually that where the tenant in tail expectant died without issue before the life tenant, the lands, at the termination of tlie life estate, vested in bis heirs generally. It is not necessary to inquire whether this provision was inconsistent with that provision of section 7 of the same act which directed that on the termination of the life estate the persons who should be the heirs or heirs of the body of the tenant for life should be.entitled to take as purchasers by virtue of the remainder limited to them, because in enacting the General Statutes (p. 442, sec. 4), the Legislature noticed the incongruity, and replaced section five by the one which has been continued through all the revisions, and is now in force as section 2872, Revised Statutes 1909. It provides that “the remainder shall pass in fee simple absolute to the person to whom the estate tail would, on the death of the first grantee, devisee or donee in tail, first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance.” And this first estate in fee simple vests by purchase and not by descent. [Id., sec. 2874.]

It may be said with much verbal reason that this statute in its present form expressly adopts the common-law rule of primogeniture in its application to estates in fee tail of this character. This rule, however, had its foundation in a feudal system of land tenures that no longer exists except in tradition. It is long since it had any reason for being, except to perpetuate a landed aristocracy, and it is contrary to the spirit of our Federal Constitution and the institutions upon which our government is founded and has never been in force in this country. [Tiedeman on Real Property, sec. 474.]

From applying these principles it is easy to determine the relation of the parties to this suit to the land which is its subject. Mrs. Stoekwell is seized of a life estate, so that no one can share with her the right to the possession of the whole during her life, and it ceases absolutely at her death. The statute not only withholds from her the power to determine to whom it shall then go, but it denies to her the capacity to be the medium through which it shall pass by providing that the remainderman shall take as purchaser from her grantor, so that it cannot be determined whether either of her children, parties to this suit, will take a vested interest in the land until her death shall fix its final disposition. Should both children live, they would, as purchasers under the deed, take the land as tenants in common. Should one of them die childless the other would take the entire fee. Should he leave children these would take as tenants in common with the survivor. If they should both die, leaving children, the children of both would take the fee as tenants in common. Should they both die childless during the mother’s lifetime, and she should die without leaving other children, the land would revert to the grantor or his heirs as the case might be. But whoever will take upon the death of Mrs. Stockwell will not do so throug’h her, or represent her with respect to the title, but as grantee in the deéd under which she holds the life estate and upon her death may be identified by the description in the deed as definitely as if it granted to them the estate by name.

In so conveying the title to this land James M. Stockwell was not only exercising the common right to dispose of his own, but was making that disposition in the precise form the Legislature had enacted for that purpose. He had the right under this statute to determine that the land itself should be preserved for and go to the descendants of Mrs. Stockwell, in a form that did not admit of its being wasted, and that, in default of issue of her body living at the time of her death, it should go back to him and his heirs, and unless, as plaintiffs claim, there is something in the statute relating to partition which interferes with the disposition so plainly permitted in this one, and authorizes the court to take from him the fee which remains in him to support his reversion, there is plainly no authority for the maintenance of this suit. [Tiedeman on Eeal Property (3 Ed.), 431 and note.]

Sec. 2559, R. S. 1909. II. The first section of the article relating to partition (E. S. 1909, sec. 2559) is as follows: “In all cases where lands, tenements or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy and in dower, it shall be lawful for any one or more of the parties interested therein, whether adults or minors, to file a petition in the circuit court of the proper county, asking for the admeasurement and setting off of any dower interest therein, if any, and for the partition of the remainder, if the same can be done without great prejudice to the parties in interest; and if not, then for a sale of the premises, and a division of the proceeds thereof among all of the parties, according to their respective rights and interests.”

This section refers only to lands held, at the time ■the suit may be instituted, in joint tenancy, tenancy in common, or coparcenary. The estate so held may include estates for life or for years as well as in fee, and also includes tenancy by the curtesy and in dower. The controlling feature of the provision is that there must be an existing undivided tenancy or holding in land by two or more owners, susceptible of being so parceled between them as to become a several holding by each. We may at the outset eliminate Mrs. Stockwell, the life tenant, because she not only has nothing which is susceptible of division, her tenancy -covering in its breadth the entire estate and in its length the period of her life, in and during which no other person can have any interest unless severed from this freehold by her own act. That this does not constitute a subject for partition is not only evident from the use of a word which., in snch a connection, can have no other meaning than the severance of common and undivided interests, but also from the frequent adjudications of this court. [Atkinson v. Brady, 114 Mo. 200; Throckmorton v. Pence, 121 Mo. 50; Stewart v. Jones, 219 Mo. 614.]

In the Trockmorton case a title depended upon the validity of a suit in partition by the plaintiff, who, under a deed similar to this one, was the owner of a life estate in an undivided half of a tract of land with remainder in fee to her three children, and had acquired the other undivided half of the same land by descent from her father subject to the payment of his debts. She and her children joined in a suit in partition to have the land in which she held the life estate and her children the remainder upon condition of survival, set off from that part which she had inherited from her father subject to the payment of his debts; and a decree was rendered accordingly. This court, reversing the judgment, held the partition void, saying (p. 58): “The proceeding's in partition were absolutely void; plaintiff being the sole owner of the land, she could not maintain partition proceedings against herself, and the administrator of her father’s estate had no interest in the land of his intestate which would authorize him to prosecute a partition suit, or to make him a party thereto. ’ ’ The administrator was made a party in that case. Eliminating him, as did the court, left the suit in the precise situation of this one, in which the sole parties are the life tenant and contingent remaindermen. In the Atkinson case, supra, it was held that while the tenant by the curtesy could not maintain a suit to partition the life estate so held by him, yet where the estate by the curtesy concurred in the same owner with an undivided fifth of the remainder, he might maintain a suit against the owners of the other four-fifths to divide the property subject to the curtesy, leaving the latter intact. While in'the Stewart case, supra, the decision was placed upon the statute declaring that “no partition or sale of lands . . . devised by any last will shall be made . . . contrary to the intention of the testator expressed in any such will, ’ ’ the same principle seems to be involved as in this case and there is no intimation that a different rule should apply in a case involving title by deed. Mrs. Stoekwell, then, having no undivided interest ip the land that could be the subject of partition, her presence can afford no support to the right of' the other parties to this relief asked. She is a party only to be present and to contend for and receive what falls to her by reason of the relief, if any, to which the others may be entitled.

III. The appellants do not contend that the life tenant of the entire property may, by partition, have her estate severed from some imaginary residue of the whole, or that contingent remaindermen, who have no other estate than a hope limited by their fears, are entitled to have it reduced by the court to the terms of acres, measured off and given to them in severalty. They do hot even claim, so far as we can see, that the statutory judgment characteristic of all partition, ascertaining and declaring the rights, titles and interests of the parties, which hang in the scale of life and death, and may at any time be found wanting, can by any possibility be arrived at and entered. They simply say that by the terms of this statute no separable interest is necessary, to the maintenance of partition, but that it may be maintained for the sole purpose of securing a sale of property in which there are no common interests susceptible of ascertainment and division; and they point to section 2612 as the foundation of this theory. It provides that “if in any case, from the nature and amount of the property sought to be divided, and the number of the owners, it shall be apparent to the court that the assignment of dower, if any, and partition thereof, in kind, cannot he made without great prejudice to the owners, an order of sale may be made, without the appointment of commissioners.” This provision alone seems conclusive against their contention. It singles out and specifies the instances in which it is intended to give the court such jurisdiction and the ground upon which it may be exercised. It rests only upon the nature and amount of the property and the number of the owners. It leaves the matter of title necessary to call it into action to the first section, which requires that it be a joint tenancy, a tenancy in common or coparcenary, and stands upon the ground that, as was said by this court in Martin v. Trail, 142. Mo. 85, 97, “the primary object in a partition suit is to separate interests into distinct portions of the land to be held by the respective owners in severalty,” from whence comes its jurisdiction.

It frequently happens that a life estate is divided among many tenants in common. The husband after his curtesy has become consummate by the death of his wife, sometimes transfers undivided interests to different purchasers. Lands assigned and held as dower are frequently disposed of in the same way. Joint tenancies and tenancies in common in life estates are ■constantly created both by will and by deed, and the policy of the common law as well as all the various statutes passed to carry into effect or modify its rules, has always been to favor the partition of these tenancies at the demand of either or any of the owners, so that they may not be tied together like the Kilkenny Cats to prevent escape from their differences, or compelled to live like two dogs who must gain their sustenance from the same hone. For this reason the common law from time immemorial has favored the partition of such possessory estates and our statute by the section first quoted is expressly applied to them.

This application met various difficulties which had to be and were overcome in accordance with the principles which created the necessity. Frequently two estates tail, or life tenancies upon which were limited successive remainders and reversions, vested or contingent, as well as joint tenancies and tenancies in common under leases for years, existed in the same land, and the problem was to permit the partition of those estates which lie in possession without injustice or unnecessary interference with those who might, whether in being or not yet born, have rights springing up in the future. To meet this necessity the rule came into existence that in case of voluntary partitions fairly and honestly made. by those having the possessory title they should when justice and equity should require it, be considered the representatives of those whose interests had not yet accrued to them, who would therefore be bound by the act, so that their common expectancy would be converted into an expectancy in severalty of that part of the land which represented the interest to which it had attached. In case of judicial partition the same principle was applied. If those in being were made parties to the proceedings and properly notified the result bound them, for the judgment of the court was conclusively presumed to be right. Those not in being were supposed to be represented by those upon whose title their expectancy was founded. This principle has been recognized and acted upon by the Ehglish courts for more than a hundred years (Wills v. Slade, 6 Ves. Ch. 498; Gaskell v. Gaskell, 6 Sim. Ch. 643), and was followed and recognized in our own statute. [R. S. 1909, secs. 2561, 2562, 2563, 2564.] In all these cases the estate in expectancy was lifted from the undivided interest to which it attached and settled upon the divided share into which it had been changed by the partition, but in no case to which our attention has been called has it been held that contingent interests like those in this case, without legal title to support them, but abiding the manifestation of the will of providence concerning them at the termination of the existing life estate, are primary subjects of that judicial division which we call partition. The shadow cast by the reversion is somewhat denser and more tangible than that of the contingent remainders, because it includes the fee simple title awaiting final investiture under the deed, but in this case the plaintiffs have not thought it worth while to make the reversioner a party.

Without further elaboration we hold that the children of Mrs. Stockwell have not such a title as enables them to maintain partition.

IY. It only remains to examine some of the cases in which the question we have been considering has been referred to by this court.

The diversity of the views we have expressed in these lends to this case its principal interest and difficulty. Reinders v. Koppelmann, 68 Mo. 482, did not involve the question now before us. The plaintiff owned an estate for the life of his wife and was in possession of the land. The remainder of one undivided half was vested in himself and three of the defendants in equal shares, while the remainder in the other undivided half was partly vested in the heirs of the testator whose will created all the existing estates in the land, and partly contingent in the heirs of the living devisee for life. The heirs of the testator were parties, as were also those designated in the record as the “ostensible heirs” of the devisee. The question was, as will be readily seen, whether the presence of these small. contingent interests prevented the other remainder-men from having their vested interests set off to them, as was done in Atkinson v. Brady, subject to the life estate. We have carefully read this case in connection with its facts, and find no expression in it which indicates that the learned and distinguished judge who wrote the opinion intended to assert the doctrine that partition will lie among contingent remaindermen during the existence of the life estate upon which it is limited. In fact he rests his decision' entirely upon the authority of Wills v. Slade, supra; Gaskell v. Gaskell, supra, and Mead v. Mitchell, 17 N. Y. 210, in all of which the question was whether or not partition could be had between the owners of the present possessory title so as to bind contingent remaindermen not m esse.

Preston v. Brant, 96 Mo. 552, another case cited by the appellants, was placed directly upon the authority of Reinders v. Koppelmann, and the holding was that partition would lie, during the life of the life tenant, among- those in whom the remainder had vested.

The only case to which we have been referred by the appellants, or which we have been able to find, which seems to sustain their position in this ease, is Sikemeier v. Galvin, 124 Mo. 367, which was partition in which the life tenant and her brothers and sisters, who were all her “ostensible heirs” were petitioners. The land was held by devise to her for life, ‘ ‘ and upor her death to pass to and to be vested in her right heirs, whether lineal or collateral, as the same would be declared by the present laws of the said State of Missouri concerning descents and distribution.” The court, referring to Reinders v. Koppelmann, said:

“On the authority of this case, and the cases therein and in appellant’s brief cited, it would seem that this action can be maintained, unless in contravention of the testator’s will; for it must be remembered that all the interest that any of the parties have in the real estate, is held under and by virtue of th< provisions of the will, and our statute provides that no partition or sale of lands, devised by last will, shall be made contrary to the intention of the testator, expressed in such. [R. S. 1889, sec. 7142.]
“The effect of this proceeding will be to transfer the title in fee of the lot to the purchaser thereunder, in the lifetime of the life tenant. There is no express limitation in the will upon the alienation of the premises during the life of Mrs. Sikemeier. She, of course, could dispose of her life estate at any time, and so could the remaindermen, as a contingent remainder is alienable under our law. [Godman v. Simmons, 113 Mo. 122.] And the provisions in the tenth item of the will, by which the parties to this action who are the 'ostensible heirs or devisees’ therein mentioned are expressly authorized, all concurring, to sell and convey the premises in fee simple, for reinvestment during the lifetime of the .tenant for life, can hardly be construed as a prohibition of a resort to a mode of alienation authorized by law, at the instance of one or more of such heirs or devisees, by which the same purpose may be accomplished (R. S. 1889, secs. 7137-7163); for it goes without saying that upon a sale of the premises, in this proceeding, the net proceeds thereof, after the value of the interest of Mrs. Sikemeier has been ascertained and commuted, would have to be reinvested in accordance with the provisions of the will, under the order of the court until the termination of the life estate.”

It will be observed that a sale of the property was expressly authorized by the will for the purpose of reinvestment in other St. Louis realty or to be loaned on real estate security, the reinvestment to remain subject to the same trust and conditions as the devised land. "Whatever we may think of some of the language of the opinion, it is plain that the court really decided that partition was a mode of alienation and reinvestment to which the parties might resort in carrying out these provisions of the will, and we do not wish to be understood as now holding that it was not right.

In Sparks v. Clay, 185 Mo. 393, cited by tbe appellants, there were tenants in common of tbe freehold; two of whom were seized in fee simple and the other two of life estates with remainder in fee simple to the heirs of their respective bodies. The suit was in ejectment by a child of one of the life tenants bom after a sale of the premises under a judgment in partition between the tenants of the freehold, to which the children then in esse of the two life tenants were parties. The court properly held that the plaintiff was bound by the judgment.

The last case decided in this court in which this general question was involved is Hill v. Hill, 168 S. W. 1165. The title involved was a devise by which 'the testator gave to his son and the son’s wife the land in question ‘ ‘ during their natural lives ’ ’ and at the death of both to be divided equally between all his grandchildren; but in case the son should die before the daughter-in-law it was to be divided equally between her and the grandchildren. The testator died, and, without waiting for the death of either of them to further simplify the title, the son and his wife brought partition, asking, as in this case, for a sale, and that the value of the life estate be paid to them out of the proceeds. The defendant grandchildren demurred on the ground that the petition showed on' its face that the lands were not subject to partition. The demurrer was sustained, and judgment entered accordingly, from which the appeal was taken. The appellant in this court relied for the reversal of the judgment chiefly on Reinders v. Koppelmann, supra, Preston v. Brant, supra, and Sikemeier v. Galvin, supra. In affirming the judgment, Brown, J., for Division No. 2 of this court said: “While the three cases mainly relied upon by appellant may not have been expressly overruled, they have been intentionally disregarded in cases where they were cited and could have been followed. We hold they are not controlling authority in this State, in so far as they conflict with the conclusions announced in this case.”

We find nothing in the Missouri cases supporting the theory of -the appellant in this case, and, if we did, we would be slow to follow it. We have also not only carefully examined the cases adjudicated in other jurisdictions to which we have been referred, but the importance of the question as here presented has led us to some original investigation of our own with the same résult, and we do not. care to become pioneers in the invention of judicial devices to frustrate the attempts of owners to devote their lands to the sustenance of their families and others, so that it may be preserved and transmitted in kind, either as a whole or in parcels representing their respective interests, to the ultimate objects of their solicitude. That this may be done while effectually preventing the owners in common with others of vested interests in the land from debarring their co-owners from partition by limiting contingent remainders upon their own undivided interests, is fully illustrated by the terms of our statute as interpreted by this court in the decisions to which we have referred. While fully recognizing the right of partition as it before existed, and extending it, it only withholds it from those who have no such title or interest as can be fixed and adjudicated by the courts. What rights these latter may have that might, under appropriate circumstances, call for partition in equity, belongs to a field of inquiry not opened up to us in these pleadings.

It follows from what we have said that the judgment below must be affirmed.

Blair, G., concurs.

PER CURIAM.

The foregoing opinion by Brown, C., is adopted as the opinion of the court.

All the judges concur.


author: ROY, C. PER CURIAM.

text:
    THE STATE v. E. W. BAKER, Appellant.
    Division Two,
    December 23, 1914.
    1. EVIDENCE: Error in Exclusion: Cured by Cross-Examination. On a trial for embezzlement, error in sustaining an objection to a question whether the prosecuting witness had expected to marry the defendant was ’ cured by the fact that after such ruling the witness was fully cross-examined on that point and stated that there was a prospect that they might marry in the future.
    2. -: Theory of Defense: Embezzlement. While it is true that when the evidence in a- criminal case tends to establish a defense inconsistent with the testimony of the defendant, he is not bound by his testimony, but is entitled to instructions on the theory shown by the other evidence, yet he may not cause the court and adversary counsel to pursue a certain course and then at the outcome repudiate its legal validity; and accordingly, where a defendant on trial for embezzling $2000 testified that he never received the sum in question, and his attorneys at the trial said they did not claim it was borrowed money, the testimony of the prosecuting witness at the preliminary examination was properly admitted at the trial, although the examining court had refused to permit her to say whether she had received $50 for the use of $200 lent the defendant at another time, thus, the defendant asserts, denying him the right to a full cross-examination, and of the value of a fact, if the question had been affirmatively answered, from which the jury might have inferred that the $2000 was a loan also.
    3. -: Judge’s Comment at Preliminary Hearing: Incompetent at Trial: Harmless Error. Although comment on the evidence by a judge at a preliminary examination is not competent evidence' on the trial, yet where the evidence itself was before the jury and plearly bore out the judge’s comment, the admission of the. judge’s expression was harmless error.
    4. -: Impeaching Witness: Particular Instances of Misconduct. The character of a witness cannot be impeached by showing through other witnesses special instances of misconduct. .
    5. -: Admissibility: Embezzlement: Defendant Showing Possible Use of Money by Prosecutrix. Proof that the prosecuting witness, since deceased,, whose testimony at the preliminary hearing was read in evidence at the trial of the defendant for embezzlement, had been in trouble with the Federal officers and had hired lawyers to represent her, was not competent without a showing that the lawyers were paid the money the defendant was charged with embezzling.
    6. ORDER OF PROOF: Discretion of Court: Embezzlement. The order of testimony rests largely in the discretion of the trial court, and it is not error to admit in rebuttal testimony which might have been given in chief.
    7. ARGUMENT of Counsel: Epithets not Approved: Non-prejudicial Error. Epithets applied to a defendant by the State’s attorney in his argument to the jury are not approved, but where the court is satisfied that calling the defendant a “crook” did not influence the verdict there is no ground for reversal.
    8. -: Expressing Belief in Defendant’s Guilt: Non-prejudicial Error. An expression by the State’s attorney in his argument to the jury of his belief in the defendant’s guilt is not approved; but such misconduct of. counsel is not reversible error when the evidence clearly justified a conviction.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      W. B. Scullin for appellant.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
   ROY, C.

Defendant was convicted of embezzlement and sentenced to two years in the penitentiary.

The evidence for the State tended to show that on the 4th of January, 1912, Mrs. Mary L. Barber delivered to him in currency $2000, which, by agreement between them, he was to place in a safe deposit box in the bant for her and return to her on demand. She was between fifty and sixty years of age and had been twice married. She was seperated from her second husband, who lived in Denver. She owned the house in which she lived at 2316 South 12th street, St. Louis. A son by her first husband and the son’s wife lived with her. Her home was encumbered by a mortgage for $4000, which fell due May 8 or 9, 1912. One John W. Mackelden owed her $3000 secured by mortgage and she had other resources sufficient when converted into cash to clear the home of the encumbrance. She was a midwife and had been conducting a sanitarium, which .she had recently ceased keeping.

The defendant was thirty years old, having a wife and one child. He had lived ten years in St. Louis and had been five years in the employ of the National Telephone Directory Company. His business was to procure contracts for advertising in the telephone directory.

Defendant and ■ Mrs. Barber became acquainted in October, 1908, when he called to get her contract for advertising. Between that time and January 4, 1912, he secured six different contracts from her, ranging in amount from $36 to $225.

The evidence for the State was that defendant visited Mrs. Barber about twice a week, often taking her on car rides, to the theatre and to dinner; all of which he denied, except that he admitted that he was at her house about twice a month, also admitted that she did not know that he was married and that he was at her house half a dozen times after January 4, 1912, prior to his leaving the city about the first of February. In November, 1911, the defendant and Mrs. Barber visited a fortune teller, who told the fortune of each out of the hearing of the other. The fortune teller testified that while the defendant’s fortune was being told he offered witness $50 if she would induce Mrs. Barber to let him have $1500; thát the witness refused and told Mrs. Barber not to let defendant have her money, saying to her, “Co home to your own daughter and grandchildren; that man is too young for you; don’t give him your money.” Defendant in his evidence admitted that he heard the fortune teller say to Mrs. Barber, “Yon go home to your family, don’t go to supper with that man.” He also testified that he advised Mrs. Barber to put her money in a safe deposit box and that she told him that in January she would have some money coming in. He testified that at various times he borrowed small sums from Mrs. Barber and paid her for the use of the money; that he loaned her various small sums; that he borrowed $200 from her in December, 1911, and that he paid it back. She testified that he returned the $200 with $10 for the use of it and then took it away again the same evening and that she hadn’t gotten it back.

• Mr. Mackelden testified that he paid Mrs. Barber $2000 in bills on her front porch on January 4, 1912.

Defendant’s counsel at the trial conceded that she had the money. Defendant testified that she was owing him $45 and that he went to her house about January 4, 5, or 6, 1912, to get it. He then proceeded as follows, “She said she expected a party to pay her some money and he didn’t come. I waited a while and she said some one is at the door now. She came in after while and handed me the money in bills.” He stated that he saw only the $45.

Mrs. Barber testified that on January 4, 1912, she delivered to the defendant $2000 in bills, under a. promise from him as follows: “I will put it in the safety deposit vault now and nobody can touch it, or find out where it is, and then the day you need it, all you have got to do is to let me know and I will bring it to you.” Pier daughter-in-law as a witness confirmed that testimony. Mrs. Barber also testified that the $2000 was not delivered to defendant as a loan.

About the first of February, 1912, the defendant left St. 'Louis and went to Chicago, where he stayed with his family until September 15 following. He did nothing while there and had no source of income. He testified that during the time lie was there his brother paid him a debt of $200 and that he became indebted to his brother for about $150.- After defendant left St. Louis, Mrs. Barber made inquiries for him in vain, then reported the matter to the police. She testified that she had never recovered any of the money.

Mrs. Barber was dead at the time of the trial. She testified at the preliminary examination of the defendant in the court of criminal correction. She was asked on cross-examination whether she had not expected to marry the defendant. An objection to the question was sustained, but immediately after-wards she was fully cross-examined on that subject, and stated that there was a prospect that they might marry in the future. As a part of her cross-examination a letter written by her to the defendant’s wife after his arrest was read in evidence, which contained the following: “If I had been able to come, I would have come to see you today. I am very sorry for you. If you feel half as bad as I do, you are indeed in need of sympathy. Of course, pity does no good. I have been acquainted with Mr. Baker some years but never knew he had a wife and the attentions he paid were those of a single man. We went to the theatre once or twice a week and took long car rides. He took me to dinner, I sit luncheon for him here and he spent evenings with me; New Year’s Eve he stayed until twelve o’clock, then wished me many returns of the day. I said, where will we be next New Year?- . . . I have been loaning him money for short periods. He brought it back at the agreed time, so he gained my confidence and when I received notice that my husband was going to sue me for half of my property, I just had four thousand dollars ready to pay a deed of trust off on my home. Mr. Baker urged me to get the money in cash and let him deposit it in a safety deposit and he would bring it to me the first of May when due.”

Defendant’s counsel then proceeded to question her on the theory that the letter stated or implied that the $2000 was a loan to defendant. Judge Falkenheimer, of the.examining court, said, “No, that letter doesn’t mean that, Mr. Scullin, by any manner of construction.”

She was asked on cross-examination whether she had an agreement with defendant that he should pay her $50 for the use of the $200 which she loaned him. The examining court, without any objection being made, said, “That hasn’t anything to do with this. For the purpose of this hearing we will assume that this woman loaned him money and got good compensation.”

At the trial defendant objected to the reading in evidence of her testimony thus given, for the reason that by the above rulings the examining court had prevented defendant from fully cross-examining her. The trial court overruled the objection, and her testimony was read to the jury. During the reading of her testimony/the trial court said, “You do not claim that this was borrowed money;”' and defendant’s counsel answered, “Not the $2000 or $4000.”

On the cross-examination of Lizzie Burkett, the daughter-in-law of Mrs. Barber, defendant endeavored show that Mrs. Barber’s sanitarium was closed in 1909 by reason of a fraud order issued by the government forbidding her the use of the mails. An objection was sustained. The following then occurred:

“Mr. Scullin: Can’t I show the bad reputation of the prosecuting witness?
“The Court: Not in that way.
“By Mr. Scullin: Q. At the time did you know anything about your mother-in-law’s business with her attorneys or business affairs? A. No, sir.
“Q. You do know, do you not, that she had business regularly with her attorneys?
“A. ■ Mr. Maroney: I object to that.
“Mr. Scullin: I want to show the money was expended for the payment of attorneys.
“The Court: I do not see any bearing that it has.
“Mr. Scullin: I want to show the natural drain in the ‘expenditure of money.
“The Court: I do not think it is competent.
“Defendent at the time duly excepts to the ruling of the court.”

Also the following:

Mr. Scullin: I desire to show at the time of Mrs. Barber’s death and for some time preceding the same, she had been in difficulties with the local health authorities and had employed Messrs. Zachritz &' Bass to extricate her from those difficulties; and that in addition there was by reason of this controversy with the Bell Telephone Company over the publication of advertisements in the telephone book, by reason of an order of the Postmaster-General of the United States, prohibiting to Mrs. Barber the use of the mail for herself and her enterprise. I desire to show that at the time of her death and preceding the same Mrs. Barber had received decoy letters from Federal officers and had answered them and was being investigated by the Federal' grand jury, and in answering' those letters had made offers to procure abortions and to prevent conception in cases of intercourse, and that she had employed lawyers to protect her in this trouble and that is where the money went. ’ ’
“Mr. Maroney: We object to that.
“The Court: I do not see what effect it would have even if granted; the objection will be sustained.
“Defendant at the time duly excepts to the ruling of the Court.”

Officer Robert L. Agee testified that when arrested defendant said that he didn’t remember Mrs. Barber; and that he didn’t think she ever had any money.

On cross-examination defendant testified that he may have said when arrested that he did not know Mrs. Barber, but that he misunderstood their meaning. He testified that he did not remember saying that Mrs. Barber never had two thousand dollars.

Officer Kilker, in rebuttal, testified as follows:

“Q. What was stated there? A. ‘Mr. -Baker, we have been looking for you for some time. Have you been out of town?’ He said, ‘Yes.’ I said, ‘You are under arrest.’ ‘What is the charge?* We said, ‘You are charged with embezzlement, you got some money from a lady down south.’ He said, ‘Who is it?’ We told him Mrs. Barber; Mrs. Barber has been living at 2316 South Twelfth street. He said, ‘I don’t remember the name; I don’t remember her, I got no money from anybody.’ I said, ‘We will take you to the chief’s office.’ We took him up and he was identified by Mrs. Barber, she came there.”

The defendant objected to such evidence on the ground that it was in chief and not in rebuttal. The objection was overruled.

State’s counsel in his argument to the jury said:

“Here is shown the crook going out and ingratiating himself into the favors of an old woman, resorting to every device known to the low man to gain her confidence, and then, like the man he is, violate it; and I want you men to sound a warning to this community that the cunningness of a crook won’t save him.”
Defendant’s counsel objected to the above language and asked the court to tell the jury to disregard it. The court said, “It is for the jury to determine from the evidence.”
The State’s counsel in his argument also said: “What I want to say to you is that if I did not believe from the testimony in this case that a jury ought to find him guilty I wouldn’t tell you to do it.”
Defendant objected and asked the court to reprove the State’s counsel. The court said: “He has the right to state he is -conscientiously pursuing his duty. It is for the jury to determine from the evidence, not from the speeches.”

I. The error of the examining court in sustaining the objection to Üie question asked Mrs. Barber as to whether she had expected to marry qefeilc[arLt wag- eilred by the fact that after such ruling she was fully cross-examined on that point and stated that there, was a prospect that they might marry in the future. [1 Thompson on Trials (2 Ed.), sec. 707; Inlow v. Bybee, 122 Mo. App. l. c. 482.]

II. Counsel for appellant contends that the refusal of the examining court to permit Mrs. Barber to answer the question as to whether she and defendant had an agTeement that she should receive $50 for the use of the $200 loaned him, was a refusal of the right to a full cross-examination and rendered the testimony of Mrs-. Barber incompetent on the trial. Counsel insists that if he had been permitted to show that she was to receive $50 for the loan of the $200 it would have been a fact from which the jury could have inferred that the $2000 was a loan also.

Appellant is in no position to raise that point here. The trial court, after overruling defendant’s objection to the reading of Mrs. Barber’s testimony to the jury, and while it was being read, said, “You do not claim that this was borrowed money?” To which defendant’s counsel answered, “Not the $2000 or $4000.” Mrs. Barber testified that the $2000 was not a loan. The defendant testified that he had never received it.

We are aware that it has been held, and properly so, that where the evidence tends to establish a de: fense which is inconsistent with the testimony of the defendant on the stand, the defendant is not bound by his testimony, but is entitled to an instruction on the theory of the defense thus shown by the other evidence. [State v. Bidstrup, 237 Mo. l. c. 285.]

If there had been evidence in the case tending to show that the $2000 was loaned to defendant, it would have been proper to submit that theory to the jury though the defendant had testified to the contrary. The defendant is not conclusively bound by Ms own testimony. But a different question is presented here. When the trial court made the inquiry as to whether defendant claimed that the $2000 was a loan, and received the negative answer, the court was justified in acting on the theory that evidence on that point was not material, and that the refusal of the examining court to allow her to answer such questions did not render her testimony inadmissible at the trial.

Judge Sherwood said in State v. Clark, 121 Mo. l. c. 512:

“Parties litigant are not allowed to take inconsistent positions, as attempted in the present instance. They will not be permitted to cause the court and adversary counsel to pursue a certain course, and then at the outcome deny and repudiate the legal validity of that very line of conduct, and thus ‘tread back and trip up the heels of their adversary. ’ [Slack v. Lyon, 9 Pick. 62; Brown v. Bowen, 90 Mo. 184; Bigelow on Estop. (3 Ed.), pp. 562, 601, 602; McClanahan v. West, 100 Mo. 309.]”

III. The trial court permitted the State’s counsel to read to the jury m connection with Mrs. Barber’s testimony the statement of Judge Falkenheimer to the effect that Mrs. Barber’s'letter to Mrs. Baker did not mean that the $2000 was a loan. That statement of the judge was not competent evidence, but it was certainly harmless. It stated a fact that was apparent to the jury. The letter was before them, and it did not express the idea that it was a loan, but clearly expressed the contrary. We are unable to see how the statement of the judge could in any way prejudice the defendant.

IY. The refusal of the court to permit the witness Lizzie Burkett to testify 011 cross-examination as to whether Mrs. Barber’s sanitarium had not been closed by reason of a “fraud order” issued by the Postal Department was not error. The character of a witness cannot be impeached by showing through other witnesses special instances of misconduct. [State v. Sassaman, 214 Mo. l. c. 735.] Neither was it error to exclude the other evidence offered to show other instances of the misconduct of Mrs. Barber.

The offer of defendant to prove that Mrs. Barber was under investigation by the Federal grand jury, and was in difficulty with the local health authorities, was incompetent for the same reason, and his further offer to show that, by reason of such facts, she had employed lawyers to represent her in those matters and that her money went to pay the expenses growing out of such matters.

It certainly was not competent to show such matters in order to impeach Mrs. Barber. The fact that she had lawyers employed raised no presumption that the $2000 went to pay them. If defendant had any competent evidence that Mrs. Barber’s lawyers got the money, the court was not informed of it, and it properly excluded the evidence offered.

Y. , The court did not err in permitting officer Kilker to testify in rebuttal as he did. Such matters are largely in the discretion of the trial court. It is claimed that the evidence given by him was such as should have been given in chief. It was said in State v. Murphy, 118 Mo. l. c. 15, “The order of testimony is a matter that must necessarily be left largely to the judgment of the trial courts, and unless a clear case of abuse is shown it is no ground for reversal.”

YI. The State’s counsel, in his argument to the jury, characterized the defendant as a crook. Judge Norton, in State v. Zumbunson, 86 Mo. 111, held that invective when called forth by the character of the crime, will not justify a reversal. That case was cited with many others in State v. Rasco, 239 Mo. l. c. 581. It was said in the latter case that this court does not approve the use of epithets, but that if we are satisfied that the verdict was based solely upon the evidence and the law, uninfluenced by such language, the case will not be reversed.

In State v. Gartrell, 171 Mo. 489, this court said that calling the defendant an assassin and a snake was not reversible error, saying that counsel merely called the defendant what the evidence - for the State tended to prove him to be. That case disapproved the use of epithets, and so do we. But where, as in this case, we are satisfied that such conduct of the attorney did not influence the verdict we see no ground for reversal. We call attention to State v. Gordon, 253 Mo. l. c. 517. Neither do we approve the conduct of counsel in expressing to the jury his belief in. the defendant’s guilt. But it is our duty to closely scrutinize the evidence and to judge whether such misconduct had a prejudicial effect on the jury. It is impossible for us to see how the jury could have reached a .different conclusion. Under such circumstances, the misconduct of counsel does not amount to reversible error. There were other objections made to the language used to the jury by the prosecution, but the necessary preliminary steps were not taken to bring tbe point bere.

Tbe judgment is affirmed.

Williams, G., concurs.

PER CURIAM.

Tbe foregoing opinion of Roy, C., is adopted as tbe opinion of tbe court.

Walker, P. J., and Paris, J., concur; Broivn, J., concurs in result.