author: JAMES T. BLAIR, P. J.

text:
    A. L. WEST, Appellant, v. MARY F. BURKE et al.
    Division One,
    March 5, 1921.
    1. GRADING: Benefits: Legislative Question. Whether land is benefited by the grading of an adjacent street so as to be liable for the cost of such grading is a legislative and not a judicial question; ' and the legislative determination is conclusive except in exceptional cases.
    2. -: Kansas City Charter: Benefit District: Blocks. By Article 8 of Kansas City Charter (1908) the cost of grading a street or avenue is to be charged on the abutting land “from the line of the street, avenue or public highway back to the center line of the block or blocks” if such land is “laid off in lots or blocks” and if not, then “back one hundred and fifty feet” from the street or avenue. Held, that if charging the property “back to the center line of the block” results, on one side of the street, in a benefit district 28 feet wider than on the other side, that is not such a gross inequality as to render the tax bill void within the rule announced in Commerce Trust Co. v. Blakely, 274 Mo. 52.
    3. -: -: -: Dimensions of Blocks in Neighborhood. In determining whether land on a street is “laid off in lots or blocks” within the meaning of Kansas City Charter for the purpose of assessing the cost of grading such street, the similar dimensions of blocks in platted lands in the neighborhood may be considered: and the assessment is not to be condemned because the average block in many other parts of the city is materially narrower than the parcel in suit.
    4. -: -: -: Intention of Blatter. Whether the owner of land who plats it into a subdivision of parcels designated “blocks” intended them to be “city blocks” is not material, if in assessing them as “blocks” for the cost of grading an abutting street the resulting assessment is not grossly unequal, arbitrary and disproportionate.
    5. -: -: Benefit Districts. By Article 7 of the Kansas City Charter (1908) the council may provide by ordinance for grading public highways and in such ordinance must define a district within which property is to be assessed in proportion to benefits to pay damages to such property as may be damaged by such grading, such assessment to be made in a court proceeding. By Article 8 the cost of such grading is to be assessed, in proportion to the value of such assessed property, on property in a district defined by tlie charter itself. In this case the benefit district defined by the council under Article 7 embraced less of defendant’s land than the tax bill issued under Article 8 for part of the cost of grading, but this fact did not render such tax bill invalid.
    6. -: -: Apportionment: Value. Apportioning the cost of grading public highways on the abutting land in proportion to its value exclusive of improvements, as provided by Article 8 of Kansas City Charter, is valid, unless in a particular case it results in a -flagrant abuse of the taxing power of an arbitrary character, causing confiscation of the property.
    7. -: -: -: Disproportionate Assessments. The fact that in this case the application of the charter rule resulted in an assessment of defendant’s land about twice as great as that of a neighboring parcel of about the same size is not such conclusive proof of an abuse of the taxing power as of itself to show confiscation requiring an affirmance of the judgment in defendant’s favor regardless of other errors; but the existence of such 'an arbitrary exaction is a question of fact to be determined in the trial court on evidence clearly bringing it within the rule stated.
    8. —■-: -: Notice. The failure to give such a notice of the ■ proceedings to assess damages and benefits in a grading case as is required under Kansas City Charter, Article 7, in no way affects the validity of the assessment to pay for the cost of doing the work of grading as provided in Article 8. No notice is required prior to such latter assessment by either the State or Federal Constitution. .
    9. MOTIONS: Bills of Exceptions: Term: Final. Where the record proper fails to show the filing of a .term bill of exceptions on the trial court’s action on a motion to dismiss for want of prosecution and such motion and the ruling thereon do not appear in the final bill of exceptions, the Supreme Court has no power to affirm the judgment because of the ruling on such motion.
    Appeal from Jackson Circuit Court. — Eon. O. A. Lucas, Judge.
    REVERSED AND REMANDED.

      Clarence 8. Palmer for appellant.
    (1) Tlie court erred in giving declaration of law No. 4 at tlie request of defendants. Under the charter the only basis of apportionment of cost is according to valuation. Seo. 3, art. 8, p. 315, Charter; Meier v. St. Louis, 180 Mo. 408; Webster v. Fargo, 181 U. S. 394; Prior v. Const. Co., 170 Mo. 451; Ry. Co. v. Paving Co., 197 U. S. 430; Cooper v. Ord, 60 Mo. 420; Fairbanks-Morse Co. v. Stock Food Co., 151 Mo. 260. (2) The court erred in admitting evidence of the supposed special benefits. The only material inquiry was as to the valuation. Same authorities as one. (3) Land “laid off in a lot or block” is land so laid off. Preston v. Roberts, 12 Bush (Ky.) 570; Sec. 3, art 8, p. 315, Charter; Crane v. French, 50 Mo. App. 367; G-ast Realty Co. v. Granite Co., 240 U. S. 55; Withnell v. Const. Co., 39 Sup. Ct. Rep. 200. (4) Even if the court should conclude that the land of defendants was not laid off in lots or blocks, the defendants should have shown how much they were injured by the acts of the city. Neil v. Ridge, 220 Mo. 233; City of Washington v. Stumpe, 197 S. W. 165. (5) The taxing district is fixed by the charter and cannot be changed by ordinance. Collier v. Paving & Const. Co., 180 Mo. 375. (6) The suit was not abated by failure to take out alias summons or order of publication. South Mo. Lumber Co. v. Wright, 114 Mo. 326; MeGráth v. Ry. Qo., 128 Mo. 1; State v. Wilson, 216 Mo. 291; R. S. 1909, sec. 1770; Priddy v. Mackenzie, 205 Mo. 200; State ex reí. v. Job, 205 Mo. 26. (7) At the time the tax-bills were issued, Block 5, Subdivision of Thomas J. Hughes ’ land was not of unusual length east and west in that part of Kansas City. Considering it as laid off into blocks, made the taxing district approximately equal on each side of the street grading, and the action of the city was valid. (8) The argument regarding the effect of ordinance 8374 is based upon an entire misunderstanding of the provisions of the charter. The only ordinance required for doing the work and assessing the cost was ordinance 9643. This was passed after the bids were received. (9) “Where there is legislative determination of the benefit district and of the basis of apportionment, there is no need of notice. ’ ’ Naylor v. Harrison-ville, 207 Mo. 341.

      Charles B. Pence for respondents.
    (1) Under the Charter of Kansas City, the Board of Public Works, has no authority to fix or prescribe a benefit district in special assessment proceedings, but even if it has, it must comply with the provisions and limitations of the charter; and so it could not lawfully assess defendants’ entire tract of land for the street grading, but could only assess the west 150 feet thereof; that is, their “land on the line of the street, avenue, or public highway or part thereof grading, back one hundred and fifty feet,” for the. reason that thn ground was unplatted and not divided into lots or blocks within the meaning of the charter. Charter, art. 8, see. 3, p. 315; Commerce Trust Co. v. Blakely, 274 Mo. 521; Granite Co. v. Realty Co., 259 Mo. 164,172; Collier Estate v. West Pav. Co., 180 Mo. 385; McGrew v. City of Kansas, 64 Kan. 61, 67 Pac.'438; Bowles v. Iola, 82 Kan. 474; Dameshel v. Shanks, 30 S. W. (Ky.) 564; Caldwell v. Rupert, 73 Ky. 179; Barber Asphalt Co. v. Watt, 51 La. Ann. 1345; Seviers & Sons Co. v. Spokane, 77 Wash. 282; Gast Realty Co. v. Schneider, 240 U. S. 55. (2) The failure of the Board of Public Works to assess the cost of the work in accordance with the ordinance fixing the benefit district rendered the tax bill illegal and void, (a) The levying and assessment of a special tax is a legislative act or function, and by the Charter that power is vested solely in the Common Council. Art. 3, sec. 1, par. 3, pp. 119, 124, Charter, (b) The fixing of a benefit district is a most important and essential step in the levying of a special tax. And that it must be prescribed, that is, fixed and determined, before the burden is imposed, so that notice may be given to the property owners interested, is a fundamental rule. Hamilton on Assessments, sec.- 56. (c) The fixing of the benefit or taxing district is just as important to the taxpayers as the character and extent of the improvement proposed to be made. If the board has the power to change a benefit district fixed by the council, then it has the legislative power to increase or diminish a special tax. That the board has no such .power will appear, from the sections of the charter relating to the subject. Art. 3, sec. 1, p. 119; Art. 3, sec. 1, par. 3, p. 124; Art. 7, secs. 1, 2, 3, 5, 13, 14; Art. 8, sec. 3, pp. 310, 311, 312, 313, 314, 315. (d) If the notice of the proceedings under ordinance 8374, the ordinance establishing the benefit district, was legal notice as to these defendants, they w'ere chargeable with knowledge that the proceedings would affect only the west 150 feet of their land, as the benefit district only included that amount. If the Board of Public Works has the right to extend the district to include other property, what notice is afforded the property owners concerned of such proceeding? There is no provision in the charter or in any ordinance for notice of such action, (e) The consequence of appellant’s theory, that the Board of Public Works has the right to decide the question of platted or unplatted ground, and thereby fix the benefit district at the time of the apportionment of the cost of the work,' and after the work has been done, would be that no property owner could know whether he was to be subject to the tax or to what extent until the tax bill was made out and his property charged with a lien for its payment. The benefit district in such case would not be prescribed, but fixed only after the work was done and the tax had become a charge upon the land. This would not be due process of law. (f) And, finally, it results from appellant’s theory that there would be two benefit districts in a single grading proceeding; one fixed by the council for the purpose of assessing the land to pay the damages suffered by property owners from the change of the grade; and another, fixed by the Board of Public Works, after the work was done, to pay the cost of the work of grading. (3) This suit should be abated for the failure of the plaintiff to prosecute it for a year and a half after filing. Pitkin v. Flag'g, 198 Mo. 646; Cox v. Strickland, 47 S. E. (G-a.) 917;, Roes v, Clark, 63 Atl. (Pa.) 365; Brunswick v. Bingham, 35 S. E. 772; Branch y. Bank, '50 G-a. 413; Clark v. Keller, 3 Bush (Ky.) 223; Wolfenden v. Berry, 22 N. W. 915; Parsons v. Hill, 15 App. D. C. 532; Hazelhurst v. Morris, 28 Md. 67; Etheridge v. Wordley, 83 N. C. 11. (4) The basis of the assessment, in this case upon the lands charged with the cost of the work, to-wit, the valuation of the property, is not in accordance with, and in proportion to, the benefits conferred by the improvement. The rule or method of apportioning the cost applied by the Board of Public Works, to-wit, by valuation of the property exclusive of improvements, hears no just and lawful relation to the special benefits, and is therefore illegal. 4 Dillon, Mun. Corp. (5 Ed.) sec. 1443; Hamilton on Assessments, secs. 56, 141, and 213; Neenan v. Smith, 50 Mo. 525; Tyler v. St. Louis, 56 Mo. 60; Zallar .v. Kellogg, 4 Mo. App. 163; St. Louis v. Allen, 53 Mo. 44; Independence v. Gates, 110 Mo. 374; Asphalt Co., v. Hanesler, 201 Mo. 410; Union Tr. Co. v. Pagensticker, 221 Mo. 128; Buchan v. Broadwell, 88 Mo. 36; State v. Pillsbury, 82 Minn. 359, 85 N. W. 175; State v. Newark, 37 N. J. L. 415; Barnes v. Dyer, 56 Vt. 469; Walsh v. Barron, 61 Ohio St. 15 ; Hammett v. Philadelphia., 65 Pa. St. 146; In Re Morewood Ave., 159 Pa. St. 20; Dyer v. Farmington, 70 Me. 515; Gast Realty Co. v. Schneider, 240 H. S. 55. (5) No jurisdiction was obtained over the defendants to charge their land as the steps precedent to a proper publication were not taken and defendants had no notice of the assessment or valuation of their property. Hamilton on Assessments, sec. 141; Judson on Taxation (2 Ed.), secs. 417, 418; Stuart v. Palmer,' 74 N. Y. 183; Londoner v. Denver, 210 H. S. 373; Art-. 7, sec. 5, p. 295, Charter.
   JAMES T. BLAIR, P. J.

This is an appeal from a judgment for defendant in a suit on a tax bill issued in part payment of the cost of the work of grading Ewing avenue from Fifteenth to Seventeenth street in Kansas City.

The answer contains (1) an admission of ownership of the parcel of ground against which the tax bill was issued; (2) a general denial of other allegations; (3) averments of facts said to show such delay in prosecuting this action as to establish that it was not commenced or prosecuted in good faith and that the lien has expired; (4) a plea of laches on the same facts; (5) averments that the assessment was void because the parcel assessed was not in the assessment district, and (6) that the assessment and the tax bill are invalid and in violation of designated provisions of the State and Federal constitutions. A reply was filed.

Appellant offered the tax bill. Respondents offered ordinances, orders and publication of notice, certain plats and some oral evidence — all of which appear, so far as necessary, in connection with the discussion of questions to which they are relevant. The case was tried to the court.

I. ' The trial court gave a declaration of law for respondents, as follows:

“The court declares the law to be that it must consider and regard the evidence offered by the defendants tending to prove that the assessment against the land of defendants shown by the tax ^ sued on is grossly in excess of any special benefits resulting to said land from the grading for which said tax bill was issued; and that if the court finds that said assessment is in excess of said special benefits, its finding against defendants cannot exceed the amount of said special benefits.”

Appellant assigns this for error. Respondents do not seem to defend this declaration. The instruction is general; whereas, the question whether the parcel “would or would not be benefited” by the improvement “is a legislative and not a judicial question,” and the judgment of the legislative department is conclusive unless it be an exceptional case. [Prior v. Construction Co., 170 Mo. l. c. 451; Meier v. St. Louis, 180 Mo. l. c. 408; L. & N. R. R. Co. v. Barber Asphalt Co., 197 U. S. l. c. 433; Wagner v. Baltimore, 239 U. S. l. c. 218, et seq.]

II. Respondents contend there are reasons requiring the affirmance of the judgment whether or no instruction 4 was erroneous. The first of these, it is argued. is that the land was unplatted land and legally could not be assessed as platted land, as wag &one. The charter provides that property along the street or avenue graded “laid off in lots or blocks . . . from the line of the street, avenue or public highway” shall be charged “hack to the center line of the block or blocks; ” but if the property is not “laid off into lots or blocks” such property, “back one hundred and fifty feet, shall be so charged.”

The part of Ewing avenue graded runs betwéen what appears on the map as “Subdivision of Thomas J. Hughes,” lying east of the avenue, and West Manchester Addition, lying on the west of it. West Manchester Addition consists, from north to south, of blocks 1, 2, 3 and 4. These blocks extend westward from Ewing avenue to Bennington avenue, an average of 570.7 feet. From north to south they are of an average width of 272.56 feet. Each of these blocks is divided into twenty-two lots, eleven facing north and eleven facing south. The streets between are fifty feet in width. East of Ewing avenue, between Fifteenth and Seventeenth streets, opposite the addition just described, lies the Hughes Subdivision, consisting of two parcels marked as block 4 and block 5; the latter is that to the north and is owned by respondents. It extends 630.25 feet east along Fifteenth street from Ewing avenue and is 591.23 feet from north to south along that avenue. South of it is a street or road which articulates with the central street of West Manchester Addition. South of this highway lies a parcel approximately equal in size to that of respondents. Winchester avenue runs north and south along the east side of blocks 4 and 5 of tlie Hughes Subdivision. Fifteenth street is north of it and Seventeenth street is south. These two last named streets form the north and south boundaries of West Manchester Addition, also. It will appear from this that there is no great discrepancy between the total area of West Manchester Addition and that of the Hughes Subdivision. The benefit district, as assessed, extended from Fifteenth street on the north to Seventeenth street on the south and from Ewing avenue west one-half the distance to Bennington avenue, the next parallel street on the west, an average distance' of 287.35 feet; and extended east from Ewing avenue an average" distance of 315.18 feet. The varations implied fin the word “average” as used here did not exceed three inches and are given no attention by counsel, neither do they deserve any. The blocks in the additions to the north, to the west and to the northwest of the Hughes Subdivision are of about the same general width or length, from east to west, as the parcels in the Hughes Subdivision and the blocks in West Manchester Addition. The property to the northeast is evidently laid out in smaller blocks because of the presence nearby of two railroad lines which angle past it. The addition to the east conforms its blocks, from 'east to west, with those north of it, and also is bounded on the east and northeast by the railroads. The plat does not include lots and blocks on the south of the Hughes Subdivision, though a broken line indicates there may be streets platted south from Seventeenth at a distance from each other of about three hundred feet.

(a) It is obvious from this description and from the plat that there is no gross disparity in width between that part of the benefit district east of Ewing avenue and that part west of it. The difference is not at all comparable to that which existed in Commerce Trust Co. v. Blakely, 274 Mo. l. c. 57. As was said in that case (l. c. 59) “A liberal view must be taken of inequalities resulting from the application of any rule of apportionment. Exact equality is humanly impossible.” It was held there, also, that when the foregoing had been given its proper weight “a rule of apportionment cannot be upheld in a particular case like this if it results in gross inequality and arbitrarily distributes the burden without regard ‘to special considerations applicable to the parcels taxed.’ ” The disparity, merely, between the east and west parts of'the district, does not bring this case within the influence of the rule quoted.

(b) It is argued that the ordinary block in Kansas City has an east and west length of 275 to 300 feet, and that this takes the parcel involved out of the meaning of the word “block” as used in the charter. There is no prescribed length and breadth of blocks in Kansas City. Doubtless the testimony that in many sections of the city, as a rule, blocks were of the width mentioned, is, true. It appears not to be true in other sections. That fact is not so important, with respect to the question being considered, as is the length from east to west of blocks in the vicinage of the parcel assessed. We are not much concerned in this case with the width of the parcels or adjacent blocks from north to south, nor with the probable extension of streets from east to west. The benefit district extends fom Ewing avenue to the east and to the west. The blocks in the vicinity, except in so far as it may be seen from the plat the dimensions have been affected by the presence of two railroads on the east, are, in a majority of cases, of a length from east to west not greatly different from the east to west dimension of the parcel in question. If it is subsequently divided in accordance with what seems to be the vici-nal scheme of improvement in the mind of a majority of adjacent owners who have platted their lands, the blocks will be of a length from east to west fairly in accord therewith if they extend across the parcel, and any other sort of division would be out of accord with such' plan or system..,. In the Blakely case it was clear a development in accord with the plan employed by the adjacent owners would call for another street, parallel to that being improved, through the tract there involved. The contrary is true in this case. There is not in this case, as in the Blakely, case, a showing that another parallel street is now about to be opened under proceedings already commenced. Further, to open such a street, from south to north, through this property, would lead nowhere except through the property. There is no street platted immediately to the north of Hughes Subdivision between Ewing and Winchester avenues. To open another street from north to south through the center of this parcel would prevent its development in conformity to the plan already adopted by the owners of the older and more improved and settled addition adjoining it. The Blakely case is unlike this in this respect also. We do not think, in view of neighboring conditions, the assessment is to be condemned because the average block in many other parts of the city is materially narrower from east to west than the parcel in suit.

(c) It is also contended that the owner in making the plat of the subdivision did not intend it as a plat for urban purposes and that this is material to the question. The purpose of the owner would have relevance to the contention that since he had platted his property into lots and blocks, therefore he was in no position to deny it was so and must take whatever consequences might follow.

Is it true that where an owner has included in a subdivision two parcels which he has designated as “blocks” and which are of a width about equal to the other-blocks in the platted territory of which his property comes to form a part and which when treated as blocks, as platted, are not subjected to materially greater assessments than most of the developed land about him, he can defend on the ground that in his designation of “blocks” he did not mean “city blocks”? The question is not so much when the property was platted, or what the owner intended at the time, as it is whether (the question of estoppel being laid aside) when the taxing authorities take the platter at his word and treat the parcels as blocks, the resulting’ assessment is grossly unequal, arbitrary and disproportionate. "We do think the treating of blocks “4” and “5” as blocks within the charter rule of itself tends to show such a result has been reached. ,

III. Respondents next argue the judgment is wrong because “the failure of the Board of Public Works to assess the cost of the work in accordance with the ordinance fixing the benefit district rendered the tax bill illegal and void.”

By Ordinance 8374, approved May 24, 1911, the work of grading was authorized, and in that ordinance the council provided that the damages to the property affected should be levied according to the charter provision already quoted in substance. The council further prescribed in that ordinance that the benefit district on the west side of Ewing avenue should run west to the middle of the blocks in West Manchester Addition and that on the east side of Ewing avenue the east line of the benefit district should be drawn 150 feet east of Ewing avenue and parallel thereto. On June 5, 1911, the city counselor presented this ordinance to the municipal court, and the court ordered publication of notice of the passage and substance of the ordinance, including the benefit district as described therein, and notice that June 28, 1911, was fixed as the day for ascertaining and assessing damages and benefits. Publication was made. August 4,1911, the Board of Public Works presented and recommended for passage Ordinance No. 9643, which confirmed a contract for the work let to West on August 1, 1911, and provided that the cost of the work of grading should be paid by special assessments levied on land in a benefit district which is described in the language of the charter heretofore quoted. No particular land is mentioned. The assessment roll was offered and it sliowed that on November 10, 1911, the city assessor was directed to assess the cost of the work. The directions to him were couched in the language of the charter and did not purport to describe particular parcels or lots. The assessor, upon this direction, made the assessment of which respondents complain.

It is contended the council in Ordinance 8374 fixed the benefit district; that this district included only the west one hundred and fifty feet of respondents’ property, and that this rendered invalid.the subsequent assessment under Ordinance 9643 of an additional part of that parcel not included in the 150 foot strip described in Ordinance 8374. Ordinance 8374 and Ordinance 9643 were passed for different purposes and were authorized by different charter provisions. The first was passed pursuant to Article 7, in order to authorize the grading' and' provide for the assessment of damages in favor of owners whose property was damaged by the grading and, also, in order to provide a fund to pay such damages, to assess benefits against property liable thereto. The charter provides (Sec. 2, Art. 8) that in an ordinance passed for this purpose “the ordinance . . . shall also prescribe and determine the limits within which private property is deemed benefited by the proposed grading or regrading.” Ordinance 8374 prescribed such limits as already stated. The proceedings in court to assess damages were had under this ordinance and were brought to a finality there. The result does not appear in this record. Subsequently the contract for the work of grading was let, tentatively, and was confirmed by Ordinance 9643, which also provided, in accordance with Article 8 of the charter, that the cost of the work of grading should be paid by special tax bills issued against property in a benefit district. Article 8 does not direct the council to “prescribe and determine the limits of the benefit district” within which the lands are to be charged with the-cost of the work of grading, as is the case under Article 7 witli respect to the district required to bear the assessments to pay damages resulting from the grading. The charter (Sec. 3, Art.8) specifically provides how the cost of grading work and the like shall be apportioned and prescribes a formula, (already set out), to be followed (with exceptions not pertinent here) in determining the land or lots against which the costs are to be charged and tax bills issued. The power or direction given the council to fix the benefit district for assessing benefits to pay damages in no way affects or qualifies the charter direction in Article 8 defining the lands which are to bear the costs of the work under the contract. An error on the part of the council in performing its duty, had one been made, could neither add to nor substract from the present question, which is whether the costs of the work were assessed according to the directions in Article 8. Whatever assessment, if any, was made against respondents in the proceedings under Ordinance 8374 is independent of the assessment in question in this case. The assessment for the cost of grading, represented by this tax bill, is not open to any objection that the parcel was assessed too much or too little in the condemnation proceeding. The notice required in those proceedings is a notice of those proceedings. Paragraph 11 of Secton 3 of Article 8 makes it clear that the application of the charter rule for the assessment of benefits for payment of the cost of the work shall be applied and worked out in the particular’ case independently of action by the council. The council may, in its discretion, provide by ordinance that the land shall be charged no farther back than the alley and may, when requested by the Board of Public Works, determine in a particular instance, whether land fronting on a street or avenue is “laid off into lots or blocks” within the meaning of the charter rule of apportionment of cost of work. These exceptions make clearer still the fact that the application of the rule, in the first place, is left to the Board in a case of such an apportionment. The charter formula designates tlie benefit district and merely leaves it to tlie Board of Public "Works, with exceptions noted, to apply that formula to the property affected, i. e. draw the line the formula describes. If the Board disregards the charter rule, that, can be set up in defense to tax bills by those injured thereby. That, however, does not justify the conclusion that the Board should follow the rule only if the council followed it in the assessment of benefits to pay damages, in which assessment it is not provided in terms in the charter that the formula in paragraph 11 of Section 3 of Article 8 shall apply.

IV. The motion to dismiss for want of prosecution is brought here in an additional abstract. It purports to have been preserved in a term hill of exceptions, but no record entry shows such a bill was filed. Neither does it appear the motion and ruling thereon were incorporated in the final bill. This is sufficient to deprive us of power to affirm the judgment because of the ruling on the motion, even if there were no other reason why that ruling could not furnish a basis for such a course.

V. It is argued that the application in this case of the charter rule of assessment of benefits according to the value of the several parcels, considered without improvements, resulted in such a gross inequality as to render void the tax bill in suit.

The question whether respondents’ land would be benefited was legislative in character (Prior v. Construction Co., 170 Mo. l. c. 451, and cases cited) and was determined by a compe-tent agency. Numerous decisions in this State have recognized the validity of the method of distributing the costs of local improvements according to the value of the several lots or tracts affected. [Embree v. Road Dist., 257 Mo. l. c. 615; Aff’d, 240 U. S. 242; Meier v. St. Louis, 180 Mo. l. c. 408; Egyptian Levee Co. v. Hardin, 27 Mo. l. c. 496, et seq.; Barber Asphalt Pav. Co. v. French, 158 Mo. l. c. 546, 547.] In these cases decisions of the Supreme Court of the United States are cited which show the method is held valid by that court. [Mattingly v. Dist., 97 U. S. 687; Webster v. Fargo, 181 U. S. 394; Houck v. Drainage Dist., 239 U. S. 254, affirming same case in, 248 Mo. 374; 25 R. C. L. p. 136, sec. 53.] The real contention, as stated by respondents, is that “the apportionment was made by the Board solely according to valuation and without any inquiry, finding or determination by them of the special benefits resulting to the several parcels of land from the improvement. They simply followed the charter which requires such apportionment. Our contention is that a local assessment, like that for the grading of a street, made solely according to such a rule, is not a valid assessment. ’ ’ It is argued the charter rule has no such relation to the benefits accruing that the resulting apportionment is in substantial accord with them. Any apportionment of the cost of work by a method other than that prescribed by the charter would have been void. [Fowler v. St. Joseph, 37 Mo. 228; Collier Est. v. Supply Co., 180 Mo. l. c. 375.] Further, the city has power to prescribe by charter any method of apportionment which it deems equitable unless prohibited by the Constitution or some other restrictive and obligatory enactment. [Bauman v. Ross, 167 U. S. 548; St. Joseph v. O’Donoghue, 31 Mo. 346.] “It is safe to say that the doctrine is firmly established in this State that the Legislature, acting within its constitutional powers, may fix the territorial limits of special taxing districts, and also may fix the actual or maximum amount of special assessments, which it may place at a level rate, founded upon a unit of area or frontage, or at á rate founded upon a proceeding to ascertain the actual benefit accruing to each particular tract; or it may delegate any or all these powers to an appropriate agency to be chosen or created by it. (Citing cases.) When all this has been done by valid legislation founded upon those principles of expediency to which we have referred, ‘the owner of the property in the district cannot he heard to contend in the court that his property was not in fact benefited, or to the amount assessed in accordance with such apportionment.’ [Meier v. St. Louis, 180 Mo. 391; Prior v. Construction Co., 170 Mo. 451.]” [Houck v. Drainage Dist., 248 Mo. l. c. 386.] In affirming the judgment in this case the Supreme Court of the United States (239 U. S. l. c. 262), said: “And with respect to districts thus 'formed . . . the Legislature may itself fix the basis of taxation or assessment, that is, it may define the apportionment of the burden, and its action cannot he assailed under the Fourteenth Amendment unless it is palpably arbitrary and a plain abuse.” In the same case it was said that for the payment for local improvements from which special benefits “may be deemed to result,” spe-' cial assessments may be made and “the Federal Constitution does not require that for every payment there must be made an equal benefit. The State in its discretion may lay such assessments in proportion to position, frontage, area, market value, or to benefits estimated by commissioners. And, as we have already said, unless the exaction is a flagrant abuse and by reason of its arbitrary character is a mere confiscation of particular property, it cannot be maintained that the State has exceeded its taxing power.” It is not contended in this case that the assessment was not made according to value. The fact that the application o£ the charter rule results in some irregularities was to be expected; but we do not think the mere fact that the land of respondents was, under the rule, assessed about twice as much as a neighboring parcel of about the same size is such conclusive proof of an abuse of the taxing power as to show confiscation and require an affirmance of the judgment regardless of the error first referred to. In any event the existence of such an arbitrary exaction would be a question-of fact which ought to be determined in the trial court on evidence and ought not to be found unless the evidence clearly brings it within the rule of the decisions quoted, and like decisions.

YT. It is urged no jurisdiction was obtained to charge respondents’ land because, it is insisted, the notice given under Section 5 of Article 7 of the Charter was not good. This section applies to †}16 proceedings f or" assessment of damages resulting to adjacent property from the grading and the assessment’of benefits to pay such damages. This section has nothing to do with the proceedings under Article 8 to assess benefits' to pay the cost of the work of grading. Whatever relevancy the objections to the notice mentioned might have to a question of the jurisdiction of the court to assess benefits to pay damages, it has none with respect to the validity of the assessment, like that here, to pay for the cost of work. No notice is required prior to such assessments by either the State or Federal Constitution. [Naylor v. Harrisonville, 207 Mo. l. c. 353; Wagner v. Baltimore, 239 U. S. 219.] The tax bills are collectible by suit and a hearing thus afforded. The judgment is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    FRANK B. PETERMAN, Appellant, v. ROBERT E. PETERMAN.
    Division One,
    March 5, 1921.
    1. EJECTMENT: Defense: Estoppel in Pais: Jury Trial. In ejectment, where one defense was estoppel in pais, plaintiff, insisting upon a trial hy jury as a law case, cannot on appeal claim that the trial should have been hy the court as in equity.

      2. -: -: -: General Verdict. A general verdict for defendant in an ejectment suit, rendered on proper instructions, wliere one defense was estoppel in pais, will not be disturbed on appeal, where the court would decree title in defendant on the theory of such estoppel if it were hearing the case as in equity.
    3. DEED: Escrow: Withdrawal: Final Delivery. Where grantor and grantee in a deed to land have delivered such deed in escrow to a third party to be by him delivered to grantee upon the death of grantor, such grantor and grantee can thereafter, by mutual agreement, withdraw such deed from such third party’s possession and thereby prevent its final delivery to grantee, who cannot complain of its non-delivery to him nor claim title under it.

      i. -: -: -: Delivery: Intent. The delivery of a deed is a matter of intent, and whether or not it is absolute depends upon the facts.
    5. -: -: -: -: Question for Jury. Plaintiff, a single man, lived with his mother on the land in suit, then owned by her. She had drawn and executed a deed conveying the land to plaintiff and left it with a third party to be delivered to plaintiff after her death. Thereafter he and she went to the third party and obtained the deed and plaintiff put it in his pocket. He after-wards married and brought his wife to his mother’s home, and his mother could not get along with his wife. There was evidence of statements made by his mother in his presence that he was not to receive the deed unless he remained single and took care of her. Later his mother moved to the residence of defendant, another son, and when she did so the deed was found in her box, and she burned it. Thereafter she gave defendant a power of attorney to look after her business, and on demand by defendant plaintiff removed from the land in suit, and defendant took possession of it for his mother. She afterwards deeded it to defendant for $1000, and he made valuable improvements upon it and his title was not questioned until after his mother’s death: Held, that the question whether the first delivery of the deed was absolute so as to pass title and the question of the second delivery, having been submitted to the jury on proper instructions and found against plaintiff, the verdict must stand. Held, also, that the evidence is sufficient, to establish the defense of estoppel in pais, if the case had been submitted to the chancellor, and having been submitted to a jury upon plaintiff’s request he cannot complain.
    6. INSTRUCTIONS: Given: Refused. Where all the questions in the case are covered by proper instructions given to the jury, the refusal to give other requested instructions is not error, and the judgment being for the right party will be affirmed.

      Appeal from Clinton Circuit Court. — Hon. Alonso D. Bwnes, Judge.
    Appibmed.

      W. 8. Herndon for appellant.
    (1) The execution and acknowledgment of the deed conveying the land in controversy to the plaintiff, by Sarah F. Peterman, and leaving it with the Commercial Bank of Lawson, with directions to deliver the deed to the grantee after the death of the grantor, constituted a delivery of the deed, and placed the same beyond the control of the grantor. Standiford v. Standiford, 97 Mo. 231; Sneathen v. Sneathen, 104 Mo. 209; Schooler v. Schooler, 2:58 Mo. 83; Harvey v. Long, 260 Mo. 386 ; 8 R. C. L. see. 60, p. 595. (2) The hank holding the deed under the directions given could not surrender the deed to the grantor or grantee, prior to the death of the grantor. But both parties consenting thereto would authorize the bank to deliver the deed, prior to the time fixed by the grantor. Seibal v. Hig’ham, 216 Mo. 132; Parsons v. Parsons, 45 Mo. 265. (3) A delivery of the deed by the bank, to the grantee, prior to the time directed, if consented to by the grantor, passed the title, as of the date of the deed, and its effect as a present conveyance could not be changed by the mere physical possession of the deed taken afterwards bv the grantor, nor could its destruction by her, change the plaintiff’s rights under the deed. Terry v. Glover, 235 Mo. 550; Sneathen v. Sneathen. 104 Mo. 209; Allen v. BeGroodt, 105 Mo. 449. (4) The effect of a direct delivery of a deed to the grantee, cannot be obviated by the intention of the grantor that it shall operate merelv as an escrow, or take effect only upon specific contingencies. 8 R. C. L. sec. 52, p. 983; Miles v. Robertson, 258 Mo. 725. (5) A delivery of a deed may be made by words, unaccompanied by act, or by act, unaccompanied' by words, as well as by both words and acts. Schooler v. Schooler, 258 Mo. 92; Cannon v. Cannon, 26 N. J. Eq. 316; ITarvey v. Long, 260 Mo. 386. (6) While it is essential to the validity of a deed that there be an acceptance of the instrument by the grantee, yet the delivery of a deed implies its acceptance by the grantee, in the absence of fraud, artifice or imposition. Miller v. Me-Caleb, 208 Mo. 578; 13 Cyc. 570. (a) In respect to a grantee who is under no disability, the rule is that when such grantee is aware of such conveyance and does not dissent, and the conveyance is positively beneficial to him or her, acceptance will be presumed. 5 Am. & Eng. Ency. Law, 444; Miller v. McCaleb, 208 Mo. 579. (b) The presumption of delivery of a deed or its acceptance is stronger in the case of a voluntary settlement than in a case of bargain and sale. Schooler v. Schooler, 258 Mo. 92; Rumsey v. Otis, 133 Mo. 95; Hamilton v. Armstrong, 120 Mo. 597; Crowder v. Searcy, 103 Mo. 97; Cannon v. Cannon, 26 N. J. Eq. 316’; Williams v. Williams-, 148 Ill. 430. (7) After the execution and acknowledgment of the deed conveying the land in controversy to plaintiff, the evidence shows that he took possession of the land and rented and collected the rents. This is evidence of the delivery of the deed and its acceptance. Schooler v. Schooler, 258 Mo. 83. (8) If there is any question as to the deed having been delivered to the plaintiff, then, as the evidence shows it was given into the possession of the plaintiff by the grantor or with her consent, and after she had parted with all control thereof, by leaving it with the bank to be delivered after her death, it devolved upon the defendant to show there was no delivery of the deed. This he failed to do. Burk v. Adams, 80 Mo. 504; Harvey v. Long, 260 Mo. 387. (9) That the defendant accepted the deed from his mother, with full knowledge of the existence of the prior deed to plaintiff, is established by the evidence, and he cannot defend on the ground of being a purchaser without notice. (10) No act, word, or deed of Sarah F. Peter-man, made after the execution, acknowledgment of the deed and placing it beyond her control, could affect the title conveyed by_ the deed to the plaintiff, and all evidence as to such was incompetent. Potter v. Adams, 125 Mo. 318; First Natl. Bank v. Nichold, 43 Mo. App. 358; Enders v. Eiehardson, 33 Mo. '598; Boyd v. Jones, 60 Mo. 454; Ferry v. 0 ’Neal 149' Mo. 467; Garland v. Earner, 17 Mo.. 287; Miles v. Eobertsoh, 258 M'o. 725 (11) The fact that defendant made improvements on the Bud after he obtained the deed from his mother, is no legal defense in this ease. The statute provides a remedy by which he could recover the reasonable value of such improvements, if under the facts he was entitled to be remunerated. Secs. 2401, 2402, 2403, 2404, E. S. 1909. (12) Where a deed has been executed and acknowledged, the possession of such deed by the grantee is presumptive evidence of delivery. Scott v. Scott, 95 Mo. 300; Allen v. DeGroodt, 105 Mo. 450. (13) The court erred in refusing to give Instruction G asked by the plaintiff. Any condition that plaintiff was to remain single, even if not against public policy, would have to be written in the deed, in order to be valid. (14) The court erred in refusing to give Instruction H asked by the plaintiff. This instruction went to the defense of estoppel pleaded by the defendant. It was not the duty of the plaintiff to notify the plaintiff of his claim. And if the defendant knew of the existence of the deed to plaintiff prior to the time of his purchase there is no es-toppel in the case. Am. & Eng. Ency. Law (2 Ed.) pp. 422-424; Stone v. Eailroad Co., 261 Mo. 61; Vaughn v. Tracy, 25 Mo. 318; s. c. 22 Mo. 415; Lincoln v. Thompson, 75 Mo. 613; Squires v. Kimball, 208 Mo. 110; Shafer v. Deltie, 191 Mo. 377; Davis v. Wood, 161 Mo. 17; Wig-genhom v. Daniels, 49 Mo. 160; Freeman v. Moffitt, 119 Mo. 280; Martin v. Jones, 72 Mo. 23. (15) The court erred in giving instruction number 5 asked by the defendant. This instruction is clearly erroneous. There was no such condition contained in the . deed and no defense of the kind pleaded. The instruction is based on the fact of a delivery of the deed and it follows that if there was a contract between plaintiff and Sarah P. Peterman, by which he was to support her and remain single, during the life of Mrs. Peterman, and he did not perform it, it was an equitable defense, and would have to be pleaded. Russell v. White]ey, 59 Mo. 199; Kennedy & Jackson v. Daniels, 20 Mo. 104; Johnson v. Fluetsch, 176.Mo. 464; McQuinn v. Moore, 225 Mo. 45. (16) The trial judge held this to be a jury case. We think he was right in that respect. This suit is an action at law. Dowd v. Bond, 199 S. W. 594; Newbrough v. Moore, 202 S. W. 547; Elsea v. Smith, 202 S. W. 1071; St. Louis Union Trust Co. v. Hill, 223 S. W. 434.

      Lavelock & Kirkpatrick and James L. Farris’s Sons for respondent.
    (1) The statements of Sarah P. Peterman, made in the presence and hearing of Prank B. Peterman, were properly admitted in evidence. Poplin v. Brown, 200 Mo. App. 262; Edwards v. Latimer, 183 Mo. 624. (2) Appellant and his mother lived together on the home place, and under the evidence, it is but a reasonable conclusion that he attended to her business, and if so, this constituted a confidential relationship between appellant and his mother. Street v. Goss, 62 Mo. 229; Hall v. Knapp enberger, 97 Mo. 511; Kirschner v. Kirschner, 113 Mo. 296; Dausman v. Rankin, 189 Mo. 703; Kincer v. Kincer, 246 Mo. 437; Wendling v. Bowden, 252 Mo. 687; Parker v. O ’Bryen, 181 Mo. App. 496. By reason of which, the deed deposited with Prank Clark, is, in the absence of evidence on the' part of appellant showing that the deed executed by Sarah P. Peterman was her free act and deed, presumed to be the result of undue influence on the part of appellant. (3) Where a deed is executed by a parent conveying land to a child, in consideration of love and affection, the same test is applied as in cases involving wills. McFarland v. Brown, 193 S. W. 804; Jones v. Thomas, 218 Mo. 541, 542. • (4) To constitute delivery of a deed, the grantor must unconditionally part with all dominion, possession and control over the instrument, and it must he the intention of the grantor that the instrument take effect as a present transfer of title to the' grantee. Sneathen v. Sneathen, 104 Mo. 209; Chambers v. Chambers, 227 Mo. 282; Terry v. Clover, 235 Mo. 550. (5) Intention may be elusive, evasive and difficult of ascertainment, but it is the very quintessence of delivery, and without it there can be no legal transfer of title. Chambers v. Chambers, 227 Mo. 282. (6) Sarah F. Peterman had no intention, when she consented to the deposit of the deed here in ■'question with Frank Clark, of parting with all control ’'over it, or that it would be delivered to appellant except on condition that he remained single and took care of her during the remainder of her life. (7) Appellant has, by his silence and acquiesence for a period of more than seven years, when he had full knowledge that respondent had, in good faith, purchased said real estate, and executed his binding obligation therefor; that said real estate had been in good faith. conveyed to respondent; that respondent had been in the continued and uninterrupted possession, use and occupation thereof, claiming same, for a period of more than seven years, and that the grantor in said deed, who then resided in Ray County, could give evidence as to his rights to said real estate, if any, estopped himself from claiming title to or demanding possession thereof. State ex rel. v. West, 68 Mo. 232; Burdett v. May, 100 Mo. 18; Stevenson y. Smith, 189 Mo. 466; Dexter v. MacDonald, 196 Mo. 399; Shelton v. Horrell, 232 Mo. 375. (8) The instructions of plaintiff, refused by the court, were properly refused and the instructions given on the part of defendant correctly declared the law of this case.
   GRAVES, J.

The petition in this cause is an ordinary petition in ejectment, save that it charges waste, and asks for damages for such, waste, along with damages for the alleged unlawful withholding of the possession, and the monthly rents and profits. The answer is quite long, but when carefully dissected will be found to contain (1) a general denial, (2) plea of estoppel in pais, and (3) a claim of innocent purchaser for value. Reply was a general denial. From an adverse judgment in the lower court the plaintiff has appealed. Errors assigned cover alleged improper admission of evidence, and alleged improper giving and refusing declarations of law. It was tried before a jury, and as a case at law, at the instance of plaintiff and over the objection of defendant. A peremptory instruction,' asked by the plaintiff and refused by the court, creates a situation calling for the facts. These we take in the course of the opinion under the points made.

I. Both plaintiff and defendant are the sons of Sarah F. Peterman, now deceased. Mrs. Peterman was the surviving wife of Allen W. Peterman, and was the owner of the forty acres of land in Clinton County, 110w' dispute. She a-*-so owned 40 acres in Ray County. Mrs. Peterman seems to have taken a child’s part in her husband’s estate. In November, 1906, she was living on the old Peterman homestead with her son, the plaintiff herein, who was then single. On November 26, 1906, she made two deeds to Frank B. Peterman, one covering the land in suit, and the other the forty acres in Ray County. These deeds were drawn by Frank Clark, a notary, and cashier of the Commercial Bank, and were given to Clark to be by him held, and delivered to the grantee upon his mother’s death. These deeds were .warranty in form and had an expressed consideration of five dollars and love and affection, as shown by the notary’s record. Later Clark said that the mother and son came into his office and asked for the deeds and he turned them over to them, and Frank B. put them in his inside overcoat pocket. ITe could not recall the conversation that took place between the mother and son at that time.

In August, 1909, Frank Peterman married and brought his wife and mother-in-law to the old Peterman homestead. For defendant, the evidence tends to show, from statements made by the mother in Frank’s presence, that he was not to receive the deeds unless he remained single and took care of the mother. About December 18, T909, the mother moved to the residence of the defendant in this case, and it is shown that the deeds were found in his mother’s box in the room that she occupied at the old homeplaee. It appears that she could not get along with plaintiff’s wife. Upon the removal to the house of the defendant, the mother burned the deeds, and of this fact plaintiff was informed. Early in 1930 the mother gave the defendant a power of attorney to look after her business, and defendant says that under that power he demanded of the plaintiff the property belonging to the mother, and that plaintiff removed his stock from the land in dispute, and he took possession of it for the mother. Later in May, 1910, he bought it from his mother for $1000, and got her deed therefor. That he paid for the land this sum and some accrued interest is shown beyond dispute. Defendant took possession, made valuable improvements thereon, and his right or title was not questioned until after the mother’s death. Such is a brief outline of the facts.

II. It is a question as to whether or not the trial court should have tried this case' as one in equity. [Schneider v. Schneider, 224 S. W. l. c. 2 et secl-] Appellant is' in no position to question the matter, as he urged a trial by jury as a law case. Defendant objected, but as he won and did not appeal, he is not hurt by the ruling.

Plaintiff asked 16 instructions, and received 7. These covered (1) the alleged delivery of the deeds to the bank, through Clark its cashier, (2) the taking of the deeds from the bank by the mother and son, and the alleged delivery to him, (3) the jury were told that if Mrs. Peterman delivered the deeds to plaintiff in her lifetime, with the intention to pass title, upon an agreement- not to marry and to support her, and that thereafter she entered the premises of plaintiff and took the deeds and burned them, then the deed to defendant conveyed no title, provided defendant knew of the deed prior to his purchase. Instructions 4 and 5 are short and read:

“4. If the jury find from the evidence that the deed in question was delivered to the plaintiff, Frank B. Peterman, by the grantor, Sarah F. Peterman, with the intention of passing to him, the said Frank B. Peter-man, the title to the lands described in said deed, then no statement or act of the saád grantor, made thereafter, would affect the title so conveyed.
“5. If the jury find from the evidence that the deed from Sarah F. Peterman to plaintiff, to the land in controversy was delivered, and further find that the defendant at the time of his alleged purchase had notice of the existence of said prior deed or of plaintiff’s claim to the land, then there is no estoppel in this case and you cannot find for defendant on that ground.”

Instruction 6 was as to measure of damage, and 7 as to form of verdict. For defendant the instructions covered (1) the presumption of title as to one in possession, (2) as to what constitutes a delivery of a deed and the burden of proof of that fact, (3) on the question of estoppel by acts in pais, (4) on the effect of withholding knowledge as to the alleged delivery of deed to plaintiff, and (5) covered the theory that Mrs. Peter-man had made the deed in consideration of plaintiff not marrying and caring for her during life, and the further theory that there had been no delivery thereof. Instructions 6 and 7 for defendant read:

‘ ‘ 6. The court instructs the jury that although they may believe and find from the evidence that Sarah F. Peterman executed a 'deed purporting to convey the land'in question to plaintiff, and left it with. Frank Clark to be delivered to plaintiff on tlie death of said Sarah F. Peterman, and afterwards plaintiff and Sarah F. Peter-man, together appeared at the office of said Frank Clark and called on him for said deed, which he returned to them, and plaintiff picked it up and placed it in his pocket and carried it away with him and afterwards, without being delivered to him as in these instructions, and while in her possession and before delivery to the plaintiff it was destroyed, then the plaintiff cannot recover, and your verdict should be for the defendant.
“7. The court instructs the jury, that although you may believe and find from the evidence that Sarah F. Peterman executed to Frank B. Peterman a deed for the land in question, and that said Sarah F. Peterman gave-said deed to Frank Clark with instructions to deliver the same to Frank B. Peterman after her death, yet if you further believe and find from the evidence that afterwards, Sarah F. Peterman and Frank B. Peterman by mutual acts and conduct took said deed from the possession of Frank Clark and never returned the same to him, then such taking from the possession of said Frank Clark by the mutual act and conduct of said Sarah F. Peterman and Frank Clark, was a revocation of the authority of said Frank Clark to deliver said deed to Frank B. Peterman after the death of said Sarah F. Peterman.”

The verdict was a general one for the defendant. We are not therefore fully advised as to the view of the jury. There is ample evidence in the record upon which the jury could have found that plaintiff was estopped, because defendant, with the knowledge of plaintiff, had paid out over $1000 for the land, and made valuable improvements on the land after the plaintiff had been informed that he had failed to keep his contract, and that his mother had burned the deed. For seven years defendant’s title was not questioned. If this court was hearing this case in equity we would have no hesitancy in decreeing title in defendant on the theory of es-toppel in pais. Nor do we hesitate to say that the jury was so authorized, to find under the evidence. Plaintiff qifit the possession at the close of the year 1909, or early in 1910, and defendant went into possession first for his mother, and in May, 1910, under his recorded deed, for an expressed consideration of $1000, and for seven years improved the land at some considerable outlay. A house was built, a barn moved upon the farm, the fences were renewed, and the land cleared for cultivation and put in grass. All these things the plaintiff knew. In addition it should be added that defendant never heard of the deeds to plaintiff until his mother’s removal from the old homestead, and in fact had no knowledge of the two alleged deliveries. ITe saw them in his mother’s box for the first time, and knew that she burned them. The alleged deliveries were not disclosed to him.

III. "Whatever may have been the agreement between Frank and his mother, as to her support, and for him to remain single until her death, was not disclosed to Clark, when the deeds were delivered to the bank for further delivery to Frank. Nor was Clark very definite as to the full instructions. A memoranda was made on the envelope but such was not in evidence. The fact that there was to be no final delivery until after death, would indicate that there might have been a contract of some kind. There is evidence of such contract and its violation by plaintiff. But be this as it may, both parties went to Clark and withdrew the deeds and they were never thereafter returned to Clark or the bank. At the death of the mother, neither Clark nor the bank was, and for years had not been, the medium for the final delivery. By consent of both parties this possession of Clark, or his bank, had been terminated.

"Whilst it is true that a deed delivered to a third person, to he by him delivered to the grantee therein at death of grantor, is held to be a good delivery, bnt snch a delivery will not preclude the grantor and grantee from, by common consent, withdrawing the deed, and thereby prevent its final delivery, -through the medium of this third person. Such third party is the common agent of both, and we see no reason why this preliminary delivery may not be withdrawn by the consent of both parties. Our courts hold such to be a delivery in the lifetime of the grantor to obviate holding such deed to be testamentary in character. We find no direct authority in this State, but in Grilley v. Atkins, 78 Conn. l. c. 386, it is said:

“Whether, in a given case, the delivery of a deed to a third party, to be delivered by him to the grantee after the grantor’s death, is to be deemed a delivery in praesenti or not, is generally a question of fact depending upon the conduct and intention of the parties to such a transaction. Two of the essential features of such a delivery are these: (1) the grantor must deliver the deed to a third person for the benefit of the grantee ultimately, and in some way express his intention to that effect; and (2) by the very great weight of authority the grantor must, at the time of such delivery to the third person, part both with the possession of the deed and with all dominion and control over it. See the cases cited to this effect in the note to the case of Munro v. Bowles, 54 L. R. A. 865, 872, 187 Ill. 346; Porter v. Woodhouse, 59 Conn. 568. A delivery so made and accepted by the grantee is irrevocable by the grantor, and cannot by him be recalled, or revoked or modified, without the consent of the grantee.”

In a case of this character there must be a final delivery after the death of the grantor, and this delivery relates back to the delivery to. the third party.But absent the final delivery through the designated medium, without fault on the part of snch medium, there is no deed. In other, words, if the grantee by his own act (as he would by consenting to a withdrawal of the deed) prevented the final delivery, after death, he cannot complain, or claim title under the instrument. Under this view there was no error in defendant’s Instructions 6 and 7 of which complaint is made. Appellant recognized this doctrine in the closing words of his Instruction No. 1, wherein he said:

“Unless said bank was thereafter authorized by the mutual agreement and directions of the grantor and grantee in said deed to make a different disposition of said deed. ’ ’

IV. However, in the instant case the trial court submitted to the jury the question as to whether or not .Mrs. Peterman ever made a delivery to Clark, or his bank, with intent to then part with title to her property to plaintiff, and this question came to Division No. 2 of this court, in Peterman v. Crowley, 226 S. W., 944. In that case, upon facts practically the same as here that court ruled that the trial court was justified in ruling that there was no delivery. The Crowley case involved the 40 acres of land in Ray County, and involved in it was one of the two deeds left with Clark. The facts, as to the leaving of the deeds with Clark, and the instructions given, were practically the same in that case as in this case. This case also rules the contention of errors in admitting evidence against the plaintiff here.

It is urged here that there was an absolute delivery of. these deeds to Clark, and that the title then passed. The same was urged in Crowley’s Case, supra. Delivery of a deed is a matter of intent. Whether or not, in a case like this, it is absolute depends upon the facts. There are pertinent facts in this case which tend to show that Mrs. Peterman did not make an unreserved deposit of those deeds. She was deeding away practically all her property, by warranty deeds, is one fact. Another is the action of the parties themselves. Had there not been some collateral contract or agreement (not divulged to Clark) it is not likely that Frank would have consented to the withdrawal of the deed. At least there was evidence upon which to submit the question to the jury and it was submitted, and found against plaintiff. The same is true as to the alleged delivery of the deeds to the grantee, after withdrawal from the bank. We concede that the grantor and grantee could withdraw the deeds and deliver to the grantee at once. This follows from our views, supra, that the grantor and grantee can consent to the withdrawal of the deeds. But the jury passed upon this alleged second delivery, and there were facts upon which to submit it. First, the conduct of the parties. Frank yielded the possession, and the mother had the deeds, and burned them. The deeds were kept in her room at the old homestead, and removed by her when she left, and just before she burned them.

V. The plaintiff complains of the court’s refusal of some of his instructions. There are but "few questions in the case, and upon these plaintiff had ample instruction given by the court. His contention that the delivery to Clark was final was presented by instruc-^ion and found against him. However, in this instruction plaintiff recognizes that, by consent, the parties could make a different disposition of the deed. His contention that, upon the withdrawal of the deeds from the bank, there was a delivery to him, was likewise submitted to the jury and found against him. The question as to whether or not the mother took the deeds from his possession, was presented by proper instruction, and found against him, These covered the case save and except the matters of laches and estoppel. For defendant a proper instruction upon estoppel by acts in pais was given, and the one asked by plaintiff was faulty, in that it directed that the jury should find for plaintiff on this question, if they found that defendant knew that a deed had been made before he bought. Defendant had seen the deed, hut saw it in his mother’s possession, and was informed that it had not been delivered. Plaintiff’s instruction omits the matter of knowledge of delivery, and was therefore properly refused. In our judgment the instructions given properly cover all the questions in the case, and even on the theory that this is a law case (which under Schneider v. Schneider, supra, we do not concede) yet it was properly tried, and resulted in a judgment for the right party.

Let the judgment be affirmed.

All concur.