author: BROWN, C.

text:
    GERTRUDE ROBINSON et al., Appellants, v. AVERY KORNS and SARAH KORNS.
    Division One,
    May 31, 1913.
    1. CITIES: Land Dedicated for Streets: Plat Filed: Title: How Devested. Land once dedicated for streets by the proper making and filing of a plat, continues to be held by the county for that use until title is devested as provided by statute or until the execution of .the use becomes impossible.
    2. EQUITY: Mistake: Reforming Deed. In 1857 A filed a town plat of Ashland in Buchanan county. At that time a fence extended along the east line of the southwest quarter of the northwest quarter of section three therein, which has remained in that position ever since. This fence is in the middle of a street appearing on the plat as Chambers avenue, and upon that street front lots five and six as shown by the plat. Chambers avenue has never been improved; A sold lots five and six in 1867, and by mesne conveyances they were acquired by defendant Korns in 1893. Korns conveyed to Turner and Turner conveyed to the plaintiff land described as “all the east eighty feet of lots five and six, Ashland, as shown by the plat thereof.” Plaintiff now brings ejectment against Korns' for the land so described, and Turner and wife are impleaded. Defendant answers with a general denial and a plea that he sold to Turner land described as “commencing 660 feet north of southeast corner of southwest quarter of the northwest quarter of- section three, etc., thence west eighty feet, thence south to the south line of lot six, Ashland, thence east eighty feet to the east line of said southwest quarter of the northwest quarter,” etc., -or, in other words, a tract of land running eighty feet west from the fence in the middle of Chambers avenue, instead of eighty feet west from . the east front of lots five and six as shown by the plat. Defendant then prays for a reformation of the deeds from him to Turner and from Turner to the plaintiff in accordance with his contention. Korns testifies that before selling the land to Turner they both went to a lawyer’s office and discussed the dedication of the street, but came to no conclusion, and then the deed was made, delivered and accepted conveying the east eighty feet of lots five and six. Held, no showing of such mutual mistake as to call for a reformation of the deed.
    Appeal from Buchanan Circuit Court. — Hon. Lucian J. Eastin, Judge.
    Beversed and remanded (with directions).

      James Limbird for appellants.
    (1) The sole issue tried under cross-hill was one of'mistake in making both deeds. “To justify the reforming of an instrument the pleading must allege, and the evidence must show, that a mistake was made, and that said mistake was mutual.” Henderson v. Beasley, 137 Mo. 199; Adkins v. Tomlinson, 121 Mo. 487. In this case no mutual mistake of grantors and the grantees is alleged in the cross-bill when the two deeds were made, and no mistake is proven. “A description' in a deed will be reformed for mistake only where the evidence is most clear and convincing.” Panning v. Doan, 139 Mo. 410; Sweet v. Owen, 109 Mo. 7. (2) “Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only on a certainty of error.” 1 Story’s Eq. Jur., sees. 157-161; Pomeroy’s Eq. Jur., sec. 859; Tesson v. Ins. Co., 40 Mo. 36; Sweet v. Owen, 109 Mo. 9; Worley v. Dryden, 57 Mo. 233; Fanning v. Doan, 139 Mo. 410; Brown v. (Twin, 197 Mo. 499; Benn v. Pritchett, 163 Mo. 571; Zeilda Forsee Inv. Co. v. Ozenberger, 132 Mo. App. 409; Weissenfels v. Cable, 208 Mo. 515; Fidelity & Cas. Co. v. Lumber Co., 133 Mo. App. 637; Redding v. Lumber Co., 127 Mo. App. 625; Bolt and Nut Co. v. Car Co., 210 Mo. 715; Brown v. Givin, 197 Mo. 499; Dougherty v. Dougherty, 204 Mo. 228; Bobb v. Bobb, 7 Mo. App. 504.

      Duncan & TJtg, for respondents.
    (1) Equity will reform a deed where a mutual mistake has been made by each party. “If an instrument fails to embody the actual agreement made or transaction determined upon by the parties thereto, reformation is the proper remedy when a case is made out by proper proof.” 34 Cyc. 907; Henderson v, Beasley, 137 Mo. 199; Bedding v. Lumber Co., 127 Mo. App. 625; Cooper v. Deal, 114 Mo. 527; Parker v. Vanhoozer, 142 Mo. 621. “In short, if a written instrument fails to express the intention which the parties had in making the contract which it purports to,, contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing.” 2 Pom. Eq. Jur., sec. 845; 1 Story’s Eq. Juris. (13 Ed.), sec. 115; Williamson v. Brown, 195 Mo. 332. (2) Degree of proof necessary to justify reformation. Williamson v. Brown, 195 Mo. 332; Parker v. Vanhoozer, 142 Mo. 621; Cooper v. Deal, 114 Mo. 527. (3) Was the mistake mutual? And what is necessary to show it? 34 Cyc. 936-8; Henderson v. Beasley, 137 Mo. 199; Sicher v. Rambousek, 193 Mo. 113. (4) Even though the appellate court may think that the testimony would have warranted a different decree in an equitable suit, some deference is due to the opinion of the trial court before whom the witnesses appeared personally and testified. Bank v. Murray, 88 Mo. 191; Johnson v. Realty Co., 177 Mo. 581; Parker v. Vanhoozer, 142 Mo. 621.
   BROWN, C.

Ejectment brought March 16', 1910. by Gertrude Robinson against the defendants Korns and wife for possession of a lot in St. Joseph described in the petition as “the east eighty feet of lots five and six, Ashland, as shown by plat thereof; being a subdivision of a part of the northwest quarter of section three, township fifty-seven, range thirty-five in Buchanan county, Missouri.” The defendants answered, impleading Samuel J. Turner and wife, who were made parties defendant against their protest. The answer of the Kornses consisted of (1) a general denial, and (2) a plea that prior to September 12, 1907, they sold Mr. Turner a piece of land described as follows:

“Commencing six hundred and sixty feet north of southeast corner of the southwest quarter of the northwest quarter of section three, township fifty-seven, range thirty-five; thence west eighty feet; thence south to the south line of lot six, Ashland; thence east eighty feet along said south line of lot six to the east line of said southwest quarter of the northwest quarter of section three, township' fifty-seven, range thirty-five; thence north to the place of beginning.”

That on that day they executed to Turner a warranty deed in which the land so sold was described as in the petition. The difference between the land described in the petition and in the answer is that the lot described in the answer lies thirty feet farther east than that described in the petition, so that it includes the east fifty feet of lots five and six, Ashland, and thirty feet lying immediately east of it to the middle of a street appearing upon the Ashland plat. The answer further states that Turner and wife, on March 14, 1910, sold and. delivered, to plaintiff the possession of the same property sold Turner by the defendants, and executed to plaintiff a deed in which they erroneously described the land as it was described in the deed to them from Korns and wife, and the plaintiff thereupon took possession of the ground that was actually sold and pointed out to her and also insisted on taking possession of the other thirty feet lying immediately west of it, making one hundred and ten feet in all. The prayer of the answer is that the erroneous description in the deed of defendants to Samuel J. Turner and in the deed from Turner and wife to plaintiff be reformed and corrected so as to conform to the true description set forth in the answer, and for general relief. Turner interposed a general demurrer, and when it was overruled answered, putting in issue the affirmative averments of the answer, and the plaintiff replied to the same effect.

It appeared upon the trial that in 1857 one Fred Smith, being the owner of the land included, filed a town plat of Ashland in the recorder’s office of Buchanan county. That this in all respects conformed to the act then in force concerning the plats of towns and villages (R. S. 1855, chap. 48) is not questioned. At that time Mr. Smith had a fence extending north and south along the east line of the southwest quarter of the northwest quarter of the section, which, by repairing and replacing has been maintained in the same position ever since. This fence is in the middle of a street appearing on the plat by the name of Chambers avenue. Lots five and' six, as platted, front oh this street. There is also a travelled road along the north side of lots five and fourteen extending west from Chambers avenue to another platted street called Ashland avenue, which is also open. Chambers avenue has never been improved, and the abutting owners on each side seem to occupy the land of which it consists to the fence, although there is no evidence of valuable improvements having been placed on it since the plat was made, or of any claim of ownership of the ground in the street until this controversy arose. Smith continued to own the land in question, including lots six and thirteen and five and fourteen, until July, 1867, when he conveyed to one Glick, and by mesne conveyances it was acquired by defendant Avery Korns in 1893 from one Strignitz and wife, by warranty deed, using the same description with reference to the lot numbers of the Ashland plat as are used in the deed from Smith to Glick. These four lots constituted a solid body of land something more than two hundred feet north and south and five hundred feet more or less east and west. The deeds of Strignitz to Korns, from Korns to Turner and from Turner to plaintiff, all referred directly to the plat of Ashland for the description of the lots. The two latter deeds describe the land conveyed as- follows: “All the east eighty feet of lots five and six, Ashland, as shown by plat thereof, being a subdivision of a part of the northwest quarter of section three, township fifty-seven, range thirty-five.”

Of his sale and conveyance of the land to Turner, Mr. Korns testifies that he took Mr. Turner down there and showed him the east end of. the ground and they traded on that principle; he was to have the east eighty feet up to the fence. He doesn’t think there were any lots mentioned any more than the eighty feet of ground until they came to describe it in the deed. He was then at a loss to describe it and some one said that the east eighty feet of lots so and so would make a fair description of the eighty feet. He presumed he was deeding him the eighty feet of ground lying next to the fence. He attempted to do so. Nothing was said about lots five and six at that time. He then proceeded as follows:

“I heard of this controversy getting up so I went to Mr. Limbird’s office with Mr. Turner before I sold it — Mr. Turner came out there and' asked me to come and see about the ground. I went down to Mr. Limbird’s office; he spoke about this street being dedicated there. I asked him a few questions about it, and he said he didn’t know this and didn’t know that, but as far as making any agreement with Mr. Limbird or anybody else_in regard to that eighty feet west of that road is a positive falsehood; I never agreed under any circumstances to make any other proposition; Mr. Turner and I went away from his office to Mr. Austin’s office and we took the abstract and was looking at it; it shows I have 530 feet of ground on the north line. I told him, I said I couldn’t see where there was anything different from the eighty feet I showed him and conveyed to him I could do. I says, ‘I don’t want to do anything unfair,’ and I told him I would investigate. I didn’t agree to do anything with him, and when he says I agreed to make a deed for eighty feet west of that road he tells a falsehood.”

He also said that he never was in Mr. Limbird’s office except the one time that he went there with Mr. Turner, and then they could not agree on anything. He never went back. Ashland had been included in the city of St. Joseph about a year at the time of the trial.

The cause was tried before the court without a jury. The facts were found substantially as stated in the answer and judgment was rendered thereon for defendant, for the reformation of both deeds as prayed.

I. The controlling question in this case is whether, in the deed from Korns to Turner, they intended to include in the description of the land conveyed the east fifty feet of lots five and six as shown by the. plat of Ash-land> and t]ie west tMrty feet 0f Cham. bers avenue, instead of the east eighty feet of those lots. Although the defendant has asked the reformation of the deed from Turner to plaintiff, it cuts no figure in this case, except as the intention of the parties to it may throw light upon the question of notice to her of his alleged equities. In attacking the sufficiency of these deeds he necessarily admits that he himself is without paper title to the land he is trying to force upon his grantee instead of the lands to which he had title, and actually conveyed to him; for the deed under which he claims contains the same vice of description as the deeds which he attacks. It describes no part of the street which he now claims to have sold. By this deed he expressly covenants that he was seized of an indefeasible estate in fee simple, that if was free from incumbrances, and for further assurance, and if, with respect to the portion which he now desires to insert instead of a part to which he had a good title under his deed he was without title, or if it was incumbered with ím easement or trust which, entitled the public to its possession and use, this would be a circumstance strongly tending to show; the improbability of his present claim. For this reason, if for no other, the condition of Ms title to the strip in dispute is important.

No question is made in the record or argument with respect to the sufficiency of the plat of Ashland made in July, 1857. Section 8, chapter 158, Revised Statutes 1855, which was in force at the time of this dedication, provides as follows: “Such maps and plats of such towns and villages, and additions, made, acknowledged, certified and deposited with the recorder, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended for public uses, in the county in which such town, village or addition is situate, in trust and for the uses therein named, expressed or intended, and for no other use or purpose.” TMs section has frequently been before this court, which has not failed to give effect to the plain intent of the Legislature as expressed by its language. The object of investing the public with the fee instead of a mere easement is evidently to give it complete discretion and control with respect to the time and manner of its improvement. The growth of the municipality is encouraged and promoted by making it safe to purchase land upon these platted streets with the certainty that they will be held in trust for the purpose to which they have been dedicated until such time as the necessity shall arise for their improvement. Sometimes, to be sure, the development 'may be so retarded as to indicate that the plat has been a mistake, but the'Legislature foresaw this, and provided a complete remedy by the early enactment of what is now section 9506', Revised Statutes 1909, which permits the vacation of the streets, avenues or roads dedicated on such a plat as this upon the petition of the owners of the lots lying on both sides of or fronting them. This proceeding can then only be had upon ample public notice and secures the .protection of public as well as private interests. It illustrates perfectly the nature of the trust upon which these lands are held by the counties. Its beneficiaries are not only the general public but the owners of abutting lands, and all others having a special interest in the existence of the street.

Mr. Smith, as we have already said, platted this addition and dedicated its avenues in 1857. At that time the fence which defines the bone of contention in this case was there. He was under no obligation to destroy it, and leaving it until the public should be ready, in the execution of its trust, to improve the street and to remove it for that purpose constituted no adverse claim of ownership'. He sold these lots in 1867, conveying them by a deed which referred to his act of dedication. What is now section 1886, Revised Statutes 1909, was then in force. It provides: “Nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this .State.” The application of that section to such cases as this was before this court in the City of Columbia v. Bright, 179 Mo. 441, and in considering the instructions it said:

“As we have seen, there never was any adverse possession by defendant’s grantors of that part of the strip sued for lying west of the west line of the old Gentry House until ‘Garth Hall’ was built in 1877 or 1878, and hence there was no ground upon which to predicate a right or title in defendant by adverse possession to that part of the strip on which the old Gentry House was not located, since the first entry thereon was made after the statute of 1865 went into efféct, since which time no person can acquire title by adverse possession to a part of a public street. . . . The fact that the city when grading and macadamizing Ninth street left the old Gentry House and the old sidewalk adjoining it in the condition in which they had 'been for many years previous thereto could not confer any legal right dr title upon the defendant’s grantors, to that part of the street thus left unimproved. The city authorities have the right to improve the streets, or any part of them, in any .manner and to any extent that to them may seem proper and for the public interest, and it goes without saying, that in the circumstances of this case there cannot be found any equity to estop ike plaintiff from asserting its title to any part of the strip in question. The only defense the defendant had to plaintiff’s action as to any part of that strip which was within the boundaries of Ninth street was adverse possession prior to the Act of 1866, and to that defense the instructions on this issue should have been confined and to so much of the strip as had been covered by the old Gentry House.”

The .appropriation' of lands to public uses by the very act which enables the owner to treat them as urban property, and to realize the commercial advantages of such treatment, deserves, and has received, the cordial encouragement of the State. Its towns, villages and cities come into existence, or are extended, with the land for streets and public grounds paid for in advance by those who happen to be remunerated by their own enterprise. It forbids, by penal laws, the selling of urban lots until their representations that land will be forthcoming for these public uses have been fully carried out by their formal dedication. And finally, it offers itself, through the agency of the county as a trustee for the benefit of the public, including the purchasers of lots, to. hold the title for the purposes of these uses. When the plat is executed and filed the title vests in the county by operation of the statute, and not by any act of the trustee or other State agency. It can only be devested by the process provided in the statute, or when the execution of the use becomes impossible. No mere lapse of time or adverse possession will destroy it. [Gaskins v. Williams, 235 Mo. 563.] The provision of the Act of 1887 (now embodied in section 10446 of the Revised Statutes of 1909) that “non-user by the public for a period of ten years continuously of any public road shall be deemed an abandonment of the same” has no application in this case. Making it as broad as we can by literal interpretation, aided by every possible presumption which may arise from necessity or expediency, it only applies to public roads existing or which have existed, and not to the title of lands voluntarily conveyed in trust to be used for the purpose of establishing streets thereon as they shall be needed. [State v. Muir, 136 Mo. App. 118; State ex rel. v. Busse, 153 Mo. App. 466.] The statute creating this last class of titles covers the whole ground of their origin and extinguishment, by a symmetrical plan. If all platted streets in our cities, towns and villages which have not yet been opened and improved, although more than ten years have elapsed since the filing of the plats dedicating them, should at once and automatically be extinguished, and the land surrendered to the owners of abutting lots, to be purchased or condemned and paid for before it could be used for the purpose to which it has already been dedicated, the result would be startling. Such an effect ought not to be attributed to the use of a word, perhaps broader than necessary, in connection with a matter entirely disconnected with the subject. Such a rule would impose upon the legislator the duty, in selecting words to express himself about the matter in hand, to ascertain whether there is not something else of which he has never dreamed, but still within the range of legislative power, to which they might also be applied. There is nothing in Johnson v. Rasmus, 237 Mo. 586, which tends to question our conclusion in this respect. That case was dealing with the very matter to which this statute was designed to apply.

II. The respondent’s claim to affirmative relief necessarily admits, as we have seen, that his deed to Turner is sufficient in its description to convey the thirty feet in controversy off the west side of the east’eighty feet of lots five and six, ** and this admission is well founded. It follows that unless some reason has been shown why, in equity, the deed ought not to be operative for that purpose, the appellant should recover the disputed strip; for the respondent admits that he is in possession against the terms of his deed. In such a case we must first look to the pleadings for an explanation — for a statement of some reason why the legal title ought not to prevail. There are two grounds upon which equity sometimes affords such relief — fraud and mistake. Of the first there is no hint in the record — either in the pleadings, or evidence, or argument. Of the other, the pleadings are equally silent. The answer contains no charge of such mutual mistake in the deed as will authorize a change in its terms by a court of equity. It simply charges that the premises really sold were erroneously described in the deed. There is no attempt to give a reason for this misdescription. There is no charg’e that it was not -the deliberate act of the parties with their eyes open to the consequences. Were we at liberty to disregard the insufficiency of the pleading and give judgment upon the evidence we would not find our condition improved. Mr. Korns testified that before selling the land to Mr. Turner they both went to a lawyer’s office and discussed the matter of the dedication of this street, but came to no conclusion, and made the deed.

The rule that must be applied in these cases is that the mistake to be corrected must have been made in drawing the instrument and not in making the contract out of which it grew. [Parker v. Vanhoozer, 142 Mo. 621, 629.] This mistake must be mutual, and not unilateral. That is to say, both must .agree to what the instrument shall contain, and both must act in executing it upon the belief that it is so written. This rule is illustrated in Dougherty v. Dougherty, 204 Mo. 228, 238, in which the scrivener acted for the grantees. This court said: “His mistake was the mistake of the grantees, but not the mistake of the grantor, for whom-he in no way acted, under the proof in this Case. The mistake is purely unilateral and one which courts of equity do not reform. [Grand Lodge A. O. U. W. v. Sater, 44 Mo. App. l. c. 453; Meredith v. Holmes, 105 Mo. App. l. c. 352; Brocking v. Straat, 17 Mo. App. l. c. 305; Benn v. Pritchett, 163 Mo. l. c. 572; Miller v. Railroad, 162 Mo. l. c. 440-441.]”

In the same case, quoting from Meredith v. Holmes, 105 Mo. App. l. c. 352, this court stated the rule with reference to the quantity of proof required in such cases as follows: “So strong is the legal presumption that a written contract, unambiguous and complete in itself, contains all the terms of the agreement between the parties, that parol evidence will not be heard in an action on a contract to vary or contradict its terms. [Evans v. Mfg. Co., 118 Mo. 548; Tracy v. Iron Works, 104 Mo. 193; Black River Lumber Co. v. Warner, 93 Mo. 374; Bunce v. Beck, 43 Mo. 266.] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630; Parker v. Vanhoozer, 142 Mo. 621; Sweet v. Owens, 109 Mo. 1; Gaylord v. Insurance Co., 40 Mo. 13; Benn v. Pritchett, 163 Mo. 560.]

Applying these rules to the case now before us we find that after full discussion by the parties, not only between themselves but with a lawyer, of the very point on which they now split, the effect of the dedication of Chambers avenue upon the transaction in which they were engaged, the grantor drew, signed and acknowledged, and the grantee accepted and recorded the deed in its present form, conveying land that the grantor really owned. In this suit it is sought to “reform” it' by substituting land which he does not own, so that it will carry a breach of warranty on its face. Under these circumstances it is peculiarly appropriate that the reformation should require evidence clear, cogent and convincing that it was. agreed between the parties that the description contended for by appellant should be used in .the deed and not the description which it does contain, that the failure to do so was -the result of the mutual mistake of both and that they believed, at the time the execution of the deed was completed by delivery and acceptance, that it was so written. On the contrary, there is absolutely no evidence of such a mutual mistake. The appellant testified, it is true, that he took Turner to the ground and showed him the fence as the line, but this, without more, was only a representation that the east line of lots five and six, to be conveyed in the deed, was at the fence, and not that a street was the subject of the transaction instead of the lots, and that the deed was accepted upon the th.eo.ry that it was so written.

The judgment of the circuit court is accordingly reversed and the cause remanded with directions to deny the affirmative relief asked in the answer; to dismiss the allegations therein in the nature of a cross-bill; to dismiss also the defendant Samuel J. Turner with his costs; and to otherwise proceed to final judgment in the ejectment in accordance with the law as stated in this opinion.

Blair, C., 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: LAMM, J.

license: Public Domain

text:
    ALFRED L. MILLER et al., Appellants, v. FLORENCE C. CONNOR.
    Division One,
    May 31, 1913.
    1. APPELLATE JURISDICTION: Constitutional Question: Liability Under Statute of Another State. The Supreme Court has jurisdiction “in cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question;” but the validity of no such treaty or statute or authority is drawn in question in a suit by the creditors of a bank in Colorado’, which has there been adjudged insolvent, against stockholders in this State, seeking to hold them liable for the bank’s debts, under a statute of that State, which makes stockholders of a bank liable for its debts in double the par value of the stock held by each.
    2. -:--: How and When Raised: General Rules. In order to bring an appeal within the jurisdiction of the Supreme Court on the ground that “the case involves the construction of the Constitution of the United States or of this State,” certain precedent conditions must be met: first, it must appear that a constitutional construction was essential to a determination of the ease; second, it must appear that a constitutional question was raised in the trial court, and ruled on to the disadvantage of appellant; third, the constitutional question cannot be injected into the case for the first time by drgument or brief of counsel; and, fourth, it must be raised 'timely in the trial court and kept alive in the course of orderly procedure — in the pleadings, if due to be found there; if not, then at the first opportunity; and, sometimes on the rulings on the admission of evidence, but in that case should be kept alive in the motion for a new trial and (if necessary) in the instructions; and, in rare cases, it may be raised for the first time in the motion for a new trial or in the instructions.
    3 -¡ -; Not Apparent from Record. Although there was an argument of counsel for defendant wherein it was suggested that, if the court admitted the decree of a Colorado court in a suit hy creditors of a hank against all stockholders, seeking to hold them for its debts under á statute which makes them liable in double the par value of thoir stock, in which defendant was sued but not served with process and which found against her and all other stockholders in the amount of fifty-three percent of the par, value of their stock, it would be to hold her without due process of law under specified sections of the Federal and State Constitution, yet if there were many other suggestions for the exclusion of the decree, and it cannot be ascertained which one of them operated on the mind of the trial court in his ruling excluding it, and plaintiffs do not complain in their motion for a new trial or in their briefs of any infringement upon their constitutional rights by the ruling, the construction of either Constitution is not so involved in a jurisdictional sense as to give the Supreme Court jurisdiction of plaintiff’s appeal.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge.
    Transferred to St. Louis Court of Appeals.

      Stephen G. Rogers for appellants.

      Walter H. Saunders for respondent.
   LAMM, J.

This cause is transferred here from the St. Louis Court of Appeals, its mandate running on the theory-that “a constitutional question — State and United States — is involved.” No opinion accompanies the mandate and we are left to feel after the constitutional question, if happily we may find it, precisely as did that court.

If our learned brethren had pointed out the constitutional questions and how they were “involved,” in a constitutional sense, so as to give this court jurisdiction, it might have aided in persuading us to their view, but (being left to our own resources) we have come to a view presently announced.

Attending to the pleadings, the suit is to recover $214 from defendant. It is alleged that she held two shares of stock in the State Bank, a bank organized under the laws of and doing business in Colorado; that under Colorado laws shareholders are individually responsible for bank debts, contracts, or engagements, in double the par value of the stock owned by each; that in June, 1899, said bank made an assignment; that in 1905 plaintiffs, creditors of the bank, sued in the district court of the county of Denver in Colorado for an accounting and to ascertain the pw rata amount due by the respective stockholders under the double liability statute — the bank, its assignee and non-resident stockholders (including defendant) were made parties defendant; that said district court had jurisdiction; that the bank and its assignee, duly served, made default; that a certain defendant, Kipp, entered his voluntary appearance and filed an answer, but that no service was had on the other defendants who were non-residents of Colorado.

It is further alleged that in the Colorado suit judgment was rendered finding the total liability of the stockholders to be $16-0,000; that after converting the other assets of the bank into cash and collecting on the liability of the resident stockholders and applying same, the remaining unpaid debts aggregated the rise of $84,000; that defendant as a stockholder was decreed to owe fifty-three and one-half per cent of her total stock liability on said indebtedness-, to-wit, $214; that plaintiffs in that suit (plaintiffs in this) were appointed and authorized to represent all the creditors and to sue for their benefit in collecting amounts due on the stockholders’ liability of non-residents to be divided ratable among the creditors; that to that end plaintiffs were given full power and authority to settle and compromise said claims or suits for stock liability.

(Note: If this peculiar decree is based on a Colorado statute, such statute was not pleaded or offered in evidence.)

The petition then goes on to allege that defendant has paid nothing on said liability though demand has been made. Having pleaded the Colorado statute making stockholders individually liable in double the amount of the par value of their respective stock-holdings as aforesaid and that plaintiffs were prosecuting the action as trustees for the creditors, it was next alleged that defendant (by virtue of said Colorado statute and 'the decree, entered in said Colorado court on the 28th day of May, 1907) was indebted in the said sum of $214, etc.

Demurrers were filed and overruled, but they are not brought here and no question is raised on them. Not only so but defendant answered over by general denial and a plea of the five-year Statute of Limitations.

Plaintiffs replied by a denial.

So much for the pleadings.

At the trial a jury was waived, the evidence was heard and no instructions were asked.

The motion for a new trial covered eight grounds, none of them of a constitutional complexion.

Turning to the trial, the following is the fashion of it:

Plaintiffs offered a certified copy of the incorporation of the State Bank, which we will call “X.” To the offer of X defendant objected on the ground the petition did not state a cause of action (quoting) “for reasons set out in the answer heretofore filed and in the amended demurrer raising constitutional questions.” This objection was overruled.

Plaintiffs next offered a certified copy of the bank’s deed of assignment which we will call “Y.” This was objected to, but on no constitutional ground that we can discover. Not only so, but this objection was also ruled in favor of plaintiffs.

Plaintiffs next offered a certified copy of the double-liability act of the General Assembly of the State of Colorado, which we will call “Z.” The defendant objected to the offer, bnt on no constitutional ground. Not only so, but the court also ruled in favor of plaintiffs in this instance and admitted the certified copy.

Plaintiffs next offered a certified copy of the decree and findings of the Colorado court referred to in (and sustaining the averments of) the petition, which we will call “A.” The objections made by defendant to A were as follows, in substance: (1) because under the issues the proof was immaterial, irrelevant and incompetent; (2) because the judgment was not properly authenticated under the act of Congress; (3) because defendant was not served and was not a party to the proceeding; (4) because the decree was continued in the .Colorado court for any further necessary orders and ascertainments at its foot; and (5) because it was apparent on the face of the pleadings that the cause of action arose in 1899 (the date of insolvency) and nothing was shown to operate as a waiver of the Statute of Limitations or to relieve the running of its bar.

At this point, the record shows the court inquired of defendant’s attorney the date of the decree. To that inquiry he replied it was dated the 28th day of May, 1907; that he then proceeded to argue that the cause of action was not based on the decree, but on a cause of action fixed by the Colorado statute; that it could not be based on the decree, because his client was not a pa*rty to the proceeding in Colorado, and to hold her on the decree would be contrary to the Fourteenth Amendment to the Constitution of the United States and section 30, article 2, of the Constitution of Missouri. Thereupon the court suggested he would hear attorneys further on the question of the Statute of Limitations. At the end of the discussion he ruled the certified copy of the Colorado judgment inadmissible as evidence.

There was next some oral testimony, immaterial to -the question of jurisdiction, and at the heels of it the court found for defendant and plaintiffs appealed.

The case hinging on the ruling on evidence, when appellants came to brief.their case in the Court of Appeals they made the following points in substance:

First: The Colorado decree was admissible in evidence because the cause of action arose in Colorado and is covered by the limitation statute of that State.

Second: In order to rely on the Colorado statute of limitations it should have been pleaded.

Third: The cause of action did not arise (i. e., limitation did not begin to run) until a judicial ascertainment was had at the date of the decree, 1907, not in 1899, the date of insolvency.

Fourth: Defendant having voluntarily become a stockholder, thereby she submitted herself to the jurisdiction of the Colorado courts — she sought the benefits and must assume the burden.

Fifth: The decree of the Colorado court is primafaoie good.

Contra: The respondent in her brief argues that the Colorado decree was'properly rejected, because (her counsel says):

Defendant was not a party to that suit and the Colorado decree could not bind her under the due process clauses of the Federal and State constitutions.

Furthermore, it was not a final decree and hence was properly excluded.

Moreover, the Statute of Limitations began to run from the insolvency of the bank, hence its bar was complete.

Finally, defendant’s counsel makes these further points: The Missouri statutes on stock subscriptions are not applicable; there was no presumption that the common law obtained in Colorado; not being a party to the Colorado suit defendant was not bound by privity between the corporation and herself on the theory of representation; and, lastly, the certified copy of the Colorado decree should have been rejected because there was no proof defendant was the owner of two shares of stock.

On such record, including briefs, we are of opinion we have no jurisdiction.

This is so because:

(a) We have jurisdiction “in cases involving the construction of the Constitution of the United States or of this State; in cases where the validity of a treaty or statute of or authoriy exercised under the United States is drawn in question.” [Constitution, art. 6, sec. 12.] Evidently the validity of a treaty or statute of or authority exercised under the United States is not drawn in question in this case so as to raise a Federal question. If the issue is merely one of compliance with, or interpretation or construction of a Federal statute, such issue does not challenge the validity of such statute so as to raise a Federal question and give us jurisdiction. [Carey v. Schmeltz, 221 Mo. 132; Schwyhart v. Barrett, 223 Mo. 497.] Nor is the “full faith and credit” clause invoked or involved in a jurisdictional sense.

(b) The final and turning question is: Does the case involve the construction of the Constitution of the United States or of this State?

(1) At the outset it may not be unprofitable to remind ourselves of some of those general rules found useful in determining when the construction of the State or Federal Constitution is "involved ” is a jurisdictional sense. Thus:

In order to bring an appeal within our jurisdiction on a constitutional ground, it.must appear that a constitutional construction was essential to the determination of the case. [State ex rel. v. Smith, 176 Mo. l. c. 47, 48, where the cases are collected; City of Tarkio v. Loyd, 179 Mo. l. c. 605.]

So, it must appear that a constitutional question was raised in the trial court and ruled on to the disadvantage of the party appealing*. [State ex rel. v. Smith, supra; Bennett v. Railroad, 105 Mo. l. c. 645; Parlin & Orendorff Co. v. Hord, 145 Mo. l. c. 119; Hanlon v. Pulitzer Pub. Co., 167 Mo. l. c. 123; Brown v. Railroad, 175 Mo. l. c. 188; Shell v. Railroad, 202 Mo. l. c. 344 et seq.]

So, constitutional questions cannot be injected into a case for the first time in the appellate court by argument or brief of counsel for the purpose of giving jurisdiction. [Town of Kirkwood v. Johnson, 148 Mo. l. c. 636-7, and cases cited.] So that if one for the first time faintly appears in respondent’s brief, arguendo, it would not give us jurisdiction.

So, a constitutional question must be raised timely in the course of orderly procedure. Accordingly it should be raised in the pleadings if due to be found there. If not, then at the first opportunity and kept alive. [Lohmeyer v. Cordage Co., 214 Mo. l. c. 690, and cases cited.]

So, to meet the justice of the case in exigencies, sometimes it may be raised on rulings on the admission of evidence, but in that event it self-evidently should be kept alive in the motion for new trial and (if necessary) in the instructions.

So, in rare cases, under circumstances not material here, it may be raised for the first time in the motion for new trial or in the instructions. [Wabash Railroad Co. v. Flannigan, 218 Mo. l. c. 569; et seq.; Hartzler v. Railroad; 218 Mo. l. c. 564.]

There are other rules, but the'foregoing suffice for our purposes in this case.

(2) Now, applying those established standards for testing out the question whether a construction of the Constitution is involved in a jurisdictional sense in this case, it is evident that on this record there is no such constitutional question lodged here. Observe, it is not in pleadings, instructions or motions for a new trial. In those items of evidence we designated X, T and Z the ruling below'was in favor of appellants. Hence, if such question was ambushed there (which we do not rule) appellants cannot complain of the favorable ruling.

To the item of evidence designated A, there were many objections. Finally there was an argument by counsel for defendant in which it was suggested that if the court admitted the Colorado decree as binding on her the effect would be to hold her without due process of law under specified sections of the Federal and State Constitution. But as there were many other reasons suggested for the exclusion of the decree, which, one of them was operative on the mind of the trial court is entirely dark. It, therefore, cannot be held that a constitutional construction was essential to the determination of the case, or was ruled adversely to appellants. [City of Tarkio v. Loyd, 179 Mo. l. c. 605.] .Besides that (and singularly enough) appellants seem to be unaware of the infringement of any constitutional right; for they complained not in that behalf in their motion for a new trial, and do not contend in their brief they were denied any such right invoked by them at the trial. When learned counsel, with eyes sharpened by the affliction of defeat, cannot see a "coign of vantage, is it not likely to be a will of the wisp or mare’s nest? Under such circumstances we cannot very'well hold that a constitutional question is involved on this appeal in a jurisdictional sense.

Accordingly this case is retransferred to the St. Louis Court of Appeals where it belongs for determination.

All concur.


author: GRAVES, J.

text:
    THE STATE ex rel. C. W. RICE. Collector, Appellant, v. C. E. PACKARD.
    Division One,
    May 31, 1913.
    1. TAXES: Personal Liability of Executor: After Final Settlement. An executor who has given in for taxation an assessment list of the personal property of an estate in his hands and afterwards made final settlement of the estate without reserving funds with which to pay such taxes as may thereafter be levied upon such assessment list, is personally liable to the State for the taxes so levied. Where defendant, executor of one Rhodes, made out a list of personal property he was holding as such executor on June 1, 1905, he became liable for the taxes for the ensuing year of 1906; and if he made final settlement of his administration and distribution of said estate according bo the order of the probate court in September, 1905, and was discharged, without holding back enough of the estate money to pay the taxes for 1906, he became personally liable for such taxes, and a suit may be brought and maintained against him by the collector.
    2. -:--: Liens. Personal taxes are assessed against the individual, and are not liens upon the' property.
    3. -: -: Allowed by Probate Court. Taxes are not required to be allowed as a claim against the estate, as do other claims, by the probate court; but should be paid by the administrator or executor, and he be given credit therefor in his settlements.
    4. -: -: Judgment of Probate Court as Bar. A judgment of the probate court made in September, 1905, ordering the executor to “file the final receipts of said legatees and distributees for their said respective interests in said estace and 1905 taxes, and that on compliance herewith he be finally discharged as such executor,” is no bar to a suit against the executor for the personal taxes of 1906, where the personal property of the estate in his hands as such executor on June 1, 1905, had been listed by him. At the time he made final settlement and was discharged he had in his own hands the means to pay the taxes of 1906, and it was not necessary that those taxes be allowed as a claim against the estate, and if he failed to protect himself by holding back enough money to pay them, it was his own fault, and the State shpuld-not be the loser for his neglect of duty.

      Appeal from Clinton Circuit Court. — Hon. A. D. Burnes, Judge.
    Reversed (with directions).

      Erasmus G. Hall for appellant.
    The defendant gave the list on which the assessment was made, duly signed and sworn to by him, to the county assessor, on June 26,1905'. Defendant after that made his final settlement in September, 1905, long before the assessor’s bo„oks could be made up or filed, and had in his hands a large amount in excess of what would have been sufficient to pay all costs of administration and these taxes. The assessment included all property in his hands on June 1, 1905, as. required by law. R. S. 1899, sec. 9144; R. S. 1909, sec. 11355. Personal taxes assessedi on and after June 1st, each year, constitute a debt for which a personal judgment may be recovered. R. S. 1899, sec. 9246. Every person owning or holding property on the first day of June shall be liable for taxes thereon for the ensuing year. R. S. 1899, sec. 9186; DeCiverville v. Legg, 48 Mo. App. 576. So that when the defendant gave the list to the assessor he became liable personally for the taxes thereon for the ensuing taxable year and is presumed to know the provision “of the law in reference thereto. Knowing this, he should have retained from the estate a sufficient amount with which to pay taxes. Failing to do this, he is estopped to plead his final settlement as executor. State ex rel. v. Burr, -143 Mo. 209; Kansas City v. Simpson, 90 Mo. App. 50; Zegenhein v. Tittman, 103 Mo. 563; State ex rel. v. Tobacco Co., 140 Mo. 224; Davis v. Krum, 12 Mo. App. 288. Under the law it was impossible for the county officer to have presented a claim against the estate represented by the defendant at the September term, 1905. Besides that, the law does not require that such demand must be presented to the probate court, but requires the executor to pay such taxes. R. S. 1899, sec. 184. R. S. 1899, sec. 9144, authorizes the assessment and levy of taxes upon the property of estate against the executor or administrator in possession thereof, and it is his duty to list such property for taxation, the assessor’s duty to assess it against the executor and the executor’s duty to pay the tax, and on his failure to do so an action can be brought against the executor and a personal judgment rendered against him therefor. State ex rel. v. Burr, 143 Mo. 209; Woerner’s Am. Law of Administration, pp. 1144 and 1151. The assessment in this .case was properly made against O. E. Packard, executor of Rhodes ’ estate, and not against said estate only, as was suggested in State ex rel. v. Kenrick, 159' Mo. 631, and that case has no application here. The Kenrick case held that the executor was not liable personally where the assessment was against the estate only. In the case of State ex rel. v. Trust Co., 209 Mo. 493, the court holds that where the estate subject to taxation, and actually taxed, was in the hands of the executor, administrator or curator, as such, at the time the taxes were either assessed, levied or became due, and he had the wherewithal to pay them potentially in hand, a resulting duty to pay arose and he would therefore be personally liable therefor, citing State ex rel. v. Tittman, 103 Mo. 533.

      E. J. Smith for respondent.
   GRAVES, J.

Action for delinquent personal taxes. The petition is long, but need not be set out except in general outline, and thus only by a statement of the facts of the case.

Defendant is sued personally. He was the executor of the estate.of Joseph Rhodes, deceased. As such executor on June 26, 1905, he gave an assessment list of the property in his hands as such executor. This list showed a valuation of $21,000. In due course this list was made the basis for a tax assessment for the year 1906 in the aggregate of $308.70, and sneh taxes became delinquent January 1, 1907. Suit was instituted against Packard personally for these taxes. The tax list was for property on hand June 1,1905, and no question is raised as to the regularity of the assessment.

Defendant’s answer is in three counts: (1) a general denial, coupled with certain admissions; (2) he pleads the judgment of the probate court of Clinton county on final settlement and avers that no appeal was taken therefrom and that such judgment had in no way been modified or changed, and that he had paid the taxes in said judgment demanded; and (3) he pleads that the plaintiff in this case made no demand before the probate court or otherwise,for the taxes sued upon prior to such final settlement in September, 1905-, “as it was his duty to do if they were a legitimate demand against the effects of said estate in his hands, but stood by and suffered said settlement to proceed and final order for distribution, as aforesaid, to be made, thereby waiving any right to said alleged taxes that might theretofore have existed. ”

The judgment on final settlement is the usual one made in such eases and directs a distribution of the funds in the hands of the executor to the several legatees. The portion of that judgment relied upon by the defendant reads:

“ And it is further ordered that said executor file the final receipts of said legatees and distributees for their said respective interests in said estate and 1905 taxes, and that on compliance herewith he be finally discharged as such executor.”

The reply was as follows:

“For reply to defendant’s amended answer, the plaintiff denies all and singular the allegation thereof not in conformity with the allegations of the petition.
“Further replying the plaintiff says that if it is true that the defendant, as the executor of the Rhodes estate, made final settlement of said estate, such settlement was made after the defendant had knowledge of the assessment sued on herein, and such settlement was made before the assessor had time in which to return such assessment and before the tax books could be 'made out, according to law, and that the judgment of the probate court is not a bar to this action. ’ ’

This sufficiently outlines both the pleadings and the facts.

I. The real question in this case is, whether or not an executor, who has given in an assessment list of property in his hands for taxation, and then afterwards makes final settlement of the estate without reserving funds with which to pay such taxes as may be thereafter levied upon such assessment list, is personally liable to the State for the taxes so levied.

It is a matter of no little moment, because if there is not some remedy the State will always lose the taxes upon estate property for at least one year. We are favored with no briefs by respondent. He rests his case here upon the presumption that the judgment nisi is right. But is it right? We think not. We must seek light from the statutes of 1899. By section 9144 the assessor between June 1st and January 1st is required to take a list of all taxable property. The manner of taking such list is thus prescribed by that section:

“He shall call at the office, place of doing business or residence of each person required by this chapter to list property, and shall require such person to make a correct statement of all taxable property owned by such person, or under the care, charge or management of such person, except merchandise which may be required to pay a license tax, being in any county in this State, in accordance with the provisons of this chapter; and the person listing the property shall enter a true and correct statement of such property in a printed or written blank prepared for that purpose; which statement, after being filled ont, shall be signed and sworn to, to the extent required by this chapter, by the person listing the property, and delivered to the assessor.”

The italics are ours.

It must be noted that the statute covers not only actual owners of property, but those having property under their care, charge or management. Such list must be signed by the person listing the property and also sworn to by such person. Section 9186, Eevised Statutes 1899 reads:

Every, person owning or holding property on the first day of June, including all such property purchased on that day, shall be liable for taxes thereon for the ensuing year.”

Again the italics are ours.

Under this section who is liable for taxes ? If the owner of property alone were the person meant the phrase “or holding property” has no meaning. In fact it would have no place in the statute.. Section 9151 of the same statute, reads:

“It shall be the duty of every judge of the probate court in e’ach county in this State to certify to the county assessor, on the first Monday in June in every year, a written list of every administrator, executor and guardian, and of every other person legally in charge and control of any estate in the probate court; and thereafter, and upon such certification, it shall be the duty of the county assessor to take from each administrator, executor, guardian, and every other person legally in charge and control of any estate in such probate court, a list of the personal property, and to assess the same according to law. ”

This section was amended somewhat in 1903, but not to affect the matter we have in hand. From this it appears that the probate court is required to apprise the assessor of the names of administrators, executors, and curators, and such persons are required t© make out a list of the property under their control for the assessor. Not only so but “every person holding property [as contradistinguished from absolute ownership] on the first day of June . . . shall be liable for the taxes thereon for the ensuing year.” Now on June 1, 1905', the defendant in this case was holding under his care as executor $21,000 of property belonging to the estate of Rhodes, deceased. He made out the list as required by law, and under section 9186,. he became liable for the taxes for the ensuing year of 1906’, which are the taxes sued for in this case. Nor is it a hardship to make such persons liable, because they have in their own hands the means with which to liquidate the liability. It was never contemplated that the State should lose one year’s taxes upon every estate which is finally settled, which would be the case if the defendant is to go acquit of liability in the cáse at bar. It must be remembered that these are taxes upon personal property, which are assessed against the individual and are not liens upon the property. The statute says that the executor must make out and sign the list upon which the assessment is made, and that the person ‘‘holding” the property on June 1st of any year shall be liable for the taxes assessed for the succeeding year. Taxes do not have to be allowed as other claims by the probate court, but should be paid by the administrator or executor, and he be given credit therefor in his settlements. [State ex rel. Ziegenhein v. Tittman, 103 Mo. l. c. 565.] In this case it is said:

‘ ‘ The Legislature evidently intended to place taxes on a different basis from other claims and to make them in a degree preferred demands, and it is made the duty of the administrator to pay them without waiting to have them allowed.”

The nearest ease we find is the case of State ex rel. v. Burr, 143 Mo. 209. In that case the taxes on the estate" of a minor had been assessed against his curator. Gantt, P. J., thus discusses the question:

“The substantial point raised on this appeal is the right of the State to assess and levy the taxes upon the property of a minor against his curiator in possession thereof. We cannot find that this question has ever been determined by this court though it is not a new one in other States. It is conceded by the learned counsel for defendant that it is competent for the Legislature by proper enactment to require taxes to be assessed against a curator in charge of a minor’s estate and make it a personal charge against him, but he insists that our Legislature has not done so. By section 7531 the assessor or his deputies are required between the first days of June and January ‘to call at the office, place of doing business, or residence of each person required to list property and shall require such person to make a correct statement of all taxable property owned by such person, or under the care, charge or management of such person, ’ and the person listing the property shall enter a true and correct statement of such property in a jorinted or written blank prepared for that purpose and sign and swear to it. Elsewhere it is provided that from these lists so made the assessor’s book is mad'e up. [Sees. 7553 and 7564.] A curator under our statutes has the possession of the estate of his ward, both real and personal, subject to the superintending control of the probate court. JR. S. 1889, sec. 5297.] It is his duty to represent his ward in all legal proceedings. That ‘the care and management of the ward’s estate’ conferred by the statute, is such ‘care, charge and management’ of the estate as is contemplated by the revenue law, we think cannot be disputed and is such as makes it incumbent upon him to list it with the assessor. If listed by and assessed to the curator it is his personal duty to pay the taxes out of the moneys in his hands as curator. The fact that the curator is not the absolute owner of the property is no objection. The statute upon its face clearly indicates that a curator or other trustee shall list not only that which he owns in his own right but that over which he has ‘the care, charg’e, or management.’ There can be no reason why a minor’s .estate should not bear its equal portion of taxation. Who so appropriate then to list it and see that it is not exorbitantly assessed, and who so proper to piay the tax when assessed, as his curator? When it is conceded that a minor’s estate is liable, to taxation, it is apparent that either directly or indirectly the curator must furnish the funds to pay it, as he has charge of all the estate of the minor. This question arose in Payson v. Tufts, 13 Mass. 493, in 1816, and it was held that a guardian of minors was liable to be taxed personally for the property of his wards in his possession and the same remedies existed against him on his default for their taxes as upon his own estate. [Baldwin v. Fitchburg, 8 Pick. 494.] No question of domicile or of difference in residence arises upon this record. We have the naked proposition of a curator in charge of his ward’s estate. An assessment against the curator for the taxes on that estate. No claim that the ward has ever paid it, or that the property was liable to taxation in any other county. We hold it was the evident intention of the Legislature to require the curator to list the property and the assessor to assess it against the curator and the curator’s duty to pay it 'and that the action was properly brought against the curator.”

We can see no substantial difference between the Burr case and the case at bar. There we had a curator, here- an executor. The same statute as to assessment of property in their hands applies to both alike. The reason which applies to the one applies with equal force to the other.

One thought further. If it is the duty of the executor to pay taxes without having claims for such allowed, then the judgment of the prohate court pleaded in bar by this defendant cannot avail him. It was' his duty to pay these taxes ¡and he had in his own hands the means wherewith to protect himself. If he failed to so protect himself, the State, county and school district, to whom these taxes are due, should not he the losers.

The judgment will he reversed, with direction to the circuit court to enter a judgment for the plaintiff in accordance with the prayers of the petition. It is so ordered.

All concur, except Lamm, J., who is dubitante.


text:
    GARRARD STRODE, Administrator Estate of JOHN FINDLAY, Appellant, v. COLUMBIA BOX COMPANY.
    Division One,
    May 31, 1913.
    1. NEGLIGENCE: Specified: Must be Proved as Laid. A petition alleging that plaintiff was injured by the breaking of a belt which was “old, worn, rotted and patched, as defendant and its servants well knew,” can be recovered upon only by a showing of specific defects pleaded.
    2. -: Sec. 6433, R. S. 1899: Belting to be Guarded: No Notice Requisite. The necessity for compliance with the provisions of Sec. 6433, R. S. 1899, requiring belting, shafting, gearing and drums to be guarded when so placed as to be dangerous to employees, is not dependent upon, and does not wait upon, notice from the state factory inspector.
    3. -: Penal Statute: Equitable Construction. A statute which is penal to some persons may, provided it is beneficial generally, be equitably construed.
    4. -: Sec. 6433, R. S. 1899: Construction: Guarding Mechanical Appliance: Evidence. Plaintiff was injured while operating a machine which took its power, by a smaller belt, from a shaft near the ceiling above. The shaft was driven by a long belt which entered the room, went round the shaft eighteen inches above plaintiff’s head and then pierced the floor to an upper -room. This belt broke and struck plaintiff on the head with enough force to injure him seriously. Held, that such belt did not fall within the provisions of Sec. 6433, R. S. 1899, requiring- belting, etc., to be guarded when so placed as to be dangerous to employees, and plaintiff cannot have damages as for statutory negligence.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge,
    Affirmed.

      A. R. Taylor for appellant.
    (1) The court erred in sustaining a demurrer to the evidence at the close of the evidence for plaintiff. The demurrer to the evidence admits the truth of every fact which the evidence tends to prove, an axiom of decision in this State. Wilson v. Board of Educa- ' tion, 63 Mo. 140; Strauchon v. Railroad, 232 Mo. 595. • (2) If a fair mind may draw inferences from the evidence as tending to establish the issue, the case should go to the jury — another settled rule of decision. Eckhard v. Railroad, 190 Mo. 611; Powers v. Transit Co., 202 Mo. 280; Ellis v. Railroad, 234 Mo. 673. (3) This case was a case for the jury upon the common law ground of negligence, as well as the statutory ground. A clear case of negligence at common law, as well as under the statute, was made when it was shown, as it clearly was shown, that the belt in question was worn, riveted and reglued to prevent its coming apart. It is no answer to say that the master, by his agents having charge of the repair of the belt, couldn’t anticipate what particular damage a broken belt would inflict or who would be injured. “If the injury follows as a direct consequence of the negligent act or omis.sion, it cannot be said that the actor is not responsible therefor because the particular injury would not have been anticipated.” Harrison v. Electric Co., 195 Mo. 606; Hoepper v. Hotel Co., 142 Mo. 388; G-raney v.. Railroad, 140 Mo. 98; Smith, v. Railroad, L. R. 6 C. P. 20. (4) The statute on which the plaintiff relies as part of his ground of recovery has been adjudged constitutional according to its terms and language. Lore v. Mfg. Co., 160 Mo. 622; Durant v. Coal Co., 97 Mo. '62; People v. Warden, 144 N. Y. 529; People v. Smith, 108 Mich. 531. (5) A failure to comply with the statute according to its terms is negligence per se. The statute is remedial. Calliott v. Mfg. Co., 71 Mo. App. 171; Lore v. Mfg. Co., 160 Mo. 622; Strode v. Box Co., 124 Mo. App. 516. “No less measure of diligence can be written into the statute. When meaning of statute is clear courts have no power to mate qualifications or additions to cover seemingly omitted cases.” Durant v. Coal Co., 97 Mo. 65; Lore v. Mfg. Co., 160 Mo. 624.

      Seddon é Holland for respondent.
    The court did not err in giving the peremptory instruction in this case at the close of plaintiff’s testimony for the following reasons: (1) There was no testimony to sustain the common law charge of negligence in reference to the belt. On the contrary the plaintiff’s witnesses showed that the belt just prior to the accident was in good condition. (2) In reference to the charge of statutory negligence in failing to guard the belt, the statute contemplates that belts in certain cases shall he so guarded that persons may not be injured by coming in contact with them while in operation. It does not require belts to be so guarded that persons may not he injured by them in case the belts break and fly out of their usual circuits. Nee-man v. Smoth, 50 Mo. 525; Fusz v. Spaunhorst, 67 Mo. 256; State v. Playes, 81 Mo. 574; Potter v. Douglas County, 87 Mo. 239. (3) In no event did the plaintiff show that the defendant was guilty of any violation of the statute iu reference to belts because the plaintiff failed to show that the belt in question was dangerous to persons while engaged in their ordinary duties. On the contrary the testimony introduced by plaintiff showed that the belt was not dangerous, that is that the breaking of said belt was a most extraordinary occurrence, and could not reasonably be anticipated. Findlay v. Columbia Box Co., 124 U. S. 511; Ilindle v. Birthistle, L. R. 1 Q. B. 1897; Dillon v. Coal Tar Co., 181 N. Y. 215; Cement Co. v. Insurance Co., 152 N. Y. Supp. 1068; Byrne v. Carpet Co., 61 N. Y. Supp. 741; Glassheim v. Printing Co., 34 N. Y. Supp. 69; Polawske v. Brick Co., 110 Wis. 461; Robertson v. Ford, 164 Ind. 538. (4) The statute in reference to guarding belting, Sec. 6433, R. S. 1899, after providing that belts shall be guarded under certain circumstances, specifically defines what shall constitute a violation of the statute. It provides in substance that whenever the Commissioner of Labor shall notify the proprietor of a plant that a belt is dangerous to employees and insufficiently guarded, and such proprietor of a plant shall thereafter fail to guard same, then such failure shall be deemed a violation of this article. Where the statute specifically defines what shall constitute a violation the idea is definitely excluded that any other act shall constitute such violation. State v. Fisher, 119 Mo. 344; State v. Gritzner, 134 Mo. 512; State v. Winthrop, 133 Mo. 500; Miller v. Wagner, 18 Mo. App. 14; Crumley v. Webb, 44 Mo. 444; Dart v. Bagley, 110 Mo. 42; State v. Schumann, 133 Mo. Ill; Endlich on Interpretation of Statutes, sec. 216; Rozelle v. Harmon, 103 Mo. 399; State v. Schumann, 133 Mo. Ill; State v. Reid, 125 Mo. 43; State v. Railroad, 19 Mo. App. 104; Jackson v. Railroad, 87 Mo. 422; Borck v. Bolt & Nut Works, 111 Mich. 129; Monforton v. Brick Co., 113 Mich. 39; Creenhaus v.'Akter, 30 N. Y. App. Div. 585; Pauley v. Steam Cauge Co., 131 N. Y. 87; In re Fire Escapes, 2 Pa. Dist. Rep. 623; Perry v. Bangs, 161 Mass. 35; De Genther v. New Jersey Home, 58 N. J. L. 354.
   BROWN, C.

This is an action to recover. damages on account of injuries to plaintiff, an employee in defendant’s box factory in St. Louis, from being struck on the head by a broken belt while operating a wood matching machine in the factory. At the close of the plaintiff’s evidence the court instructed peremptorily for the defendant. This appeal is taken from the judgment of non-suit forced upon plaintiff by this action, and, which, upon motion duly filed with leave, it refused to set aside.

The plaintiff was employed in operating a wood working machine, called a matcher, in the basement. The mandrel of this machine made from twenty-nine hundred to three thousand revolutions per minute and seems to have been driven from a shaft hung upon the floor system overhead. This shaft was, in turn, driven by the belt which was the direct cause of the accident. This belt was of leather, forty-three feet ten inches long,' ten inches wide and from one fourth to five sixteenths of an inch thick. It was built in sections from four to seven feet in length, fastened together with laps in which about eight inches of the ends to be joined were bevelled uniformly to an edge at the ends and glued, so that the- joint so made was of uniform thickness in all its parts and with the rest of the belt. The thin edges of these laps would-sometimes loosen up and “ears” would turn up. This would be indicated by a buzzing sound easily detected, and which it was the duty of the operator to report, when it would be reglued so far as necessary by the machinist. This belt passed around a pulley upon the shaft hung beneath the floor above the plaintiff’s machine, at an elevation about eighteen inches higher than his head when standing, and up through the floor into the room above, and thence to its driving pulley somewhere in that room. There were from five to seven “idlers” over which this belt ran. These are pulleys through which no power is transmitted but are used simply to deflect or tighten the belting. The belt broke with a ragged tear across the material outside the laps and came off its pulleys into the basement, striking plaintiff on the head with sufficient force to injure him seriously. The petition states that the belt was so placed as to be dangerous to the plaintiff while engaged in the ordinary duties of his employment, and charges negligence as follows:

“And the plaintiff avers that said belting was not safely or securely or otherwise guarded as required by the statute, although it was possible and practicable to do, which violation of the statute of Missouri directly caused and contributed to the plaintiff’s said injuries. And for another and further assignment of negligence, the plaintiff avers that said belt was old, worn, rotted and patched, as the defendant and its servants charged with the duty of keeping said belt in repair well knew before the injury to the plaintiff aforesaid. Yet defendant and its said agents negligently failed to supply a proper and secure belt, and negligently provided said belt in said defective condition, where plaintiff was to work about in the discharge 'of his said duties. And the plaintiff avers that said belt was so caused to give way and break and injure the plaintiff by reason of its said defective condition. ’ ’

There is no evidence that this break occurred on account of the age of the belt, or because it had been weakened by age, or was worn, or rotten, or patched. The pulley above plaintiff’s head, from which the belt ran off and struck him, was between two of the floor timbers, but there was no guard or structure beneath it, so as to intervene between it and the defendant’s head.

I. The plaintiff failed to prove the defective condition of the belt in any of the respects charged in the petition. It is true one of the witnesses used the expression “it was an old belt,” but the same witness afterward qualified the statement by saying that it was a comparatively new belt, about five and a half months old, and there was no evidence that it was worn so as to make its continued use improper or negligent, or that it was rotten or patched. The charge that the belt was defective was expressly limited in the petition to these specifications, which, under the well settled rule in this State, limit the right of recovery. [Beave v. Transit Co., 212 Mo. 331, 352, 353; Newlin v. Railroad, 222 Mo. 375, 393.] On the other hand the plaintiff proved many causes that might and did at times result in the breaking of good belts, such as running off their pulleys, and thus coming in contact, while in rapid motion, with the stationary parts of the machinery, and the falling into them of foreign articles. There being no evidence that the breaking of the belt resulted from any of the causes assigned therefor in the petition there could be no recovery on that ground.

II. The only remaining charge in the petition is that the. belting was not safely or securely or otherwise guarded as required by statute, although it was possible and practicable to so guard it. This leads us to the consideration of section 6133, of the Revised Statutes of qggg upon which it is founded. The section is as follows: “The belting, shafting, gearing and drums in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice, of its danger shall be conspicuously posted in such establishments. ’ ’

This section constitutes a part of article 17, which is entitled “Factory Inspection in Cities with 5000 Inhabitants or More.” Section 6450 makes the violation of any of the provisions of the article a misdemeanor, punishable upon conviction by a fine for the first offense of not less than twenty-five nor more than two hundred dollars, and for each subsequent offense not less than one hundred nor more than five hundred dollars, and commitment until the fine and costs shall be paid.

It thus appears that, in this respect the statute is highly penal. Invoking the principle that on this account it should be strictly construed, the respondent directs our attention to section 6446, contending with much force that no duty arises under it with respect to the statutory negligence charged in the petition until notice is given to the person in charge to make the additions or alterations required to conform to the statute, and he has failed to conform to the direction. The section is as follows:

“Whenever the Commissioner of Labor, or assistant inspector, finds that the heating, lighting, ventilating or sanitary arrangements of any establishment where labor is employed, is such as to be dangerous to the health or safety of employees therein or thereat, or the means of egress, in case of fire or other disaster, are not sufficient, or that the building, or any part thereof, is unsafe, or that the belting, shafting, gearing, elevators, drums or other machinery, are. located so as to be dangerous to employees, and not sufficiently guarded, or that the vats, pans, ladles or structures filled with molten or hot liquid, or any furnace, be not sufficiently surrounded with proper safeguards, or the platforms, passageways and other arrangements around, in or about ány railroad yard or switch be such as to probably lead to, injury or accident to those employed in, around or about any such establishment or place, the inspector or assistant inspector shall at once notify the person or persons in charge of such establishment or place to make the alterations or additions necessary within thirty days; and if such alterations or additions be not made within thirty days from the date of such notice, or within such time as said alterations could be made with proper diligence, then such failure to make such alterations shall be deemed a violation of this article.”

This entire article was enacted in 1891 (Laws 1891, p. 159) under the title of “An Act relating to manufacturing, mechanical, mercantile, and other establishments and places, and the employment, safety, health and work hours of employees. ’ It was carried without amendment into the Eevised Statutes, and was in force at the time of this accident. It covers many subjects germane to the title, including the duty to report accidents, the regulation of work required from minors and women with provisions for their comfort and health, the extinguishment of fires, escape in case of fires, the storing of explosives, ventilation and overcrowding, the construction of scaffolds and the safe arrangement of railway terminals, as well cts the requirements for the protection of machinery which are involved in this case. The penal provision applies to all these things. The fines are to be paid into the common school fund of the county in which the offense was committed, and it is made the duty of prosecuting attorneys to lend all possible aid in prosecutions for violation of its provisions.' The section last quoted, it will be seen, applies especially to those subjects about which opinions as to the best methods of accomplishing the required result may differ, and its provisions are not made specially applicable to eases in which nothing has been done to conform to the requirements of the statute, but they may be invoked whenever the inspector thinks that the steps already taken whether done at the initiative of the owner or by his own direction, have been insufficient to meet the requirements of the situation. In other words, it is his duty to keep pace with the times, and to adopt from time to time such methods of insuring the safety of the employees as advancing practice may suggest. To give the inspector power to make these changes seems to have been a principal object of the section. Alterations, as well as additions, are especially included in this duty. The theory of the respondent is that the command of the statute in these respects imposes no duty whatever upon the operator of the establishment; in fact, that so far as the common law duty to furnish his employees a reasonably safe place in which to work might include them it is suspended until the inspector shall have added his requirement to the mandate of the Legislature.

There can be no question that the provisions of this statute so. far as they provide protection for a large class of the people of the State are highly remedial in their nature. .The fact that the Legislature has considered it necessary to enforce them by quasi criminal pains and penalties only emphasizes their importance. It is true that such penalties will not be imposed until it .appears clearly that they were intended by the Legislature, but in this case no such imposition is involved. The fact that a private right may be deemed so important to the public safety that its violation is ma.de a crime should add no embarrassment to the remedy of the person injured.

In Sickles v. Sharp, 13 Johnson, 497, the Supreme Court of New York states this principle as follows:

“The rule that penal'statutes are to be construed strictly when they act on the offender, and inflict a penalty, admits of some qualification. In the construction of statutes of this description, it has been often held that the plain and manifest intention of the Legislature ought to be regarded. A statute which is penal to some persons, provided it is beneficial generally, may be equitably construed.”

In conformity to the rule so stated, this court has always construed the section we are now considering as remedial in its nature, and as establishing a rule of care in the operation of dangerous appliances of which the courts will take notice even though the statute be not specially pleaded. [Lore v. Manufacturing Co., 160 Mo. 608; Lohmeyer v. Cordage Co., 214 Mo. 685; Bair v. Heibel, 103 Mo. App. 621.] In the numerous eases in the appellate courts of this State in which the protection of this section has been invoked by the employees, it has been assumed that for such purpose it is available without any action on the part of the inspector. A fair construction of section 6446 indicates that it was intended, in the particular cases to which it refers, to impose an additional liability, founded alone upon disobedience to his requirements. It takes nothing away from the mandatory character of section 6433.

Whether the situation upon which the plaintiff seeks to recover comes within the prohibition of section 6433 is a question involved in some difficulty. This particular case,’however, was before the St. Louis Court of Appeals on appeal from a former judgment in Strode v. Columbia Box Company, 124 Mo. App. 511, and although the decision of that court reversing a judgment for plaintiff was placed entirely on other grounds, the learned judge who wrote its opinion made some observations, evidently designed to be useful in another trial, which may be construed to support the position taken by the appellant that the section in question was intended not only to obstruct or warn employees from contact with the belt while being normally operated, but was also intended to insure their protection against accidental breaking. It is argued that the beneficent purpose of the Legislature was such that the duty to “fence” arises not only when the appliance is so placed that employees may be injured by coming into contact with it, but whenever it is liable to break so that the whole or any part of it may leave its place and come in contact with them. This theory carried to its full extent would apply to steam boilers which are liable to explode, heavy balance wheels which sometimes go to pieces from centrifugal force and scatter their tons of metal in unforeseen places, and, in fact, to all kinds of machinery which are liable to give way from the strains incident to their movement. The addition (Laws 1909, p. 502) of the words “machines, machinery,” to this section, places all such agencies within its terms. The word “guard” is of extensive application. It applies as well to the guarding of a person to prevent his escape, as to the guarding of the same person to protect him from external violence; but whenever it is used in the public laws its definition must be looked for in the intention of the Legislature, and this can only be' ascertained by considering the meaning of the words in connection with the subject-matter to which they are applied.

In this case the subject was danger from “belting, shafting, gearing and drums” and the law was intended to prevent injury to employees by these particular agencies as distinguished from all others. The peculiar dangers incident to their use were known and recognized by all, for who has' not heard of persons thoughtlessly coming in contact with belts and being drawn by their clothing into their movement, so that their limbs or bodies were broken around the drums upon which the belts ran; or with rapidly revolving shafts with projecting set screws and other appliances almost invisible on account of the rapidity of their rotation, catching the unwary and drawing them into the movement; or with the gearing into which one’s members may be drawn and crushed as in Lore v. Manufacturing Company, supra. These particular appliances have well known dangers peculiar to themselves, and it was against .these that the law was evidently directed. Every working machine may break and become dangerous in its failure, but the peculiar danger of these consists in the constant and perfect performance of their work, and is an incident to their necessary and effective operation; and it is with reference to this well known and universally recognized condition that we would expect the word “guarded” to be used. Other subjects of solicitude in the framing of this act were hatchways and well-holes. The catch words of section 6435 use the word “guarded” with reference to these, and the section requires, where more effective means cannot be used, that they be surrounded by sufficient guard-rails, all of which refers to the peculiar dangers which may come out of them, as the flame and smoke they sometimes emit with deadly effect in cases of conflagration. The belt itself in this case affords an excellent illustration. There was very little of it that came into the room where this boy was working. It simply passed through the floor, went around its pulley and went out into the room above and ran so far to find its driving-pulley that the evidence speaks of an idle pulley upon which it ran fourteen feet above the floor. As it was nearly forty-two feet long it must have gone still further. The «plaintiff proved by his witnesses that it could not be told in wha't direction it would fly if it should break. This fact was so strikingly stated by the witness that the trial judge remarked: “I don’t believe that you could possibly have a man if you had to have an expert on flying belts. ’ ’ So that to guard this belt in the sense in which it is claimed it should be guarded it would, with its six of seven idlers, have to be boxed from end to end. The most of ns have seen in the machine rooms of manufacturing establishments lines of shafting hung to the floor timbers above, extending the length of the room, with frequent pulleys from which rapidly moving belts descended to drive the machines. No one could tell which way any of these would fly were they broken, and to guard them in the sense suggested would exclude all access to them and in many cases materially embarrass their operation. There is no evidence in this case which tends to show that a greater need for this protection existed at the point where the injury occurred than at any other place in the length of the same or any other belt in the factory. We think that to hold that the statutory liability exists in this case would amount to the making of a judicial rule for the construction of manufacturing establishments using similar machinery which was not contemplated by the Legislature. The judgment of the circuit court is accordingly affirmed.

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

All the judges concur.


text:
    PEMISCOT COUNTY ABSTRACT AND INVESTMENT COMPANY, Appellant, v. JOHN BADER et al.
    Division One,
    May 31, 1913.
    SALE OF SCHOOL LANDS: Order of County Court: Petition by People of Township: Jurisdiction. While See. 8161, R. S. 1899, gives the county court the power to direct the sale of school lands, it requires, as a condition precedent to its exercise, a petition from the beneficial owners, the people of the township. Such petition is jurisdictional, and without it no right can be acquired through the sale.
    Appeal from Ste. Genevieve Circuit Court. — Hon. Charles A. Killian, Judge.
    Affirmed.

      Ward & Collins for appellant.

      Arthur L. Oliver for respondents.
   BROWN, C.

This suit was instituted in Pemiscot county, October 16, 1907, and taken by change of venue to Ste. Genevieve county where it was tried, resulting in a judgment for the defendants.- The-first count of the petition, upon which the questions in this court are raised, is as follows:

“Plaintiff for its cause of action states that it is the owner and claims title to the following described real estate, lying, being and situated in the county of Pemiscot and State of Missouri, to-wit: The north half of the northeast quarter; the southeast quarter of the northeast quarter; the north half of the northwest quarter; the west half of the southwest quarter; and the southeast quarter; all in section sixteen, township seventeen'north of range thirteen east ; plaintiff further states that the real estate aforesaid is in the possession of the defendants; that said defendants claim some title, estate or interest in and to said premises, the exact nature and character of which claim is unknown to the plaintiff, and cannot be described herein, except that said claim is adverse and prejudicial to this plaintiff, wherefore, the premises considered, the plaintiff prays the court to try, ascertain and determine the estate, title and interest of the plaintiff and defendants herein respectively, in and to the real estate aforesaid, and to define and adjudge by its judgment or decree the title, estate and interest of the parties plaintiff and defendants herein severally, 'in and to the aforementioned premises, according to the statute in such cases made and provided, and for the cost in this behalf expended.”

A count in ejectment was added.

The answer pleaded the sale of the land for the use of the public schools of township seventeen north of range thirteen east in Pemiscot county to one W. W. Hunter in 1858, and full payment by him, and that the Civil War supervening, the patent was lost if made; and that in 1873 the same land was sold to defendant John Bader for taxes of 1872; that a tax deed thereon was duly issued in 1875, and that Bader had paid all the taxes on the land since that time and had made valuable and lasting improvements.

At the trial the plaintiff introduced in evidence the following certificate of purchase:

“State of Missouri, County of Pemiscot, ss.
“I, Charles R. Pierce, sheriff of said county, do hereby certify that, in pursuance of an order of the county court of said county, made and entered of record in the said court, at the May term thereof, 1907, directing the sheriff of said county to sell according to law, certain school lands belonging to congressional township No. 17, range 13, situated in said county, and hereinafter described, a copy of which order, duly certified by the clerk of said court, was to me delivered, I, the said sheriff, having previously to the day of sale, hereinafter mentioned, given at least sixty days’ notice of the time and place of sale, and of the school lands to be sold, and where situated, as the law directs, by advertisement in the “Twice-a-Week Democrat,” a newspaper published in my said county, by virtue of said order of sale and notice did, on the 12th day of June, A. D. 1907, between the hours of nine o’clock in the forenoon and five o’clock in the afternoon of that day, agreeable to said notice, at the courthouse door" in the city of Caruthersville, in my said county of Pemiscot and during the session of the circuit court of my said county at the June term thereof, A. D. 1907, expose to sale at public auction, according' to law, the school lands in said order of sale described as follows: Pour hundred and forty acres being the north half of the northwest quarter; the west half of the southwest quarter; the northwest quarter of the northeast quarter; the east half of the northeast quarter and the southeast quarter of section 16, in township 17 north, of range 13 east; and Pemiscot County Abstract and Investment Company being’ the highest and best bidder for said real estate, at .the price and sum of . . . dollars per acre, amounting in all to the sum of eleven thousand dollars, the same was stricken and sold to the said Pemiscot County Abstract and Investment Company for that sum, payable one year after the date of said sale; and the said Pemiscot County Abstract and Investment Company, as security for the payment of the purchase money due for said school lands, has executed to congressional township No. 17, range 13, his bond, dated August 26, 1907, with L. L. Collins and Chas. W. Shields as securities, whereby they undertake to pay, one year after the date thereof, the said sum of eleven thousand dollars, with interest thereon at the rate of ten per cent per annum from the date of said bond until paid, which said bond has . by me been duly filed in the office of the clerk of the county court of said county; and this certificate, after full payment shall have been made, shall entitle the said purchaser to a patent for the lands purchased as hereinbefore set forth.
“Witness my hand as Sheriff of Pemiscot County, Missouri..
‘Charles R. Pierce, Sheriff.”

The defendants thereupon introduced a certified copy of the bond given for the purchase price at the sale mentioned in the certificate, which is as follows:

“Twelve months after date, we or either of us promise to pay to the county of Pemiscot, in the State of Missouri, for the use and benefit of the capital fund of school township No. 17, range 13 east, of said county, the sum of eleven thousand dollars, for value received, with interest from date, at the rate of eight per cent per annum and all interest not punctually paid shall become as principal and bear the same rate of interest. This bond being for the purchase money for the following described school land, to-wit.: The north half of the northeast quarter; the southeast quarter of the northeast quarter; the north half of the northwest quarter; the west half of the southwest quarter; and the southeast quarter; all of section 16, in township 17 north, of range .13 east. It is hereby agreed and understood that should the title to this land fail, or be adjudged not in Pemiscot county, or the purchasers at the school fund sale, or the principal in this bond, then this bond is void, and no suit shall be brought hereon nor shall any signer hereof be liable, nor shall any interest be chargeable to the makers hereof.
“Sold by an order of the Pemiscot County Court on the 12th day of June, 1907. A lien is hereby created against said above described land in favor of said county for the use and benefit aforesaid, for the full amount of said purchase money and interest.
“Given under our hands and seals, this the 26th day of August, 1907.
“Pemiscot County Abstract & Investment Co.,
“Chas. W. Shields,
“L. L. Collins.”

They also introduced testimony for the purpose of proving the affirmative defense stated in the answer.

The court found that the “plaintiff has no right, title, estate or interest, in any quantity or quality whatever, in, and that it is not the owner of, the real estate described in plaintiff’s petition.” It therefore dismissed both counts of the petition.

The first question to be considered is whether the plaintiff, by its purchase at the sheriff’s sale of the land' in question acquired any interest as against the State and its beneficiaries under the Act of Congress of March 6, 1820; for if it did not, the proper parties are not now before the court to enable ns to pronounce an effective judgment upon the other questions raised with reference to this title. By section 6 of the act in question the Congress proposed, and the people of the State of Missouri duly accepted the proposition, “that section numbered sixteen in every township . . . shall be granted to the State for the use of the inhabitants of such township, for the use of schools.” [3 Stat. at Large, 547.] While the title was thus placed in the State the beneficial owners were the people of the township. Acting upon this theory the Legislature (E. S. 1899, sec. 8161), while it gave the county court the power to direct the sale of these lands, required, as a condition precedent to its exercise, a petition from the beneficial owners, the people of the township. In making the order the county court exercises no judicial function. The statute requires that, upon the prescribed petition from the beneficial owners, it shall make the order. That this petition is jurisdictional has been consistently held by this court. No right can be acquired- through the sale without it, and without independent proof of its existence the purchaser cannot entitle himself to the patent which is to invest him with the legal title. [Doddridge v. Patterson, 222 Mo. 146; McDonald v. Mangold, 61 Mo. App. 291; affirmed Eaton v. St. Charles County, 76 Mo. 492; Bonsor v. Madison Co., 204 Mo. 84.] This exact question having been before this court in Doddridge v. Patterson, supra, so late as the April term, 1909, and having been decided as above indicated, following the other cases cited, it can not be treated as one of first impression.

For the reasons stated the judgment of the Ste. Genevieve Circuit Court is affirmed.

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

All the judges concur.