author: SMALL, C.

text:
    HARRY E. RIDINGS, Administrator De Bonis Non of Estate of T. D. GEORGE, ORA LEE RIDINGS, BERTHA GEORGE RENTSCHLER et al. v. HAMILTON SAVINGS BANK and VIRGIL CASH, Appellant.
    Division One,
    March 2, 1920.
    1. CONVEYANCE: Interest and Not Land. The granting clause of a deed of trust whereby the grantor doth “grant, bargain, sell, convey and confirm unto the said second party the following real estate: All of his right, title, share and estate in and to” certain lands, conveys whatever interest the grantor has, but not the land itself. The words “grant, bargain, sell, convey and confirm” do not purport to convey or warrant the land, or any particular interest therein, but only such right, title, interest or estate as the grantor has, whatever that interest may be.

      2: —■-: -: Administration: Innocent Purchaser. A purchaser for value at the foreclosure sale of a deed of trust by which the grantor conveyed his interest in certain land, and not the land itself, made during the course of the administration of his father’s estate to secure the payment of his individual debt, acquired whatever right, title and interest the grantor had, subject to all equities the other heirs had against his share or interest in said property. A purchaser at said foreclosure sale, though for value, is not an innocent purchaser, but similar to the grantee in a quitclaim deed, who takes with notice, actual or constructive, of the equities of third parties.
    3. ADMINISTRATION: Sale of Interest by Heir: Voluntary Conveyance by Other Heirs to Pay Debts. The joining by non-indebted heirs of an estate in the course of administration, in a private sale and conveyance of other estate lands, to obtain money with which to pay debts primarily those of another heir, but allowed against decedent’s estate, and the payment thereby of such debts, cannot be considered as a voluntary loaning by such heirs to such debtor heir or to the estate of the money to pay his or its debts, but are acts in their nature coercive, brought about by his delinquency, and neither he, nor another claiming his interest in another tract as purchaser a.t the foreclosure of a deed of trust made by him after decedent’s death to pay his individual debts, can take advantage of a situation brought about by his wrong. An heir indebted to decedent’s estate, by reason of decedent’s suretyship for bim sr otherwise, has in equity against the other heirs no definite •«hare or interest in the estate, unless he pays such indebtedness, and failing to do so his interest or share is cut down to the extent of his debts to the estate; and the purchaser at the foreclosure of a deed of trust, by which he conveys his interest in the remaining lands to secure the payment of an individual debt, takes subject to the right of the other heirs, who have conveyed estate lands to pay estate debts, to be reimbursed out of his original share in such lands.
    4. «-: -: -; Final Settlement: Estoppel. Heirs who assist the administratrix to pay estate debts, whereby she is enabled to make final settlement and be discharged, are not estopped to compel contribution, to the extent of a debtor heir’s interest in estate lands conyeyed by him to pay his individual debts. The grantee in such conveyance is not an innocent purchaser, a final settlement only indicates that there are no unsatisfied estate creditors, and such assistance is not voluntary.
    5. -: Administrator De Bonis Non: Partition. In a suit for partition brought by heirs, whether or not the appointment of an administrator cle bonis non was void or valid need not be deter mined, since he is not a necessary party.
    Appeal from Caldwell Circuit Court. — Eon. Arch B. Davis, Judge.
    Affirmed.

      Johnson, McAfee & W. W. Davis for appellants; J. D. Allen on brief.
    (1) The daughters having placed their brother in a position to convey his share or interest in the estate to innocent parties, the loss should fall upon the children, the heirs of the estate, they being the parties to the transaction who placed him in a position to impose upon innocent parties. Ciippen v. American Natl. Bank, 51' Mo. App. 508; Rossi v. Natl. Bank of Commerce, 71 Mo. App. 161. (2) The payment by the daughters into the hands of the administratrix a sum sufficient to pay all demands against the estate, was voluntary upon their part, they having made said payment with full knowledge of all of the facts and having done so without fraud, duress, coercion, or extortion; therefore, it cannot be recovered in this action. Carter v. Phillips, 49 Mo. App. 319; Ritchie v. Bluff City Lumber Co., 86 Ark. (3) The approval of the final settlement and discharge of the administratrix was a final judgment, upon which the world might rely. McDonald v. McDaniel, 242, Mo. 172; Milling & Elevator Co. v. Thomson, 246 Mo. 595'. (4) There is no showing-in this case that Harry E. Ridings was the duly and legally appointed administrator de bonis non of the estate; therefore,' the circuit court was without jurisdiction to determine the issues in this case. State ex rel. v. Holt-camp, 266 Mo. 365. (5) The payment of all debts against the estate, including the debts owing by T. D./George, Jr., with full knowledge of all of the other heirs, and no claim of said heirs, either of advancement or subrogation having been made in the probate court, and final settlement having been had and the administratrix discharged, created the simple relation of debtor and creditor between T. D. George, Jr., and other heirs, and any amount owing-by him was not a lien on the distributive share, unless made so by judgment. AVooldridge v. Scott, 69 Mb. 669 ; Piice v. Courtney, 87 Mo. 387.

      Bruce Barnett for respondents.
    (1) All of the items charged in and by the decree against the interest of Hamilton Savings Bank (the interest of Virgil Cash, as trustee for said hank) as successor in title to defendant T. D. George, Jr., are properly chargeable. Trabue v. Henderson, 180' Mo. 625; AVoerner’s Am. Law of Administration, sec. 564; Hopkins v. Thompson, 73 Mo. App. 401. (2) The fact that the heirs at law sold real estate of the deceased and turned over the proceeds to the administratrix, who used same to pay debts allowed against the estate, upon which debts the son was primarily liable and the estate liable only secondarily, only illustrates, emphasizes and in this case strengthens respondents’ position, namely, that out of the proceeds of that sale the son has already received a part of his share in the estate, to-wit, to the extent that it was applied to the payment of the debts, which it was his primary duty to pay. (3) As between the estate and the creditors, the estate was liable upon the notes executed by deceased as surety as fully as if deceased hadj been] principal upon said notes. A payment for which one is legally liable is not voluntary, and it has never been held that a surety must wait to be sued and be subjected to costs and expense to be entitled to exoneration as against the principal. (4) It would be a tremendous leap from a little premise to a great conclusion to say that respondents sold the real estate of their deceased father’s estate to dischargee the son’s liability. The transaction must be rationally construed, to-wit, that they were aiding in the administration of their father’s estate and hastening; the day when the remaining real estate of the estate might be free from the lien of demands against the estate. There was nothing voluntary in the act. Respondents simply yielded to the inevitable. Real estate of the deceased had to be sold to pay the debts of the estate, and a purchaser.appearing, they lent a willing hand*. (5) A purchaser of an heir’s interest in real estate of which the ancestor had died siezed, acquires ¡no greater interest than that of the heir. (6) The appellant bank must be treated as having had knowledge of the facts as to the indebtedness of T. D. George, Jr., to the estate at the time the deed of trust was executed to the bank, because the bank did not allege, nor prove nor undertake to prove that it did not have such knowledge, and even if innocence or ignorance of the facts had constituted a defense to the allegations of respondents as to the charges against the bank’s interest, the burden of proof would have been upon the one asserting innocence or ignorance of the facts as the basis of his rights. Halsa v. Halsa, 8 Mo. 304; Edwards v. Railway Co., 82' Mo. 101. And this rule applies with particular force in this case, in which the bank did not pay out or give up1 anything upon the strength of the deed of trust, but took same to secure a debt long antecedent. Brandom v. MbCausland, 171 Fed. 402' (C. C. A.); Bradley v. Fuller, 118. Mass. 239; Austin v. Barrows, 41 Conn. 287.
   SMALL, C.

Appeal from tlie Circuit Court of Caldwell County.

This is a suit to partition certain lands amongst the heirs of T. I). George, Sr., deceased (two of whom are the miarried women named in the title to the case), and the defendants, Hamilton Savings Bank and Virgil Cash, who acquired the right, title and interest of T. I). George, Jr., the other heir.

T. D. George, Sr., the father, died intestate November 7, 1913. Ella .George, his widow, was appointed administratrix November 15, 1913. She seems also to have been a party to this suit, but- whether plaintiff or defendant, does not appear from the abstract of record: T. D. George, Jr., is also a party defendant. At the time of the father’s death, the son owed him a promissory note, which was never paid', and, at the date of the decree, amounted to $1,461.50. The father had also signed notes for his son as security and on joint account, ail of which were duly presented, proved and allowed as claims against the estate, and amounted to $8,389.43, which was paid by the administratrix. On September 3, 1915, T. I). George, Jr.,, and his wife, made a deed of trust to William H. McAfee, trustee, to secure the note of said George of that date to the defendant Savings Bank for $4,965.26.. This note was given in renewal of a prior note for that amount then due. The new note, secured by the deed of trust, was payable six months after its date. The granting clause of the deed of trust was, “grant, bargain and sell, convey and confirm 'unto the said party of the second part, the following described real estate, situate in the County of Caldwell in the State’’ of Missouri: All of his undivided, right, title, share and estate in and to the following described property, to-wit: [here describing it].”

The deed of trust contained n,o express covenants of warranty or of title. The note not being paid when dne, there was a trustee’s sale, at which the defendant, Cash, became the purchaser, as trustee for the bank. The granting clause in the trustee’s deed was, “bargain, sell and convey unto him, the said Ylirgil Y. Cash, the real estate in said deed described, situate in the County of Caldwell and State of Missouri, to-wit: All the undivided right, title, share and estate of the said T. D'. George, and Hazel George, his wife, in arid to the following- described property, to-wit: [here describing ' the property]. ”

To raise the money to pay the debts of the estate (there being insufficient personal estate), including those proved against the estate, for which the son was the principal debtor and primarily liable, the heirs of the estate, including the son, sold and conveyed certain, other lands of the estate and paid over the money received therefor to the administratrix, who applied the same to the payment of the demands proved against' the estate, including those for which the son was primarily liable above mentioned. The administratrix having thus fully paid all the obligations of the estate, filed a final settlement, which was duly made, and approved by the probate court August 12, 1915, when the administratrix was discharged. In October, 1915, the plaintiff Harry E. Eidings was appointed administrator cle bonis non.

This suit was then commenced, returnable to the November Term, 1915 (or afterwards) of said court. The petition prayed, ampng other things, that the above sums paid by the administratrix on account of debts of the son proved against the estate should be charged against and deducted from his share of the estate in the hands of the defendants, Hamilton Savings Bank and Virgil Cash.

The answer pleaded that administration was duly had upon said estate and all claims against it paid. That Ella George, the administratrix, made final settlement, which was approved and said administratrix was discharged. That no assets were discovered after salid final settlement, and there were no unpaid demands against said estate. That therefore the appointment of plaintiff Harry E. Ridings as administrator de bonis non was void, and lie liad no capacity to sue. That said sale by the heirs of other lands of the estate to raise money to pay the debts of the estate and their payment by the administratrix out of such moneys, was a voluntary payment by them, and thereby said debts were fully discharged and paid, and if said T. D. George, Jr., was ever chargeable with any sumí as advancements or as distributions already received by him, such obligation was discharged by such voluntary payment. The answer also alleged the mlaldng of the deed of trust to said bank by said T. D. George, Jr., and wife, and that he thereby conveyed to the trustee “all his undivided right, title and interest” in said property to secure its note against him, and that subsequently the deed of trust was foreclosed and the property bought by defendant Cash, at the trustee’s sale.

The court decreed that plaintiffs Ora Lee Ridings and Bertha George Rentschler, out of the proceeds of the sale of the property in partition (which was ordered), should each first receive the sum of $8,389.43, with interest, subject to the widow’s claim of dower, before the defendants, the bank ánd Cash, received anything, and that if anything then remained of such proceeds, it should be equally divided between said plaintiffs and defendant Cash, as trustee for the bank.

There were other issues involved' below, but they are not involved on, this appeal.

From said decree, defendants, the bank and Cash, appealed to this court.

I. The deed of trust and trustee’s deed simply purported to convey whatever interest T. D. George, Jr., had at the time the deed of trust was made, and not the land itself, nor any definite portion thereof, divided or. ^divided. While the deed of trust contained the statutory words, “grant bargain, sell, convey and confirm, ’ ’ they did not purport to convey or warrant the land itself or any particular interest therein, but only such right, title, interest or estate, as the said T. D. George, Jr., had, whatever that interest might be.

In Stoepler v. Silverberg, 220 Mo. l. c. 267, where the same statutory words were used in the same connection in a deed, this court said: “The instrument must be read and.construed in the light of all its parts and when this is done, it is obvious that it does not attempt or purport to convey and warrant the lot itself, but only 'all such right, title and interest,’ that Frederick Stoepler, at the date of the deed, had in and to said house and lot.”

Even express covenants of warranty, not only do not enlarge, but are themselves restrained by the estate granted. [Bogy v. Shoab, 13 Mo. l. c. 380-1; Hanrick v. Patrick, 119 U. S. l. c. 175-6; Blanchard v. Brooks, 12 Pick. 47, opinion by Shaw, C. J.] Indeed, the answer, itself, in this case, expressly admits and alleges that in and by said deed of trust said T. D. George, Jr., “conveyed to William McAfee, trustee for defendant, Hamilton Savings Bank, all his undivided right, title and interest in and to” said real estate.

II. As the bank or Cash, as trustee for it, simply acquired what right, title and interest the son had, its title is subject to all equities the other heirs had against the share or interest of the son, T. D. George, Jr., said property. [Hope v. Blair, 105 Mo. l. c. 95; Mann v. Best, 62 Mo. 491; Schradski v. Albright, 93 Mo. 42; Campbell v. Gas. Co., 84 Mo. 352; Starr v. Bartz, 219 Mo. 47.]

’ It is true the bank was a purchaser for value, because it extended the payment of the debt owing it by said T. D. George, Jr., at the time said deed of trust was made. [Smith v. Richardson, 77 Mo. App. 431; and cases cited; Gate City National Bank v. Elliott, 181 S. W. l. c. 28; Cass County v. Oldham, 75 Mo. 50.]

But, it is not sufficient to shut out equities of third parties that the purchaser of real estate be a purchaser for value, he must also be a bona-fide purchaser, that is, a purchaser without notice, actual or constructive, of the equities of such third persons, which he cannot be when he simply takes a quit-claim deed, or deed simply conveying’ the grantor’s interest (authorities first above cited). Appellants therefore were not innocent purchasers and they can claim no immunity or defense on that g’round, as against the equities, if any, of the said Cora Lee Ridings and Bertha George Rentschler.

III. It is said, however, by appellants, that Mrs. Ridings and Mrs. Rentschler, in joining with their brother in selling other lands to pay off the debts of the estate, thereby, in effect, voluntarily loaned their brother or the estate the money to pay his debts to the estate. Therefore the brother was entitled ^88 share of the land, and his sisters’ claim against him was that of a general creditor, without any lien or charge or set-off of any ldnd against his undivided share of the remaining real estate. We cannot consent to this view. The sisters were forced to either consent to a sale of the land and join in it to raise the money to pay .off the debts allowed against the estate, including those for which the brother was primarily liable, and the estate liable only as surety for him, or it would have been necessary for the administratrix to sell such land or other lands for that purpose under an order of sale of the probate court. They acted under a sort of duress brought about by their brother’s delinquency, and neither he, nor the Bank claiming his interest, could take advantage of a situation brought about by his own wrong.

Trabue v. Henderson, 180 Mo. 616, is a case in point. There the son owed the estate a sum, practically equal to the value of his share. There was no adminstration, but all the heirs, including the son, conveyed the land to their mother. As a part of the same transaction, they joined their mother in a power of attorney to one of the sisters, authorizing her to manage the property and pay off the debts. This was'done to avoid the expense of admin,stration. The sister took possession and operated the farm for several years so successfully that she paid off the debts of the estate, including the son’s debts for which the estate was liable. Another creditor of the son obtained judgment against him, sold out his interest in the land conveyed to his mother, and bought it in at the sheriff’s sale. He then brought, suit to set aside the deed to the mother, as fraudulent and void as to creditors, because she paid no consideration to the son. But this court held that the deed to the mother was good, not only as against the son, but as against his creditors, because at the time the deed was made the son’s share was subject to application in the regular course of adminstration to the payment of his obligations to the estate, and for the debts for which his father went his security, and the estate was liable; that such obligations amounted to the full value of the son’s share when he conveyed to the mother, therefore the creditors lost nothing, because in the regular course of administration, nothing would have been coming to the son. The court said, page 626: ‘ ‘ That is, in: neither event would the plaintiff [the creditor] get anything. And the plaintiff would get nothing, because John [the son] would get nothing. And John would get nothing because he was entitled to nothing, for the reason that he owed the estate more than his inheritance amounted to.” (The italics are ours.)

In Hopkins v. Thompson, 73 Mo. App. 401, the court, per Smith, J., elaborately reviews the authorities, and it is there clearly shown, that a debt of an heir to the ancestor reduces his share by the amount of such debt, and the other heirs not indebted (page 409), “ ‘are entitled to have the sum due from one who is so indebted collected from him, or, failing in this, they have a right to share in the assets as if such collection had been made and the debtor distributee share in the estate only upon the like assumption of payment by him. So that if his debt is equal to or greater than the value of one share in the distributable estate, . . . he is never entitled to anything from the estate. ... It cannot be doubted that this right of the administrator in behalf of the heirs and of such heirs themselves to set off the distributive interest of the debtor heir in the lands of the ancestor, or to subject such interest to the payment of the debt of the estate as against third persons claiming as judgment creditors of the heir, is of equitable cognizance.’ ” (The italics are ours.)

In other words, an heir indebted to the ancestor’s estate by reason of the ancestor’s suretyship for him or otherwise has in equity as against the other heirs no definite share or interest in the ancestor’s estate, unless he pays such indebtedness, and failing to do so, his interest or share as heir is cut down to the extent of the sum he owes the ancestor’s estate. If there is no difference, or his indebtedness exceeds the value of what would otherwise have been his share, his interest or share is nothing. Having nothing, he can convey nothing to others, or if anything remains, after deducting his indebtedness, he could convey what remains, but nothing more. So that the hank in this case by its deed of trust from T. D. George, Jr., and its purchase thereunder, could get nothing except one-third of what remained, if anything, after giving each of the two other heirs, as was done in this case, as much out of the estate, as he had already received hy the payment of his debts. Having received his share or part of it once, neither he nor his grantee, the bank, is entitled to receive it again. In holding that the bank took subject to the equities of the other heirs, because it took a deed from the son conveying, simply his estate and interest, whatever that w*as, we do not mean to hold that, if it had taken a warranty deed for “an undivided one-third interest” from him, as a bona-fide purchaser for value, the result would have been any different. Wie do not pass on that question, as it is not before us.

IV. It is also said by appellants that, because the sisters assisted the administratrix in raising the money, as they did, to pay the debts of the estate, whereby the administratrix was enabled to make a final settlement s^10w^n§" a,H the debts paid, tbe bank was deceived and led to believe the son’s share was clear of all claims of the other heirs, and they ought now to be estopped, under the rule that where one of two innocent parties must suffer, the one to suffer should be the one whose conduct caused the loss. We. do not agree to this, for several reasons: 1st, The bank was not an innocent party or purchaser, as we have already seen; 2nd, The fact that the estate appeared to be settled and all debts paid, indicated only that there were no unsatisfied creditors of the estate who might appropriate the land for their claims. It in no way related to or indicated anything as to the rights of the heirs against each other at law or equity; 3rd, The conduct of the sisters complained of .was not voluntary, as we have already determined, but forced upon them to protect their own interests and that of the estate, and cannot therefore be said to be the culpable cause of the bank loaning its money to or taking its deed of trust from the brother. We must rule this point, too, against the appellants.

Y. Whether or not the appointment of Harry E. Ridings, as administrator cle bonis non, was void or valid, we need not determine, because he was not a necessary party to this suit. The real parties in in-Merest were before the court, and all matters could be adjudicated without his presence.

The judgment of the lower court appealed from was without error. It is therefore affirmed.

Brown and Ragland, CC., concur.

PER CURIAM:- — The foregoing opinion by Small, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: GOODE, J.

license: Public Domain

text:
    HOME INSURANCE COMPANY, Appellant, v. C. L. WICKHAM.
    Division One,
    March 2, 1920.
    1. ADMINISTRATION: Presentation of Claims: Limitations: Exhibition to Administrator Within Six Months. Section 195, Laws 1911, page 82, does not mean that the exhibition of a demand against the estate to the administrator for allowance within six months will alone stop the running of the special statute of limitations. A claimant cannot avail himself of the. fact that he exhibited his demand, by notice and in due time, to the administrat- or, unless he also presents it to the court for allowance within the time prescribed by the statute.
    2. —■-: -: — -: -: Presentation to Court. The Legislature did not intend by the amendatory Act of 1911, by striking out of Section 195 the words explicitly requiring demands to be presented to the court for allowance and substituting the words explicitly requiring it to be exhibited to the administrator for allowance, to make the section simply a reiteration of the requirement of Section 191, as amended, that a demand must he exhibited against the estate as provided in clauses five and six of Section 190, as amended, or be forever barred, but did intend to require a second exhibition to the administrator, the first being for the purpose of obtaining priority of classification, and the second for the purpose of having it allowed. Said Section 195, as amended, requires a demand to be presented to the court for allowance. At all times prior to 1911 and since 1855 two kinds of limitation sections have run along side by side in the Administration Statute, each serving different purposes and each indispensable and distinct from the other, the one -requiring demands to be exhibited to the administrator within a designated period, and the other requiring them to be presented to the court for allowance within a designated time.
    3. -:,-: Exhibition to Administrator for Allowance. The words “for allowance,” used in Section 195 of the Adminstration Act of 1911, requiring the claimant to “exhibit his demand to the administrator .in the manner provided by law, for allowance,” are not positive enough to empower the administrator to allow a demand against an estate, or to imply that such power already existed. Demands must be established by the judgment of a court, and the requirement that a demand be exhibited'to the administrator for allowance means an exhibition to him in a proceeding in court to have the claim allowed.
    4. -: -: Manner of Exhibiting Demand. Exhibition of a demand to the administrator, for allowance means an exhibition to him in a proceeding in court, and this proceeding can be by an action in court in the ordinary mode, or by presentation to the probate court. If the exhibition is by presentation to the probate court, the proceeding is initiated in the manner provided by the statutes, namely, by the claimant delivering to the administrator, ten days in advance of the term at which he intends to present the claim, a written no'tice and copy of the instrument of writing or account on which the claim is founded, with a statement that it will be presented for allowance at the next regular or adjourned term.
    5. -■ — : -: Dismissal: Reinstated Within a Year. Where the demand was exhibited to the administrator within six months after letters granted, and presented to the probate court more than six months after the last publication of notice, and then dismissed, a suit brought in the circuit court within one year after such dismissal, but more than one year after letters granted, or the last published notice, is barred by limitations, under the Act of 1911. The special limitation statute contained in said act controls, and the provision in the general limitation statute that a new action may be begun within one year after such dismissal does not apply. The exhibition of the demand to the administrator within six months does not stop the running of the special statute (See. 195, Laws 1911, p. 82) requiring the demand to be presented to the court for allowance “within one year after the granting of first letters on the estate, or the last insertion of the publication of notice of the grant of such letters.”
    6. -: —i-: Inconsistencies in Section 195; Exception. The second part of Section 195 of the Administration Act of 1911, permitting exhibition of a demand to the administrator at the usual term for final settlement, seems inconsistent with the. first clause, which requires claims to be exhibited within a year from the granting of letters, since final settlement can- occur no sooner than “the first regular term of the court after the expiration of one year.” But said second part may be regarded as contemplating an exception to the regular procedure, and to allow a proceeding, commenced with the year, to be followed up in court as late as the term next succeeding the one at which final settlement would otherwise occur. The purpose was to permit0 a claimant whose second exhibition was within the year, but too late to follow it up in court within the year, to have a term, but only one, after the one for final settlement, to present it to the court; whereas a claimant who gave earlier notice under Section 203 would need no such grace. This ambiguity in. Section 195, however, was cured by the amendment of 1917, Laws 1917, page 98.
    CONSTRUCTION OF STATUTE: Reconciling Inconsistencies. In order to prevent one statute, or a portion of one, from conflicting with the entire scope of legislative action touching the subject, it is sometimes necessary to depart from a literal construction, and adopt the one that removes the inconsistency and produces harmony.
    Appeal from Dunklin Circuit Court. — Hon. W. S. G. Walker, Judge.
    Affirmeo.

      Fyke & Snider.. for appellant.
    The circuit court erred in holding that the claim was barred by the one-year Statute of Limitations. Laws 1911, p. 82; Knisely v. Leathe, 2*56 Mo. 341.

      McKay & Smith, for respondent.
   GOODE, J.

This is an action against the defendant as administrator de bonis now of the estate of J. A. Wick-ham, deceased, and is to recover on a promissory note for one hundred and four dollars, payable in four instalments, all of which, under the terms of the instrument, were due when the action was commenced. The note'was given by J. A. Wickham and L. 0. Wickham, apparently for premiums on a policy of insurance issued by appellant. J. A. Wickham died September 9,1011, and Lucy C. Wick-ham was appointed, by the probate court of Dunklin County, administratrix of his estate, received letters testamentary bearing date September 19, 1911, and published notice of them, the last insertion of the notice being October 13', 1911. On April 4, 1912, or a little more than sik months after their date, plaintiff exhibited to the administratrix the note as a demand against the estate, and notified her1 the demand would be presented to the probate court for allowance at the next term, which would be in April. On April 15th of the same year, the demand was presented to the probate court and, both parties being present, a trial took place which resulted in an allowance by the court of four' dollars on the demand. An appeal was prosecuted to the Circuit Court of Dunklin County, where tire cause was dismissed July 29, 1912. Lucy C. Wickham having died, respondent was appointed administrator cle bonis non, and on September 28, 1912, this action was begun in the Circuit Court of Dunklin County on the same demand. The defendant was served, appeared, and for defense to the demand pleaded a general denial and also the special administration Statute of Limitation, alleging the suit was filed and service was had on the defendant more than one year after the grant of letters of administration. The cause was appealed to the Springfield Court of Appeals and was there decided, two of the judges agreeing, but on different views of the relevant statutes, that the demand was not barred by the special statute as shortened to one year by an amendment adopted in 1911 and hereafter copied; from which conclusion of the majority of the court one of the judges dissented and caused the case to be certified here as being, in conflict with the decision of this court in Wernse v. McPike, 100' Mo. 476.

The only question for decision is whether the claim was barred by limitation when this action was begun, defendant asserting it was, for the reason stated in his answer, whereas plaintiff contends that, as the demand was exhibited to the administratrix April 4, 1912, and was presented to the probate court for allowance April 15, 1912, both of which proceedings occured within seven months of the grant of letters, therefore the demand could not be barred except by the general statute limiting the time for beginning actions on written obligations for the payment of money. Otherwise stated, plaintiff’s position is that under the amendments of 1911, the statute of the administration law, prescribing the period which will bar the allowance of demands against estates, no longer ran against plaintiff’s demand after it had been exhibited to the administratrix; or, if that is not true, the running of said limitation statute ceased upon the presentation for allowance on April 15th, notwithstanding ¿he proceeding was dismissed later. .

In 1911 ten amendments of the administration law were enacted, all approved on March 13th of said year. The purpose, either declared or apparent, of seven of those amendments was to shorten tlxe time wherein certain proceedings in the course of administration might be taken (for examples, filing inventories and publishing notice of the grant of letters), with the view thereby to expedite the winding up of estates and enable them to be settled within a minimum period of one year, instead of two as theretofore provided. [Laws 1911, pp. 78> to 86 inclusive.] We will state such of the changes made, as throw light on the question before us. Section 82, Revised Statutes 1909, regarding the publication of .letters, was amended to require the notice to state that if claims were not exhibited “within one year [instead of two] from the date of the last insertion of such publication, they shall be forever barred.” [Laws 1911, p. 79.] That is one enactment limiting the time for exhibiting demands. Section 190, Revised Statutes, which defines the several classes of demands against estates and fixes priority of payment among them, was amended as to- the fifth and sixth classes, by placing in the fifth class demands not exhibited within six months (previously a year) after the granting of. first letters, and in the sixth class those not exhibited in one year after (previously two). [Laws 1911, p. 80.] Section 191, Revised Statutes 1909, which is especially intended to limit the time for exhibiting claims to executors and administrators for classification, was modified to require them to be exhibited in one year instead of two.

“That Section 191, of Article 7 of Chapter 2 of the Revised Statutes of Missouri of 1909, be, and the same is hereby repealed and a new section enacted in lieu . thereof, to be known as Section 191, and to read as follows: Section 191. All demands not thus exhibited in one year shall be forever barred, saving to Infants, persons of unsound mind or imprisoned, and married women, one year after the removal of their disability, and said one year shall begin to run, from the date of the letters where notice shall be published within ten days, after letters are granted, and in all other oases said one year shall begin to run from the date of the last insertion of the publication of the notice. ’ ’

Section 238 was amended to allow final settlement to be made “at the first regular term of the probate court after the expiration of one year from the completion of publication of notice of letters.” Italics ours.) [Laws 1911, pp. 83,- 84.] The amended section mainly involved 'in the present case is 195, but the provisions of it can be understood best if we copy the three sections not altered in 1911, immediately preceding’ it, which prescribe how claims shall be exhibited to the executor or administrator.

“All actions pending against any person at the time of his death, which, by law, survive against the executor or administrator, shall be considered demlands legally exhibited against his estate from the time such action shall be revived, and classed accordingly.” [R. S. 1909, see. 192.]

. “All actions commenced against such executor or administrator, after death of the deceased, shall be considered demands legally exhibited against such estate from the time of serving the original process on such executor or administrator.” [R. S. 1909, sec. 1931]

“Any person may exhibit his demands against such estate by serving; upon the executor or administrator .a notice, in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or ■account upon which the claim is founded.; and such claim shall be considered legally exhibited from the time of serving such notice, or a waiver of such notice, in writing, by the executor or administrator.” [R. S. 1909, sec. 194.]

Next we quote Section 195, showing in parentheses the words in the section prior to the amendment for which others were substituted, and emphasizing the words in the amendment not before contained in the section.

“No claimant shall avail himself of the benefit of the preceding section unless he shall exhibit (present) his demand to the administrator (court) in the manner provided by law, for allowance, within one (two) year after the granting of first letters on the estate, or the last insertion of the publication of notice of the grant of such letters as provided for in Section 191 of this article, nor imless he shall also present his said demand to the court at the term thereof next succeeding the term during which he shall have exhibited the same, whenever the same is. exhibited during the term at which final settlement could; be made except for the exhibition of such demand.” [Laws 1911, p. 82.]

It should be noted that said section relates solely to a demand exhibited according to the mode provided in Section 194, as amended in 1911.

Plaintiff’s first contention is, as stated above, that as Section 195, after its amendment, no longer required a demand to be presented to the court for allowance in order to stop the running of the special statute, nothing- was required to stop- it except an exhibition to the executor or administrator, which in plaintiff’s case was made on April 4, 1912-, and thereafter it could only be barred bj* the general statute of limitations. The claim of plaintiff was exhibited on that day in the mode authorized by Section 194; that is, by serving the administratrix with a notice in writing, showing the amount and nature of the claim, and with a copy of the note. Section 195- (as amended) says no claimant shall avail himself of the preceding section, “unless he shall exhibit his demand to the administrator in the manner provided by law, for allowance, within one year after the granting of the first letters,” etc. Did the Legislature intend, by striking out of said section the words explicitly requiring' a demand to be presented to the court for allowance and substituting words explicitly requiring it to be exhibited to the administrator, to make the section simply a reiteration of the requirement of Section 191, as amended, that a demand must be exhibited “against the estate” as provided in clauses five and six of Section 190, as amended, or be forever barred? Or was it rather the intention to require a second exhibition to the administrator, the first being, as we have suggested, for the purpose of placing the demand in a certain class as regards priority of payment, the second for the purpose of having it allowed?

Subsequent to the 1855 Revision of the Statutes and until 1911, a Section substantially the same as 195, of the present 1909 Revision, had stood on the books; namely, one requiring a demand to be presented to the court for allowance within a given period after letters were granted or published, the period being three years until 1879, and two years thereafter. [R. S. 1855, sec. 6, p. 153; G. S. 1865, sec. 6¡, p. 502; R.“ S. 1879, sec. 189; R. S. 1889, sec. 188 ;-R, S. 1899', sec. 185.] There also has. been continuously since 1855, a section like 191 of the present revision, requiring claims to be exhibited against the estate within a stated period or they would be barred. [R. 8.1855, sec. 2, p. 152; G-. S. 1865, sec. 2, p. 502; R. S. 1879, sec. 186; R. S. 1889, see. 184; R. S. 1899, sec. 189'.] The years of limitation stated in the two classes of sections have been the same, except in the Revision of 1865, which gave two years for the exhibition of a demand and three for presenting it to the court. In the Revision of 1889, the words “and presented to the court for allowance” were inserted in the sixth clause of Section 183, which dealt with the classification of demands, and Section 184, which limited the time for their exhibition, thereby making said clauses in themselves, and regardless of Section 185-, bar demands unless exhibited and presented to the court within^ two' years; the quoted words not having been contained in those particular sections theretofore, nor later; and^ they appear to be unnecessary, because in that Revision and subsequent ones, the section cited above was retained for the specific purpose of requiring presentation to the court within two years. But the material point at present is that the two kinds of limitation sections existed side by side after 1855, and always have been held to serve two- different purposes, each indispensable and distinct from the other; one being- to require demands to be exhibited to executors and administrators, the other to require them to be presented to a court for allowance; both acts to be done within a designated period, the two periods usually being identical. [Price v. McCause, 30 Mo. App. 627; Savings Bank v. Burgin, 73 Mo. App. 108, 114; Keys v. Keys, 217 Mo. 48, 65.]

It seems that now and then the attention of a judge has been fixed so exclusively upon the words “presented to the court for allowance,” in Sections 183 and 184 of the Revised Statutes 1889, as to evoke dicta that the omission of said words in later revisions dispensed with the necessity of presenting a demand to the court within two years, in order to- suspend the special Statute of Limitations; an erroneous notion in view of the express requirement of Section 188 in the Statutes of 1889, and its equivalent in later Revisions. Such remarks have been made, we believe, in no ease where the question in judgment called for them.. In Ryans v. Boogher, 169 Mo. 673, 684, the statement was made that “at the time of the attempted final settlement there was no special Statute of Limitation in this State which barred a claim which had been legally exhibited against an estate because it had not been presented to the court for allowance,” a remark followed by the statement that an act passed in 1899 (Laws 1899, p. 39) had struck out of Section 185 of that Revision the words “and presented to the court for allowance.” But the claim contested in said case had been exhibited, not by serving notice on the administrator, but by bringing an action in the circuit court,'& mode of exhibiting then and now authorized. [R. S. 1899, sec. 187; R. S. 1909, sec. 193.] A demand so exhibited is patently not subject, either in principle or by the language of the law, to the provision that no claimant shall avail himself of the exhibition of a demand, to toll the statute, unless he shall present it to the court for allowance within two years. This section, by its very words, refers to the preceding section, for it says “no claimant shall avail himself of the preceding section,” etc. The preceding section is the one which provides, not for exhibiting' demands by an action in court, but for exhibiting them by serving notice in writing on the executor or administrator. [R. S. 1899, sec. .188; R. S. 1909, sec. 195.] In Ryans v. Boogher, cited above, Gantt, J., who wrote the opinion, explained what he meant to say in the passage we have quoted, by immediately saying: “Section 189, Revised Statutes 1899, cited by defendants, by its terms is restricted to the demands referred to' in Section 188, and has no application whatever to suits commenced and prosecuted under Section 187, the section under which plaintiff prosecuted his suit. ’ ’ Obviously and independently of the express reference to the preceding section, the one requiring, presentation to the court could have no application to a demand exhibited by an action in court, for such an exhibition is also, in itself, presentation for allowance; the exhibition and the presentation occurring at the same time, if one act is within two years, the other is.

In Knisely v. Leathe, a ease controlled by the Statutes of 1909, the demand was exhibited to the executrix by the institution of a suit September 7, 1907, or within six months of the date of letters, their date being March 20,1907. The action was dismissed, but on March 10,1909, a second action was brought, which was ten days prior to the expiration of two years from the date of the letters. Therefore the demand was both exhibited and presented to the court for allowance within the statutory period; and whatever was said to the effect that merely exhibiting a demand tolls the special statute permanently, was not essential to the decision and seems to have been written in forgetfulness of the statute which declares a claim, ant shall not avail himself of the fact that he exhibited by notice and in due time to the executor or administrator, unless he presents it for allowance within two years. [R. S. 1909, sec. 195.]

So much for cases wherein dicta have occurred tending to .the conclusion that the exhibition of the demand for classification is enough to prevent the special statute from running, except where there are words in the classification section, or the one dealing with the limitation of time to exhibit, like those contained in the Revision of 1889, requiring a presentation to the court.

But there have been discussions of this question where it was necessary to decide it to dispose of the case; and perhaps the most thorough treatment of it was. by Thompson, J., of the St. Louis Court of Appeals, in Price v. McCause, supra. The opinion says.something more is required of a claimant to save the bar of the statute than an exhibition of a demand to the executor or administrator; that to hold otherwise would be to ex-scind from the statute the section providing, in effect, that no claimant should avail himself of an exhibition to an executor or administrator unless he shall present his demand to the court for allowance within two years from the granting of the first letters. [R. S. 1889', sec. 189'.] Further saying: “If the holder of a claim against the estate of a decedent can save the bar of the statute by exhibiting it to executor or administrator within the statutory period, without presenting it to the probate court for allowance and classification before the expiration of such period, he can defeat the policy of the statute entirely and keep the estate open indefinitely. If, having exhibited it to the executor or administrator in time, he creates a lis .pendens which stops the running of the statute, as counsel for the claimant would argue, so that he can come into court with it a year after expiration of the statutory period, he can come into court with it an the point came up for decision. [Farmers Sav. Bank v. That exposition of the law has been approved wherever indefinite time afterwards — at least so long as the estate remains open. This, we think, would be opposed to the letter and policy of the statute.” [30 Mo. App. l. c. 632.] Burgin, 73 Mo. App. 108, 113; Keys v. Keys, 217 Mo. 48, 65.]

The policy of legislation for so many years having been to exact, in order to suspend the running of the special limitation, something besides the exhibition of a claim to an executor or administrator in order to fix the time of its payment out of the estate’s assets, it is improbable that the Legislature, in amending Section 195 of the present statutes to provide for exhibition to the administrator for allowance, meant only to reiterate the necessity of the exhibition within a year for classification under Sections 190 and 191. To so hold would be to attribute to the Legislature the intention to dispense with presentation to a court within any time short of the general limitation period; which would be a radical change from the prior policy of the law and, moreover, would frustrate the declared purpose of most of the amendments of 1911 to shorten the period wherein final settlement can be made. Besides, if no more than the original exhibition to the executor or administrator was to be required, why retain, instead of omit, Section 195, when Section 191 would fully accomplish the purpose intended? Why, too, use the words “for allowance,” in connection with the required exhibition to the administrator; words not used in the preceding sections (190, 191), but instead the words ‘£exhibited against the estate?”

We consider the deduction a fair one from the particulars noted, that the first part of Section 195, as amended, was intended to prescribe a second proceeding to be taken by a claimant to prevent his claim from being barred by the one-year limitation. What is that proceeding? Providing for exhibiting to the administrator “for allowance ’ ’ might be deemed to imply that an administrator was empowered to allow a demand against an estate; but it is clear the words used are not positive enough tO' show an intention either to confer such a power, or to imply that it already existed. Demands must be established by the judgment of a court. [R. S. 1909, secs. 197, 198, 206; Langston v. Canterbury, 173 Mo. 122.] The requirement of an exhibition to the administrator for allowance within the year, to be- an effective act and not merely a useless ceremony, must mean an exhibition to him in a proceeding to have the claim allowed. This proceeding could be by an action in court in the ordinary mode (Sec. 197), or by presentation to the probate court (R. S. 1909, secs. 198, 206); and in the latter event the proceeding would be initiated in the manner provided by the statutes; namely, by the claimant delivering- to the executor or administrator, ten days in advance of the term at which he intended to present the claim, a written notice and copy of the instrument of writing! or account on which the claim was founded, with the statement that it would be presented for allowance at the next regular or adjourned term. [R. S. 1909, secs. 203, 204, 205.]

Plaintiff asserts there was a second exhibition to the adminstrator when the demand was presented to the probate court, April 15,1912, to have it allowed — the proceeding subsequently dismissed. That exhibition, though not followed up- to a judgment, would have sufficed for the purpose of classification, had the one of April 4th been omitted; but we think did not suffice to stop the special statute. Otherwise a second exhibition, not intended to be followed by proceedings necessary to put the demand into judgment, would be a compliance with the statutory requirement of presentation for allowance; and the claimant having done this much, might wait as long as he pleased, short of the period fixed by the general statutes of limitations, before taking proper and bonafide measures to establish his claim. The rule generally prevailing in this country is that if an action is begun and afterwards dismissed, the statute of limitation runs against the cause of action from the time it accrued except where time for another action is given, as is done by our statutes in allowing a year wherein to sue again' after a nonsuit, etc. (R. S. 19091, sec. 1900), a grace extended by construction in favor of dismissed cases. [Wetmore v. Crouch, 188 Mo. 647.] This saving clause is not available where the limitation period is prescribed by a special statute, not included in Articles 8 and 9 of the chapter on Limitations of Actions; hence does not bar upon this case. [R. S. 1909, sec. 1907; Gerren v. Railroad Co., 60 Mo. 405, 409 ; Clark v. Railroad Co., 219 Mo. 524, 530; State ex rel. v. Thompson, 81 Mo. App. 549, 558; State ex rel. v. Hawkins, 103 Mo. App. 251.] In view of the general doctrine that upon the dismissal of a case a limitation statute runs against the cause of action from its accrual, we hold the abortive steps to have plaintiff’s demand allowed were not such a proceeding as suspended permanently the running of the special statute. We think the point in decision in Knisely v. Leathe, supra, accords with this ruling, even though some remarks in the opinion might be interpreted the other way. [256 Mo. 341, 362.] We hold further that the second exhibition to the administrator for allowance, includes not merely serving him with notice and a copy of the demand in accordance with Sections 203 and 204 (R. S. 1909), but carrying the proceeding forward by presenting the demand to the court according to the notification, or at furtherest, within the year; subject, however, to the exception made in the latter part of the amendment of 191.1, to be noticed presently. No less can be accepted as an effectual compliance with the requirement of an exhibition for alloivance, without defeating the whole policy of the administration law, to have the claims allowed only by a court, and the whole policy of the amendments of 1911 to expedite final settlements. The second part of the amended section, though apparently inconsistent with the first part in some respects, throws light on the latter by plainly requiring the second exhibition to be followed up, in the instance contemplated by said second part, by presentment to the court; for it provides this shall be done in the event the claimant exhibits to the administrator ‘ ‘ during the term at which final settlement could be made except for the exhibition.” It is unreasonable to suppose presentment to the court was intended to be required solely under those circumstances, and that claimants exhibiting earlier should be under no necessity to proceed in court at all sooner than was necessary to prevent the bar of the general limitation statutes. The latter clause of Section 195., as amended, needs no attention in the present case, except in so far as the sense of the first clause is indicated by it; for this action was begun September -28, 1912, and plaintiff’s claim was thereby exhibited a second time within the meaning of the amendment, and at a term prior to the one when final settlement could be naade. The terms of the probate courts are the second Mondays in F'ebruary, May, August and November (R. S. 1909, sec. 4060), so final settlement for the ‘Wickham estate could not come before the November term, 1912, the date of the last insertion of the notice of letters having been October 13,1911.

The second part of the act in permitting exhibition at the usual term for final settlement, seems inconsistent with the first clause, which requires claims to be exhibited within a year from the granting of first letters, or the last insertion of notice thereof unless notice is published in ten days from their date. Final settlement in every case can occur no sooner than “the first reg-ular term of the court, after the expiration of one y\ear from the date of the publication of the notice of letters,” and after notice of the intended settlement has been published for four weeks. [R. S. 1909, sec. 238, as amended; Laws 1911, p. 84.] Let it be borne in mind that the exhibition to the administrator required by amended Section 195, must be by a proceeding’ carried through to a judicial allowance of the claim. Let it also be borne in mind that such a proceeding may be begun not only by an action in court under Section 197, R. S. 19091, but also under .Section 203 and 204, by notice in writing to the administrator that the demand will be presented at the next regular or adjourned term, with copy of the instrument or account, etc., which notice must be served ten days before the beginning of the term. Now it could happen that, in the latter mode of presentment, the notice to initiate the proceeding might be served within the year after grant of letters (or the last publication of notice thereof if said notice was not published within ten days of their date), hut too late to continue the proceeding thus begun by presentation in court at a term within the year, or even at the next term thereafter. For example, the year following the grant of letters might expire the Saturday before the second Monday in November, and if notice, was served on the administrator that day, ten days would not elapse before the next term began ; in fact only two days would elapse. In such a case the amendment appears to contemplate an exception to the regular procedure, and to allow the proceeding in the exhibition to have the claim allowed, which proceeding has been commenced within the year, to be followed up in court as late as the term next succeeding the one at which otherwise final settlement could occur. The words “whenever the same is exhibited during the term at which final settlement could be made except for the exhibition of such demand, ’ ’ regard the proceeding as a continuing one, and notice having been served within the year of an intention to present at the next regular or adjourned term, the exhibition is treated as occurring during the term; and if the next term happens to be the one for.final -settlement, the succeeding term is allowed for presentment. We think the purpose was to prevent a claimant whose second exhibition was within the year, but too late to follow it up in court within the year, to have a term, but only one, after the one for final settlement, to present to the court; whereas1 a claimant who gave earlier notice under Section 203 would need no such grace. This construction renders it possible to postpone slightly the winding up of estates beyond the period contemplated by amended Section 238 and other amendments of 1911; but it is the construction which comes nearest to carrying out the sole purpose of most of the amendments and is, therefore, to be adopted if the language of the act will permit. A court must give effect to an act of the Legislature if it is possible to do so consistently with the language of the act. [State ex inf. v. West Side Ry. Co., 146 Mo. 155, 168.] And in order to prevent one statute, or a portion of one, from conflicting with the entire scope of legislative action touching the subject, it is sometimes necessary to depart from a literal construction of the inconsistent ' enactment. [State to use v. Heman, 70 Mo. 441.]. To attain this end, ‘ ‘ the construction that produces the greatest harmony and the least inconsistency ought to prevail.” [Pollock, C. B. in Atty. Gen. v. Sillem, 2 H. & C. 517.] “It is a cardinal principle in the interpretation of a statute that if there are two inconsistent enactments, it must be seen if one cannot be read- as a qualification of the other.” [Taylor v. Goodwin, L. R. 4 Q. B. Div. 228.] To conclude the Legislature meant to require a claimant late in exhibiting, to present for allowance at the next term after what is normally the one to settle the estate and to allow earlier exhibitors to delay presentment to any date short of the bar of the general limitation law, thus greatly extending instead of contracting the adminis-' tration period, is too extreme a view to accept, unless driven to it by the language of the act, and we think we are not. If the Act of 1911 is treated as void because of conflicting clauses, the two-year statute for presentment-will be revived and the entire scheme of the amendatory acts disarranged. In our opinion the language of Section 195, as amended, may be interpreted in accordance with what we have said, without either perverting, restricting or unduly broadening the natural meaning*-of the words used. ,

The ambiguity of this section “(195) was cured by amendment in 1917. [Laws 1917, p. 98.]

The result is that the judgment of the Springfield Court of Appeals reversing and remanding the cause is set aside, and the judgment of the circuit court is affirmed.

All concur.


author: GRAVES, J.

text:
    JOHN KLEINE et ux., Appellants, v. MARY L. KLEINE.
    Division One,
    March 2, 1920.
    1. DESCRIPTION: Starting Point: Parallelogram Presumed. A lease which describes a tract in the City of St. Louis and State of Missouri as “one hundred feet running westward on Coal Bank Road, beginning at private road fronting house, and seventy feet running northward on private road, beginning at Coal Bank Road,” fixes the starting point at the intersection .of Coal Bank Road and the private road, and that being definite, a parallelogram, one hundred by seventy feet, will be presumed; and a definite tract extending one hundred feet westward, from the intersection of the two roads, along the north side of Coal Bank Road, and seventy feet northward along the west line of the private road, was described.
    2. -: -: -: Extrinsic Evidence. Extrinsic evidence is always admissible to explain the calls in a deed and for making certain any ambiguity in the description. If a surveyor can take the deed and from its descriptions locate with certainty the definite tract intended to be conveyed, the description is sufficient.
    3. SIGNING DEED: With Lead Pencil. A deed or lease is not invalid because signed by lead pencil, instead of pen and ink.
    Appeal from St. Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge.
    Appirmed.

      John W. Mueller for appellants.
    (1) If the description of real estate contained in an instrument, which seeks to convey an interest in said real estate, is so inaccurate, indefinite and incomplete as to render the identity of the particular tract of land sought to be conveyed wholly, uncertain, the instrument is void as a means of conveying interest in real estate or color of title. Mudd v. Dillon, 166 Mo. 410; Martin v. Kitchen, 195- Mo. 477; McCormack v. Parson, 195 Mó. 91; Schroeder v. Turpin, 253 Mo. 258; Campbell v. Johnson, 44 Mo. 247; Bell v. Dawson, 3¡2 Mo. 79; Schumacher v. McMonigle, 86 Ind. 421; Hoodless v. Jernigan, 46 Fla. 223; Youman v. Moore, 144 Ga. 375; Harvey v. Byrnés, 177 Mass. 518;' Brandon v. Laddy, 67 Cal. 43; Radford v. Edwards, 88 N. C. 347; Hanna v. Palmer, 194 111. 41. (2) If the description of property sought to. be conveyed by a written instrument does not fix the boundaries or shape of land sought to be conveyed so that by relying on the description contained therein, the form and indentity, of the premises could not be ascertained, the instrument is void and inoperative as a means of conveyance of title. Schumacher v. McMonigle, 8G Ind. 421; Harvey v. -Byrnes, 177 Mass. 518. (31) A patent ambiguity in an instrument is an uncertainty that arises at once upon the reading of the instrument and arises from the defective, obscure, senseless or indefinite language used. 3 Bouvier, p. 2586; Jones on Evidence, sec. 474; Harvey v. Wjrtz, 30 N. D. 304; Martin v. Kitchen, 195 Mo. 477; Mudd v. Dillon, 166 Mo. 110; Strong v. Waters, 50 N. Y. S. 257'. (4) When a mere perusal of the instrument in question reveals an uncertainty as' to the indentity of the premises sought to be conveyed and reveals that the description of the premises convoyed as contained in the instrument is given in a defective, obscure and senseless manner, pr by defective, obcure or senseless language, a patent ambiguity exists in said instrument which cannot be corrected, . explained or added to by extrinsic testimony. Mudd v. Dillon, 166 Mo. 1101; Martin v. Kitchen, 195 Mo. 477; Carter v. Holman, 601 Mo. 498. (5) An instrument required, under the Statute of Frauds to he in writing cannot rest partly on parol and partly on the writing, but must contain in the writing all the elements necessary to the validity of the instrument. Broom’s Maxims, p. 463; Norris v. Hunt, 51 Tex. 609; Ringer v. Holtzclaw, 112 Mo. 5213.

      Ic/oe (& Carroll and Frederick H. Eschmann for respondent.
    (1) The object of a description in a deed is to define what the parties intended. Long v. Wagoner, 47 Mo. 180. (2) Intention of parties, whether expressed or shown by surrounding circumstances, is all-controlling. McClure v. Herring, 70 Mo. 18; Johnson v. Boulware, 149 Mo. 451; Devlin on Deeds, secs. 835-836, and sec. 1012; 8 R. C. L. 1037; Evans v. Greene, 21 Mo. 195; 5 Cyc. 867; Truett v. Allen, 66 Cal. 818. (3) A deed will not be declared void for uncertainty if it is possible by any reasonable rules or construction to ascertain from description, aided by extrinsic evidence, what property is intended to be conveyed. Hubbard v. Whitehead, 221 Mo. 672; Tetheron v. Anderson, 63 Mo. 98; Cravens v. Petit, 16 Mo. 213; Dunn v. English, N. J. L. 126. (4) Statute of Frauds does not apply where contract has been fully performed. Hoyle v. Bush, 14 Mo. App. 408; Bollinger County v. McDowell, 99 Mo. 636; Reemer v. Nessmith, 34 Cal. 624; Devlin on Deeds, sec; 1012; 17 Cyc. 662; Hooten v. Comerford, 152 Mass. 591; Reed v. Proprietor, 8 How. 274. (5) The description in deed is sufficient if object covered is ascertainable with the aid of extrinsic evidence. Amount v. Montague, 63 Mo. 206; Livingston County v. Morris, 71 Mo. 605; Orr v. How, 55 Mo. 329; Brown v. Walker, 226 Mo. 235; Cox v. Hart, 145 U. S. 389; Blake v. Dougherty, 5 Wheat. 1359; Gales v. Paul, 94 N. W. 55. (6) The office or purpose of a description in a deed is to furnish the means of identification. Pipkin v. Allen, 29 Mo. 229; Blake v. Dougherty, 5 Wheat. 1359; Craven v. Butterfield, 80 Ind. 503. (7) A description in a deed is sufficient if it will enable a person of ordinary prudence acting iii good faith and making inquires, which the description would suggest to him, to identify the land — if a surveyor with deed before him, with or without aid of extrinsic evidence, can locate land and establish the boundaries. Hayes v. Martin, 134 Ala. 532; Door v. School Dist., 40 Ark. 237; Devlin on Deeds, sec. 1012. (8) Streets and highways are natural monuments. 5 Cyc. 869, B. (9) A parallelogram will be presumed to have been intended when a definite and fixed corner is located. Smith v. Nelson, 110 Mo. 552; Deal v. Cooper, 94 Mo. 62; Devlin on Deeds, pp. 1922 to 1931; 5 Cyc. 877. (10) In the interpretation of deeds inter partes, courts are not inclined to insist upon that accuracy of description required in sheriffs’ deeds or other transfers of property. Carter v. Holman, 60 Mo. 498.
   GRAVES, J.

Action to quiet title. The petition is in conventional form under the statute. By answer the defendant says that she has a lease for a period of twenty years on a portion of the tract of land described in the petition of plaintiffs; that plaintiff John Kleine marked off the lot 100' by 70 feet, and that she built a five-room cottage thereon, and fenced it, and took possession of it; that the said John Kleine assisted her in the building of the house and fences; that thereafter she paid rent for two years.

Reply was a general denial. Trial before the court resulted in a judgment for plaintiffs as to the title being in them, but the further judgment that defendant had a valid lease for 20 years upon the tract 100 by 70' feet. Prom such judgment plaintiffs have appealed.

John Kleine and the defendant are brother and sister. In 19131 John Kleine told his sister that she could have a lease upon a small tract (100 by 70) of his land on Coal Bank Road in the City of St. Louis. He pointed out to her the boundaries. At her own cost and expénse she built a five-room cottage thereon, and fenced the land, and took possession of it. In .1915, after much urging, she got John Kleine and wife to execute the following lease:

“This lease made and entered into by and between John and Rose Kleine, hereafter referred to as lessor, and Mary L. Kleine, hereafter referred to as lessee.
“Said lessor for and in consideration of a rent of -five dollars t.o be paid yearly by said lessee, does hereby 'lease unto said lessee the following described premises situated in the City of St.' Louis, State of Missouri: One hundred feet running westward on Coal Bank Road, beginning at private road fronting house, and TO feet running northward on private road beginning at Coal Bank Road.
“This lease begins June 15, 1913, expires June 15, 1933. Lessee has the right to remove at any time improvements made by lessee.
“During the time of lease said lessee has the privilege of a moderate use of water.
“Said, lessee promises to sell improvements made on premises for a reasonable price at any time when lessor sells the land.
“Mary L. Kleine,
Jno. J. Kleine,
Rosa Kleine.”

For two years lie accepted the money for the rent, but thereafter he declined rent. Conceiving the lease invalid he and his wife brought this action. Kleine’s testimony in the case tends to leave a bad taste in the judicial mouth. Among other things he requested that the lease be signed with a lead pencil, and says that he “figured” that it was no good when he signed it, “because there was no starting point.” All this was after the sister had put her money into the improvements. Further details will be left to the opinion.

I. It is clear that the idea of John Kleine, as to there being no starting point mentioned in the lease, is without foundation. The lease says: “one hundred feet run-n^n§’ westward on Coal Bank Road, beginning at private road fronting house, and 70' feet running northward on private road beginning. at Coal Bank Road.” From this it. is clear that the starting point -is the intersection of Coal Bank Road and the private road. From this intersection, or starting point, the tract was to be 1001 feet on Coal Bank Road, and 70. feet on the private road, from the intersection of the two. In other words, the description in the lease gives a starting point, and two sides of the lot. Having a. fixed corner and the two sides given, a parallelogram will be presumed. In other words we have the width and depth of the tract given, and only have to extend the lines to get a parallelogram.

In Smith v. Nelson, 110 Mo. 552, we have a description calling’ for one acre in the corner of a government .surveyed tract. There we had only the starting point. We held that an acre in a square form would be presumed from such a description. So in this case having the starting; point and two sides given we will presume the parties had in mind a parallelogram. See, also, 2i Devlin on Deeds, p. 1922. We have no doubt about the fact that this lease calls for parallelogram 100 by 70 feet, with the long* side of the parallelogram on Coal Bank Road. The idea of there being no common starting point for the respective sides of the parallelogram is not borne out by the lease itself. Whether the description fails for other reasons, we will discuss later.

II. The real issue in the case is not the Adews expressed by John .Kleine, to the effect that he signed the lease (in lead pencil, at his own suggestion) because he thought it invalid, owing to the absence of a starting point. He seems not only to have had that idea, but the other erroneous view, entertained by many laymen, that a deed cannot be signed -with a lead pencil, but must be signed with pen and ink. After his sister had expended her money on a five-room cottage and fences upon ground which he pointed out to her, it required twTo years to giet him to sign a lease. When he did sign it he thought he had it in shape to beat the sister. And all this after he had accepted the rent for the first two years. What Wagner, J., said in Tetherow v. Anderson, 63 Mo. l. c. 98, is peculiarly applicable to John Kleine. That learned jurist thus spoke:

“The only ground urged for a reversal is, that the description was so uncertain 'and indefinite that nothing passed by the plaintiff’s deed. This claim surety cornos with a bad grace from the plaintiff, who acknowledges that he sold and conveyed the land by that description. ’ ’

The appellant Kleine not only went upon the ground and marked out the lot upon which the sister was going to build her little homie, but he assisted her agents in the building of1 the cottage and fences, accepted the agreed rent for two years, and finally executed the lease in writing, after telling his sister to make it as short as possible. There is no question that the house is there facing the private road mentioned. There is no question that there is’ and was a private road. There is no question that Coal Bank Road is and was a public highway in the City of St. Louis, and State of Missouri. There is no question that the plaintiffs owned a tract of land (some eight acres more or less) on this public road, and that the lease was intended to cover a part of this tract. A surveyor testified that he could and did take the deed, and from its terms located the lot leased, after finding out the property on Coal Bank Road owned by the plaintiffs. In other words once given their property on Coal Bank Road, the tract claimed by defendant could be located by the description given in the lease.

The real issue is, whether the description taken as a whole, aided by such extrinsic evidence as may be used in construing the ambiguous terms of the contract, is sufficient to locate the hand described in this lease? Thus in Hubbard v. Whitehead, 221 Mo. l. c. 683, Gantt, P. J., said: “Extrinsic evidence is always admissible to explain the calls of a deed for the purpose of applying them to the subject-matter and thus give effect to the deed. While it is true that a deed must so describe land sought to be conveyed thereby that it can be indentified, that is certain which can be rendered certain, and in construing a doubtful description, in a grant the court will put itself in the position of the contracting parties as near as possible and consider the circumstances ,of the transaction between them! and] then read and interpret the words used in the light of these circumstances.”

The proof aliunde in this case located the lands of plaintiffs on Coal Bank Road; it located the private road; it located the lot pointed out by John Kleine to his sister; it located the cottage in actual existence when the lease was written; it located the defendant in possession with the knbwledge and consent of plaintiffs. With this information the surveyor said he could and did locate the leased ground.

Under the rule in Hubbard’s case, supra, the judgment nisi is rigjht and should be affirmed. It is so ordered.

All concur, Blair, P. J., in result.