text:
    DEXTER v. MACDONALD et al., Appellants.
    Division Two,
    May 22, 1906.
    1. WRITTEN CONTRACTS. It is fundamental that, when an undertaking by parties is reduced to writing, it is conclusively presumed, in the absence of fraud, accident or mistake, that the whole engagement and manner and extent of their undertaking are found in the instrument.
    2. -: Express Trust: Agreement to Share in Profits. Deceased signed this writing: “I hereby agree to allow Charles Dexter one-half of the net profits of the sale of the forty acres of land (when sold), being the same land this day bought by me from Eugene Latinette in St. Clair county, Illinois.” Bold, that this paper did not create an express trust in Dexter to one-half the land not sold in the lifetime of deceased, after the original purchase price and all expenses were paid, but was at most an agreement requiring a division of the net profits after the sale of the land. That writing will not support a decree vesting in Dexter the title to one-half of the unsold lands.
    3. LACHES: Death of Other Party. Equity views with disfavor a suit brought after the death of the party whose estate is sought to be affected, where such suit might have been brought during the lifetime of the party acquainted with the whole transaction, and no reason or excuse is alleged or shown why it was delayed until after his death.
    4. -: -: Agreement to Share in Profits of Land Deal. Deceased in 1890 bought and paid for a tract of land, took the title in his own name, and in writing agreed to allow plaintiff one-half the profits of the sale thereof when sold, and shortly thereafter sold a part, out of the money received paid himself the original cost, and gave the plaintiff one-half the balance. Thereafter he paid the taxes and all other expenses, sold other tracts, but made no other division of the profits, and plaintiff, although cognizant of all the facts, prior to the death of deceased in 1900 made no complaint or demand for an interest in the profits or in the lands, and brought this suit against the heirs in 1902. In his petition he alleges no excuse for the delay in asserting his claim, and no showing was made on the point. Held, first, that the remaining unsold lots are to be treated as personal property and clear profit; second, plaintiff’s interest therein was fully determined and knownin 1890 as soon as the money was received from the sale of the lots first sold, when deceased paid himself the original cost and divided the surplus with plaintiff, and his action would have been just as appropriate then, and more so. than it was twelve years after-wards when the other party was dead; third, plaintiff, because of laches, cannot recover on any theory.
    5. -: Not Pleaded: Available on Appeal. It is not necessary always that the defense of lacles be specially pleaded in order to be a defense in an equity proceeding. Courts of equity either grant or deny the relief sought upon the proof introduced; and where plaintiff’s proof is insufficient to authorize the relief sought, or any’relief, it will be denied, whether or not laches were pleaded or suggested to the trial court, and although judgment was for plaintiff it will be reversed on appeal.
    6. -: -: Limitations. The defense of the Statute of Limitations is at least an indication that there was delay in bringing the suit, and furnishes plaintiff with a sufficient suggestionof the necessity of offering, if he has any, an excuse for waiting for nearly twelve years and until the death of the other party to bring the suit.
    'Appeal from St. Louis City Circuit Court.—Rom.. D. D. Fisher, Judge.
    Reversed.

      HicJcmm P. Rodgers for appellants.
    (1) There was no consideration for MacDonald’s promise to Dexter. A bill in equity does not lie to enforce the performance of a voluntary promise of a gift. Brevator v. Creech, 186 Mo. 558. The option from Latinette to Allen had expired prior to the purchase by MacDonald and MacDonald purchased directly from Latinette with his own money, taking title in his own name, as he had a right to do. An expired option can supply no part of a consideration. Plumb v. Cooper, 121 Mo. 675. (2) • The language employed in tbe writing under which plaintiff claims is not sufficient to create an express trust. Perry on Trusts, section 24; Heil v. Heil, 184 Mo. 665. It does not manifest that MacDonald intended to be charged as trustee—a fatal defect. 2 Story’s Equity Jur. (1886), note 2, pp. 29-30; Woodford v. Stephens, 51 Mo. 443. (3) The use of the words “net profits” in said writing, in the absence of any direct reference to an interest in the land, excludes any inference of such interest in the land. Plumb v. Cooper, 121 Mo. 668; Morrill v. Colehour, 82 111. 618. One may have an interest in the profits arising out of a thing without being a part owner in the thing. Wiggins v. Graham, 51 Mo. 17. (4) At the trial of the cause plaintiff stood on the proposition that MacDonald, deceased, was trustee under an express trust in favor of plaintiff, and the trial court so found; therefore, he must recover, if at all, on the theory of an express trust created by said writing; hence the court erred in admitting parol evidence. Heil v. Heil, 184 Mo. 665. (5) Courts of equity abhor stale claims and do not willingly enforce them. Watkins v. Donnelly, 88 Mo. 322; Davis v. Petty, 147 Mo. 374.

      Benj. J. Klene, Clinton A. Welsh and Brownrigg £ Mason for respondent.
    (1) At the time of the conveyance under which MacDonald acquired title to the land, the option from Latinette, which belonged to Dexter, was still in force. In pursuance thereof, the title was transferred to MacDonald. This is the consideration which, on Dexter’s part, supports the agreement whereby Dexter and MacDonald were each to have a one-half interest in the land. Plumb v. Cooper, 121 Mo. 675. (2) (a) It appears for the record that the land in controversy is in the State of Illinois. Defendants did not offer in evidence any statute of that State requiring declarations of trust with reference to lands to be in writing. The courts of this State do not take judicial notice of the statutes of Illinois, but presume that the common law is there in force. McPike v. McPike, 111 Mo. 226; Houghtaling v. Ball, 19 Mo. 84. (b) At common law, trusts in lands, or any other' contracts with reference thereto, may be established by parol. Bispham, Equity Jurisprudence (6 Ed.), p. 99; 28 Am. Eng. Eney. Law (2 Ed.), 869; 4 Wigmore on Evidence, sec. 2454. (c) Contracts and transactions concerning land are governed by the law of the place where the land lies. Richardson v. DeGiverville, 107 Mo. 433; Depus v. Mayo, 11 Mo. 319. (3) Defendants, not having specifically raised the defense of the Statute of Frauds, cannot insist upon it here. R. S. 1899, sec. 864; Newverth v. Ingler, 83 Mo. App. 423; Royal Remedy Co. v. Gregory Grocer Co., 90 Mo. App. 57; Miller v. Harper, 63 Mo. App. 296; Vanidour v. Nelson, 60 Mo. App. 526; Scharff v. Klein, 29 Mo. App. 551; Condit v. Maxwell, 142 Mo. 276; Yoeman v. Mueller, 33 Mo. App. 347; Young & Branson v. Ledford, 99 Mo. App. 568; Steel v. Johnson, 96 Mo. App. 147. (4) There has been in this case such a performance as takes the agreement out of the Statute of Frauds. Hall v. Harris, 145 Mo. 615; Swon v. Stevens, 143 Mo. 384; Nowaek v. Berger, 133 Mo. 24; Bless v. Jenkins, 129 Mo. 647; McConnell v. Brayner, 63 Mo. 461; Dickerson v. Chrissman, 28 Mo. 334; Farrar v. Patton, 20 Mo. 82. (5) The property in controversy was not bought to be held permanently as land, but to be used for the purposes of speculation for their joint benefit; therefore, it will be treated by a court of equity as personal property, and agreements with reference thereto by the parties to the joint venture are not within the Statute of Frauds. Morrill v. Colehour, 82 111. 618; Roby v. Colehour, 135 111. 300; Boone v. Clark, 129 111. 466; Van Housen v. Copeland, 180 111. 74; Tenney v. Simpson, 37 Kas. 363. (6) But the language employed in the writing is sufficient as a manifestation and proof of an express trust to satisfy the Statute of Frauds. Perry on Trusts (4 Ed.), sec. 82; Lane v. Ewing, 31 Mo. 75; Cornelius v. Smith, 55 Mo. 533; Hall v. Bank, 145 Mo. 418; Montague v. Hays, 10 Gray (76 Mass.) 609; Fisher v. Field (N. Y.), 10 Johns. 494; Hutchins v. Van Vetchen, 140 N. Y. 115; Denton v. McKenzie, 1 Dessaux (S. C. Ch.) 289; Reed v. Reed, 12 Rich. Eq. (S. C. Ch.) 213; Pratt v. Ayer (Wis.), 3 Chand. 265; Tenny v. Simpson, 37 Kas. 579; McLelland v. McLelland, 65 Me. 500; McCubin v.- Cromwell’s Exr., 7 Gillian 157; Brown’s Admr. v. Combs, 29 N. J. 37; Barrell v. Joy, 16 Mass. 221; Lynch v. Rooney, 112 Cal. 279; Moore v. Pickett,' 62 111. 160; Freer v. Lake, 115 111. 662; Urann v. Coates, 109 Mass. 581; Jones v. Davis, 48 N. J. Eq. 493; McArthur v. Gordon, 126 N. Y. 597; Maxwell v. Barringer, 110 N. C. 76; Roberts’ Appeal, 92 Pa. St. 422; Packard v. Putnam, 57 N. II. 43; McCandless v. Warner, 26 W.' Va. 754; Tichenvell v. Jackson, 26 W. Va. 460; Bride v. Paulk, 42 Me. 514; Blake v. Collins, 69 Me. 157; Morrill v. Colehour, 82 111. 618; Seymour v. Freer, 8 Wall. 202; Schaeffer v. Blair, 149 U. S. 248; Dale v. Hamilton, 2 Phill. (22 Eng. Ch. Cond.) 266. (7) Even if, under the agreement between plaintiff and MacDonald, plaintiff be construed as having an interest in the net profits only and not in the land, a court of equity will compel the sale of the land and a division of the profits. Morrill v. Colehour, 82 111. 618. But in cases similar to the one at bar, where the memorandum called only for an interest in the profits, a division in kind has been ordered by a court of equity. Tenney v. Simpson, 37 Kas. 579; Seymour v. Freer, 8 Wall. 202. (8) There being written evidence that MacDonald did not own the entire beneficial interest in the property, this was sufficient to open the door for parol evidence to explain the position of the parties and circumstances under which the writing was executed by MacDonald. 1 Perry on Trusts (Ed. 1889), sec. 82. (9) Defendants merely pleaded in general terms that the cause of action was barred by the Statute of Limitations. This is insufficient to enable them to rely on the statute as a defense. Murphy v. DeFrance, 105 Mo. 62; Hunter v. Hunter, 50 Mo. 452. However, the facts did not warrant such a plea. (101) (a) Defendants, in the court below, made no defense to the effect that the claim of plaintiff is stale or that plaintiff has been guilty of laches and, therefore, cannot make such defense here. R. S. 1899, sec. 864; Randolph v. Knox Co., 114 Mo. 142; St. Louis Brokerage Co. v. Bagnell, 76 Mo. 554; Schickle v. Watts, 94 Mo. 410. (b) Lapse of time is no bar to an express, open and continuing trust. Keeton v. Keeton, 20 Mo. 530; Ruby v. Barnett, 12 Mo. 3; Dillion’s Admr’s v. Base, 39 Mo. 292; Poe v. Dominick, 54 Mo. 127; Groodwin v. Groodwin, 69 Mo. 617.

      Hiclvman P. Rodgers for appellants in reply.
    Of and concerning the cases cited in respondent’s brief to the effect that laches must be pleaded, appellants beg leave to show the court that Randolph v. Knox Co., 114 Mo. 142, and St. L. Brokerage Co. v. Bagnell, 76 Mo. 554, in no manner tend to sustain the point, and have no application to this, an equity case; and that Schickle v. Watts, 94 Mo. 410, was expressly overruled in Humphreys v, Atlantic Milling Co., 98 Mo. 552. Sheridan v. Nation, 159 Mo. 27.
   FOX, J.

This cause is brought here by appeal from a decree and judgment of the St. Louis City Circuit Court. It is unnecessary to reproduce the pleadings upon which this judgment rests; it will suffice to say that this a proceeding in equity to compel the heirs of Robert S. MacDonald, deceased, to convey to plaintiff an undivided one-half interest in 172 lots of vacant ground in “MacDonald’s East Clairmont Addition,” in.St. Clair county, Illinois, and which, addition is a suburb of the city of East St. Louis; and this relief is prayed on the ground that said MacDonald, in his lifetime, held title to said real estate as trustee for himself and plaintiff under an express trust, created by an instrument of writing alleged to have been executed by said deceased, and which is in the following language, viz:

“St. Louis, April 3, 1890.
“LAW OFFICE OF R. S. MACDONALD.
No. 721 Pine Street.
“I hereby agree to allow Charles Dexter one-half of the net profits of the sale of the forty acres of land (when sold), being the same land this day bought by me from Eugene Latinette in St. Clair County, Illinois.
“R. S..MacDonald.”

The facts developed upon the trial of this cause may be briefly stated as follows:

On the 19th day of March, 1890, there was a contract of purchase of this land entered into in the name of one George Allen for the purchase of the land in controversy, with one George Locke, respresenting Eugene Latinette, who was then the owner of the land. The purchase price agreed upon in this contract was three thousand dollars. Plaintiff in this proceeding, in the negotiation of this contract paid one hundred dollars earnest money. The contract of purchase of March 19, 1890, was introduced in evidence, by the terms of which one Eugene Latinette, then owner of said forty acres of ground, agreed to sell same to one George Allen, for the sum of three thousand dollars cash, deal to be closed within thirty days from date of same, and acknowledged receipt of the sum of one hundred dollars on account of said purchase price. This paper was signed “Eugene Latinette, by Geo. W. Locke, Agt.,” and “George Allen, by Chas. Dexter.” George W. Locke, who represented Latinette in this deal, testified that the property was subsequently purchased under the contract of March 19,1890. It appears from Locke’s testimony that about the time this contract was about to expire he went with Dexter to the office of E. S. MacDonald. He says that MacDonald and Dexter had some conversation and that Dexter handed him (Locke) in money three thousand dollars, or twenty-nine hundred dollars, witness did not remember which, and that witness handed the deed to said property to Dexter at the time. The witness was not positive as the form of the deed; could not remember whether the grantee’s name was written in the deed at or before delivery. This witness on cross-examination first stated that the $2,900' or $3,000 paid at that time was in cash and in greenbacks and that when he first saw the money it was in Mr. Dexter’s hand, though he did not see him get it out of his pocket, and swore rather positively that payment was not made with cheek. However, subsequently MacDonald’s check in the sum of $2,900 dated April 23, 1890, payable to Latinette, was shown witness, and he identified the payee’s endorsement thereon. This witness after having his memory refreshed stated that MacDonald used to speak to him about “our property over the river,” and when speaking of the property in that way the plaintiff, Dexter, was present. Plaintiff introduced in evidence, over the objection of the defendants, the following assignment of all claims to the lands in controversy, from Charles Dexter to Wyllian K. Dexter:

“Received of Wyllian K. Dexter on the within contract as per dates and amounts-below:
“Date Amount Date Amount.
“May 1, 1899', $3,000.00, owing out of the mortgage of Minneapolis, Aug. 12, 1892. Valuable consideration.
“In consideration of the above advancement of money I hereby assign all my right to a certain forty-acre tract of land as well as the profits arising from the sales situated in St. Clair county, State of Illinois, known as the ‘Latinette forty’ bought by me of Eugene Latinette, March T9, 1890, in the name of George Allen and deeded in trust to Robert MacDonald, of St. Louis, Mo., to be sold for our mutual "benefit; this includes profits as well as titles, said land being platted and called ‘MacDonald’s East Claremont,’ reference being had for a more particular description to the deed from Eugene Latinette to Robert MacDonald, dated 23rd April, 1890, together with the map or plat of the addition, both being on file in the office of the recorder of deeds of St. Clair county, State of Illinois.
‘ ‘ Charles Dexter. ’ ’

Also the following re-assignment from Wyllian K. Dexter to Charles Dexter:

“St. Louis, Mo., April 23, 1892.
“Whereas on April 23rd, 1890, the following contract was made between Robert S. MacDonald, of St. Louis, Mo., and Charles Dexter of said city, viz:
“ ‘St. Louis, Mo., April 23,1892.
“ ‘I hereby agree to allow Charles Dexter one-half of the net profits of the sale of the forty acres of land (when sold) being the same land this day bought by me from Eugene Latinette in St. Clair county, Illinois.
“ ‘Robert S. MacDonald.’
“And whereas, all title and interest in said contract was conveyed to Wyllian K. Dexter, wife of Charles Dexter, on Aug. 1,1892, and filed for record in the office of the recorder of deeds for St. Clair county, January 27, 1902, I do hereby in consideration of one dollar and other valuable consideration make a conveyance of all my right, title and interest in said contract made between MacDonald, and Dexter to said Charles Dexter. “Wtllian K. Dexter.”

It is disclosed by the record that Wyllian K. Dexter, wife of plaintiff herein, presented a claim against the estate of Robert S. MacDonald, deceased, in the probate court in the city of St. Louis based on the assignment of her husband’s claim as herein indicated. Before a decision was reached in that case the claim was withdrawn. Witness French R. Session, as it is disclosed from the record, had testified in the suit pending in the probate court between Mrs. Dexter, and the estate of R. S. MacDonald. His testimony was preserved and by stipulation between counsel in this cause it was introduced on the part of the plaintiff subject to all objections as to its relevancy and competency. The substance of his testimony may be briefly stated as follows: He stated that the property mentioned in the paper of date of April 23, 1890, under which plaintiff claims, was afterwards platted and came to be known as “MacDonald’s East Clairmont Addition” and was outside of the city limits of East St. Louis, about 2,000 or 3,000 feet from the city limits; and further testified in substance as follows: “subsequent to the date of this paper I had connection with this property and sold somewhere between 2,200 and 2,500 feet of it to parties in Jacksonville, Illinois. Most of my dealings were with Mr. MacDonald. The deal was closed in Mr. MacDonald’s office at Eighth and Pine streets. My recollection is that the price was $4 per foot. It was after the date of this memorandum that I sold the property, that is, after 1890. There were present on the occasion referred to, when the deal was closed, Mr. MacDonald, Mr. Dexter, Mr. Leonard Chambers, of Jacksonville, and myself. I had the selling of this property. Leonard Chambers or Grov. Richard Yates, one or the other, I don’t remember which, was the grantee in the deed. My recollection was that MacDonald took $3,000' and that the balance was divided between him and Dexter, after my commission was paid. I was present when that was done. My commission was five per cent. MacDonald received the whole thing—all the money; then I got my commission, and the balance was divided. My recollection is that the deed stated the correct consideration. I am not positive—don’t remember that far back. On tbe day. this sale was made, Mr. MacDonald made tbe remark to me that if I conld sell some more that way he and Dexter would get out of the thing with a good profit; something to that effect.” The plaintiff and Sessions, according to the latter’s testimony, were operating considerably in East St. Louis real estate at that time, and were frequently together. Witness Sessions further stated that after he had made the sale to Chambers he heard R. S. MacDonald say that Dexter had not paid the taxes up and that he was not going to sell and that if he did not sell he did not have to make a division with Dexter, and that he was going to hold the property.

Plaintiff offered in evidence the warranty deed to the property in controversy, executed by Eugene Latinette and his wife, dated the 23rd day of April, A. D. 1890, and acknowledged on the 25th day of April, 1890; also a warranty deed from Robert S. MacDonald of the city of St. Louis to Leonard W. Chambers of Jacksonville, Illinois, conveying lots Nos. 1, 8 and 9 in MacDonald’s “East Clairmont,” St. Clair county, State of Illinois, for consideration of $11,150, and duly executed on December 21, 1890. Plaintiff also offered in evidence certified copy of warranty deed, wherein Robert S. MacDonald of the city of St. Louis, Missouri, for consideration of $1,000, conveyed to George T.-Jarvis, as receiver of the Louisville, Evansville & St. Louis Consolidated Railroad Company, all of lots numbered from 20 to 38 inclusive, in block No. 10, all of Block No. 11 and 12 of MacDonald’s “East Clairmont,” St. Clair county, Illinois. This deed was duly executed March 14, 1899. There was also offered in evidence by plaintiff, quitclaim deed from the said Robert S. MacDonald, widower, to the said Jarvis, receiver, for the consideration of $1 and alluding to streets in. MacDonald’s “East Clairmont.”

The evidence disclosed by the record also tends to show that on the 17th day of April, 1890, MacDonald gave to Charles Dexter a check in the snm of $100, on which Dexter received the money; and on April 23rd, four days after the expiration of said option, MacDonald gave Eugene Latinette a check in the sum of $2,900, and on which Latinette received the money; and the deed by which MacDonald acquired title to the property was dated and executed on that day. This deed is a warranty deed in the usual Illinois form, Eugene Latinette and wife being the grantors and Robert S. MacDonald being the sole grantee, and duly acknowledged and filed for record in St. Clair county, Illinois, on the 25th day of April, 1890. MacDonald during the remaining ten years of his life paid out of his own money every dollar of tax and expenses connected with the property and there is no evidence that Charles Dexter or "Wyllian K. Dexter ever paid or contributed one cent on account of same. MacDonald maintained both home and office in the city of St. Louis continuously from the time of the acquisition of this property until his death, hut neither Charles Dexter nor Wyllian K. Dexter appeared in the matter subsequent to the sale to Chambers of a part of said property, and which sale occurred about ten years before MacDonald’s death. After MacDonald’s death said paper of April 23, 1890 (the so-called declaration of trust), was, on January 27, 1902, for the first time filed for record in the recorder’s office.

At the close of the evidence the cause was submitted to the court and the following preliminary decree was rendered: Malcolm W. MacDonald and Robert S. MacDonald, Jr., were, by tbe probate court of the city of St. Louis, duly appointed administrators of the estate of said Robert S. MacDonald, deceased; that they duly qualified as such and are still acting in that capacity; that the defendants Malcolm W. MacDonald, Robert S. MacDonald, Jr., and Ellen Hunt MacDonald Jones, are all the surviving children and heirs of said Robert S. MacDonald, deceased; that Augustus B. Jones is the husband of said Ellen Hunt MacDonald Jones, and is sued herein in the right of his wife; that plaintiff and all the defendants reside in the city of St. Louis; that at or about the month of April, 1890, plaintiff and said Robert S. MacDonald, deceased, entered into an agreement for the purchase of a certain tract of land in St. Clair county, Illinois, described as follows: ‘A tract of land in St. Clair county, State of Illinois, containing forty acres more or less, bounded on the northwest by land now or formerly owned by McCausland and Guignon; on the northeast by the Centerville road; on the southeast by the county road, and land now or formerly owned by Bevalot, and on the southwest by the Air Line railroad, said lands being parts of Surveys 127, 128 and 129, and being the same land which was acquired by Eugene Latinette by deed dated December 14,1886, filed for record January 3, 1887, and recorded in Book 188, at page 396, in the office of the recorder of deeds of St. Clair county, Illinois;’ that the said agreement between plaintiff and said Robert S. MacDonald, deceased, under which title to said land was acquired, was entered into under the following circumstances: Plaintiff had prior to the month of April, 1890, entered into a valid contract of purchase of same in the name of one George Allen, but in fact for his own account, at the price of three thousand dollars, paying at the time one hundred dollars in cash in part payment of said purchase price, which money was afterwards repaid to plaintiff by said MacDonald,- and said sale was to be closed and balance of tbe purchase money paid within thirty days after March 19, 1890, titles to be perfect and property to be conveyed by warranty deed; that after making said contract of purchase of said property upon the terms and within the time above set forth, plaintiff interested said MacDonald in the purchase of- said property and induced him to furnish the purchase price of three thousand dollars, which said MacDonald did subsequently furnish; that it was thereupon mutually agreed between said MacDonald and plaintiff that the title to said property should be taken in the name of said MacDonald for the joint benefit of said parties, subject to the following terms and conditions: That said property should be platted and subdivided into blocks and lots, which was afterwards done, and the said subdivision was named, ‘MacDonald’s East Clairmont Addition;’ that said property should be sold, and out of the first sales, said MacDonald was to receive back his advancements for purchase price, etc., with interest; that thereafter, and after the payment of said advancements and expenses with interest, the net proceeds should be equally divided between plaintiff and said MacDonald; that under date of April 23,1890, said MacDonald, on his office stationery, in his own handwriting, signed, executed and delivered to plaintiff a memorandum in words and figures as follows, to-wit: ‘I hereby agree to allow Chas. Dexter one-half of the net profits of the sale of the forty acres of land (when sold), being the same land this day bought by me from Eugene Latinette, in St. Clair county, Illinois.’ That upon said 23rd day of April, 1890, Latinette and wife executed a deed in blank (as to grantee) and delivered the same through one Locke, their agent, to plaintiff, who paid over to them the $2,900 balance of the purchase money, by check of said MacDonald; that said MacDonald’s name was thereafter -written in deed as grantee and said deed was recorded in the recorder’s office of St. Clair county, Illinois, in Book 206, at page 540, and conveys the same property hereinbefore described; that after said land was subdivided, and in the month of December, 1890, blocks one, eight, and nine of said subdivision were sold for the sum of $11,150, and said MacDonald was repaid his advancements up to that date and the balance was divided between said MacDonald and plaintiff to their mutual satisfaction, and this transaction must be treated as closed, and not open to further inquiry; that subsequently, as appears in evidence, in the month of March, 1899, said MacDonald sold and conveyed to George T. Jarvis, receiver, lots numbered 20 to 38 inclusive, of block 10; all of block 11 and all of block 12 of said subdivision and certain streets; that the remainder of said lots remain unsold; that plaintiff is entitled in equity to a half interest in the remaining or unsold lots, and that in and to any and all unaccounted for sales of lots, if any; that said MacDonald during his lifetime was trustee under an express trust for plaintiff for a one-half interest in said property, and that the same passed on his death, to defendants, subject to plaintiff’s equitable title to a half interest in the same; that the facts herein found by the court create an express trust to the extent of a one-half interest in said lands in favor of plaintiff, and that until some disclaimer on the part of said MacDonald is brought home to plaintiff, the burden to prove which is on defendants, the Statute of Limitations cannot be invoked to defeat this action; and that no such disclaimer has been proven in the case.

“Now at this day this cause having come on to he heard upon the petition, answer and reply, and the proofs taken herein, and having been argued by the counsel for the respective parties and the court having duly considered the same, doth find that Robert S. MacDonald, late a citizen of the city of St. Louis, departed this life in said city, a widower and intestate, on, to-wit, the 11th day of December, 1900; that the defendant,

“Wherefore, it is ordered,consideredandadjudged by the court that plaintiff is entitled in equity to an undivided one-half interest in and to any and all unsold portions of the lands in said ‘MacDonald’s East Clairmont Addition,’ and to a one-half net interest in any and all sums of money received by said MacDonald, or defendant, from sales of portions of said property, if any, and not accounted for, if any, together with legal interest thereon from dates of receipt of such sums, not including the sale made in December, 1890. That the cause be referred to John A. Talty, Esq., as Beferee, to take and state a mutual account of all the dealings and transactions between the plaintiff and defendants and said Eobert S. MacDonald, deceased, except as herein otherwise provided; that the said referee in the taking of said account is to make unto the said parties all just allowances, and report to this court what balance shall be due from either party to the other, if any, including in said account the net proceeds of all sales of lots in said subdivision, not herein excluded, and crediting the defendants with any and all credits to which they may be entitled for expenses and advancements made on account of said property, and said referee shall report the number and description of any and all lots in said 'MacDonald’s East Clairmont Addition,’ remaining unsold. And all other matters are reserved until the report of the referee shall be made herein. Finding of facts filed.”

A timely motion was filed by appellants to set aside the preliminary decree and for new trial, which motion was by the court overruled.

The referee, Hon. John A. Talty, proceeded to hear the matter referred to him, heard testimony and on the 3rd day of July, 1903,. said referee filed his report in said cause, in which he finds that there was $778.24 chargeable against whatever interest the plaintiff may have in said unsold portions of said real estate. Appellants filed their motions to set aside the referee’s report as well as exceptions to it, which motion and exceptions were on the 17th day of July, 1903, by the court overruled. And afterwards, on the same day the court confirmed the said referee’s report and made a final decree in favor of plaintiff, commanding defendants Malcolm W. MacDonald, Eobert S. MacDonald Jr., and Helen Hunt MacDonald Jones, to convey to plaintiff an undivided one-half interest in and to the real estate in controversy upon payment to them by the plaintiff of the sum of $778.24.

Appellants in due time filed their motion to set aside the final decree and for new trial, which motion was by the court overruled and from such final decree appellants in proper form prosecuted their appeal and the cause is now before ns for consideration.

OPINION.

The record in this cause sharply presents for our consideration two propositions:

1. Did the paper writing signed and delivered by R. S. MacDonald to the plaintiff, create an express trust by which MacDonald was to hold the legal title to the land in controversy in trust for the plaintiff?

2. In view of the facts disclosed by the record of the long-continued silence of the plaintiff in assertain his claim to any interest in this land, allowing many years to elapse and the death of R. S. MacDonald, who held the legal title to the land in dispute, to occur, before making any such claim, was the chancellor in this purely equitable proceeding warranted in granting the relief indicated by the decree or any other relief?

The final decree in this cause recites: ‘ ‘ That said MacDonald during his lifetime was trustee under an express trust for plaintiff for a one-half interest in all of said property; . . . that the facts herein found by the court create an express trust to the extent of a one-half interest in said unsold land in favor of plaintiff,” which is followed by the concluding part of the decree, requiring the defendants to execute by a proper conveyance to plaintiff the undivided one-half interest in the unsold lots of land involved in this proceeding.

It is manifest if this decree can be supported upon the evidence as disclosed by the record that its main support must be found in the instrument of writing executed by R. S. MacDonald during his lifetime. While the parol testimony may tend to show some consideration for the execution of this instrument, it sheds no light upon the intention of the parties at the time of its execution or of the nature and purposes of the instrument. Hence, if R. S. MacDonald during his lifetime was trustee under an express trust for plaintiff for a one-half interest in all of this land as alleged in the decree, we must look to the,terms of the instrument for ascertainment of the creation of such trust. It is therefore well to keep in mind the precise terms of this instrument, which is the foundation and corner stone upon which this decree must rest, and we here reproduce it. It was as follows:

“St. Louis, April 23,1890.
“Law Office of R. S. MacDonald,
No. 721 Pine Street.
“I hereby agree to allow Charles Dexter one-half of the net profits of the sale of the forty acres of land (when sold), being the sanie land this day bought by me from Eugene Latinette in St. Clair County, Illinois.
“R. S. MacDonald.”

Upon careful consideration of the disclosures of the record in this cause, as well as the able presentation of the questions by learned counsel for respondent, and from an analysis of the terms of the instrument executed by MacDonald, we are unable to give our assent to the contention that R. S. MacDonald during his lifetime was trustee under an express trust for plaintiff for a one-half interest in the lands described in the petition.

Mr. Perry in his standard work on Trusts, section 24, “defines express trusts as those generally created by instruments that point out directly and expressly the property, person and purposes of the trust. No special form of words is necessary to create an express trust. In a word, then, an express trust is one'which defines and limits the uses and purposes to which certain. property shall be devoted and defines the duties of the trustee as to its control, management and disposition.” [Heil v. Heil, 184 Mo. l. c. 676.]

It is significant in this instrument that there is an entire absence of the employment of such terms as are ordinarily used in the creation of a trust, and in no part of this instrument is there any language employed which would indicate or from which it could be inferred that MacDonald intended to hold the land in trust for anybody. He paid every dollar of the purchase money for this land and accepted a warranty deed in which there were no conditions embraced. The plaintiff, never contributed any part of the purchase money for the lands in dispute. This was a very plain and simple instrument. Mr. MacDonald said, “I hereby agree to allow Charles Dexter one-half of the net profits of the sale of the forty acres of land, when sold,” and when he came to designate the land he emphasizes the fact that it was the same land, not bought by us, the plaintiff and defendants, but as he says, “being the same land this day bought by me from Eugene Latinette, situated in St. Clair county, Illinois.” The terms of that instrument, in our opinion, makes it manifest that it was foreign to any idea or intention by R. S. MacDonald, in the execution of that instrument, or by the plaintiff in accepting it, of creating an express trust by which MacDonald as trustee was to hold the legal title for plaintiff for a one-half interest in said lands.

It is fundamental that when an undertaking by parties is reduced to writing, in the absence of fraud, accident or mistake, it is conclusively presumed that the whole engagement and manner and extent of their undertaking were reduced to writing. This was so ruled by this court in Plumb v. Cooper, 121 Mo. 668.

The creation of an express trust must be manifested or proven by a written instrument, and it is elementary that in the creation of a trust, whether in regard to real or personal property, the acts of the parties in the creation of such trust must he done with that intent.

In Woodford v. Stephens, 51 Mo. 443, the wife sought in a court of equity to obtain a decree of title to certain lands which she alleged had been held in trust for her by her late husband. This court, in discussing the proposition involved in that case, said: “The declaration of the wife that this land was hers, is no sufficient evidence of a trust. If the money was his with which the land was entered, a trust in favor of his wife or any one else could only be manifested or proved by writing. Conceding that it might be created by parol, it must under the Statute of Frauds be manifested by writing. To create a trust, whether in regard to real or personal property, the act must be done with that intent, and must be manifested by clear and unequivocal evidence. ’ ’

The case which nearest approaches the one at bar is Morrill v. Colehour, 82 111. 618. The rules of law announced in that case are directly in point and specially applicable to the case at bar, by reason of the similarity of the transactions. The legal title to the lands in dispute in the Illinois case was in W. H. Colehour. There was an agreement similar to the one in this case providing for the allowance to his associates in the transaction of one-half of the net profits arising from the sale of the land. The agreement in that case was stronger and designated the purposes of the agreement much more clearly and with more accuracy. It was urged in that proceeding, as it is in the present one, that W. H. Colehour occupied the relation of trustee, holding the title to the land as such trustee for his associates in the deal. The court, in discussing the agreement in that proceeding, thus stated the law which should govern it: “The written agreement executed by W. H. Colehour only binds him to pay appellant and the others equal portions of the one-half of the net profits arising from the sale of the lands. It in no event bound him to convey the land, nor can we imagine any state of facts that could arise under the agreement, that would require a court of equity to compel him to convey the land to them. Had he failed or refused to proceed to make the sales as was contemplated by the parties, he could, no doubt, have been compelled to do so, or another would have been appointed for the purpose, by a decree of court. By this agreement, this was not an interest in or title to the land, but it was an agreement to give appellant, and to pay him, profits that might be realized from the sale of the land. W. H. Colehour held the legal title, the Clarks held the equitable title, or rather a lien on the land to secure the purchase money, and appellant and his associates held an agreement for one-half of the net profits arising from the sale after discharging the $4,000 mortgage, the purchase money, the expenses, taxes and paying ~W. H. Colehour for his trouble. It was not in the contemplation of any of the parties that W. II. Colehour should ever convey a foot of this land to them or either of them. The purchase was made for the purpose of sale and the acquisition of profits. It was not bought to hold as land, but simply as an article of commerce1, and for speculation, and for that reason equity regards it as personal property among the partners. In such cases the intention of the parties stamps the character of the transaction. We are, for these reasons, of opinion that this was not a contract-' for such an interest in lands as to fall within the Statute of Frauds, and was not, therefore, void, because it was not in writing.”

This case clearly and correctly announces the law applicable to the facts as disclosed by the record in that proceeding. In that case the court properly ruled that the party executing the agreement could only be required to do such acts as the terms of the agreement provided that he should do. This ruling is sound, as well as logical, and in harmony with fundamental legal principles, as well as a practical and common sense application of them, and for that reason we are disposed to follow the rule as announced in that case and apply it to the case at bar, in which a very similar question is involved, which means that the agreement as executed by R. S. MacDonald at most must be treated as one requiring a division of net profits after the sale of the land and not one by which he held the title to the land as trustee under an express trust for plaintiff for a one-half interest in the land itself.

Our attention is directed by respondent to numerous cases in support of the decree rendered by the trial court. We are not unmindful of what those cases hold and they have had our most careful consideration, but it will suffice to say that an analysis of them demonstrates that the conclusions reached in those cases were based upon a state of facts in many respects essentially different from those disclosed by the record in this case, and they fall far short short of furnishing support to the decree rendered in this cause. In the case of Seymour v. Freer, 8 Wall. 202, which is relied upon by respondent as supporting the decree in this case, it will be observed in that case that the court proceeded upon entirely a different theory to that pursued in the case at bar. There the purchase money and all the taxes and expenses connected with the purchase of the land having been realized, the court regarded the remainder of the land as net proceeds and treated it as personal property, in other words, as money, and decreed a division of it between the parties. That is not this case. Here the court treats the property in dispute as real estate and enters a decree requiring the defendants to execute a conveyance in proper form for the undivided one-half interest in such real estate.

In Shaeffer v. Blair, 149 U. S. 248, another case relied upon by respondent, the facts are entirely unlike those disclosed by the record in this case. The agreement in that case clearly shows a joint interest in the property itself; hence it furnishes no support to the contention of respondent as to the correctness of the decree rendered in this canse. To the same effect is Montague v. Hayes, 10 Gray 609. There it will he observed that the agreement recites that “we have purchased the estate of P. 0. Head and T. Motley, on Washington street, which has, by mutual consent, been conveyed to me,” which is strikingly unlike the agreement in the case before use, wherein Mr. MacDonald in speaking of this land emphasizes the fact that it was bought by him.

In Tenney v. Simpson, 37 Kan. 579, which is relied upon by respondent, the agreement expressly recites that “we purchased 10 acres of land” through certain land agents. It will also be noted in that case that the court treated the land in the same manner as personal property, and all debts and expenses having been paid, it regarded the remainder of the land as profits and ordered a partition of it between the parties. The rule in that case upon the record before the court by no means furnishes support to the decree rendered in this cause.

It is unnecessary to pursue this subject further. Entertaining the views as herein indicated, it must be held that the decree in this cause is manifestly erroneous and should not be permitted to stand.

II. This leads us to the consideration of the second proposition involved in this proceeding, that is, in view of the facts disclosed by the record of the long-continued silence of plaintiff in asserting his claim to any interest in this land, allowing many years to elapse and the death of R. S. MacDonald, who held the legal title to the land in dispute, to occur, before making any such claim, wás the chancellor in this purely equitable proceeding warranted in granting the relief indicated by the decree or any other relief?

The correct and proper determination of this proposition necessitates a brief reference to the cause of action as stated in the petition and the facts as developed at the trial of the cause. It appears upon the face of the petition that this land was conveyed by a warranty deed to Robert S. MacDonald in the year 1890, and it is alleged in the petition that the agreement between MacDonald and the plaintiff as to a division of the profits upon the sale of such land, was made at the same time. It is also alleged in the petition that on the-day of —---, 189—, large portions of said property were sold to one Chambers for the sum of $8,000, and on or about the 14th day of March, 1899, other large portions of said property were sold to George T. Jarvis, receiver of the Louisville,, Evansville & St. Louis Consolidated Railroad Company for $1,001, both of which said sums were paid to said MacDonald during his lifetime for the joint benefit of plaintiff and MacDonald. Then it is averred that neither said MacDonald nor defendants have ever accounted to plaintiff for the amount, nor for plaintiff’s portion of said sales of said lands.

The facts developed at the trial in support of the allegations of the sale of lands by R. S. MacDonald to Chambers, show that that sale was made on December 31, 1890, only a few months after the land was deeded to R. S. MacDonald by Latinette. That the consideration for the land conveyed was $11,150, and plaintiff seeks to recover under the agreement alleged his part of the proceeds of that sale. However, it was developed at the trial by the plaintiff’s own testimony, that at the time of said sale in 1890, MacDonald in accordance with the agreement as alleged by plaintiff in his petition, repaid himself the $3,000 of the purchase money for the land, paid the commission to the party making the sale and divided the remainder of the proeeds with the plaintiff.

' It is manifest upon the face of the petition that plaintiff had full knowledge of the sale of that portion of this land conveyed to Chambers in 1890', and that out of the proceeds of that sale MacDonald repaid to himself the $3,000, the amount of purchase money paid for the entire land.

Proceeding upon the theory as urged by respondent in his brief and in harmony with Seymour v. Freer, Tenny v. Simpson, and Morrill v. Colehour, supra, and treating the remaining unsold lots of this land in controversy as being in the nature of personal property and clear net profits, we have in this case, upon respondent’s own theory, the clear net profits fully determined and known since 1890, and yet there is an absolute silence on the part of the plaintiff in respect to any claim of such profits for a period of ten or eleven years; in fact this suit was not instituted until the 18th day of January, 1902. It also appears upon the face of the petition, as well as from the facts developed at the trial, that E. S. MacDonald lived for about ten years after the sale of the land to Chambers, from which a sufficient amount was realized to pay the purchase money for the original conveyance from Latinette to MacDonald. It will also be observed that the petition alleges that E. S. MacDonald died December 11,1900, yet there is an entire absence of any allegation indicating why this proceeding was delayed for a period more than ten years and until the death of E. S. MacDonald had occurred. It is clear, if respondent’s theory is correct, that the remaining unsold lots are to be treated in the nature of personal property and clear profit, that this profit and property was fully determined and known as soon as the money was received from the sale to Chambers, which, was in 1890; hence this proceeding would have been just as appropriate, and much more so, upon the consummation of the sale from MacDonald to Chambers and the receipt of the money in 1890, during the lifetime of E. S. MacDonald, as it was ten years after that time, when the lips of MacDonald as to this entire transaction were sealed and he no longer able to give an account of the facts surrounding it.

The facts developed at the trial emphasize the delay in asserting the claim to this property which is-demonstrated upon the face of the petition. The record in this cause'discloses that R. S. MacDonald resided in the city of St. Louis; was a practicing lawyer and maintained a law office in said city from 1890 up to the time of his death in 1900. He paid the entire consideration for this land and accepted a deed in his own name; placed it upon record; had the land surveyed, subdivided and platted and named it “McDonald’s East Clairmont Additionthe land was assessed to him and’ as long as he lived he paid all the taxes upon it; after his death it was inventoried as a part of his estate and the taxes paid out of the estate or by the defendants. During the ten years of his life, from the time of the consummation of the sale and the receipt of the money to Chambers in 1890 up to the time of his death in 1900, there is an entire absence in the disclosures of the record before us of any assertion on the part of this plaintiff of any claim to the lands in dispute. Within a comparatively short time after the death of R. S. MacDonald we find that the plaintiff then became active and for the first time filed the instrument executed by MacDonald, for record. The next step is an assignment of this claim to his wife, who, upon the basis of this assignment, instituted a suit in the probate court against the estate of R. S. MacDonald, and before that suit was determined it was withdrawn and she reassigned the claim to her husband, Charles Dexter, the plaintiff in this cause, and he on January 18, 1902, for the first time and after the death of his adversary, institutes this proceeding.

Confronted with this petition, which when carefully analyzed, clearly indicates an unseeming delay in the prosecution of this claim, as well as the facts, which, we repeat, simply emphasize the laches demonstrated upon the face of the petition, is the plaintiff entitled to the relief afforded him by the decree, or to any relief whatever? We have carefully considered all the disclosures of the record before us and have reached the conclusion that he is not.

It is fundamental that equity views with disfavor suits that are brought after the death of the party whose estate is sought to be affected where such suit might have been brought during the lifetime of the party acquainted with the whole business, and no reason or excuse being alleged or proven why such suit is delayed until after the death of the adverse party. [Lenox v. Harrison, 88 Mo. 491; Burdett v. May, 100 Mo. 13; State ex rel. v. West, 68 Mo. 229.]

In State ex rel. v. West, supra, there was comparatively very little delay in the institution of the proceeding in that case, yet this court very properly expressed grave doubts as to the right of the county to recover, upon the sole ground that it failed to bring the suit prior to the death of the adverse party. J. B. Burros was county cleric of Polk county and while occupying that position the county court ordered the sale of the land in controversy and on the 23rd of April, 1873, the county clerk bought the land under such order of sale and took the deed in his own name. On the 20th day of September, 1873, he sold it at an advance on the price paid for it of $1,200, and on the 2nd day of January, 1874, the county' clerk died. The county court knew of the purchase by the deceased soon after it was made. On the 18th of June, 1874, only a little over a year from the time the purchase was made by the county clerk, the county brought its suit to recover of defendants, who were the legal representatives of the deceased county clerk, the profits made by the deceased on the resale, claiming that the county clerk was acting as the agent of the county. This court, in discussing the delay in the institution of the suit in that case, which was slight as compared to the delay in the bringing of the suit in the case at bar, used this language: “But granting that Burros was agent of the county; granting that he suppressed bidding; granting this resulted in injury to the county, still it is by no means clear that the present proceeding should be successful, and for this reason: A court of equity does not lend a helping hand but to the prompt and vigilant. Here the fact of Burros ’ purchase was known to the county court, within a short time after it occurred, and yet no complaint was made or suit instituted until months afterwards, when Burros’ lips were sealed in death. Under such circumstances, the laches must, of itself, be held fatal, for it would be to assert a doctrine to the last degree hazardous, to say that a complainant, with full knowledge of all the facts on which he relies, can lie quietly by until death comes to his assistance and put the seal of perpetual silence upon the lips of his adversary.”

In Smith v. Clay, Ambler 645 (3 Bro. C. C. 640), Lord Camden said: “A court of equity, which is never active in relief against conscience, or public convenience, has always refused its aid to stale demands, when the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court. ’ ’

“Acquiescence or delay for a length of time after a man is in a situation to enforce a right, and with full knowledge of facts, is, in equity, a cogent evidence of a waiver and abandonment of the right. Lapse of time, when it does not operate as a positive or statutory bar, operates in equity as an evidence of asssent, acquiescence or waiver. The two propositions of bar by length of time, and bar by acquiescence, are not distinct propositions. They constitute but one proposition.” [Kerr on Fraud and Mistake, pp. 299, 305.]

The law upon the subject of laches is well stated in the ease of German American Seminary v. Kiefer, 43 Mich. 105. That was a proceeding in equity to compel the defendant to account for money which it is claimed was held by him in trust for the seminary. In the discussion of the propositions involved in that ease, the court thus very clearly and correctly stated the reasons for the rule in the application of the doctrine of laches: “But another fact is also of high importance. While complainant has been delaying to bring suit against this defendant, quite a number of persons who must have known the principal facts in the case have been taken away by death. Among these are Karl Busch and Edward Eccard, two of the trustees who were present at the sale, Rudolph Diefenbeck, who acted as auctioneer in making the sale,- Anthony Lederle, who was prominent as a member of the corporation in making the sale, and Arnold Kaichen, one of the purchasers. Thus a very considerable proportion of all the persons who presumptively knew all the facts can no longer testify to them, and it is manifest from the discrepancies in the testimony given by others that their memory of the facts has been much obscured by time. If the defendant’s connection with the transaction had but recently come to the knowledge of the officers of the corporation, this might be no conclusive reason for refusing to the complainant relief; but it would be the height of injustice to permit complainant, with full knowledge of the facts, to delay suit while the persons who were familiar with the facts were one by one passing away, and at last bring suit under circumstances which at the best must leave the court in doubt whether the remaining evidence does not disclose a partial, defective and misleading case. A court of equity ought to refuse interference under such circumsances. [Campan v. Van Dyke, 15 Mich. 371; Russell v. Miller, 26 Mich. 1.]”

Mr. Justice Fuller, in Hammond v. Hopkins, 143 U. S. l. c. 274, thus very appropriately expresses the necessity and reason for the rigid enforcement of the rule of diligence: “Where the seal of death has closed the lips of those whose character is involved, and lapse of time has impaired the recollection of transactions and obscured their details, the welfare of society demands the rigid enforcement of the rule of diligence. The hour-glass must supply the ravages of the scythe, and those who have slept upon their rights must he remitted to the repose from which they should not have been aroused.”

A review of all the authorities, both in this State and foreign jurisdictions, upon the subject now under discussion, clearly demonstrates that the courts of this country are inclined to more rigidly enforce the doctrine of laches and deny recoveries on the ground of delay in the institution of either legal or equitable proceedings, where the party to the original transaction sought to be enforced is dead. This is as it should be. Take this case: the plaintiff, if entitled to any relief, was as much entitled to it at the time of the consummation of the sale by R. S. MacDonald to Chambers 'in 1890, as he was eleven or twelve years thereafter. The facts were all known to him, as is shown by his allegations in the petition. He knew that R. S. MacDonald had realized from the sale to Chambers more than enough to repay him for the purchase money for the original conveyance. If he is entitled to the relief now he was equally entitled to the same relief then. He took no steps during the lifetime of R S. MacDonald to assert any rights or claim to the land in dispute, notwithstanding, under the facts disclosed in this case, there was ten years during the life of R. S. MacDonald in which to do so, and if he had any claim the courts were open to give him adequate relief. R. S. MacDonald for many years during his life dealt with this property as absolutely his own. About a year before his death he sold a part of it for over a thousand dollars; executed Ms deed; it was placed on record, and lie in no way consulted the plaintiff in respect to such sale, and so far as the record discloses, did not divide with the plaintiff any of the proceeds of it, and for all we know, if this proceeding had been instituted during Ms lifetime, he would have satisfactorily explained' this entire transaction.

Under the circumstances disclosed by the record in this cause, we have no hesitancy in saying that plaintiff is not entitled to any relief.

Respondent, however, insists that the laches of plaintiff were not interposed as a defense to this action in the trial court; hence he should not be permitted to urge it in this court for the first time. Upon that proposition it is sufficient to say that under the petition and facts as developed in this cause there was no necessity for specially pleading the defense of laches on the part of the defendant in the lower court. The delay and negligence in the institution of this proceeding fully appears upon the face of the petition, and the facts as developed only tend to emphasize such negligence and delay. Again, it may be said that the Statute of Limitations was interposed in the trial court, and this was at least an indication that there was delay in the institution of tMs suit, and at least furnished plaintiff with a sufficient suggestion of the necessity of offering, if he had any, any excuse or reason for waiting nearly ten years and until after the death of his adversary before asserting his claim to the land in controversy. This is purely a proceeding in equity and courts of equity either grant or deny the relief sought upon the proof introduced, and the testimony as disclosed by the record in this cause, introduced on the part of the plaintiff alone, is insufficient to authorize the chancellor in granting the relief sought, or any other relief, and this is true regardless of the' fact as to whether the laches of plaintiff were suggested in the trial court or not.

If the plaintiff in this cause can deprive the defendants of the land inherited from their ancestor, R. S. MacDonald, npon the facts as developed at the trial and fully disclosed in the record, then we confess it furnishes strong reasons for alarm on the part of every citizen who has accumulated property and places the evidence of his title upon record, when he realizes the slender foundation upon which rests the right of those who are entitled to it after his death.

We have given expression to our views upon the record before us in this cause, which results in the conclusion that the plaintiff is not entitled to any relief in this proceeding, and that the judgment and decree of the trial court should be reversed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    STUART, Appellant, v. RAMSEY et al.
    Division Two,
    May 22, 1906.
    1. TAX SALE: Apparent Owner: Notice of Actual Owner. In a suit for taxes, brought against the apparent or record owner, the purchaser at the tax sale does not take the title if he had actual notice at the time of the sale and conveyance to him by the sheriff that such apparent owner was not the real owner.
    2. -: -: -: What Is Actual Notice. Actual notice that the apparent' owner is not the real owner is used in contradistinction to the constructive notice imparted by the record of a conveyance. It does not mean direct evidence that the subsequent purchaser actually knew of the existence of the deed. Any proper evidence tending to show that the apparent owner was not the real owner, such as notice of actual possession, or facts and circumstances coming to the knowledge of the purchaser such as would put a man of ordinary circumspection upon his inquiry, will amount to actual notice.
    3. -: -: -: -: Facts in Evidence.. Plaintiff lived in Kentucky and had bought the land from a corporation, but had not recorded his deed. His Missouri agent testified that he told one of the defendants that plaintiff claimed the land and said lie had a deed to it, "hut the deed was not recorded; and that defendant testified that the agent told him, before he had purchased the land at the sheriff’s sale, that plaintiff had told him (the agent) that he had a deed to the land, but that it was not recorded, and that plaintiff had requested him (the agent) to pay the taxes and call on him for the amount. That defendant also testified that he hnew plaintiff “claimed to own the land,” but that the other defendant, who was a clerk in the office of the circuit clerk, told him “there was no deed on record,” and they agreed to buy it together, and this other defendant advanced the fee to the sheriff for serving the writ on the corporation, the apparent or record owner. Held, that both defendants were, under the circumstances, put upon such inquiry as would have disclosed to them that plaintiff was in fact the owner of the lands by duly executed conveyances, and, therefore, they took no title or interest in the lands by reason of the sheriff’s deed to them.
    4. -: -: -: Notice to Collector. The collector was advised that plaintiff was the owner of the land, and plaintiff corresponded with him for the purpose of ascertaining the amount of taxes and to make provision for the payment of the same; nevertheless, he brought suit against the record owner, and did not inform plaintiff that he had done so. Held, that it was the duty of the collector to have brought the suit against plaintiff, under section 9303, Revised Statutes 1899, which requires the suit to be brought “against the owner of the property.”
    5. -: -: -: Due Process of Law. To permit purchasers at a sheriff’s sale under a judgment and suit against the record or apparent owner for taxes, to recover the land, when they had been told prior to the sale that plaintiff was the actual owner, and when the collector was notified before 'the tax suit was brought that he was the owner, would be to deprive the plaintiff of his property without due process of law, and would be in direct violation of the statutory provision requiring him as owner of the land to be notified when the suit for taxes was brought.
    Appeal from Crawford Circuit Court.—Row, L. B. Woodside, Judge.
    Reversed and remanded (with directions).

      John B. Ben/oir, Jr., for appellant.
    (1) The collector had notice that Stuart was the owner of the land in question when the tax suit was instituted, lienee the tax suit should have been brought against Stewart. St. Joseph v. Baker, 86 Mo. App. 316. (2) The purchaser at the tax sale had notice that Stuart was the owner of the land, hence he was not an innocent purchaser. Watt v. Donnell, 80 Mo. 195. (3) The sheriff’s deed passed only the title of the American Real Estate & Investment Company, if it passed any title, and did not affect the title of Stuart, the owner of the land, who was not a party to the tax suit. Powell v. G-reenstreet, 95 Mo. 15; Bartlett v. Kander, 97- Mo. 356; Jaicks v. Sullivan, 128 Mo. 187. (4) To sustain the judgment of the lower court in this case would be to deprive Stuart of his property without due process of law in violation of the fundamental law of the land. Watt v. Donnell, 80 Mo. 195.

      Frank H. Farris and A. H. Harrison for respondents.
    (1) All actions to enforce collection of back taxes shall be prosecuted in the name of the State of Missouri, at the relation and to the use of the collector and against the owner of the property; and the person who appears, by the record of deeds, to be the owner of the land, is the proper party to make defendant. Payne v. Lott, 90 Mo.676; Allen v. Ray, 96 Mo.' 542; Crane v. Dameron, 98 Mo. 567; Simonson v. Dolan, 114 Mo. 176; Hilton v. Smith, 134 Mo. 512; Railroad v. View, 156 Mo. 608; Lucas v. Land & Cattle Co., 186 Mo. 456; R. S. 1899, see. 9303. (2) And this is the unmistakable rule except where the party suing has actual knowledge that the owner of the property is some other person than as shown by the deed records. Vance v. Corrigan, 78 Mo. 94; Watt v. Donnell, 80 Mo. 195; Cowell v. Gray, 85 Mo. 169; St. Joseph v. Baker, 86 Mo. App. 310; Hilton v. Smith, 134 Mo. 508; Ozark Land & Lumber Co. v. Robertson, 89 Mo. App. 480. (3) Actual knowledge is that state of facts and circumstances proven in the case which are “so pregnant with inference, and provocative of inquiry” as to put a reasonably thinking man upon notice and investigation; and requires more than mere rumor or unofficial commucations in ordinary conversation. R. S. 1899, sec. 925; Vaughan v. Tracy, 22 Mo. 415; Vaughan v. Tracy, 25 Mo. 318; Maupin v. Emmons, 47 Mo. 304; Ins. Co. v. Smith, 117 Mo. 292; Hickman v. Green, 123 Mo. 165; Morrison v. Juden, 145 Mo. 297. (4) “Actual notice” is an issue of fact, and the finding of a court of equity upon an issue of fact should not be disturbed by an appellate court where there is any tangible and reliable testimony to support the finding. Dunivan v. Dunivan, 157 Mo. 157 Chance v. Jennings, 159 Mo. 560.
   GANTT, J.

is an action brought by T. G. Stuart, a resident and citizen of the State of Kentucky, under section 650, Revised Statutes 1899, to ascertain and determine his title and interest and the interest and title of the defendants in certain real estate lying in the county of Crawford in the State of Missouri, to-wit: the northwest quarter and the northwest quarter of the northeast quarter of section twenty-seven, and the south half of the southwest quarter, and the southwest' quarter of the southeast quarter of section twenty-two, all being in township thirty-seven, north, of range four west, and containing in all three hundred and twenty acres.

The suit was returnable to the March term, 1902, of the circuit court of Crawford county. Plaintiff alleged that he was the owner in fee simple, and claimed title to the said lands; that he was informed, and believed, that the defendants made some claim of title, estate or interest in and to said premises adverse to the title and interestof the plaintiff. It was also alleged that the defendant had cut and removed from the premises a large amount of timber, which was standing and growing thereon, of the value of two hundred dollars. The defendants at the August term, 1902, filed a joint answer to the petition, wherein they denied plaintiff’s ownership of the said lands and averred that they, the defendants, were the owners in fee thereof, and under their title were in the absolute and exclusive possession of the said premises, and prayed for judgment decreeing the title to said lands to be in the defendants. On a motion of the defendants the court struck out that portion of the plaintiff’s petition which sought to recover for the timber alleged to have been cut by the defendants. At the said August term, 1902, the cause was heard and a judgment and decree rendered in favor of the defendants, H. M. Ramsey and William E. Evans, and that alL the right, title and interest of the plaintiff be vested absolutely in the said defendants. In due time the plaintiff filed his motions for new trial and in arrest of judgment, and the same were heard and overruled by the court and exceptions saved by the plaintiff, and thereupon an appeal was granted to this court.

On the trial it was stipulated in open court that on February 29,1891, Richard Newberry was the owner of the land in question, and that he conveyed it by proper deed of conveyance to the American Real Estate & Investment Company, a corporation, which deed was duly recorded in the recorder’s office of Crawford county, Missouri. The plaintiff then read in evidence a warranty deed dated January 23,1897, and filed for record March 3, 1902, and recorded in deed record book number 19, page 377, from “The American Real Estate & Investment Company” to James Halley, of Stoner, in the State of Kentucky. Plaintiff then offered in evidence a general warranty deed, of date August 20, 1900, and filed for record March 3, 1902, and duly recorded, from James Halley, a single man, to T. G-. Stuart, of the city of Clark in the State of Kentucky. This was the plaintiff’s case in chief.

Thereupon the defendants offered in evidence the original petition and taxbill marked “Exhibit A,” filed January 12,1901, in the suit in which J. F. Hethcock as collector was plaintiff and the “American Real Estate & Investment Company,” defendant, for delinquent taxes on the lands in suit for the years 1897, 1898 and 1899. The action was brought to the circuit court of Crawford county, at the February term, 1901, the aggregate of the taxes sued for the said years being $22.59. The petition was in the ordinary form of such actions. The certified taxbill filed with the petition shows the land was assessed to “The American Real Estate & Investment Company.” To the introduction of the rolls in the said cause, the plaintiff objected on the ground that the suit appeared to be against the “American Real Estate & Investment Company,” and the service was had upon a man who is recited in the return of the sheriff, as president of the corporation, who in truth and in fact was not the president of the corporation, and for another reason that the writ was issued on the 12th of January, 1901, and required the said defendant to appear at the February term, 1901, of the said court, and purports to have been served on the 21st of January, 1901, which objections were by the court overruled and exceptions saved. The return of the sheriff is in these words:

‘£ Served this writ in the city of St. Louis, Missouri, on the within named defendant, The American Real Estate & Investment Company, a corporation, this 24th day of January, 1901, by delivering a copy of the writ and petition as furnished by the clerk to D. A. Dyer, its president.
“ Joseph F. Diokman, Sheriff,
“by Thos. B. Kilcttllen, Deputy.”

Defendants then introduced in evidence the judgment rendered at the February term, 1901, on the 16th day of May, 1901, upon the said tax petition, to which plaintiff objected, because the service was not sufficient for final judgment at that term. Said judgment was for $30.43 and for costs, and the collector’s commission and attorney’s fees, all of which were adjudged a special lien against the lands in suit, and special execution awarded. The defendants also offered in evidence the special execution in due form on said judgment and the return of the sheriff thereon, which was not signed by the sheriff. The return of the sheriff showed the lands in question were sold to H. M. Ramsey for $45. Upon the application of the defendants the court permitted the sheriff to amend his return by signing his name to the return on the execution, to which the plaintiff then and there objected and excepted. Defendants also offered in evidence the notice of the sale of the land in suit and also the notice of the levy and the sheriff’s report of sale. Defendants then offered in evidence the sheriff’s deed by W. R. Taff, sheriff of Crawford county, for the said lands to H. M. Ramsey and William E. Evans, acknowledged before William E. Evans, clerk of the said court, and duly recorded August 31, 1901. The defendants then rested.

Thereupon the plaintiff in rebuttal called J. D. McCormick, who was swrorn, and testified that he had lived at Cuba, Missouri, for six years; that he had known plaintiff for about two and a half years, but had corresponded with him previous to meeting him personally; that he knew H. M. Ramsey and W. E. Evans; that he did not learn of the sale of the lands in suit until January or February, 1902, he first learned of it from Mr. Ramsey, who told him of it in the bank of Cuba. He testified that the plaintiff wrote to him some eight or ten months prior to the sale of this land, for a statement of its taxes, and the witness wrote to Mr. Hethcock for statement of its taxes, prior to August, 1901, and the bill was about $50, and “I sent it to Mr. Stuart, the plaintiff, and he wrote back to see if I could not get the bill cut, and I wrote the plaintiff that it would cost more to get a reduction than the reduction would be worth.” ■ He was then asked, if prior to that time, he had had a conversation with Mr. Ramsey, one of the defendants, about this land, and he answered,” I was in tbe bank of Cuba, and bad a letter from Mr. Stnart (tbe plaintiff), asking me if I would pay tbe taxes on tbe land and make a draft on bim, and I was in tbe bank and told this to Mr. Eamsey, and remarked, ‘ Tbe record did not sbow tbe land to be in Mr. Stuart’s name,’ and that I only bad a passing acquaintance with bim, and I declined to do so, and I tbougbt I would put Mr. Stuart in correspondence with Mr. Hetbcock, and I did so, and tbe next thing I knew tbe land was sold.” Q. “Did you tel] Mr. Eamsey wbo was tbe owner of this land prior to that time1?” Ans. “I told bim that Mr. Stnart claimed tbe land and said be bad tbe deed to it, but tbe deed was not on record.” Witness testified that be knew the location of tbe land and was in tbe real estate business. He testified farther be was tbe agent of tbe plaintiff and that tbe land was worth about $2 to $2.50 per acre, or about $700 or $800. On cross-examination be testified that be bad quite a correspondence with Mr. Stuart about tbe taxes, and notified bim by letter that bis taxes were due about two or three times; that be got a statement of tbe taxes from tbe collector, Mr. Hetbcock, and sent them to tbe plaintiff, be did not receive any notice from Mr. Hetbcock that suit bad been filed for tbe taxes on that land; be did not know that the suit bad been filed.

H. M. Eamsey testified that be knew Mr. John E. McCormick. Asked if be knew, prior to the time of filing suit in January, 1901, for taxes, that Mr. Stuart was the owner of tbe lands, be stated: “I do not know when it was, Mr. McCormick came to me and said that Mr. Stuart bad authorized bim to go out there and look at tbe land, and be bad never paid bim, and I did not know that tbe land was up for sale, until I came over to court and happened to buy it.” Q. “Prior to tbe date you purchased tbe land, you knew Mr. Stuart was tbe owner of tbe land1?” Ans. “I knew that he claimed to own tbe land, but Mr. Evans told me there was no deed on record. I did not know wbo paid tbe one dollar that was sent to the sheriff of St. Lonis to serve the tax suit. After I came over to court, I was looking over the list and saw it in the papers, and Mr. Evans and I agreed to buy it together. I remember Mr. McCormick came in and said there were some taxes due on the land, and Stuart wanted him to pay the taxes and draw on Mr. Stuart, and he would not do it. That is all I know about it.” .

William Evans testified that he knew about the filing of this tax suit against the American Real Estate & Investment Co., and that Mr. Slack and himself advanced the money; that is, he himself advanced the money on all the suits that were filed, to pay for the service. At that time the witness was a deputy clerk for the court, was working in the clerk’s office. Mr. Slack was the printer, and was interested in the fees. His purpose in advancing the money to make thé service was to secure his fees as clerk. There was no order of publication in this case.

The plaintiff in his own behalf testified that he resided in Kentucky and purchased this land from Mr. Halley. He was asked if he knew Mr. T. B. Dyer, and he answered that he had in his lifetime and was acquainted with the officers of the American Real Estate & Investment Co. He was then asked if he knew who was the president of said Real Estate Company on the 24th of January, 1901, to which the defendants objected, and the court sustained the objection. He testified that he never heard of such a man as D. A. Dyer, that there was no such a man a member of the company. He first learned of the sale of this land sometime after the sale; he knew nothing about the sale; he wrote to Mr. McCormick to make a draft on him; he first tried to settle the difference in the- amount; thought the amount was excessive, and wrote to McCormick about making the draft, and that they could settle the difference afterwards; that was prior to the August term of the court, 1901. This testimony was objected to by the defendants for the reason that if he wrote letters they must be in existence and they are the best evidence, which objection the court sustained.

J. F. Hetheock testified that he was collector of the revenue of Crawford county for two years prior to the 4th of March, 1901; that he did not have in his possession the letters received from non-resident landowners, they had been destroyed; that he did not remember that he had ever received a letter from a man by the name of Stuart between the first of January, 1901, and the 4th of March, 1901; he did not remember receiving a letter from the plaintiff Stuart, he did not charge his memory with such things as that; that it was his usual practice if a non-resident wrote to him for a statement of the taxes to send him the statement; he did remember that he had had a correspondence with Mr. John L. McCormick as agent for Mr. Stuart as to the taxes on this land.

Plaintiff testified further that he wrote to the collector and not having received any reply, he wrote to McCormick and asked him why the draft was not drawn, and asked him to see about it at once, and received a reply that he had been told by Mr. Eamsey that the land had been sold for taxes.

This was substantially all the testimony.

As already said, the purpose of this suit is to determine the title of the lands described in the petition as between the plaintiff and the defendants. Under the admissions as to the ownership of the lands by Eichard Newberry, the common source of title, and the deeds from Newberry to the American Eeal Estate & Investment Company, and the deed from that company to James Halley, and the deed from said Halley to plaintiff, the title of these lands prior to their sale and conveyance by the sheriff to defendants for taxes, was shown to be in the plaintiff. And the sole question presented for our consideration is whether under the evidence developed in this case, the defendants acquired plaintiff’s title by virtue of the tax proceedings against the American Real Estate & Investment Company, and their sheriff’s deed thereunder.

Section 9303, Revised Statutes 1899, provides: “All actions commenced under the provisions of this chapter shall be prosecuted in the name of the State of Missouri, at the relation and to the use of the collector, and agcdnst the owner of the property.”

In Vance v. Corrigan, 78 Mo. 94, it was ruled that where the statute under which the special taxbill was issued required the suit for its enforcement to be brought against the owner of the land to be charged, in the absence of any knowledge or notice to the contrary, the holder of the bill had the right to assume that the person in whom the records showed the title to be vested, was the true owner, and to sue him accordingly, and a sale under execution upon a judgment against the record owner passed the title as against the grantee in an unrecorded deed from him, provided, the purchaser had no notice of the unrecorded deed, and this is the contention of the learned counsel for the defendants in this case. They insist that inasmuch as the deed from the American Real Estate & Investment Company to Halley, dated January 23, 1897, and the deed from James Halley to plaintiff, dated August 20, 1900, were not filed for record until March 3, 1902, the collector of revenue properly brought suit to enforce the tax lien for the years 1897, 1898 and 1899, against the American Real Estate & Investment Company, the record owner of the lands at the time the suit was commenced on Janury 12,1901, and that, therefore, they obtained plaintiff’s title to said lands, notwithstanding he was not made a party to said suit for said taxes, and was not notified of the commencement of said action. Under the decisions of this court beginning with Yance v. Corrigan, supra, and numerous cases following that decision, to-wit: State ex rel. Hunt v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169; Payne v. Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo. 192; Troyer v. Wood, 96 Mo. 478; Allen v. Ray, 96 Mo. 542; Crane v. Dameron, 98 Mo. 567; Lucas v. Land & Cattle Co., 186 Mo. l. c. 456, they are unquestionably correct, unless the evidence discloses that at the time the collector brought his suit to enforce the lien of the taxes or at the time of their purchase, the defendants knew or had notice that the title of the Eeal Estate Company had been transferred to Halley, and by Halley to the plaintiff, prior to the commencement of said suit or the receiving of their sheriff’s deed by the defendants. In Watt v. Donnell, 80 Mo. 195, this court reviewed the decision in Vance v. Corrigan, 78 Mo. 94, and, among other things, said; “That case further expressly decides that the purchaser at the tax sale takes the interest, and no more, of the defendant in execution in the land so sold. If the record of land titles at the time of the sale show him to be the owner, the purchaser acquires that apparent interest, whatever it is, provided he have not notice at the time of sale that such apparent owner toas not the real otoner.” It has often been decided by this court that if one has notice of the actual possession of land which another has, it will be notice to him of that other’s title. [Masterson v. Railroad, 72 Mo. 342; Davis v. Briscoe, 81 Mo. 27; Freeman v. Moffitt, 119 Mo. 280; St. Joseph v. Baker, 86 Mo. App. 310; Wiggenhorn v. Daniels, 149 Mo. 160.]

But these cases do not mean that actual notice of one’s title may not be imparted otherwise than by actual possession of the land. Actual notice within the meaning of our law is used in contradistinction to the constructive notice imparted by the record of a conveyance. It does not mean direct evidence that the subsequent purchaser actually knew of the existence of the deed. Any proper evidence tending to show it, facts and circumstances coming to his knowledge that would put a man of ordinary, circumspection upon inquiry, will suffice, [Maupin v. Emmons, 47 Mo. 304.] As said by this court in Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. 292: “Courts of equity, since their earliest foundation, have always recognized that the still, small voice of. suggestion, emanating- as it will from contiguous facts and surrounding circumstances, pregnant with inference and provocative of inquiry, is as potent to impart notice as a Presidential proclamation or an army with banners.” In Sensenderfer v. Kemp, 83 Mo. l. c. 588, Black, J., speaking for the court, said:. “Notice ‘is actual when the purchaser either knows of the existence of the adverse claim of title or is conscious of having the means of knowledge, although he may not use them.’ [Speck v. Riggin, 40 Mo. 405.] ” [See, also, Swisher v. Sensenderfer, 84 Mo. 104.] Applying these well-settled rules to the facts in evidence in this case, it appears from the testimony of Mr. Ramsey himself, that Mr. McCormick told him, Ramsey, before the latter went to Steelville, and purchased the land at the sheriff’s sale, that Mr. Stuart, the plaintiff, had told him, McCormick, that he had a deed to the land, but that it was not recorded, and that Stuart had requested him, McCormick, to pay the taxes and draw on him for the amount. All this was prior to August, 1901, when the land was sold. Mr. McCormick testifies that he told Mr. Ramsey that Stuart claimed the land and said he had a deed to it, but the deed was not on record. Mr. Ramsey also significantly adds in his testimony in response to the question whether he knew that plaintiff was the owner of the land prior to the date he purchased the same, “I knew that he claimed to own the land, but Mr. Evans (who was a joint grantee with Ramsey in the sheriff’s deed) told me there was no deed on record, and Evans and I agreed to buy it together.” It appears further in evidence that Mr. Evans was a clerk in the office of the circuit clerk at that time and advanced the service fee for the sheriff for the city of St. Louis to serve the American Real Estate & Investment Company. That Ramsey and his joint grantee, Evans, under these circumstances, were put upon that inquiry which would have disclosed to them the fact that plaintiff was in fact the owner of the lands by duly executed conveyances, there cannot, under the laws of this State and the adjudications of this court, be any doubt whatever. But it is also clear that Mr. Hetheock, the collector of revenue, had also been notified that the plaintiff was the owner of these lands, and that the plaintiff was in correspondence with him for the purpose of ascertaining the amount of the taxes and to make provision for the payment of the same, and although he was thus advised that plaintiff was the owner and was corresponding with him about the taxes, he brought suit against the Real Estate Company for these taxes, and at no time mentioned that fact to the plaintiff, and it was equally clear that under section 9303, it was his duty to have brought the suit against the plaintiff as the owner of the lands. It is plain to us that to permit the defendants to recover in this suit would be to deprive the plaintiff of his property without due process of law and in direct violation of the plain statutory provision requiring him to be notified as the owner of the land when the suit was brought for said taxes. He was not made a party to the suit and was not notified in any way that it was pending, and his agent, Mr. McCormick, had no notice of it until after the lands were sold, although the defendants and the collector had notice of his ownership.

In our opinion the judgment of the circuit court upon the undisputed facts appearing in evidence should have been for the plaintiff, divesting whatever title, if any, the defendants acquired under and by virtue of. their sheriff’s deed, and also any title that the Sligo Furnace Company may have acquired in and. to said lands.

The judgment of the circuit court is reversed and the cause remanded to that court with directions to enter judgment for tbe plaintiff confirming bis title to tbe lands in suit, and divesting any and all title to tbe same out of tbe defendants in tbe action by virtue of their sheriff’s deed, and that plaintiff have and recover bis costs in this behalf laid out and expended.

Burgess, P. J., and Fox, J., concur.