author: BLAIR. C. PER CURIAM.

text:
    WARREN W. EASTER v. CHARLES R. EASTER and ELIZABETH R. EASTER, Appellants.
    Division Two,
    December 10, 1912.
    RESULTING TRUST: Partnership: Evidence., A partner suing to establish, a resulting trust in property the title to which was taken in the name of the wife of another partner, must show, so clearly, cogently and convincingly as to leave no reasonable doubt, that partnership money went into the purchase. The evidence in this case is held insufficient for such purpose.
    Appeal from Jackson Circuit Court. — Eon. Walter A. Powell, Judge.
    REVERSED AND REMANDED (with directions).

      McGune, Harding, Brown & Murphy for appellants.
    (1) Elizabeth Easter holds the property in question by virtue of a warranty deed, absolute on its face. Before plaintiff can impress a resulting trust on the property, he must establish his case by strong, clear and unequivocal evidence, falling but little short of demonstration. ' This he failed to do. The only direct evidence on this point was his own. It was vague and uncertain and fell far short of being intelligent, much less convincing, and was stoutly contradicted by every scrap of paper and every witness connected with the transaction. Johnson v. Quarles, 16 Mo. 432; Kennedy v. Kennedy, 57 Mo. 76; Ringo v. Richardson, 53 Mo. 385; Kinney v. Murray, 170' Mo. 701; Garrett v. Garrett, 171 Mo. 155; Bnrdett v. May, 100 Mo. 13; PMlpott v. Penn, 91 Mo. 38; Coleman v. Parran, 43 W. Ya. 754; Bibbs v. Hunter, 79 Ala. 358; Currence v. "Word, 43 W. Ya. 367. (2) Failing to prove bis case by direct evidence, counsel attempted to do so by the alleged admissions of defendants. There was no admission that any of plaintiff’s money or the copartnership money went into this property, but had there been, such admissions would not amount to direct proof. It is sometimes doubted whether admissions ought to be received when introduced for the purpose of divesting a title created by deed,.but they are never admitted as direct proof. Its only office is to corroborate. There being no direct evidence and nothing to .corroborate, it was error to admit it. Kinney v. Murray, 170 Mo. 701; Johnson v. Quarles, 46 Mo. 427; Coronet v. Bertlemann, 61 Mo. 127;.Ringo v. Richardson, 53 Mo. 385; Fanning v. Doan, 139 Mo. 392; Berry v. Hartzell, 91 Mo. 137; Underwood v. Underwood, 48 Mo. 527; Garrett v. Garrett, 171 Mo. 164; Davis v. Greene, 102 Mo. 170; Reed v. Morgan, 100 Mo. App. 713; 1 Greenleaf on Evidence (16 Ed.), See. 200. (3) Plaintiff did not pretend to know how much of his money, if any, went into the purchase price of the real estate. A person in whose favor a resulting trust is sought to be enforced, must show specifically by clear, convincing and unequivocal evidence, what amount of his money went into the purchase price of the property. If proof of amount is uncertain, the resulting trust will fail. Coleman v. Parrón, 48 W. Ya. 737; Olcott v. Bynum, 17 Wall. 44; In re Wood, 5 Fed. 443; Baker v. Vining, 30 Me. 121; Bailey v. Hemingway, 147 Mass. 326; Smith v. Burnham, 3 Summ. (U. S.) 466; Ducie v. Ford, 138 U. S. 591; Bibbs v. Hunter, 79 Ala. 351; Woodside v. Hewell, 109 Cal. 487; Wheeler v. Kirtland, 23 N. J. Eq. 13; Garrett v. Garrett, 171 Mo. 155; Reynolds v. Morris, 19 N. J. Eq. 549; Sumner v. Pelton, 301 Ore. 268.

      Ed. E. Aleshvre and 8. S. Gundlach for respondent.
    We agree with appellant’s counsel that a resulting trust should be established by clear and cogent proof, but no stronger proof can be offered in a case of this character than the solemn admissions by the parties holding the trust or responsible for it and such trust may be as of a proportionate part as found by the chancellor in this case. Crawford v. J ones, 163 Mo. 577. There is practically no difference between counsel as 4o the law of this case, but we differ only as to the probative effect of the evidence. The chancellor observed all of the witnesses and heard all of the evidence and we think properly applied the same. Owensby v. Chewing, 171 Mo. 226; Prewitt v. Prewitt, 188 Mo. 675; McMurray v. MeMurray, 180 Mo. 526.
   BLAIR. C.

Warren W. Easter, the plaintiff, and defendant Charles R. Easter are brothers and defendant Elizabeth R. Easter is the latter’s wife. For about ten years the brothers were partners in the restaurant business and this suit was begun by plaintiff to recover an interest in a certain lot in Kansas City the title to which was taken May 11, 1901, in the name of defendant Elizabeth but which plaintiff contends was bought with partnership funds and for the partnership. From a decree vesting title as to an undivided one-fifth of the property in the plaintiff and defendant Charles R., as partners, both defendants have appealed.

Counsel do not differ materially as to the law of the case, the real controversy being as to the sufficiency of the evidence to support the finding that partnership funds were employed in the purchase. Since the principal question to be determined is purely one of fact, it becomes necessary to review the evidence in the case.

The partnership between the brothers began in 1892 and they conducted the business until some time in 1895 when it was sold on deferred payments which the purchaser soon found himself unable to meet and the partnership again resumed the business and prosecuted it continuously until in 1902. The evidence does not show the profits of the business to have been very large prior to the sale mentioned though .there is evidence the firm made some money. In 1894' Charles R. Easter married the defendant Elizabeth R. Easter, who appears to have had some knowledge of -the restaurant business and to have been both capable and economical. Some time after resuming business in 1895 the two brothers began to save a little money and by June, 1899, had accumulated $105 each by means of payments separately made on building and loan stock. In June, 1899, the two purchased the interest of another brother in property at Lexington, paying fifty dollars each and executing a note for seventy-five dollars for a balance. At this time plaintiff withdrew all his money from the building and loan, and Charles R. borrowed fifty dollars from the association, withdrawing the balance two months later. The business was prosperous thenceforward and May 11, 1901, the property here involved was purchased, the title being taken in the name of Elizabeth R. Easter and the purchase price of $7000 being paid as follows: $500 in cash; $2000 in property conveyed to Elizabeth R. Easter by her mother for use in effecting the purchase ; and the balance was secured by a first and second deed of trust for $3500 and $1000 respectively. The owner of the property had no dealings with plaintiff, the whole of the business, including his contract to erect a two-story building on the lot he sold, being transacted by Elizabeth R. and. Charles R. Easter An error in the estimate of the width of the lot resulted in a credit of $300 on the note secured by the second deed of trust and the balance of $700 was paid, as due, in monthly installments of seventy-five dollars, the greater portion of the amount being paid between May 11, 1901, and May 15, 1902. These payments were made by Mrs. Easter usually, none of them being made personally by plaintiff.

From the beginning plaintiff was addicted to the use of intoxicants and the evidence is clear that he spent some time and considerable money in indulging his appetite for drink. Apparently disinterested witnesses testified that for a long time he was constantly under the influence of liquor and he admits the habit but denies expending any considerable amount of money in indulging it. At any rate, in 1899 his condition had become such that he thought it proper to take what is commonly called the “Keeley Cure” and did so. Thereafter he began drinking again and his health seems subsequently to have been very poor.

In 1902 plaintiff, who is usually called “Wirth” by the witnesses, executed to defendant Charles R. Easter a bill of sale.of the stock and fixtures “together with the good will of such restaurant business heretofore conducted at 420 West Ninth street, Kansas City, Mo., under the name of ‘Easter Bros.’ It being the intention of said Wirth W. Easter to convey to said Charles R. Easter all his interest in and to the above described property and business.” This instrument was dated July 30, 1902, and the recited consideration was, $500. The consideration was paid, the evidence shows, in semi-monthly installments of fifteen dollars.

Plaintiff testified he and his brother had no settlements and made no division of profits at. all during the time the partnership existed but that Charles R. simply kept all the firm’s money after the expenses were paid; that until 1899 the profits were small and were absorbed by rent paid which amounted to seventy dollars per month. He was unable to state what profits the firm was making at the time the removal to the new building (1901) occurred, the nearest approach being: “Well, we were doing a very good business, a very good business, and so far as the volume goes, I do not know, it might have keen over one hundred dollars a month, probably, clean cash.” He further testified the firm had six or seven hundred dollars on hand in May, 1901; that he and Charles E. Easter agreed to purchase the lot at 420 West Ninth street and have the title put in the name of Charles’s wife. He testified positively he personally participated in the negotiations for the lot but it clearly appeared he did not do so. He was unable to tell by or to whom the money was paid, from what source it came, or what the amount of it was, and finally admitted he didn’t know that it was paid at all. He said that both he and his brother had access to the money drawer, that each took money as he wished, leaving a ticket in the money drawer, and that a book account of what each received was kept by the firm. The book was not produced nor was any effort made to secure its production, so far as the record shows. There is so much of contradiction, uncertainty and clear mistake in plaintiff’s testimony that it may be properly characterized as quite incoherent.

Lawrence Easter, another brother, testified that defendant Charles told him at one time in 1895 or 1896 the firm had building and loan stock to the amotmt of “possibly four to six hundred dollars, something like that — five hundred, I don’t remember the amount,” accumulated in “a few years, a year and a half;” and that after 1902 plaintiff wanted to go back to the restaurant but Charles B. would not permit it, stating that Wirth “was breaking down in health and had plenty and didn’t have to work.” Witness declared he frequently asked Charles E. to take Wirth back with him. He further stated that in 1901 he had heard Charles R. say the firm was making $300 to $400 per month bnt acknowledged Charles R. offered to sell the business to him for $700'. James Drummond testified that in 1906 Charles R. Easter said to him that “Weezie and Jessie was continually, after him to let Wirth go back in the business,- now Wirth don’t have to work; he has plenty to take care of him, and I intend to see he is taken care of as long as he lives.” Mrs. Drummond and Mrs. Whitsett (sisters of the Easters) testified Mrs. Easter told them in February, 1903, that if anything happened to her husband, Wirth “would get his part just the same.” Walter Whit-sett, a brother-in-law, testified that Charles R. Easter, speaking of the proposed purchase of the lot in question, told him he and Wirth were talking about buying it but he, Easter, “had a hard time to get Wirth’s consent to it; he was scared to risk his money in it and thought they might lose everything they had and he discouraged him every time he approached him about the matter;” that Charles R. also told him “they had talked it over and concluded to have the deed put in his wife’s name for their own convenience.” Witness also said Charles R. had told him he and Wirth were to put $2600 to $3000 into the purchase of the lot at the first.

There was also evidence from these and other witnesses as to other alleged admissions but they were inferences of the witnesses, as appeared in each instance, and lacking in probative force.

Charles R. Easter and his wife both testified that the $500 cash payment made on the lot was composed of $250 of Mrs. Easter’s money, paid her by her mother for the board of Cora La Rose, Mrs. Easter’s younger sister, and $250 which belonged to Charles R. Easter personally. They denied the admissions attributed to them and detailed the manner in which they purchased the lot in question and in respect to this were corroborated in the main by the former owner. The subsequent payments were made, they said, from the rent from the building, about $125 per month, and Charles R’s share of the profits from the restaurant business. As to Wirth Easter’s dissolute habits they were corroborated by Cora La Rose, by a bartender and another disinterested witness. They offered in evidence the cash book of a building and loan association showing that Wirth and Charles R. Easter had $105 each with the association in 1899 and that the money was withdrawn by each of them in the summer pf that year. They produced a list of payments made to Wirth Easter, subsequent to the date of the bill of sale in evidence, totaling seven hundred and some dollars. It appeared from their evidence and that of plaintiff that the firm of Easter Bros, paid no rent to Elizabeth or Charles R. Easter. Defendants testified this was the result of a promise to plaintiff that they would buy the lot and put up the building and charge the firm no rent if he, plaintiff, “would brace up and 'quit drinking” and attend better to business. The rental value of the room occupied by the restaurant was about $25 per month According to the evidence for defendants no books, as between the partners, were kept, the profits being divided when there were any. For some time after the dissolution of the partnership and after the payment of the $500- due plaintiff according to the terms of the bill of sale, Charles R. Easter continued to furnish some money to plaintiff directly or pay it to his brothers or sisters fo.r caring for him but in 1906 refused to provide for him further. Two of the sisters, according to their testimony, attempted to get him to take plaintiff back but he refused. It appears Charles R. also contributed to the support of another brother.

Tbe question in this case is whether the cash payment of $500 made on the lot purchased in 1901 was partnership money. In order to establish a resulting trust in this case it must he shown that partnership money went into the purchase of the lot.

On plaintiff rests the burden to make this appear so clearly, cogently and convincingly as to leave no reasonable doubt on that head. Counsel do not differ as to this.

Has plaintiff met the requirements of the rule? We think not. That the partnership had funds at the time is not sufficient. They must be shown to have gone into the property. To meet the denial of defendants and the fact that plaintiff personally took no part of any kind in negotiations and had no interest in the property turned in on the purchase of the lot, resort is had to testimony as to statements made by Charles R. Easter in contemplation of the purchase and admissions said to have been made by him and Elizabeth R. subsequent thereto. As to the former they clearly appeared, in several instances, to have been unconsciously amplified by inferences drawn by the witnesses from the mere fact that a partnership in the restaurant business existed between the brothers. In ■other instances the alleged declarations might as ■clearly indicate an intent of Charles R. Easter and his wife to purchase as an intent of the partners to do so.

So far as the admissions coming after the pur■chase are concerned, what has just been said applies to some of them and others have no direct reference to the property in question. Mrs. Elizabeth Easter’s statement in February, 1903', is explicable as a refer■ence to the unpaid balance due plaintiff under the bill •of sale. Mr. Whitsett’s testimony shows that plaintiff was objecting to the purchase, was afraid to participate in it and was opposing it. It also appears from his testimony that the plan at that time, the one plaintiff was considering, was that Easter Bros, were to put $2600 to $3000 into the property in order to get the lot and get a building erected thereon. The actual purchase made was not in accordance with this plan. It is beyond dispute that $2000 of the $2500 payment made at the time of purchasing the lot consisted of property belonging to Elizabeth Easter’s mother in which plaintiff had no- sort of interest and we think it satisfactorily proved that $240 of the remaining $500 was money of Mrs. Easter derived from payments made her by her mother in consideration of her caring for her sister, Cora La Rose. This leaves hut $260 in which plaintiff could have an interest. Clearlyr then, the plan under consideration at the time Charles-R. Easter talked with Whitsett, taking Whitsett’s testimony as true, was not the one adopted in the purchase.

Further, plaintiff’s unexplained conduct in-signing the bill of sale (and we agree with the trial court he did execute it) without giving any attention to the interest he now claims in the realty and the fact he seems never to have concerned himself about it until the property had greatly increased in-value, are not in full accord with his position in this case. He apparently took no part at any time in the-management of the property or the collection of the-rents — gave it no attention whatever, so far as this record shows. Plaintiff’s own testimony is valueless. It may be possible his incoherency, lack of memory and self-contradiction are due to the effects of his unfortunate habits, but whatever their cause they cannot themselves constitute evidence in his favor. The-record does not indicate any wilful misstatement of facts by any witness, but rather that those for plaintiff have mingled inferences with unguarded and ambiguous statements of defendants and have permitted themselves to assume from the partnership in the restaurant business a partnership in everything.

In view of these facts and the rule to which we-have already adverted, this judgment ought to be and is reversed and the cause remanded with directions to-the trial court to enter judgment for defendants.

Boy, G., concurs.

PER CURIAM.

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

All the judges concur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM.

license: Public Domain

text:
    PEARL KINCER, Appellant, v. JOHN KINCER et al.
    Division Two,
    December 10, 1912.
    1. UNDUE INFLUENCE: Deeding Property to Son: Sanity of Grantor. A man ninety-one years old, nearly blind, almost deaf, and a bedridden invalid for about four years, deeded all bis property, worth about seventy dollars a month in rentals, to one of his sons for an 'alleged consideration of ten dollars, making: no conditions or reservations. After the execution of the deeds there was an inquiry into the grantor’s sanity in the probate court, wherein he told the jury that he gave the property to the son because that son had taken care of him for years and had promised to do so as long as he lived.' The jury found him sane. Meld, in this suit to set aside the deeds, that the grantor was sane when the deeds were made.
    2. -:-: Fiduciary Relation: Burden of Proof. Where an old man was, owing to his extreme age and afflictions, a prisoner in his own house, while a son had full dominion over his body and over the management of his property and its income, the law presumes that deeds granting, without reservation or condition, all of the old man’s real estate to the son were the result of undue influence exerted by the son, and the burden of removing that presumption rests upon the son in a suit by another heir to set aside the deeds.
    3. -: -: -: Evidence. Martin Kincer was over ninety years old, nearly blind, almost deaf, and had been a bedridden invalid for about four years, when he deeded all his real estate, worth about seventy dollars a month in rentals, to his son John for the alleged consideration of ten dollars. John was then about fifty years old and the evidence shows that, aside from what he gained by doing odd jobs, he had been supported by his father all of his. life. He had had control of his father’s property before tbe transfer and bad collected tbe rents. He bad always lived in bis father’s borne, and at tbe time of tbe transfer be and bis wife were caring for tbe father, who was confined to bis bed. Some advancements bad been made to three of Martin Kincer’s children, but none were made after about tbe time when John took charge of bis affairs, and there was no evidence of ill will upon Martin’s part toward any of tbe children, except toward tbe family of bis son William. John made contradictory and inconsistent statements as to bis father’s reasons for deeding him tbe property. Held, in a suit by William’s daughter to set aside tbe deeds, that they were tbe result (Of undue influence.
    .Appeal from St. Louis City Circuit Court. — lion. Moses N. Sale, Judge.
    ^REVERSED AND REMANDED (with directions).

      MoShane & Goodwin for appellant.
    (1) Gifts, grants or donations, obtained by attorney from client, adviser from advisee, trustee from ■cestui que trust, parent from child, and guardian from ward are watched by courts with the most scrutinizing .jealousy and generally held to be presumptively void. Garvin v. Williams, 44 Mo. 465. (2) Where one who stands in the relation of confidence to a grantor or testator who is old and in extremis prepares- a will or conveyance in his favor, the law regards the transaction with great suspicion, and the clearest evidence is required that there was no fraud, influence or mistake. The presumption is against the propriety of the transaction; and the onus of establishing the devise or gift to havé been voluntary and well understood rests upon the party claiming; and this in addition to the evidence to be derived from the execution of the will or conveyances devising or transferring the property. Harvey v. Sullins, 46 Mo. 147. (3) Where one stands in a relation of trust and confidence with another who is old and failing in mind, the law will presume a contract or conveyance.between them to the detriment of the trusting one to have been the result of undue influence emanating from the stronger party, Cadwallader v. West, 48 Mo. 483. (4) In transactions connected with tbe transfer of property the nonintervention of a disinterested third party or independent professional adviser, especially when the donor is, from age or weakness of disposition, likely to he imposed upon, the statement of a consideration where there was none, or improvidence in the transactions, are circumstances which furnished a probable, though not always certain, test of undue influence or fraud. Cadwallader v. West, 48 Mo. 483; Street v. Goss, 62 Mo. 226; McClure v. Lewis, 72 Mo. 314; Hall v. Knappenberger, 97 Mo. 509'; Lins v. Lenhardt, 127 Mo. 271; Martin v. Baker, 135 Mo. 495. (5) Any influence however exercised, which destroys free agency and substitutes the will of another for that other person in whose name the act brought in judgment is done, is undue and wrongful. Dingman v. Nomine, 141 Mo. 466. (6) As bearing on the question of undue influence the relationship of the parties to each other, the mental condition of the person imposed upon and the character of the transaction should be taken into consideration. Dingman v. Nomine, 141 Mo. 466. Yosti v. Laughran, 49 Mo. 594. (7) True it is that this court has held that the mere influence of natural affection (the affection of parent for a child) is under no ban known to the law; that in such instance there must be present an active exercise of influence, over-persuasion, coercion or force, fraud or deception, breaking the will power of the testator. Norton v. Paxton, 110 Mo. 456; Teckenbrock v. McLaughlin, 209 Mo. 533; McKissock v. Groom, 148 Mo. 459; McFadin v. Catron, 120 Mo. 252. But in all of the above cases and wherever the above principle has been announced, it has been conceded by every court announcing such a doctrine that if the influence which is charged to have been exerted and the circumstances under which it was exercised were of such, a character as to destroy the donor’s free agency and substitute therefor the will and agency of another person,, or if there was present an active exercise of coercion or force, fraud or deception, breaking and controlling the will of the testator or donor, then a conveyance in such instance is void.

      Julius T. Muencli for respondents.
    (1) The situation, as shown by the evidence in this case, was not such as to throw upon John Kincer. the burden of proving that the execution of the two deeds of December 7, 1906-, had not been procured by the exercise of undue influence upon his part, for the reasons: (a) That the mere fact that the relation of parent and child existed between him and his father, Martin Kincer, the grantor in' the deeds, raised no such presumption. 29 Am. & Eng. Ency. Law, p. 132: Fitzpatrick v. Weber, 168 Mo. 562; McKissock v. Oroom, 148 Mo. 467; McFadin v. Catron, 120 Mo. 252; Maddox v. Maddox, 114 Mo. 48; McLeod v. McLeod, 40 So. (Ala.) 414; Friend’s Estate, 198 Pa. St. 363; Teter v. Teter, 53 S. E. (W. Ya.) 779; Estate of Flagg, 27 N. Y. Mise. 401; Furlong v. Carraher, 108 Iowa, 492; Hook’s Estate, 207 Pa. St. 203; Ball v. Ball, 214 Ill. 255; Bonsai v. Randall, 192 Mo. 525; Hamilton v. Armstrong, 120 Mo. 597; Kennedy v. Bates, 142 Mo. 51; Gribony v. Foster, 230 Mo. 106. (b) That the fact that he was favored, to the exclusion of other children of the grantor, raises no such presumption. Carter v. Dilley, 167 Mo. 546; Hughes v. Rader, 183 Mo. 709; Weston v. Hanson, 212 Mo. 269; Berberet v. Berberet, 131 Mo. 410; 29' Am. & Eng. Ency. Law, p. 133. (2) Even though it be conceded, for the sake of argument, that the burden of disproving undue influence rested upon John Kincer, he has more than met that requirement, according to the standards estab-listed by various cases in this State. Teckenbrock v. McLaughlin, 209 Mo. 533; Sawyer v. White, 122 Fed. '223. (3) An influence which arises out of kindness, attachment or affection, or gratitude for past services, is not considered undue. 29 Am. & Eng. Ency. Law, p. 106; Norton v. Paxton, 110 Mo. 456; Oases under point T. (4) Attacks made by heirs upon deeds from parents to favored children should be discouraged. Kennedy v. Bates, 142 Fed. 51; Beyer v. Lefevre, 186 TT. S. 125. (5) Where the evidence is conflicting, an appellate court should defer to the judgment of the trial judge, who possesses the distinct advantage of receiving impressions and gauging the veracity of. witnesses, from observing the demeanor of such witnesses on the stand, and their manner of testifying. Lins v. Lenhardt, 127 Mo. 281; Walker v. Dobbins, 152 Mo. App. 270; Jones v. Thomas, 218 Mo. 540; Huffman v. Huffman, 217 Mo. 182; Brecker v. Fillingham, 209 Mo. 583; Tinker v. Kier, 195 Mo. 183.
   ROY, C.

Martin Kincer, on December 7, 1906-, made two quitclaim deeds for two different tracts of real estate in the city of St. Louis to his son, John Kincer. The father died January 13, 1908, and the plaintiff, his granddaughter, sued to set aside those ■deeds on the ground of undue influence. From a decree dismissing her bill she has appealed.

Martin Kincer was ninety-three years of age when he died. He had been blind in one eye since •early life, and the vision of the other eye had gradually faded until he was nearly blind. He was so deaf that it was necessary to get close to him and shout almost in his ear to make him hear. In January, 1903, he fell and broke his hip and was thereafter confined to his bed until his death. It was necessary for him to take ■“physic,” as a result of which his bed was sometimes made unclean.

After the execution of the deeds in question, and in August, 1907, there was an inquiry in the probate court as to his sanity. The jury went to his house and asked him his reasons for making thé deeds to John. He answered that he had done so because John had taken care of him for a number of years and had promised to take care of him as long as he lived. The jury unanimously found that he was of sound mind. The deeds were ordinary quitclaim deeds, expressed to be made in consideration of one dollar, and without any reservations or conditions. He had lived for many years in north St. Louis, and had been engaged in the wood business, and at one time had a grocery store. He had been out of business for thirty years. At the time of his retirement he owned a double brick building at 2810 Broadway, in part of which he lived and rented the other to a tenant. He also owned property on Ninth street on which were three tenements, all rented for residences. Whether they were in separate buildings or all in one building does not clearly appear from the evidence. Up to the time of his death the rents on that part of the property not occupied by himself and his son John were about seventy dollars a month, running back for many years. His wife had died about 1888. His eldest son, Abner, sixty-four years of age at the' time of the trial, was married at twenty-one and went to himself, his father furnishing him $500' to go into the grocery business, which was soon sold, and the money was repaid. Abner separated from his wife, who lived in one of his father’s houses, paying rent with reasonable promptness.

Abner’s son, Arthur, testified that soon after his grandfather was hurt, his aunt Amelia, the wife of his Uncle John, came -to his mother’s house, who was confined in bed, just recovering from an operation, and notified his mother that she would have to pay more rent or move. They had been paying twelve dollars and it was raised to fourteen dollars. There was no ■evidence of ill will between Abner and Ms father.

Martin, Jr., another son, married in 1882 and was on a farm for five years, then came back to St. Louis. He seems never to have prospered. He was assisted in various ways by his father to the extent of about $2500. He died in 1900, leaving a widow and six nr seven children, three of whom are minors. There is no showing in the evidence that there was other than kind feelings between his family and his father.

Sarah, a daughter, married young and died, leaving one son, Martin Cranford. Neither he nor his mother* ever had any advancements, and there is no showing of ill will between Martin Kincer, Sr., and them.

Mary, another daughter, was twice married, and subsequently lived with another man under questionable relations. She at various times received assistance from the father not amounting in all to more than $100. She testified in behalf of thé defendant and stated that about 1895 her father told her that he had given the three oldest brothers all he ever intended to give them and that he wasn’t going to give her anything because she did not behave herself. In her evidence the following occurred:

“Q. Do you know whether or not he made any advancements or had given anything to your other brothers? A. Yes, sir; I have heard him say so time and again, and I know of him advancing money to my brother Marty.
“Q. Do you know of his advancing money to any of your other brothers? A. No, sir; only what he said himself.”

William, the third son, married early in life and went to himself, always living in close vicinity to his father. About 1882 he built a house next door- to his father and lived there until Ms death in 1900. About the time of John’s marriage, the sister Mary came home to her father’s, and the father wanted the nse of Will’s buggy to bring’ up Mary’s trunk, and it was refused. The father built a spite fence between him- and William, and William’s children put up- a flag by the fence with the word “Rats” on it. In a few years-the fence was taken down. There was more or less-intermittent visiting beteen William’s family and his father. There were never any advancements made to William or his family. He left a widow and four children, of whom the plaintiff is one. They are all self-sustaining, but earn their living by work, one of them being a member of the police force.

John, the youngest son, and the principal defendant herein, was fifty-one years old at the time of the trial. He lived in his father’s home all his life. He was married about 1890. He has had five children, of whom three are living. Immediately after John’s-marriage his father gave him all the household goods,, and John'testified that after that time his father never had any personal property. There was evidence tending strongly to prove that John was never in any business prior to the making of the deeds except to do the-repair work for his father and occasionally odd jobs for neighbors.

In the proceeding in the probate court concerning the sanity of his father, John’s deposition was taken and it was read on the trial by the plaintiff. In that-deposition he said, speaking of his father:

“Q. When did he own any personal property?' A. He did before I was married.
‘ ‘ Q. And you are positive that within the last ten years he has not owned a bit of personal property? A.. Not a penny.
' “Q. Nothing at all? Did he have any horses or wagons, or'anything of that nature? A. No, sir.
“Q. Have you been engaged in business ever since you were married? A. No, sir.
“Q. Have you been engaged in business for the last ten years? A. No, sir.
“Q. And since you were married you say he has had no personal property? A. No, sir; not since the day after I was married.
“Q. Since that time he has had no personal property at all? A. No, sir.
“Q. Prom the very first day you were married, he has owned no personal property at all? A. The second day he didn’t; the first day we didn’t get settled down.
‘4 Q. When you were married, where did you settle down? A. Eight there in the house.
“Q. 2810 North Broadway? A. Yes, sir.
“Q. On the second day after you were married, what did he give you? A. The household goods; household property.
“Q. What did he ever do witti the real estate that he owned? A. What did he ever do with it?
“Q. Yes. A. I bought it down here on the 7th day of December, 1906.
“Q. You bought it from your father? A. Yes, sir.
,“Q. What did you give him for it? A. Ten dollars.
“Q. Did you give- him the actual money? A. Yes, I gave it to Mm, and he turned around and gave it to the little boy; said he didn’t have any use for it.
“Q. What little boy? A. My son.”

And also in regard to the real estate and Ms own employment he said:

“Q. How did he happen to transfer to you? A.' Because he said he couldn’t be bothered with people running to him, and he wanted me to take it and do just as I pleased with it; sell it or keep it, just as I pleased. He wanted me to sell at once, but I told him I wouldn’t; that I would keep it as long as he lived.
“Q. And yon never asked him to turn it over to yon? A. No, sir; he had often said he wanted me to take the property; that he wanted me to have it, and he couldn’t be bothered with it.
“Q. When did he say that? A. Since he was in bed; anyway, since he got hnrt and before that. I kept telling him no.
“Q. Up nntil December, 1906; this property has been bringing in a rental of abont seventy dollars a month, hasn’t it? A. Some where around there, that is if we got it all.
“Q. That is, it averaged around there? A. Yes.
“Q. That would he about- seven or eight hundred dollars a year? A. Yes.
“Q. And that has been going on for the last ten years? A. Yes.
“Q. What became of all that money? A. Used if for repairs — for streets, all sorts of things; all work necessary to be done around — lumber, bricks, anything needed for repairs for the streets.
“Q. Do you mean to convey the idea that all the money taken in in rent has been used in repairing the buildings and in fixing up the streets? A. Not all of it; most all of it.
e ‘Q. None of that money has been used to support the old gentleman? A. None to amount to anything, only once in a while we have some spare money and buy him something with it — sometimes get him some underclothes, such as that.
“Q. None of that money has been used to maintain your family? Your own household? A. It might be a little; not much of it; very little.
“Q. You have collected that money yourself ? A. Yes, sir.
“Q. For your father up to the time of this transfer? A. Yes, sir.
“Q. Have'you kept any record of what you took in? A. No, sir.
“Q. How long have yon been in the business? Have yon been in business during all of the last ten years? A. I have been working around at building, patching up — odd jobs and so on.
“Q. What do you mean by that? A. Carpenter work.
‘ ‘ Q. How long have you been in the saloon business? Yon say you are in the saloon business now? A. Yes, sir; going on six months.
‘ ‘ Q. Prior to that time you were in the carpenter business? A. Yes, sir.
“Q. You have followed the carpenter business, with the exception of the last six months, for the last ten years? A. No, no. Not for the last ten years.
“Q. How long have you followed the carpenter business? A. About two years.
“Q. Prior to that time what did you do? A. Patched around for the neighbors, and did my own work; patching up around on the property where it needed it.
“Q. How long did you work around that wayf A. About twenty years, I guess; maybe twenty-five-years.
“Q. In that way, how much did • you make- a month? A. A month?
“Q. Yes. A. I can’t tell about that; when I worked at carpenter work I got twenty-three dollars a week, when I worked steady.
“Q. Working for yourself? A. Not working: around; when I worked steady.
“Q. I don’t mean when your were working steady. You say for about ten years you were working around at patching for yourself? A. For the old1 man.
“Q. For your father? A. Yes, sir.
“Q. How long did that last? A. Up until the day I got it for myself.
“Q. And since you have been engaged in the saloon business also? A. No, sir.
“Q. Then, the only real income you ever did make was at carpenter work? A. Yes.
“Q. And that’s about three years ago? A. Yes.
“Q. You worked how long at the carpenter business steady? A. About a year, I guess, off and on.
“Q. How much did you make a week? A. About twenty-three dollars, a week; I worked off and on for a year; I guess I made about eight months out of it all.
“Q. So for eight months that you worked as a carpenter you got twenty-three dollars a week? A. Yes, sir.
“Q. And you have now been in the saloon business about sis months. A. Yes.
‘ ‘ Q. Have you made a large amount of money in the saloon business? A. -No; I don’t even make good wages out of it.
“Q.' There is not much doing, then, in the saloon business? A. No; there’s not much doing in the •saloon business.
‘1Q. When you were married what did you have, outside of what your father gave you? A. I didn’t have anything except my clothes and some few little things.
“'Q. And ten years ago, what property did you have. A. Nothing more than I had before.
‘ ‘ Q. Did your wife when you were married have any money? A. No, sir.
“Q. And as a matter of fact, with the exception of the eight months that you worked as a carpenter, you have really lived out of your father’s rents, have you not? A. No, sir.
“Q. How did you live, then, if you didn’t live out of the money received from the rents? A. I used my own money for food bills and such things as that.
“Q. It appears from your statement that for almost nine years yon worked for your father? A. I worked for him as long as he was able to he around and take care of his business.
“ Q. Where did you get the money to live on? A. Where did I get it?
“Q. Yes? A. Well, I got along with what little I made working around, and what little he gave me.
“Q. That’s the point I want to bring 'out, that as a matter of fact you and your wife have lived oft the income of the property? A. No, we didn’t; I made money working around; patching and so on.
“Q. So you don’t mean to convey that you have not made any money for the last nine years? A. I made money working around for the neighbors and other people, patching up and fixing up things for them.
“Q. How much money a week or month did you make working around in this way? A. I can’t tell you; I don’t know exactly; all I know is I done the old man’s work and my own work and I worked for the neighbors, patching up and fixing up for them at odd times, whenever I had anything to do.
“ Q. Estimate in your own way how much you made a week. A. About eight or ten dollars; sometimes six dollars; sometimes as much as twenty dollars; I can’t tell you just how much I did make.
“Q. How large a family have you?' A. I have three children.
“Q. How old is the oldest child? A. Going on nineteen — no, going on eighteen.
‘ ‘ Q. How young is the youngest one ? A. Eleven years old.
“Q. Have you dead children too? A. Yes>, sir.
“Q. How many? A. Two.
“Q. You have had five children, altogether? A. Yes, sir.
“Q. Now, for tlie past ten years your father ’s-estate has been under your management and control? A. Yes, sir.
“ Q. And during this period of time you have had charge of everything1? A. Yes, sir.
“Q. Now, for the past five years he has not been out of the house, directing' and taking care of anything? A. No, sir.”

Yet, after testifying as above in the deposition,, he testified on the trial as follows:

“Q. You were questioned in your deposition regarding your employment during your entire life. Did you ever work? A. Yes, sir.-
“Q. What occupation? A. Railroading, carpentering and machinist.’
“Q. What railroad did you work for? A. St. Louis, Kansas City & Northern, now the Wabash.
<£Q. How long did you work for them? A. Pretty nearly thirteen or fourteen years.”

In his deposition, the defendant stated that his father gave to the notary, Mr. Hauschulte, at the time the deeds were acknowledged, his reasons for making the deeds, as follows:

“Q. Did Mr. Hauschulte come down to the house? A. He came down to the house, yes.
“Q. And he saw your father attach his mark to this deed? A. • Yes, sir.
‘ ‘ Q. And it was after that that you gave him the ten dollars? Á. I gave him the ten dollars while Hauschulte was having the deeds made out. I told Mr. Hauschulte to come down to .the house; that the old man wanted to see him. When he come there-at the house the old man told him that he wanted me to- have the property; that he wasn’t able to handle the business ; people running there to rent it or to buy it, and he couldn’t handle it and didn’t -want to be bothered, with it; he said he wanted me to have it and do as I pleased with, it, and told Mr. Hauschulte to make out the deeds.
“Q. So Mr. Hauschulte went to make out the deeds? A. Yes.
“Q. But while he was making out the deeds you gave the ten dollars to you father? A. Yes, sir.
“Q. And then he gave it to the 'little hoy? A. Yes, sir.
“Q. And then Mr. Hauschulte brought down the deeds? A. No, he sent for me — he sent for me and I went to his office and he said he would have the deeds there in a couple of days. And when he fetched them there, the old man signed them.”

During the examination of Mr. Hauschulte the following occurred: “The Court: He didn’t say anything concerning the reason why he was transferring all of this property to John? A. No, sir.” ■

While not asked especially about it, Mr. Haus-chulte’s evidence clearly showed that he drew the deeds at John Kincer’s direction, and that he did not see John’s father about it until the deeds were acknowledged.

In his testimony at the trial, in regard to his father’s reasons for making the deeds, John Kincer said:

“Q. What did your father say to you about that? A. He said to me ‘John, about the will: we had better make a deed and be sure that the will don’t get destroyed, for them people next next door,’ he said, ‘are mean enough to do anything.’ That is exactly what he said. ‘They are dirty enough to do anything,’ he said. ‘Them people will do anything to make away with that will, and the best thing we can do is to call Hauschulte and let him make a deed so they won’t bother you.’
“Q. What did you say? A. I said I thought the will was just as good as the deed and he said they might make away with it arid it get destroyed and he said, ‘You tell Mr. Hauschulte to come up in the morning and I will make out a deed,’ and I went next morning and told Mr. Hauschulte.”

The first will was made about 1895', and the second on September 25, 1903. Mr. Hauschulte wrote them both. He could not state what the contents of the first will were. He stated that it was destroyed when the last was written, and the last one was left in Ms charge until the death of the testator. Mr. Maune, who witnessed both wills, testified that their contents were the same.

It was conceded at the trial that Martin Kincer, Sr., kept a hook in which he set down the amounts furnished his cMldren by him. That book shows about $2500 furnished Martin, Jr., most of which was before 1886. After that the amounts furnished him gradually diminished until they ceased in 1898, and the book did not show anything furnished any of the children after that year. That boók did not show that any of the children except Martin, Jr., and Mary had received anything.

John and his wife had charge of the father and personally cared for him until his death and they were kind and attentive to him.

I. We have no difficulty in finding that Martin Kincer was sane when the deeds were made. But that is all that can be said in support of the deeds in controversy. Owing to his old age and afflictions he was a prisoner in his own house. He was kindly treated, but John had full dominion over his body and over the management of his property and its income.

The law raises a presumption that the deeds were the result of his undue influence over his father, and calls upon him to explain that they were not the result of such undue influence. In the absence of such explanation, the presumption becomes absolute. The defendant 'has utterly failed to make a satisfactory explanation.

The claim is made that the other children were a burden to their father and that John was the only one who was a comfort to him. None of the other children was very successful in life. Martin was almost constantly in need of assistance, and got more or less of it down to about 1898. Mary had received about $100'. Abner, Sarah and William were under no pecuniary obligation to their father in the way of advancements. All the other children had, early in life, passed out of the home nest. John alone remained at home. There is no escaping the conclusion from the evidence that his father financially supported him all his life, that support being supplemented to a very limited extent by John’s income from odd jobs. That is clearly shown by his own evidence. In comparison with what he received, even Martin, Jr., got very little. The storms beat heavily upon the heads of his brothers and sisters, but John was always safely sheltered “in his father’s house.”

From a financial standpoint there was no cause for such conveyances. The income of the property was more than sufficient to pay for his support and care, even after his affliction.

In Martin v. Baker, 135 Mo. l. c. 504, property was transferred to a child in consideration of support. The income of the property was sufficient for that purpose. The court said: “That the contract thus secured was most unreasonable and unfair cannot he doubted. From the character of the contract, the. relationship of the parties, and the mental condition of the grantor considered alone we would he bound to draw the inference that improper influences were brought to bear in securing the deed. ’ ’

In that case there was a provision for a forfeiture in case of a failure to support the grantor. Not so here. No rights were reserved. John could have sold the property at once; and then, with one reckless in* vestment of the proceeds, all might have been over and the grantor a pauper. In the making of those deeds only John was cared for. The father and Ms-other children were ignored.

It is claimed that the deeds were made because of coolness between the grantor and the family of his son William and because of the bad conduct of Mary, The coolness that existed twenty years before was caused by the fact that the father did not think that William was at that time kind enough to Mary. He surely did not disinherit Mary on account of her misbehavior, and also disinherit William’s family because William was not kind to Mary. In any event that furnishes no reason why he should repudiate his other children.

John acquired the entire management of his father’s property about ten years-before the latter’s death, and it was just about that time that the father ceased to aid any of his cMldren. The book of advancements shows that fact. His father was not then crippled, and needed no special care, yet his income was all appropriated hy John, he, of course,'paying the necessary expenses. At that time there was a will, wMch was written about 1895. We presume that it was different from the will of 1903, because it is not reasonable to presume that it would be destroyed and replaced by a duplicate of it. After being injured in. January, 1903, he made a will in September of that year, giving everything to John, and then followed the making of the deeds in 1906. The defendant gave several different explanations as to why those deeds were made. In his deposition he stated that his father made the deeds to him because he did not want to be bothered with it. On the trial he stated that the reason his father gave for making the deeds wasi because the people next door were mean enough to do anything and that they might make away with the-will. That is a very different reason from the other, and moreover it is irrational. The will was in the keeping of Mr. Hanschnlte, and there was no reason to suppose that "William’s family conld get control of it.

The law does justify a parent in favoring one child over another in the gift of property. It permits him to obey the dictates of his affections in that matter; and snch parental affection is no mark of undue influence. Those are rules regarded with great care by this court, but they stand side by side with the presumption above spoken of. If the parent is free, he may prefer one child over another of equal merit, giving no reason therefor. But whenever one of his children has the care and management of his property, any preference given to such child during such relation must be shown to be of the utmost fairness. [Street v. Goss, 62 Mo. l. c. 229.] In that case it was said: “There exists therefore no necessity to show fraud or imposition practiced on him who bestows the •confidence; but simply to show that, during the pen-dency of snch intimate relations, the conveyance in question was made.”

In Hall v. Knappenberger, 97 Mo. l. c. 511, it was said: “If, in such circumstances, a gift of any considerable value be bestowed by the one who reposes confidence upon the one in whom confidence is reposed, such gift is presumptively void. The burden is cast upon the recipient of the gift; and it belongs to him to show the absolute fairness and validity of the gift and that it is entirely free from the taint of undue influence.” In this case, in addition to being his father’s agent, John was his nurse.

It was held in Dingman v. Romine, 141 Mo. l. c. 475, that there is no relation between men more calculated to make the will of one subservient to that of the other than the relation of patient and nurse. That relation existed between John and his father in addition to the fiduciary relation.

We cannot do otherwise than stamp with onr disapproval the transaction here involved, and we reverse the decree and remand the cause with directions to enter a decree in favor of the plaintiff.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur.


author: BLAIR, C. PER CURIAM.

text:
    THOMAS WARD McMANUS, Appellant, v. CAMILLA BURROWS et al.; SIM T. PRICE et al., Respondents.
    Division Two,
    December 10, 1912.
    1. EXECUTION: Partition: Fees of Commissioners and Attorneys. Under the provisions of Sec. 2279, R. S. 1909, attorneys ,and commissioners are entitled to execution for fees taxed and adjudged to them by the court in a suit in partition of lands founded on the statutes.
    2. -: Conformity to Judgment: Sec. 2279, R. S. 1909. An execution issued under Sec. 2279, R. S. 1909, does not fail to conform to the judgment because it does not run against one of the parties against whom attorneys’ and commissioners’ fees in partition were originally adjudged, and does not run against another party for the full amount originally adjudged, where said execution recites the fact that those parties had, after judgment, paid the amounts, or a part thereof, taxed against them.
    Appeal'from St. Louis City Circuit Court. — Eon. Matt G. Reynolds, Judge.
    Affirmed.

      T. J. Roioe, Tilomas J. Rowe, Jr., and Henry Roive for appellant.
    (1) No one but a party to the suit can have an execution. Price and Nichols were the attorneys for the plaintiff, and Gerhart, Grenner and Trembley were the commissioners appointed by the court to make the partition and had no authority to direct the issuance of an execution. R. S. 1899, Secs, 1563, 3151, 4392, 4415 and 4422: Hoover v. Railroad, 115 Mo. 77; Davis v. McCann, 143 Mo. 172; State ex rel. v. Benick, 157 Mo. 292; Beedle v. Mead, 81 Mo. 306. (2) The right to an execution is a strictly statutory right, and must be construed strictly, and he who claims such right must be able to place his finger on the statute which grants it. (3) The execution must conform with the judgment, and must describe the judgment. If it fail in this essential part it is void. Freeman on Executions, See. 42, pp. 64 and 65; Zelle v. Bobb, 14 Mo. App. 267; Bam v. Chrisman, 27 Mo. 293; Coe v. Bitter, 86 Mo. 287; Maloney v. Association, 57 Mo. App. 384.

      B. M. Nichols for respondents.
    (1) The words “party” and “parties,” as used in Secs. 2090, 2172, 2279 and 2290, B. S. 1909, include all who are directly interested in the judgment. The allowances to commissioners, attorneys and other costs make the beneficiary “party” to the judgment and he is estopped by the judgment, could exercise the right of appeal from such allowance, as could the “parties” to the suit. Sec. 2279 not only makes the recipient or beneficiary of the judgment “a party” but gives him the right of execution. Donaldson v. Allen, 213 Mo. 293; State ex rel. v. St. Louis, 145 Mo. 551; State ex rel. v. Johnson, 123 Mo. 43; Bobbins v. Chicago, 71 TJ. S. 657; Cortez v. Superior Court, 86 Cal. 274; Thomas v. College, 43 Pac. 966; Freeman on Executions (2 Ed.), Sec. 21; Fisk v. Lamo-reaux, 48 Mo. 523; Gay v. Orcutt, 169 Mo. 400; Paddock v. Railroad, 60 Mo. App. 337. (2) It is contended there is a variance, because the execution does not run against all the parties. The execution is against all of the parties named in the judgment excepting Camilla S-. W. Burrows, and the execution shows, as a reason why it is not against her, that she had paid the part of the judgment against her. The judgment against her was her separate liability. No other party was liable for it. (a) An execution on a judgment against her which had been paid, would have been a nullity. Durfee v. Moran, 57 Mo. 374; Mill Co. v. Sugg, 83 Mo. 476. (b) “Where partial payments have been made upon a judgment, the execution should recite the judgment as it was originally recovered and state the amount that has been paid, and the sum that is still due, or be issued for the whole amount of the judgment with the credit indorsed on the back of the writ.” 8 Ency. PI. & Pr., p. 428; Walker v. Deaver, 79 Mo. 679; State ex reí. v. Burns, 129 Mo. App. 484.
   BLAIR, C.

This is an appeal from an order of the circuit court of the city of St. Louis overruling a motion to recall and quash an execution issued on a judgment partitioning certain property in kind and awarding costs and attorneys’ fees.

On the coming in of the report of the commissioners the plaintiff, the present appellant, moved for confirmation of the report and the court took up at the same time with plaintiffs’ motion the petition or motion for the allowance of attorneys’ and commissioners’ fees and thereupon rendered judgment confirming the report of the commissioners, making certain allowances to the commissioners and to the attorneys in the case and allowing certain other items of expense and costs. The whole amount of all these allowances was by the judgment taxed as costs and adjudged against the several parties in proportion to their interests in the lands partitioned, i. e., one half against appellant, one third against Park, trustee, and one sixth against Camilla S. W. Burrows. At the next term of court the attorneys and commissioners moved for execution on this judgment, the motion reciting the several allowances made by the court and further stating that Camilla S. W. Burrows had paid all sums adjudged against her, that appellant had paid one half of the allowance for attorneys’ fees and Park had paid nothing and prayed execution against appellant and Park for the sums adjudged against them and yet unpaid. The court, over appellant’s exception, sustained the motion and ordered that execution issue. The execution issued pursuant to this order clearly identified the judgment upon which it rested, recited the several allowances made, stated the interests of the several partitioners in the property partitioned and the proportions of all the allowances and costs adjudged against the respective partitioners, set forth the payment by Camilla S. W. Burrows of the whole amount adjudged against her and the payment by appellant of that part of the allowance for attorneys’ fees adjudged against him, and commanded that there be made from the property of appellant one half of each allowance except that for attorneys’ fees and that there be made from the property in Park’s hands as trustee one third of each allowance made in the judgment.

In view of the questions presented by appellant’s counsel in this court this is a sufficient statement of the substance of the execution issued. Appellant’s motion to recall and quash the execution was overruled and he appealed. >

Other facts pertinent to the questions presented will be stated in the course of the opinion.

A reversal is sought on the grounds that (1) the judgment does not authorize the issuance of execution, (2) the attorneys and commissioners had no right to have execution issued and (3) the execution does not conform to the judgment.

I. The judgment in partition was not appealed irom and "became final with the lapse of the term. Appellant took and is in possession of the parcels of realty set off to him in the commissioners’ report as confirmed by the conrt. The statute (Sec. 2279, R. S. 1909) authorized judgment for his proportionate share of the costs against each party to the partition proceedings and the issuance of execution on such judgment, the levy of such" execution on the property of the respective partitioners and the sale, under that execution, of enough of the property of each to pay the amount adjudged against him, and no more.

1. Under the general statute (Sec. 2172, R. S. 1909) “the party in whose favor any judgment, order or decree is rendered, may have execution in conformity therewith,” and section 2279, supra, specifically warrants the issuance of execution on judgments of this kind in suits in partition. Even at common law it was not necessary that the judgment formally award execution. [1 Freeman on Executions, Sec. 16.]

2. It is insisted, however, that the sections of the statute (Secs. 2609 and 2578, R. S. 1909) which authorize allowances in favor of attorneys and commissioners in suits in partition provide that these shall be taxed and collected as costs and, it is argued, that collection thereof must be made by fee bill, not by exécution. The argument is principally based on the idea that the judgment is merely for costs, in the ordinary sense, and that those in whose favor allowances are made are not “parties” entitled to execution. There was a time when the statute (Gen. Stat. 1865, p. 689, Sec. 22) provided that in suits in partition the petitioner or petitioners should, in the first instance, pay all costs, be then entitled to judgment against the other parties in proportion to their respective interests and, in case there was partition in kind, a fee bill should issue for the collection of the costs so adjudged, for the reimbursement of such petitioners. In 1879 (See. 1006, R. S. 1879; 2279, R. S. 1909) this section was amended and the provision as to payment of all costs by petitioners was eliminated, as was that respecting collection by fee bill, and the present statute enacted authorizing judgment against each allottee for his due proportion of all costs, the issuance of execution therefor and the levy and sale thereunder if necessary. In view of this significant amendment we think there can be no doubt the Legislature intended to substitute execution for fee bill in collecting costs and allowances in suits in partition and that the statute authorized the issuance of the execution in this case. The fact the sections of the statute referred to (2578, 2609, R. S. 1909) direct the taxation and collection of attorneys’ and commissioners’ allowances “as other costs” and “as other costs in the case” must be considered in the light of the amendment mentioned and interpreted to mean as it clearly does mean, “as other costs in the case” in ;partition before the court, and such costs are to be collected under the special provisions- (Sec. 2279, supra) relating to costs in suits in partition. The phrases “as other costs” and “as other costs in the case” refer to the special stathte (Sec. 2279) and not to the general statute relative to the collection of costs in cases of other kinds. The cases cited (Hoover v. Railroad, 115 Mo. 77; Davis v. McCann, 143 Mo. 172; State ex rel. v. Renick, 157 Mo. 292; Beedle v. Mead, 81 Mo. 306) arose under the general provision relating to the taxation and collection of costs and are not in point. The judgment is against the partitioners and in favor of those to whom allowances are made and the statute leaves no room for doubt that execution may issue. Those in whose favor these allowances or costs are adjudged in cases of this kind are, under the special statute, entitled to control the judgment therefor in their favor and, for that matter, would seem to be as much “parties” to the judgment in their favor as any other who secures a money judgment. Their relation to the judgment is very different from that of the court official entitled to fees accruing-in connection with an ordinary action and whose rights with respect to collecting his fees or costs are defined by a wholly different statute.

II. It is finally insisted the execution does not conform to the judgment and by that fact is invalidated. It is not to be denied that conformity to the judgment on which it is based is essential to the validity of an execution.

The judgment, conformed exactly to the provisions of section 2279, supra, in that the allowances and costs were taxed against each of-, the allottees in exact proportion to his ascertained interest in the property partitioned and judgment was rendered accordingly “against each party for his or her share of such costs.” Subsequently Camilla S-. W. Burrows paid all sums adjudged against her, appellant paid his proportion of the attorneys’ fees as adjudged against him and Park paid nothing. The execution included only unpaid amounts, ran against appellant and Park for the proportionate amounts of the unpaid items adjudged against them and ran in favor of those to whom these amounts were due. The statute (Sec. 2279, supra) clearly contemplates a single judgment, against each allottee for his proportionate part of the allowances and costs, and also authorizes a single execution on the judgment, such execution to follow the judgment as to the several amounts adjudged against the several parties and specifically prohibits a sale thereunder of any property of any allottee save so far as necessary to realize sufficient funds to pay the portion adjudged against such al-lottee. There is but one judgment and one execution authorized (Zelle v. Bobb, 14 Mo. App. l. c. 269) but that judgment is severable to the extent that the fact Camilla S. W. Burrows had paid all sums adjudged against her warranted the court’s refusal to include her in the execution further than by a recital of the fact her proportion had been adjudged against and paid by her. In fact no other course was open to the court since Camilla S. W. Burrows had complied fully with the judgment in so far as it affected her. It was also the duty of the court, in ordering the issuance of the execution, to give proper credit for the sums paid by appellant on the amount adjudged against him. This the court did by reciting in the •execution the entire amount adjudged against appellant and the amount paid by him and awarding execution against him for the balance. [8 Ency. Pl. & Pr., p. 428.] The objection that the execution does not conform to the judgment in that it does not run against Camilla S. W. Burrows and that it does not run against appellant for the full amount originally adjudged against him is not sound and is ruled against appellant. The case of Zelle v. Bobb, 14 Mo. App. 267, is cited as supporting a contrary conclusion, but in that case no payment had been made by any one and the trial court had attempted to issue separate executions against each defendant. In the case before us Camilla S. W. Burrows has eliminated herself by payment of all due from her. No sale of her property could be made under the judgment,'no judgment against her remains unsatisfied. The case cited had to do with entirely different facts. Other cases cited (Maloney v. B. & L. Assn., 57 Mo. App. 384; Coe v. Ritter, 86 Mo. 277; Bain & Wyatt v. Chrisman & Porter, 27 Mo. 293), so far as applicable, merely announce the general rule that an execution must conform to the judgment upon which it is issued. The execution varies from the statutory form (Sec. 2173, R. S. 1909) but such variance is practically accounted for and authorized by the special statute (Sec. 2279, supra) under which it. was issued.

In view of what has been said we find no ground for reversal in the specific objections (above discussed) made to tbe execution and none other appears- or.is called to our attention and the judgment is affirmed.

Boy, G., concurs.

PER CURIAM.

The foregoing opinion of Blaib,. 0., is adopted as the opinion of the court.

All the-judges concur.


author: ROT, C. PER CURIAM.

text:
    LACLEDE-CHRISTY CLAY PRODUCTS COMPANY v. CITY OF ST. LOUIS et al., Appellants.
    Division Two,
    December 10, 1912.
    1. PUBLIC ROAD: Evidence Necessary to Establish Existence-In 1862, an order of the county court of St. Louis county attempted to establish a public road called Sulphur avenue. The order was void, but in 1866 a member of the plaintiff corporation signed a communication to the court recognizing the existence of a road there, and his testimony shows that in 1863 there was a road with good fences on either side.- In 1875 the plaintiff was one of forty-six petitioners asking the county court to-grade said road, which in 1876 was taken into the city of St. Louis; in 1882 said plaintiff acquired land bordering the highway by deeds which stated they were subject to“ it, and in 1889-the plaintiff, its charter expiring, made to itself as a new corporation a deed showing the existence of the highway. The-city, in 1889, replaced a bridge on said highway. Held, in this suit to enjoin the removal by the city of plaintiff’s structures, from the right of way, that the land in question was a public highway.
    2. -: User for Ten Years. The use of a road for ten years with the acquiescence of the owner makes it a valid road.
    3.-: Title Vesting in City. By virtue of Sec. 10, Art. 1, of the Scheme and Charter of St. Louis (1876), the interest of St. Louis county in all public roads and highways taken into the city was vested in said city. Semble, that independent of such provision such would be the result of taking a public road into-a city.
    4. -: City Streets: Sec. 10446, R. S. 1909. Although in. this case it is not clear there was such nonuser, it is held that Sec. 10446, R. S. 1909, providing that “nonuser by the public for a period of ten years continuously of any public road shall be deemed an abandonment,” does not apply to city streets.

      5. CITIES: Streets: Title not Lost by Abandonment or Adverse Possession. The right of a city and the public to the use of a. street cannot be lost by abandonment or adverse possession.
    6. -: -: Title: Estoppel. A city is not estopped from asserting title in a street by the declaration of its street commissioner that the ground in question was not a street, nor by its ordinance condemning the right of way for the purpose of laying sewer and water pipes.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    REVERSED AND REMANDED (uAth directions).

      Lambert E. Walther and Truman P. Young for appellant.
    (1) See. 9472, R. S. 1899, does not apply to streets in the- city of St. Louis. R. S. 1879, Sec. 6987; Laws 1883, p. 170, Sec. 58; Laws 1887, p. 257, Sec. 57; R. S. 1889, Sec. 7847, State v. Muir, 138 Mo. App. 118; State y. Tramsue, 131 Mo. App. 323; State v. Craig, 79 Mo. App. 412; State v. Macy, 72 Mo. App. 427; State v. Pullen, 43 Mo. App. 620; Harper v. Morse, 46 Mo. App.. 470; In re Forsyth Boulevard, 127 Mo. 417; Rose v. Kansas City, 128 Mo. 135; In re Essex Avenue, 121 Mo. 98. (2) The right to vacate streets is given to-the city of St. Louis by its charter, and must be exercised by the mayor and assembly acting by ordinance. This method of vacating streets is exclusive of any other method. Manker v. Faulhaber, 94 Mo. 430; Glasgow v. St. Louis, 107 Mo. 98; Knapp-Stout & Co. v. St. Louis, 156 Mo. 343; Christian v. St. Louis, 127 Mo. 109. There is a marked difference between a country road and a city street. Elliott on Roads and Streets (2 Ed.), pp. 15, 16, 19 and 22. The right of the city to maintain title to a street which is not traveled by the public has long been recognized by this court. Downend v, Kansas City, 156 Mo. 60; Meiners v. St. Louis, 130 Mo. 284; Baldwin v. Springfield, 141 Mo. 205; Brinek v. Collier, 56 Mo. 160; Hunter v. Weston, Ill Mo. 176; Ely v. St. Louis, 181 Mo. 723 ; Atkinson v. Nevada, 133 Mo, App. 4; Curran v. St. Joseph, 143 Mo. App. 618. (3) The Statute of Limitations does not run against the city’s right to the public streets. R. S. 1899, Sec. 4270; Wright v. Doniphan, 169 Mo. 60.1; Brown v. Carthage, 128 Mo. 10'; St. Louis v. Railroad, 114 Mo. 13; Williams v. St. Louis, 120 Mo. 403; Insurance Co. v. St. Louis, 98 Mo. 422; Glasgow v. St. Louis, 107 Mo. 198; State v. Culver, 65' Mo. 607; Commonwealth v. Alharger, 1 Hort. Pa. 487. (4) The city cannot he estopped to assert its title to a public street. Moses v. Dock Co., 84 Mo. 242; Buschmann v. St. Louis, 121 Mo. 523; Wright v. Doniphan, 169 Mo. 601. The city holds its streets as trustee for the public and has no power to alien them or give them away. Schopp v. St. Louis, 117 Mo. 137; 1 Dillon on Mun. Corp. (4 Ed.), Secs. 97 and 383; Glaessner v. Brewing Ass’n, 100 Mo. 508; Sugar Refining Co. v. Elevator Co., 82 Mo. 124, 101 Mo. 192; Railroad v. Illinois, 146 U. S. 453; Reighord v. Flynn, 189 Pa. St. 355; State ex rel. v. Murphy, 134 Mo. 562; State v. Railroad, 103 S. W- 1139; Cummins v. St. Louis, 90 Mo. 269; State ex rel. v. St. Louis, 161 Mo. 371. (5) The road in question was a public road before it became a part of the city of St. Louis and was thereafter a public street of said city. It was such by long continued use. Buschmann v. St. Louis, 121 Mo. 523; Becker v. St. Charles, 37 Mo. 13; Heitz v. St. Louis, 110 Mo. 618; Harper v. Morse, 49 Mo. App. 470; R. S. 1899, Sec. 9472. (6) Respondent is estopped by the conduct of itself and those in privity of title with it to deny the public character of the road. Tolby v. Staunton, .119 Mass. 404; Moore v. Walla Walla, 2 Pac. 187.

      Lyon & Swarts for respondent.
    (1) The action of the county court is a nullity— it can have no vitality for any purpose. Appellants are relying on the proceedings of the county court, and if the proceedings are a nullity there is nothing in law ■on which to rely. In re Essex Avenue, 121 Mo. 105; Seafield v. Bohne, 169 Mo. 547; Mitchell v. Eailroad, 138 Mo. 331; Fringo v. Buford, 112 Mo. 149; Ziebold v. Foster, 118 Mo. 354; Mulligan v. Martin, 125 Mo. App. 634. (2) Mere proof of intermittent public travel over unoccupied land on different tracks, as suited convenience, and depending on the condition of the alleged road, is insufficient to establish a highway by riser. Bxinck v. Collier, 56 Mo. 165; Garnett v. Slater, 56 Mo. App. 212; Eailroad v. Woolard, 60 Mo. App. <633; Bosenberger v. Miller, 61 Mo. App. 428. (3) The respondent -is the owner of the strip covered by the alleged road. Whatever easement the public obtained "has been wholly abandoned by it for the past thirty years. Johnson v. Easmus, 141 S. W. 590; State v. ■Culver, 65 Mo. 609. (4) The public had not used the alleged road for a continuous period of about thirty years; no public money or labor was expended on the alleged road for the period of ten consecutive years, or at any time, either during the period of its alleged public use or since it was abandoned. E. S. 1899, Sec. 9472; State v. Meier, 136 Mo. App. 123; State v. Macy, 72 Mo. App. 432. (b) Sec. 9472, E. S. 1899, did apply to the city of St. Louis. It was first enacted in 1879 (E. S. 1879, Sec. 6987), and was amended in 1883, but not as to the matter here .relied on. Sec. 9446, E. 'S. 1899, was first enacted in 1899, providing that the article did not apply to counties having a population ■of 100,000. The enactment of section 9446 in 1899 did not affect the legal status of the alleged road, which, under the law and the statutes in force at that time had been abandoned by the public.. (5) Estoppel is good only between the parties and those in privity with them. Where it applies, we find such elements as dedication of street or road, the platting of streets, sale of property bounded by streets or roads, the erection of improvements in reliance thereon. No such element is in this case. Cattle v. Snyder, 101 Mo. 763; Hempstead v. Easton, 31 Mo. 142; Schenck v. Stumpf, 6 Mo. App. 381; Curtis v. Browne, 63 Mo. App. 431.
   ROT, C.

This case involves the question as to-whether Sulphur avenue running south from Manchester avenue to Wilson avenue, in the city of St.-Louis, a distance of about 1800 feet, is a valid street.

The plaintiff, about two years before the trial, constructed a building known as the shipping shed, extending from the west to a point ten feet within the alleged street. It also built a brick kiln thirty-eight feet in diameter on the street. The city was proceeding to remove those structures as obstructions to the street when the suit was begun to enjoin such action on the part of the city. The decree was for the plaintiff and the injunction was made perpetual. The city has appealed.

The river Des Peres' crosses the alleged street about seven hundred feet south of Manchester avenue.

Appellant claims that Sulphur avenue has been traveled as a public highway since 1862 until within the last few years, while the respondent claims that it was never a defined and recognized line of public-travel, but that such travel as there was on or near that portion south of the river was the random and irregular travel such as occurs ad libitum over open land, and not confined to a definite track; and that the travel north of the river was of the same character except in dry weather.

Our attention is called to the language used by the learned trial judge during the trial, as follows: “I am very much impressed with what evidence I have heard so far that the use that was made of that road ought not to be dignified by calling it a user. There never was any nse of that road any more than there was of any open land in the county over which people might drive; there never was any road there, and never was any public work done on it, and absolutely the only thing from the testimony that would lead anybody to suppose that there was a road there was the fact that there was a bridge across the river Des Peres.”

Owing to that claim made by the plaintiff and the above language of the trial court, we will state at some length what are the conceded facts or facts established by the evidence for the plaintiff.

On July 24, 1862, the territory through which the street runs was outside the city, and in St. Louis county. The county court of that county on that date made an order establishing the road under the name of Cheltenham avenue, now the street in controversy, thirty feet wide on the line between lots twelve and thirteen in Graham’s Subdivision of the Sulphur Springs tract. Lot thirteen is on the east and lot twelve on the west. That order was void by reason of the fact that the petition on which it was based was signed by only eight persons instead of twelve as the law required, and it was void for other reasons not necessary to mention.

In 1865, Samuel Hambleton and James Green purchased lot thirteen from Thomas Allen. There were at that time several railroad tracks crossing the property near the north end and other tracks have been built since. Mr. Green, who is the president of the plaintiff company and has been in business on that land ever since 1865, testified that he knew the land since about two years before his purchase in 1865, and that there was then “a little bit of a country road over there, ’ ’ and that it was fenced on both sides from Manchester avenue to Wilson avenue with good fences, plank fences, except that the part on the east side north of the river was a hedge fence. About the time the road was opened, a bridge was built by tbe county across tbe river Des Peres. Tbe following instrument was read in evidence:

‘ ‘ Cheltenham, Mo., May 20, 1866. To tbe Hon. John H. Long, St. Louis, Mo. — We, tbe undersigned citizens of Cheltenham, do petition tbe Honorable County Court of St. Louis County, Mo., to widen tbe space between tbe bridge and tbe fence of tbe new road at 'Cheltenham so that tbe stock can have easy access to tbe water,” which was signed by Charles D. Devlin and six others. Tbe following was also in evidence: • •

St. Louis, Jupe 25, 1866.
To tlie Honorable County Court of St. Louis County.
Gentlemen: Tbe undersigned petitioners, baying been notified to remove their fence from tbe stone abutments of tbe bridge across riveb Des Peres on County road át Cheltenham, Cheltenham -avenue, would most respectfully beg leave to state if they should be required by your honorable body to remove the fence it would be almost impossible for them to protect their property from trespass of their neighbors’ cattle. They would have to erect flood gates, which, in our opinion, would wash away at every freshet of the river, which rises and falls very rapidly, and a very large quantity of drift floats down the river at every heavy rain, and consequently would carry away any gate we could possibly construct; and, we would further state the removing of our fence would not benefit any person in the neighborhood, and the majority of the petitioners who ash for the removal of the fence are not property holders, and as we believe the petition was gotten up for the express benefit of Mr. Charles Devlin, and your petitioners would most respectfully ask your Honorable body to allow our fences to remain as it now is. If granted their request, they will ever pray, etc.
(Signed) Samuel Hambleton,
James Green,
Charles M. Field.

Also tbis report:

Office General Road Superintendent,
Sept. 3, 1866.
To the Hon. County Court of St. Louis County.
Gentlemen: The petition of Charles Devlin and others at Cheltenham, St. Louis County, for widening Cheltenham avenue, at the crossing of the river Des Peres so that the stock can have easy access to the water has been referred to me, Samuel Ham-bleton, James Green and Chas. M. Field, having joined their fences and the wing walls of the bridge across the said river together, have been notified to remove their fences from the property of the county, whereupon the said Samuel Hambleton, James Green and Chas. M. Field have filed their petition for allowing their fences to remain as they are, which having also been referred to me by your order, I have examined the place of complaint, and beg leave to report as follows: Cheltenham avenue is 30 feet wide, and the bridge is in the middle of the road; the bridge and wing will occupy 26.4 feet in width, so that 1.9 feet space will be left between the wing walls and the fences to give the stock access to the water in case the fences should be removed; this narrow space is, in my opinion, insufficient for stock to strain itself through the narrow space into the said river. No stock of any kind can go back easy, because the river bank is too steep and the space between the wing walls too narrow. If Cheltenham avenue would be 40 feet wide I should recommend the opening of the said river, but as the width is only 30 feet and the stock cannot get an easy access to the water, I respectfully recommend to allow the fences to remain as they are. Respectfully, your obedient servant,
JOHN Alt,
Geni. Road Superintendent.

Also the following:

St. Louis, January 23, 1875.
To the Hon. County Court of St. Louis County.
Gentlemen: We, the undersigned citizens and property owners of Central township, petition your Honorable body to grant your disposition regarding the grading of Cheltenham avenue from the Old Manchester road to the New Manchester road,

"Which was signed by the Laclede Fire Brick Co., by James Green, Prest., and by forty-five others.

And this report:

County Engineer's Office,
February 22, 1875.
Hon. County Court, St. Louis County:
Gentlemen: I beg leave to report the following upon this petition referred to me, of Charles B. Gratiot et al., for the grading of Cheltenham avenue. The avenue has a width of only 30 feet, and' is about a mile in length connecting the Market street road at Cheltenham, with the old Manchester road, near the Watson road. It passes over very rough and steep ground, and to excavate it, even to very steep grades will require quite a large amount of work. A new bridge also will have to he built over the river Des Peres, as the present one will not be adequate if the avenue is to be improved.
The following is an estimate of the approximate cost of improving said avenue, as called for in the petition, viz.:
Excavation, 14,000 Cu. Yds. at 20ets .$2,800 00
Bridge and Culvert masonry 300 perches at $5 .... 1,500 00 56 lineal feet of new superstructure, at $12.00.... 672 00
$4,972 00
As this road is under the control of the general road superintendent, I am unable to say whether this amount can be spared at the present time from his appropriation to be applied to the improvement petitioned for.
Respectfully, yours obediently,
John G. Kelly, County Engineer.

Also the following:

Oeeice General Road Superintendent,
St. Louis, April 19, 1875.
To the Hon. County Court.
Gentlemen: Respecting the enclosed petition of Charles B. Gratiot, et al., for the grading of Cheltenham avenue, I have the honor to report as follows:
This avenue runs from the Manchester road at Cheltenham station to the Old Manchester road, near its intersection with the Watson road, and is about one'mile in length. If properly graded it would no doubt become an important thoroughfare, but at present it is nearly impassable for loaded teams. The proposed improvement, according to the estimate of the county engineer, would cost in round figures the sum of 5000 dollars, which estimate is based upon a maximum grade of 7.5 feet in 100 feet, and a clear width of 24 feet, which still would leave the road in an unsatisfactory condition because the road being only 30 feet wide, the embankments would have to be made partly on private property, and the sides of the excavations would have to be made nearly perpendicular, which is very objectionable in such narrow cuts.
I cannot recommend this work at the present time; first, because there are not sufficient funds credited to my department for the present year; and secondly, because the road is only 30 feet in width, and the proposed work cannot be done properly unless the road is widened to at least 60 feet. ^
Respectfully, Aug. Elbring,
Geni. Road Superintendent.

In 1869, Hambleton and Green incorporated their business under a charter running twenty years: The corporate name was the Laclede Fire Brick Manufacturing Company, and in 1889 its charter was renewed under the same name, which has since been changed to its present name.

In 1882, the plaintiff acquired that part of lot twelve lying south of the river under two different deeds, each conveying an undivided half, and both expressed to be “subject to the public road lying between lots twelve and thirteen.”

In 1889 the old expiring corporation made to the new one a deed to its property in lots twelve and thirteen, the description of the land in lot twelve being followed by the'words, “containing 11.77 acres, including one-half of Sulphur avenue, and 11.26 acres excluding said avenue.”

In 1876, by the “Scheme and Charter,” the territory which includes Sulphur avenue was taken inside the city of St. Louis. In 1882, by ordinance, the name of the street was changed from Cheltenham avenue to Sulphur avenue. On February 14, 1889, the city by ordinance provided for replacing the old bridge with a new one of iron and appropriating $1000 for that purpose. The new bridge was thereupon constructed.

Mr. Davis, a member of the St. Louis bar, testified for plaintiff:

“Originally when you looked south from Manchester Boad — Manchester avenue now — on the right hand was called the Sulphur Spring cottage. I think a man by the name of Fields lived there, and I think he had a boy about my age that used to be there quite often, and afterwards Jack Howard and somebody else had a roadhouse there and a picket fence on the outside and hedge fence on the inside; that is, going down to the creek. On the left-hand side there was, I believe, an osage orange hedge fence. Where the office of the Laclede Fire Brick Company now is, in the corner of the place, was a flower bed and an asparagus bed, and so forth, put there by the Icarians. As you went south to the bridge, it is flat and level ground, and as you cross the bridge there is a little depression. From thereon up the hill, there was originally what you might call a country road. There were wagon tracks there, fenced on both sides, and that condition existed until it slid in. It slid north and slid east, and then the rain actually made gutters in it, and it was an utter impossibility to go up and down there.
“Q. You are describing up and down from the bridge, up to what is now Wilson avenue? A. Wilson avenue is over in the next hollow. It then became impassable. I tried to drive over it myself and couldn’t.
“Q. How long would you say that it was that you tried to drive over it? A. A good many years; ago. It is more than twenty and possibly twenty-five. It may be thirty. I can recollect well the occurrence of trying to go up there with a wagon that had side springs, the only one my father had, and the gutters would let the horse down so low that the buckler would come up over the top of his hack.
“Q. And under those conditions you couldn’t go up the hill? A. I could go over it horseback; I have ridden it that way.
“Q. On the same theory, you could go over a. mountain? A. Yes, sir; it slid in and gutters washed in there.”

Mr. Green further testified for the plaintiff as follows :

“Q. Now, Mr. Green, the fact is, is it not, that this whole land here has, so to speak, caved in here [indicating in plat], from the brick kiln up to Wilson avenue? A. No, it is caved in about halfway up to Wilson avenue.
“Q. Do you know how that happened? To what was that due? A. When we were digging out that cliff alongside, right straight through there, it would slide in most every day.
“Q. When did that begin to slide in, or cave in? A. Oh, fifteen or twenty years ago. It used to come pretty near down to the river.
“Q. What is that? A. The slide of that used to come pretty near into the river.
“Q. You mean when the land slid, the earth used to come almost down to the river Des Peres? A: Yes, sir; when we built No. 2, as the rain came down.
“Mr. Charles. When you built what? A. Factory No. 2.
“Mr. Swarts (resuming examination). Q. Some of that land that was cut, you mean, from the side there, came down and slid? A. Yes, down on to the second story of the building.”

The evidence shows that factory No. 2 was constructed at the foot of the hill, about twenty years before the trial, and that near the same time excavations were made along the base of the hill for railroad switch tracks, and also for the factory, and that, by reason of those excavations, the land began to slide toward the river and eastward in and along Sulphur avenué. At some time thereafter the road became impassable and ceased to be used.

The following letters were put in evidence:

St. Louis, Sept. 27, 1902.
■Charles Varrelmann, Esa.,
Street Commissioner, City Hall, City.
Dear Sir: We wish to call your attention to the bridge oyer the river Des Peres, on Sulphur avenue. The roadway is full ■of holes, and if something is not done soon the city is liable to have a damage suit on its hands, as a horse would he very apt to break his leg if he went through.
We simply thought we would call your attention to this matter.
Tours very respectfully,
Laclede Eiee Bbick Compact,
GrEORSE R. BLACKFORD,
Secretary.
Street Department, Commissioner’s Office. Chas. Varrelmann, Commissioner,
W. 0. Hemenway, Asst. Commissioner,
Julius G. D. Bischoff, Secretary,
St. Louts, Mo., Sept. 80, 1902.
Geo. R. Blackford,
Secretary Laclede Fire Brick Co.
Manchester and Sulphur Avenue's.
Dear Sir: Replying to your letter of the 27th inst., relative to the condition of the roadway of the bridge over river Des Peres on Sulphur Avenue, I would respectfully advise that the samo was referred to Mr. Gayler, bridge engineer for the city, who reports that said avenue, not being a public highway, the city is not liable for the maintenance of said bridge.
In view of the above report, I feel that I can take no action, in the matter.
Respectfully,
CHAS. VARRELMANN, Street Commissioner.

Also an ordinance of the city as follows:

21914. An ordinance to condemn a right of way for sewers and water pipes over a part of proposed Sulphur avenue between Wilson avenue and Manchester avenue.
Be it ordained by the Municipal Assembly of .the city of St. Louis, as follows:
Section One. For the purpose of permitting the construction or laying repairs and perpetual maintenance of sewers and water pipes, a certain strip of land thirty feet in width shall he condemned for the uses above mentioned. The center line of said strip of land to he coincident with the dividing line between lots 12 and 13 of “D. W. Graham’s Subdivision of Sulphur Spring Tract,” said center line also being coincident with the center line of proposed Sulphur avenue as laid out in said subdivision.
Section Two. The city counselor is hereby authorized and instructed to cause said strip of land to he condemned for the purposes hereinbefore mentioned, according to law.
Approved March 30, 1905.

That ordinance has never been repealed. The evidence shows that from abont the time that territory was taken inside the city the bridge over the river Des Peres was repaired by the city every year or two nntil abont 1900’.

Some of the evidence for the plaintiff tended to support its claim that there was never a well-defined passable road from the river south to Wilson avenue, while the evidence for the defendant tended 'to show the constant use of Sulphur avenue by the public over its whole length. All the evidence, however, showed that the hill, beginning about three hundred feet south of the river, was steep, and at muddy seasons almost if not entirely impassable for loaded wagons..

I. On the question of fact we have no hesitation in holding that from 1862 until about 1890' the street in question was a public highway, with fences on both sides thereof, and with a well-defined track over which the public traveled. It was at times in muddy weather a very bad road, almost or entirely impassable for loaded wagons, but it was, nevertheless, a public highway and so considered by everybody concerned, including this plaintiff.

The order of the county court opening the road was void. However, we can consider it to tbe extent of concluding that there was a demand at that time for a road there, and the county court was of the opinion that there was sufficient demand to justify opening it, and that the route was a practical one. In 1866, Mr. G-reen, who has always been a strong force in the business of the plaintiff, signed the communication to the county court recognizing the road and showing that the fences were there on both sides of the road.

Mr. G-reen stated that two years before he and Hambleton bought, there was a road there with good fences on both sides of it. In 1875 the plaintiff and forty-five others petitioned the county court in regard to grading the road. In 1882 the plaintiff acquired the land west of the road and south of the river by deeds, which stated that they were subject to the road. In 1889 the plaintiff in the character of the first corporation whose charter was expiring, made a deed to itself as a new corporation, showing by the language of that deed the existence of the street.

In 1889 the city replaced the old bridge with a new oné, and repaired it until about 19001; and even as late as 1902 the plaintiff in its letter to the street commissioner recognized the existence of Sulphur avenue and wanted the city to repair the bridge. When that road was taken into the city under the Scheme and Charter in 1876 it was a well-defined public road, fenced on both sides, on which there was a bridge over the river, and it had been traveled as such by the public for more than ten years, and such use had been acquiesced in by the owners of the land over which it passed. The use of a road for ten years with the acquiescence of the owner makes it a valid road. [State v. Wells, 70 Mo. 635; State v. Walters, 69 Mo. 463; Milling Co. v. Riley, 133 Mo. 574; Bauman v. Boeckler, 119 Mo. l. c. 200.]

Sec. 10446, R. S. 1909 (R. S. 1899, Sec. 9472), prescribing how a road may be acquired by user, had no application to this street at the time it was taken into the city, as that statute was not enacted until 1879.

When taken into the city the road became a city street, as provided by section 10 of article 1 of the Scheme and Charter, which provided that the interest of St. Louis county in all public roads and highways should vest in the city of St. Louis. Independent of such a provision it would seem that such would be the result of taking a public road into a city. It was so treated in Wright v. City of Doniphan, 169 Mo. 601, l. c. 606.

It is contended that section 10446 of the statute above quoted applies to city streets, and that an abandonment for ten years destroys the right of the pul> lie to use the street. It is not clear in this case that there was such a nonuse for ten years; yet, even if such were the case, we hold that the statute does not apply. It does not purport to do so. It is a special statute of limitations applicable to public roads outside of incorporated cities.

There is a long line of cases in this State based npon the doctrine that the right of a city and the public to the use of a street cannot be lost by abandonment or adverse possession. [St. Louis v. Railroad, 114 Mo. 13; Williams v. St. Louis, 120 Mo. 403; Wright v. City of Doniphan, supra.] The application of that section of the statute to city streets was not discussed in those cases, and for a good reason. It was not supposed to have any reference to city streets. The wisdom of Sec. 1886, R. S. 1909, providing that the Statute of Limitations shall not apply to “lands given, granted, sequestered or appropriated to public use,” has been so thoroughly justified by experience and so often approved by this court that it is now too late to assail it. There are greater reasons why city streets should not be subject to destruction by nonuse or adverse possession than can be found applicable to any other kind of property. No other kind of public property is subject to more persistent and insidious attacks or is less diligently guarded against seizure. The city was not estopped by the act of the street commissioner when he declared that Sulphur avenue was not a street, nor by the ordinance condemning the right of way for the purpose of laying sewers and water pipes, nor by any other act or omission of the city officers shown in evidence.

The judgment is reversed and the cause remanded with directions to enter a Recree dissolving the injunction and dismissing the plaintiff’s bill, and for such other proceedings as may be in accordance with the law.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur.