text:
    PRIDDY et al., Plaintiffs in Error, v. MINERVA J. HAYES.
    Division One,
    May 29, 1907.
    1. BILL OF EXCEPTIONS: Presented Out of Time. The trial court cannot properly authenticate a bill of exceptions after the time allowed in which to file the same has expired, and a bill filed out of time presents nothing for review by the appellate court, on either appeal or writ of error. And the rule is the same, where the trial court had refused to approve a bill . presented within time and refused to make known to appellant its objections to the bill so presented and refused to permit appellant’s counsel to see the objections indorsed thereon and refused to extend the time in which to present another bill, and that other bill is the bill filed out of time and presented to this court as its guide in reviewing the- case.
    2. -: -: Refusal to Approve. A second bill of exceptions, presented after the time for filing a bill had expired and after a refusal to extend the time, containing exceptions to the court’s refusal to sign the bill previously presented, cannot be considered by the appellate court, because if the refusal was improper, it cannot be corrected by appeal or writ of error. Mandamus is the remedy, and that remedy may, because of laches in applying for the writ, be denied.

      Error to Jackson Circuit Court. — Hon. James Gibson, Judge.
    Affirmed.

      8. P. Fiorsee, W. G. Forsee and H. H. McGluer for plaintiffs in error.
    (1) The filing by Judge Gibson, on "December 5, 1903, of the bills of exceptions with his objections attached thereto, made it a part of the record in the cases, to be reviewed in this court. “The statements in the bills are assumed to be true, notwithstanding the statement of the court that they are not true.” Norton v. Dorsey, 65 Mo. 376; State v. Snyder, 98 Mo. 562; sec. 732, R. S. 1899. The bills of exceptions filed by Judge Gibson December 5, 1903, were true bills of exceptions, and have been so held to be, by this court, in State ex rel. v. Gibson, 184 Mo. 507. Hence, we have true bills of exceptions signed and filed by the trial judge, within the time by him allowed for the filing of bills of exceptions in these cases. (2) The bills of exceptions filed December 22, 1903, to the action of the court in refusing to extend the time, on December 5th, to settle and file the bills of exceptions to matters occurring prior to December 5th, are unobjectionable in every respect, and for the errors therein recited, the cases ought to be reversed. The action of the court, and defendant’s counsel, in refusing to disclose their objections. to the bills of exceptions filed by Judge Gibson December 5, 1903, created suspicion, which should require a reversal of the cases. Norton v. Dorsey, 65 Mo. 377.

      G. O. Tichenor, O. H. Dean and Lathrop, Morrow, Fox é Moore for defendant in error.
    There being no bill of exceptions on the proceedings had at the trial of the cause, the court can consider nothing but the record proper. Sec. 728, R. S. 1899; Wolf v. Ward, 104 Mo. 127; Steams v. Railroad, 94 Mo. 317; State v. Aired, 115 Mo. 471; State v. Appemon, 115 Mo. 470; State ex rel. v. Grates, 143 Mo. 63; State v. Simmons, 124 Mo. 443; Bank v. Barker, 145 Mo. 356; Dorman v. Coon, 119; Mo. 68; Danforth v. Railroad, 123 Mo. 196; Fulkerson v. Murdock, 123 Mo. 292; Graham v. DeGuire, 154 Mo. 88; State v. Hall, 164 Mo. 528; State ex rel. v. Gibson, 184 Mo. 490; State ex rel. v. Gibson, 187 Mo. 536; State v. Nave, 185 Mo. 125; Marshall v. Ferguson, 78 Mo. App. 645'; Pace v. Roberts, etc., Co., 103 Mo. App. 662.
   WOODSON, J.

This is one of the eight cases-mentioned and referred to in the ease of Priddy et al. v. MacKenzie et al., decided at the present term, 205 Mo. 181.

This case and that one were, by stipulation of counsel, argued and submitted together. Prior to making that stipulation, counsel, in writing, agreed that this and the following seven cases might be argued together and submitted, to-wit: Priddy et al. v. Kendall et al.; Priddy et al. v. Beals et al.; Priddy et al. v. McDearmond et al.; Priddy et al. v. Tomb et al.; Priddy et al. v. Rosecrans et al.; Priddy et al. v. Bayles et al.; Priddy et al. v. Merrill et al.

The case at bar and the above-mentioned cases are the eight cases mentioned in the MacKenzie case which were consolidated by the trial court, and all were tried together, at the same time, over the objections and exceptions of the plaintiffs.

All the pleadings, issues and facts in each of these cases are the same as those in the MacKenzie case, excepting the names of the defendants and the description of the land involved in each; and the statement of the facts in that case is hereby referred to and adopted as the facts in these cases, as far as they go; but there are some additional matters in these cases which do not exist in that one, or which were unnecessary to be stated in the disposition thereof. Said additional facts are as follows:

The decision was rendered July 17, 1903, and motions for new trial and in arrest were filed on the next day and overruled by the court, and leave was granted plaintiffs to file bills of exception on or before the 3rd day of the October term, 1903, and the time for filing said bills was duly extended by the court, and the last extension was leave to file the bills on or before December 5, 1903. None of these extensions were asked for or granted at the instance of the plaintiffs, but were made in order to give the court and counsel for defendants more time in which to prepare and endorse upon the bills the reason for the court’s refusal to allow and sign them. At first the only reason assigned for such refusal, and that was orally made, was because those furnished by plaintiffs did not contain all the evidence, in the case regarding the merits.

The pi "intiffs contended the trial court had no jurisdiction to try the cases, and that they wished to appeal for the purpose of having that point alone settled by this court, a.nd that under that view of the cases the evidence touching the merits was wholly immaterial, and that they should not be compelled to pay the costs and expenses of preparing and printing the voluminous records therein, which aggregate more than twenty-five thousand pages; and for those reasons refused to incorporate into the bills said evidence, which constituted the greater part of the records.

Later, the court formulated additional reasons for ■ its declination. So, on December 4, plaintiffs filed in each of said cases a motion, asking for an extension of time in which to file said bills. The grounds assigned by plaintiffs in said motions were that the time, was about to expire and that they had not been informed of the character of the objections entertained, if any, and their rights to bills would be lost through no fault of theirs unless an extension was granted.

On the next day, December 5th, this motion was taken up for consideration, and the following, substantially, occurred:

When the court opened, the bills were lying upon the bench, in front of the court, with the court’s written objections^ endorsed thereon, or attached thereto. Counsel for plaintiffs requested permission of the court to examine the bills and the objections thereto before said motion for an extension of time was passed upon. The court refused this request. Plaintiffs then requested the court to inform them the nature of the objections endorsed upon the bills, which was by the court refused.

Plaintiffs then, through their counsel, requested the court to permit them to examine said objections in the presence of the court in order that they might know the nature of same, and to make, if possible, such amendments or alterations of the bills as would cause them to conform to the court’s objections. This request was also refused, and the court then and there ordered the clerk to file the objections with the bills of exceptions attached thereto, and when so filed to take them and seal them with sealing-wax, and keep them under lock and key until further ordered. The plaintiffs duly excepted to the action of the court in refusing each and all of said requests. The court also overruled plaintiffs’ motion asking for an extension of time for filing the bills, to which ruling plaintiffs duly excepted. Sometime after the bills had been filed in open court, plaintiffs’ counsel was permitted to examine the objections endorsed upon the bills and found that the bills could be amended so as to comply with ten or twelve of them, and they offered to make the alterations in stanter, but the offer was by the court refused. The plaintiffs also found several other objections, based upon the absence of the testimony which was introduced on the merits of the cases, which they refused, as before stated, to incorporate into the bills, on account of its immateriality to the question raised, and because of the great cost that would be entailed upon them by having to print such a record, more than twenty thousand pages of which was directed to the merits alone, according to statements of counsel in the argument of these cases.

Plaintiffs also excepted to the ruling of the court in refusing to permit them to' amend the bills so as to make them, conform to the ten or twelve objections before mentioned.

On December 22, 1903, during the same term of said court at which it refused to sign plaintiffs’ bills of exceptions, and at which it filed its reasons or objections for not signing.them, plaintiffs’ counsel presented to the court a second lot of bills for allowance, excepting to the decision and' rulings of the court in refusing to sign the first lot of bills which were duly authenticated by the court, and one filed in each of these eight cases. The defendants, by counsel, objected and duly excepted to the action of the court in allowing and filing the second lot of bills, because the cases are ended and no authority exists to sign and file bills after the expiration of the time fixed for that purpose.

Sometime after the court’s refusal to allow and sign the first nine bills of exceptions, and after it had signed the second series, above mentioned, plaintiffs, at the relation of the State, instituted a mandamus suit in this court against Judge Gibson, requiring him to show cause why he should not be required to allow and sign the bill of exceptions which was presented by plaintiffs to him in the case of Priddy et al. v. MacKenzie et al., and which he had refused to sign, which was at the same time he refused to sign the bills in these cases. This court, at the October term, 1904, awarded a peremptory writ in that ease and required Judge Gibson to allow and sign the bill of exceptions in that case as made and presented to him. [See State ex rel. v. Gibson, 184 Mo. 490.]

While that writ only'required him to allow the bill in the MacKenzie case, yet in obedience to its command he not only signed the bill in that case, but, on December 20, 1904, also signed, sealed and allowed the bills in all of these eight cases; and the record entry showing that fact is as follows:

“December 20,1904, October term. In each and all of the above-entitled nine causes on said day there is the following entry: ‘Now on this day in obedience to the order of the Supreme Court that the bills of ex-' ceptions tendered the judge • of this division of this court on the 5th day of December, 1903, be signed, sealed and allowed, and by agreement of the parties to said causes, said bills of exception is signed, sealed and allowed and ordered to be filed by the clerk of this court as and of said December 5, 1903, which is accordingly done.’

On December 29, 1904, just nine days after Judge Gibson had signed the bills in all these cases, the plaintiffs, at the relation of the State, instituted another mandamus proceeding in this: court against him, asking that he be required to sign all these bills (they being the same bills he had signed but a few days before).

The peremptory writ was refused in that case, for the reasons assigned by Lamm, J., in the opinion in that case. [State ex rel. v. Gibson, 187 Mo. 536.]

Plaintiffs sued out writs of error, and brought all • of these cases to this court.

. I. The bills of exceptions in these cases were not allowed and filed for more than a year after the expiration of the time fixed by the conrt for their filing. While the order of the conrt states' that they were signed, sealed and allowed in obedience to the order of the Supreme Court, yet the whole record in these cases shows that statement is incorrect, and, in fact, this court never issued any such order, but expressly refused to do so in the case of State ex rel. v. Gibson, 187 Mo. 536. The judge must have been under the erroneous impression that the writ requiring him to allow the bill in the MacKenzie case embraced these cases also.

The trial court cannot properly authenticate a bill of exceptions after the time .to file the same has expired, and a bill filed out of time presents nothing for review by this court on appeal or writ of error. [Dan-forth v. Railroad, 123 Mo. 196; Fulkerson v. Murdock, 123 Mo. 292.]

Speaking of these same bills, in the mandamus proceeding against Judge Gibson, whereby it was sought to compel him to sign them, Judge Lamm said: “It is clear, we think, that respondent lost the power to incorporate the bills in the record, of his own motion, after the day fixed by leave, and that an extension of such power could only be bottomed on an extension of time made while the right of extension existed. It is furthermore clear that the mere request of relators, made over a year after the leave expired, could not have the effect to blow into life this dead coal of power, nor could it add aught of legal efficiency to respondent’s compliance with that request; hence these bills must stand in the eye of the law precisely the same as if allowed and signed without such request. Even an order extending the time, made after leave expired, would have been coram non judice, a fortiori an extern sion without such order is bad.” [State ex rel. v. Gibson, 187 Mo. l. c. 549.]

It follows from what has been stated that the bills are not properly before us, and we cannot consider anything contained in them.

II. The second lot of bills filed, excepting “to the refusal of the judge to sign the bills previously presented, cannot be noticed, because if his refusal had been improper, it is not to be corrected by appeal, ’ ’ nor by writ of error. [Darrah v. Steamboat, 17 Mo. 276; State v. Logan, 125 Mo. 26; Garth v. Caldwell, 72 Mo. l. c. 631; Cooper v. Maloney, 162 Mo. l. c. 687.]

Mandamus was the proper remedy, but plaintiffs were denied that remedy because of their laches in applying for the writ. [State ex rel. v. Gibson, 187 Mo. 536.]

III. As the writs of error bring up the records proper in these cases, and there is no error in them that we have been able to discover, the judgment will be affirmed. So ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    BRISTOL v. THOMPSON, Appellant.
    Division One,
    May 29, 1907.
    APPELLATE JURISDICTION: Ejectment: Value of Improvements. The Supreme Court does not have jurisdiction over an appeal from a judgment which grew out of an independent proceeding, by an unsuccessful defendant in an ejectment suit, to recover the value of the improvements made by him upon the land involved in the ejectment. Such judgment does not involve title to real estate. It is 'purely and simply a money judgment. Nor Is such proceeding, where the answer in the ejectment was a general denial, such a continuation of the ejectment suit as to give the Supreme Court jurisdiction over the appeal, but a separate and independent suit. [Disapproving the dictum in Stump v. Hornback, 109 Mo. 1. c. 279, where it is said that the proceeding to recover for improvements was* designed merely to supplement and continue the ejectment suit out of which it grew.]

      Transferred from St. Louis Court of Appeals.
    Remanded to St. Louis Court oe Appeals.

      J. 8. Clarice for appellant.

      John T. Davis and 8. P. Smith for respondent.
   GRAVES, J.

Plaintiff herein was an unsuccessful defendant in an ejectment suit. At the March term, 1902, of Douglas Circuit Court, defendant secured judgment in ejectment against plaintiff for the possession of eighty acres of land in Douglas county. On March 28,1902, plaintiff instituted this suit under section 3072, Revised Statutes 1899, to recover value of improvements. The pleadings are not abstracted or before us. The fact is that there is nothing before us except a bill of exceptions, which is marked in pencil, “Original, ’ ’ and has the file mark of the circuit clerk of Douglas county, and a purported abstract of record, which-does not set out the pleadings in substance or otherwise. In this purported abstract of record, we have the following set out as the judgment in the case, viz:

“Now at this day this cause coming on for trial and the plaintiff appearing in person and by attorney and the defendant appears by attorney and each announce ready for trial, and the court, sitting as a jury, after hearing the evidence both for plaintiff and defendant and the argument of the counsel, finds the issues for the plaintiff. It is therefore considered, ordered and adjudged by the court that the plaintiff have and recover of and from the defendant herein the sum of two hundred dollars together with his costs in this suit expended and that execution issue therefor.”

The 'cause was appealed to the St. Louis Court of Appeals and by that court transferred to this court by a short opinion in these words:

“ The plaintiff who was an unsuccessful defendant in an ejectment suit, proceeded under section 3072, Revised Statutes 1899, to recover the value of improvements made by him upon the land. He recovered in the circuit court and defendant appealed to this court. In Stump v. Hornback, 109 Mo. l. c. 279, it is said: ‘The proceedings to recover for improvements were designed merely to supplement and continue the ejectment suit out of which they grew, and enforce the equities of the occupant before the judgment in the original suit had been executed. ’ This court has no jurisdiction in an ejectment suit. This proceeding being a continuation of the ejectment suit, it must follow that this court has no jurisdiction over the subject-matter of this suit. The appeal is therefore transferred to the Supreme Court.” -

It will be observed that the Court of Appeals acted upon a remark of Judge Macearlane in the Stump case in sending the case here. The judgment in the case at bar clearly does not involve title to land. It is purely and simply a money judgment. Nor is. this action a continuation of the ejectment suit, as stated by Judge Macearlane in the Stump case, supra. This language was not called for in that case, and is at most mere dicta.

In Henderson v. Langley, 76 Mo. l. c. 228, Hough, J., said: “The claim for improvements made under the sections cited cannot be presented or heard in the action of ejectment. It is intended to be an independent proceeding, and can only be instituted after final judgment of dispossession shall have been rendered against the deféndant in the suit of ejectment.”

More recently, the Henderson case has been cited and approved by Fox, J., in the case of Tice v. Fleming, 173 Mo. l. c. 56, where we find this statement of the law:. “In case the defendant’s possession and occupancy is by claim of title through the plaintiff, then the value of the improvements may he considered in the ejectment suit; hut if defendant’s occupancy is under a stranger to the title of plaintiff, then his action for improvements must be an independent one, under the statute. [Henderson v. Langley, 76 Mo. 226.]”

The Henderson case upon this point is likewise approved in the case of McClannahan v. Smith, 76 Mo. l. c. 431, and Jasper County v. Wadlow, 82 Mo. l. c. 179, 180.

Again, in Brown v. Baldwin, 121 Mo. l. c. 114, Gantt, P. J., in discussing the character of the suit authorized by section 3072, Revised Statutes 1899, says “We think that plaintiffs, having invoked this statute and commenced their action under it, are limited by the scope of the statute itself. The action is given for improvements, and not for title. ’ ’

In an action for improvements notice, must be given to the defendant in the proceeding, which is inconsistent with the view that it is a part of and a mere continuation of the ejectment suit. [Koch v. Hawkins, 40 Mo. App. 680.]

But aside from.this a reading of the several sections of the statute would clearly indicate that it should be a separate and independent proceeding. In cases falling under these provisions of the statute, the value of the improvements cannot be litigated in the ejectment suit, and on the other hand the title cannot be litigated in an action'for improvements, thus showing the independence of the two actions.

From the foregoing it would appear, and we so hold, that such a proceeding is not such a continuation of an ejectment suit as to give this court jurisdiction for that reason.

But, proceeding further, without having the pleadings before us, we must conclude that the judgment, which we do have before us, is and was within the purview of the pleadings. This judgment is a purely money judgment, and we conclude that the plaintiff in this suit (the occupying claimant or defendant in the ejectment suit) filed a petition as called for by section 3073, and that the defendant in this action (the successful plaintiff in the ejectment) filed answer by a simple general denial, and not such an answer as he could have filed under the provisions of section 3075. Unless such an answer is filed as provided for by said section 3075, an assessment of the value of the land without the improvements and a judgment awarding the land to the plaintiff (defendant in the ejectment suit) is unauthorized and void. [Stump v. Hornback, 94 Mo. 26.]

Had there been more than a general denial filed, then the court would have proceeded as in the succeeding sections indicated. And had there been an answer filed as called for in section 3075, and proceedings had, as contemplated by that section and those following it, and a judgment entered as broad as it is seemingly authorized, and such judgment was before us, we are not prepared to say that title to real estate might not be involved, although we do not say that it would be. It will be ample time to review the situation when a case is presented calling for a discussion of the question. The case at bar does not call for such a discussion, and for that reason it is withheld.

However, we, the writer personally, suggest that as to the extent of a judgment which can be rendered under these statutes, in order to hold them constitutional, the very able opinion of Brace, J., in Stump v. Hornback, 94 Mo. 26, supra, may be read with profit.

We are not unmindful of the fact that there are several cases, including the Stump, case, supra, where, this court has passed upon the merits of the ease where the amount involved was less than the amount fixed for our jurisdiction. The question of jurisdiction was not raised hy the parties nor by the court. In the case at bar, we raise it, as we have in other cases, but thought it better to give expression of our views by opinion.

The case at bar is not one within our jurisdiction and should be transferred to the St. Louis Court of Appeals, and it is so ordered.

All concur.


author: VALLIANT, P. J.

text:
    CHOUTEAU LAND and LUMBER COMPANY, Appellant, v. CHRISMAN et al.
    Division One,
    May 29, 1907.
    1. AGENCY: Delegation. An agent of an agent is not the agent of the principal. Unless the principal empower the agent to delegate the agency, it cannot be done.
    2. -: : Sale of Real Estate. But where the agent of the agent, who had authority to sell his principal’s land, did nothing more than the clerical work of drafting certain papers in connection with the sale of the land and leaving them on the agent’s desk for such action as the agent might see fit to take, the sale, if any was made, was by the agent, and not by the agent’s agent. And when the memorandum which accompanied the check made payable to the principal, informed the agent that it was in part payment for certain land, and he transmitted it to the principal, or even if he misused it, it became the earnest money to bind the sale.
    3. -: : : Messenger. But not so as to a check delivered to the agent’s agent, which neither the principal nor his agent ever received. As to that check the agent’s agent was merely the purchaser’s messenger, and if he did not transmit the check to the principal’s agent it was not a payment for the land, though the agent might be liable for his agent’s failure to deliver the check.
    4'. -: : Proof: Admission. Where it is admitted in open court that a certain person was the landowner’s agent to sell the land, it is not necessary to prove by a writing or otherwise that he was such agent. And an admission in open court that a certain person was the landowner’s agent, made in the face of the purchaser’s claim that said person was the landowner’s agent under written authority to sell the land, is an admission that the agent had such authority.
    5. -: Sale of land to Firm: Dissolution. Where land was purchased for a firm by one of its partners, and the earnest money was paid by the firm’s check, and at the time of the suit against its members to quiet title the firm was dissolved, but the evidence fails to show that by the terms of the dissolution one member became sole owner of the land, that member is not entitled to a decree vesting the title in him for his own use.
    Appeal from Mississippi Circuit.Court. — Hon. Henry G. Riley, Judge.
    Reversed and remanded (with directions).

      J. R. Young, Arthur B. Shepley and John A. Harrison for appellant.
    (1) “No contract for the sale of lands, made by an agent, shall be binding upon tbe principal unless said agent is authorized in writing to make such sale.” R. S. 1899, sec. 3418; Greening v. Steel, 122 Mo. 287. (2) The authority of an agent must appear sufficiently to identify the land. That fact cannot be supplied outside. Johnson v. Pecht, 185 Mo. 335. (3) Ratification of a sale of real estate by an agent must be in writing when the agent has no written authority to sell such real estate. Hawkins v. McGroarty, 110 Mo. 546; Johnson v. Pecht, 185 Mo. 335. (4) A parol contract for the purchase of real estate, made with either principal or agent, is not taken out of the Statute of Frauds by the vendee taking possession, unless he does so by the consent of the vendor in pursuance of such contract. Cockrell v. McIntyre, 161 Mo. 59.

      Ralph Wammach and A. T. Welborn for respondents.
    (1) The Statute of Frauds has no applicability to the facts in this case for the following reasons: (a) The contract of purchase itself is clearly proven by the writings introduced in evidence. The check, the receipt; and the notes clearly identify the land, the contract and price and the parties to the sale and purchase, and in addition to these it is shown that a memorandum in writing embodying the terms of the trade was made at the time and left on the table of D. S. Crumb, the agent of Chouteau, and the plaintiff, (b) • The authority of D. S. Crumb as the agent for Chouteau is admitted by the record, and this admission is sufficient to vest him with the full legal right to sell the land, (c) The authority of George H. Crumb to represent his brother in the sale of this land is admitted by the record, and this admission imports legal authority and such as is contemplated by the statute; however, that is unimportant, as the act of George H. Crumb was the •act of his brother and by his brother fully ratified, (d) The authority of D. S. Crumb to act for both Chouteau and the plaintiff' is further conclusively shown by the deposition of Mr. Crumb taken by the plaintiff and by it introduced in evidence, and from this there could be no possible escape by the plaintiff, (e) The sale was fully recognized by Glover, the secretary and general manager of the plaintiff in charge of their home office in Bloomfield, Missouri, who procured a deed from Ring to straighten out the title for the purpose of conveying the same to defendant upon the payment of the disputed $90. (2) The complete performance of the contract by one contracting party forecloses his adversary from interposing the Statute of Frauds as a defense. Bless v. Jenkins, 129 Mo. 657; Marks v. Davis, 72 Mo. App. 562. Í3) One who sells an equitable interest in lands, receives the consideration and yields possession, will not “be permitted to say afterwards that it was not in writing. Crumley v. Webb, 48 Mo. 586. One who purchases land, takes possession, and improves the same, has a contract which can be enforced, though it is not in writing. Rosenberger v. Jones, 118 Mo. 565.
   VALLIANT, P. J.

Plaintiff sued in ejectment for the possession of southeast quarter of the northwest quarter of section 15, township 27, range 11 east, forty acres in Stoddard county. Defendant Chrisman answered, admitting legal title in plaintiff, but claiming the equitable right to have the legal title conveyed to him by virtue of a purchase by him from an agent of plaintiff under which he went into possession, made ■valuable and permanent improvements, and has continued in possession; the answer prays that plaintiff' be required to convey title ' to defendant, or that defendant have judgment for the purchase money paid and the amount expended for improvements, and interest, and a lien on the land for the same. Reply, general denial. Chrisman was the only defendant claiming any interest in the land and he will herein be called the defendant. At the trial the evidence on the part of defendant tended to prove as follows:

February 23,1895, this laud belonged to Charles P. Chouteau; at that date D. S. Crumb was the agent of Chouteau for the sale of this and other lands in that county. Defendant and one Quick were partners in business. On the day mentioned defendant called at the office of D. S. Crumb, found that he was absent, his brother George Crumb was in charge of the office and acting for him; defendant made an agreement with George Crumb acting for D. S. Crumb to purchase the land in suit for the sum of one hundred and forty dollars, of which sum he paid fifty dollars by check on a St. Louis bank, payable to tbe order of D. S. Crumb, and signed two notes written by George Crumb, one for fifty dollars, payable in one year, the other for forty dollars, payable in two years, both payable to tbe order of Charles P. Cbouteau, with a memorandum at tbe foot of tbe first note tbat it was secured by deed of trust on tbis land, and memorandum at tbe foot of tbe other tbat it was secured by deed of trust. Tbe notes were signed C. M. Chrisman, T. J. Quick; both names were written by Chrisman.

Afterwards on tbe same day, defendant returned to Crumb’s office and paid to1 George Crumb tbe amount of tbe two notes and they were delivered to him. He at the time asked for a receipt, but George Crumb said that possession of tbe notes was all tbat be needed to show payment. Defendant immediately took possession of tbe land, which was then unimproved woodland, and cleared it all except about four acres, fenced tbe whole tract and built some bouses on it; tbe cost of clearing, fencing and the bouses aggregated about one thousand dollars; tbis was all done in tbe year 1895.

On receiving tbe cheek for fifty dollars George Crumb gave defendant a receipt dated February 23, 1895: “Received of Quick & Chrisman tbe sum of fifty dollars, to apply on purchase of tbe southeast quarter of tbe northwest quarter sec. 15, township 27, range 11 east. Paid by check on St. Louis. D. S. Crumb, by George H. Crumb agent.” Tbe check was in evidence, it was signed Quick and Chrisman and1 bore these endorsements: “Pay to C. P. Cbouteau or order, D. S. Crumb,” “For deposit to tbe credit of Charles P. Cbouteau.”

After the above dates tbe plaintiff corporation succeeded to. tbe rights of C. P. Cbouteau in tbe land, but it is not contended tbat as against tbe defendant tbe corporation acquired any greater right than Cbouteau himself could have asserted. D. S. Crumb continued for a time, just how long the evidence does not show, as agent for the plaintiff corporation, as he had been for Mr. Chouteau, and while he was such agent had some correspondence with the defendant.

It appears that Junel, 1896, one Floyd King purchased of I). S. Crumb, or rather through his agency, forty acres adjoining the land in suit and by mistake the deed to him described this land. When King discovered the mistake he called D. S. Crumb’s attention to it. On September 9, 1896, Crumb wrote to defendant as follows: “Mr. King tells me that you have cleared and built on the northwest quarter northeast quarter south 15, township 27, range 11 east, belonging to the Chouteau Land Co. and that you claim to háve bought the same. There is a mistake somewhere, as my books do not show any sale of this land. I should be glad to hear from you in regard to the same.” Again he wrote suggesting that defendant send him the receipt for examination, saying, “Of course I am responsible for any contract George made in my absence.” And on November 14,1896, he again wrote returning the receipt, saying: “I think there is an error in the numbers of the land. We can settle all right when you come in at court. Please bring the receipt with you. The numbers in this receipt are of forty sold to King, I suppose the forty you want is north of King’s east forty, which would be northwest northeast--15-27-11.”

In August, 1898, the plaintiff obtained from King a quitclaim deed to the land in suit, which had been deeded to him by mistake, and then offered to- make a deed conveying it to the defendant on condition that he would pay ninety dollars, then claimed to be due on the purchase price, and interest, but defendant refused to pay the amouut, claiming that he had already paid it.

At the trial the following admission was made:

“It is admitted that D. S. Cramh was at the time alleged agent for Charles P. Choutean and that George H. Crumb was the agent of D. S. Crumb; and that Charles P. .Chouteau conveyed the land in question to plaintiff after the time defendants claim to have purchased the same.”

On the part of plaintiff the testimony tended to prove the transaction between George Crumb and Chrisman substantially as Chrisman testified, except that George Crumb denied that Chrisman paid the ninety dollars called for by the two notes. He stated that when Chrisman left the office he carried with him the notes and deed of trust and that was the last the witness heard of the matter until this controversy arose. He also' testified that he left the fifty-dollar check with a memorandum of the proposed sale on the desk of D. S. Crumb in such position as would be likely to attract his attention when he should return.

D. S. Crumb testified that on his return to his office after an absence of several days he found the check and memorandum his brother had placed there, but finding no notes or deed of trust to cover the deferred payments he wrote to defendant to send in the papers; receiving no answer he wrote again saying that unless the notes and deed of trust were forthcoming he would call the trade off. Witness forwarded the check to Mr. Chouteau on account of his monthly settlements, but forwarded nothing with it to indicate to Mr. Chouteau what the check was for — it showed only a check for so much money in witness’s favor.

The finding and decree were for the defendant on the equity cause stated in the answer, divesting the plaintiff of the title and vesting it in defendant Chris-man, giving judgment for defendant also on the plaintiff’s cause of action. From the judgment and decree so rendered the plaintiff has appealed.

This is the second appeal in this cause. [Chouteau L. & L. Co. v. Chrisman, 172 Mo. 610.] The judgment of the trial court from which the former appeal was taken disposed only of the legal issues tendered in the plaintiff’s petition, hut left undecided the issues tendered in the equitable answer; for that reason the judgment was reversed and -the cause remanded for a new trial. On the first trial the only defense that the plaintiff made to the defendant’s suit for equitable relief was that the ninety dollars, the deferred parts of the purchase money, had not been paid.. But on the second trial, with which we are now concerned, some new questions of law were raised and are now presented for our decision.

Plaintiff insists that the defendant’s alleged purchase comes within thé purview of the Statute of Frauds, and not being evidenced by a writing sighed by the party sought to be charged is void, and that in so far as the claim is based on the alleged acts of an alleged agent it is also void under the following clause of section 3418, Revised Statutes 1899: “No contract for the sale of lands, made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.”

If the defendant’s case depended on showing the authority of George Crumb to sell the land it would fail, because there is no legal proof of such authority. It was admitted at the trial that George was the agent of his. brother, but the agent of an agent is not the agent of the principal. Delegata potest'as-non potest delegari. Unless the principal empower the agent to delegate the agency it cannot be done. There was no proof that Chouteau had authorized D. S. Crumb to entrust to any one else the agency entrusted to himself.

But George Crumb did not undertake to act in the capacity of agent to sell this land, he did nothing more than the mere clerical work of drafting certain papers and leaving them on the agent’s desk for such action as the agent might see fit to take. If George Crumb had made a misuse of the fifty-dollar cheek or the other papers delivered to him, the defendant might have held' D. S. Crumb responsible, because George was his agent, but he could not hold the owner of the land responsible, because George was not his agent. But D. S. Crumb was the agent of the landowner, and when that check and memorandum came into his hands they were in the contemplation of the law in the hands of Mr. Chouteau. The memorandum which accompanied the check informed D. S. Crumb what it was for, and when he used the cheek, or even if he had misused it, it became the earnest money to bind the contract for the sale of that land. After that the defendant had a right to demand a deed if the remaining ninety dollars had been paid, or, if it had not been paid, he had a right to pay it and then demand the deed.

But it is said that there was no proof in writing that D. S. Crumb was the landowner’s agent to sell this land. No proof of that was necessary because it was solemnly admitted in open court. It was not admitted in totidem verbis that he had authority in writing to sell the land, but the admission was that he was the landowner’s agent, and that admission was made in the face of the claim on the part of the defendant that he was the agent for that purpose, it was made to render proof of that fact unnecessary, it was so understood and so acted on. The Statute of Frauds is a law of evidence, its purpose is to exclude all evidence offered to establish disputed facts of a certain character except evidence in writing signed by the party sought to be charged, but where the fact is admitted by the party sought to be charged proof of any kind is unnecessary.

Up to this point-the defendant has proved his case; that is, the landowner’s agent has accepted the check as earnest money or part payment for the sale of this land, with a memorandum informing him what it was for; he has made use of the check, and therefore defendant is entitled, to a deed if he has paid the rest of the purchase money, or he is entitled to a deed upon payment of it now if he has not before paid. There is an irreconcilable conflict in the testimony on the question of whether that payment was made. Chrisman testified that he paid the money to George Crumb on the same day that he gave him the check. George Crumb is just as emphatic in his testimony that Chris-man never paid him the money.

But if Chrisman paid George Crumb the ninety dollars, there is no evidence that it ever came into the hands of D. S. Crumb. George as we have seen was not the agent of the landowner; if he had given the money as he gave the check to his brother, the agen!, along with the memorandum, and the agent had accepted it, then the principal would have been bound.

If the defendant placed the money in the hands of George to deliver to the agent he made George his own messenger and took the risk of his doing his duty; if the money was never delivered to the landowner’s agent the landowner is not bound. In such case the landowner was no more responsible for the money so attempted to be transmitted to his, agent than he would have been if the defendant had chosen any other messenger. The evidence shows that George Crumb was D. S. Crumb’s agent; therefore, if the defendant gave the money to George to deliver to D. S. Crumb and he failed to do so, D. S. Crumb might be personally liable to defendant for the amount, but not the •landowner.

We are not going to decide this dispute of fact, because it is immaterial; the plaintiff might, if it should see fit to do so, concede that the defendant paid the money to George Crumb, yet it was not a payment to Chouteau or his agent and the defendant was not entitled to a deed to the land until that balance of the purchase money was paid.

There is another fact in this case now which was not in it when it was here on the former appeal. The defendant in his answer says that he made this purchase for his firm of Quick and Chrisman, that the firm was afterwards dissolved hy mutual consent, and that hy the terms of the dissolution the defendant became the sole owner of the land.

The evidence shows that the purchase was made for the firm of Quick & Chrisman, that the fifty dollars paid was hy the check of the firm, and that the firm has been dissolved, hut it does not show that hy the terms of the dissolution Chrisman became the sole owner of the land; the only evidence on that point was to the contrary; therefore Chrisman was not entitled to a decree vesting the title in himself for his own use.

The judgment is reversed and the cause remanded to the circuit court of Mississippi county with directions to enter judgment and decree to the following effect: That the plaintiff is not entitled to the possession of the land sued for, that is, the southeast quarter of the northwest quarter of section 15, township 27, range 11 east; that the title to the land he hy the decree vested in the defendant C. M. Chrisman in trust for the use of himself and his former partner, Thomas J. Quick, as their respective interests therein may hereafter appear, subject to the payment hy defendant to the plaintiff or into court for the plaintiff of the sum of fifty dollars with interest at eight per cent per annum from the 23 of January, 1895, until paid, and the further sum of forty dollars with interest at six per cent per annum from the 23 of February, 1897, until paid, which sums the court finds are due the plaintiff as the balance of thé purchase money and are hy the decree made liens on the land, and upon the failure of the defendant to make such payment within sixty days from tibe date of the decree the plaintiff may have special execution for the sale of the land to foreclose said lien, and in the event such sale does not bring sufficient to pay the above specified sums and cost incident to that execution the plaintiff may have a general execution against the defendant for the balance. The decree will further specify that as between the defendant Chrisman and his former partner, Quick, nothing therein contained shall be taken as an adjudication of their relative or respective rights in the land, but that is left open for future adjustment between themselves by agreement or otherwise. The decree will also adjudge that the plaintiff pay the costs in the circuit court, except the costs, if any, that may he incurred by failure of the defendant to pay the sums of money as above required.

All concur.


author: LAMM, J.

text:
    MARY C. DIXON et al. v. WILLIAM HUNTER, Appellant.
    Division One,
    May 29, 1907.
    1. SHERIFF’S DEED: Reformation in Equity. A sheriff’s deed cannot be corrected and reformed in equity. The power given the sheriff to execute a deed under a tax judgment is statutory, and the statute points out the method of relief against a mistake or accident in executing that power.
    2. -: -: Defense: Evidence. Where defendant, in his answer to plaintiff’s suit to ascertain and quiet title, sets up a defective sheriff’s deed as the basis of his title, and admits in his answer that that deed is void, and invokes the power of a court of equity to correct and reform the deed, his defense must fail, for a court of equity has no power to correct and reform such a deed, and the power failing the defense must also fail, and the deed cannot be offered in evidence, — there being no question of color of title or limitation in the case. Nor is evidence of the sufficiency of the petition, order of publication, and other things going to establish the regularity of the tax judgment, admissible, for those things do not bear on the issue.

      3. SUIT TO QUIET TITLE. The object of a suit under section 650, Revised Statutes 1899, is not to determine title as against the whole world, as in proceedings in rem, but to determine issues between adversary parties relating to their respective titles.
    4. -: Decree. Where the decree adjudges the defendant has no right, title, claim or interest in or to the land, it is no concern of his whether the plaintiffs are properly described in the ^decree, or whether or not the heirs of two former cotenants are correctly named therein, or their respective interests properly set out.
    5. -: -: For Plaintiffs: Aided by Other Parts of Record. The judgment can be aided by reference to other parts of the same record, and a judgment in favor of “plaintiffs” will stand, if their names can be ascertained without ambiguity from other parts of the record; for instance, that the common source of title was Sugg and Dixon, that Sugg had died, and that plaintiffs had under a prior order of court been substituted as parties.
    6. -1 — : -: Aided by Nunc Pro Tunc Order. Where a judgment may, from existing data in the clerk’s office, be corrected by a nunc pro tuno entry formally inserting the names of any plaintiffs omitted, either in the caption or body of the judgment, the judgment, aided as it is by the Statute of J eofails, will not be reversed.
    7. -: -: Corrected on Appeal. Where the record before the appellate court shows that certain persons were made parties plaintiff and that judgment was in favor of plaintiffs, the court will correct any informality in the omission of their names from the caption or body of the judgment.
    Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
    Modified and affirmed.

      8am J. Corbett for appellant.
    (1) The contents of lost and destroyed judgments may be shown by parol. Gribson v. Vaugbn, 61 Mo. 418; Kidd v. Gluibar, 63 Mo. 342; McClanahan v. West, 100 Mo. 321. (2) The tax deed was prima facie evidence only of the matters therein recited, and that the law required to be recited, and no more. See. 3150, R. S. 1899; Powell v. Greenstreet, 95 Mo. 15. (3) All the proceedings being' regular up to the making of the tax deed, the court had the power and authority, under the provisions of sec. 3218, Revised Statutes 1899, to order the sheriff to correct the tax deed made'by the former sheriff (it having been shown by the tax deed offered in evidence that the purchase money had been paid), so as to make said deed conform to the facts as shown by the record and file papers in the tax suit; Talley v. Schlatitz, 180 Mo. 231. The tax deed properly described the land, and shows that the purchaser at the tax sale paid the amount of his bid therefor. The agreed statements of Roberts and Scott show that the purchase was made under valid proceedings and a val- • id judgment. This being true appellant was entitled to a deed which was valid on its face. Manning v. Coal Co., 181 Mo. 359; Hall v. Klepzig,' 99 Mo. 90. (4) The tax deed offered in evidence was competent and relevant as to the matters which it recited, and of such matters was prima facie evidence, and the court erred in excluding it. Sec. 3150, R. S. 1899; Powell v. Greenstreet, 95 Mo. 15; Poulk v. Colburn, 48 Mo. 230; Gibson v. Vaughn, 61 Mo. 418; Kidd v. Guibar, 63 Mo. 342; Mc-Clanahan v. West, 100 Mo. 309; Hall v. Klepzig, 99 Mo. 83. (5) The judgment is upon the face of the record erroneous. It appears, from the record of the judgment that the court entered up a judgment in favor of Mary C. Dixon, Henry Dixon, W. L. Dixon, George M. Dixon, Mrs. A. I. Moseley and Mrs. Kittie E. Eblin, alone, saying in the judgment nothing about the interest of Edgar G. Sugg.

      Faris S Oliver for respondents.
    (1) (a) The answer of defendant is clearly in the nature of a defense in equity and an attempt to correct a sheriff’s deed by an equitable proceeding. This court has said that this cannot be done. Ware v. Johnson, 55 Mo. 503; Hall v. Klepzig, 99 Mo-. 87; Warm-all v. Kern, 51 Mo. 150; Moreau v. Branham, 27 Mo. 35. (b) This would also, it seems, be true for the further reason that the purchaser at the alleged sale for taxes took no title till a proper and sufficient sheriff’s deed was made, executed, acknowledged and -delivered to such purchaser. Boyd v. Ellis, 107 Mo. 401; Hilton v. Smith, 134 Mo. 499. (2) It is difficult to see how a tax deed, which defendant admits in his answer “was void upon its face,” could be admissible as evidence in any case. (3) The judgment is sufficient. The reference to, and the setting out of, the names specifically of the plaintiffs, or a part of them, was uimecv essary and surplusage, and the same had no necessary place in said judgment. 1 Black on Judgments, sec. 116; Boggess v. Cox, 48 Mo. 278; Moody v. Deutch, 85 Mo. 244; State ex rel. v. Hunter, 98 Mo. 389; Pickering v. Templeton, 2 Mo. App. 430; Hitchcock v. Baughan, 44 Mo. App. 45; 2 MeQuillin’s Mo-. Prac., sec. 2274.
   LAMM, J.

A decree, nisi, went in plaintiffs’ favor in a suit under section 650, Revised Statutes 1899, to try, ascertain and determine the estate and interest of plaintiffs and defendant, respectively, in one hundred and twenty acres of described land in Pemiscot county. Prom that decree, defendant appeals in due form and time.

The original plaintiffs were Edgar Gr. Sugg and the widow and children of John E. Dixon, deceased. Sugg died pending the litigation. Thereupon his death was suggested, and on motion of Mary Baker, his daughter, and W. T. Sugg, his son, they entered their appearance and were made parties plaintiff by an entry of record.

The petition counted on the theory that plaintiffs were seized as owners in fee of said real estate; that it was wild land, not in cultivation or in actual possession; that defendant claimed some interest in it, the nature and character of which was unknown to plaintiffs and could not he described, except that defendant’s claim was adverse and prejudicial to them.

Defendant’s answer was a general denial, saving that he claimed an interest in the real estate, averring that he was the owner of the whole of it. Accordingly, he set up his chain of title and pleaded facts to the effect that his title originated in a sale under a tax judgment and execution, that one Carleton purchased at said sale in 1883, and received a sheriff’s deed from one Peter.II. Scott acting as such officer, and that defendant held under mesne conveyances from Carleton. It is then alleged that the tax judgment was rendered against the proper owners of the land to whom it was assessed at the time, “to-wit, Sugg & Dixon;” that the judgment “recites” the names of “Sugg and Dixon;” that the execution ‘1 specified their names; ’ ’ that they were properly summoned by publication in the Gayoso Democrat, a newspaper published in Pemiscot county; that all the records of that county (including the records of the circuit court) were destroyed by fire in 1882; that Carle-ton’s said deed was “void upon •its face” through “accident or mistake,” in that it failed “to name the judgment debtors” and “recites that the judgment was against the land' instead of against the persons;” that it was not the deed that should have been made out and executed and was the product of a careless scrivener, etc.

The relief sought by defendant was affirmative, to-wit, the reformation of the sheriff’s deed “in accordance with the judgment and execution sale made thereunder; that the title in and to said land above described be divested out of plaintiffs and vested in the defendant; that the title to said land be adjudged and decreed to be legally and rightfully in the defendant;” and for further and general x’elief.

A replication, denying new matter in the answer, was taken as filed.

Defendant’s answer, asking affirmative equitable relief on matter in pais, changed the suit from one ^«¿¿-equitable to one strictly so.

I. At the door of the case, lies this question: Is defendant entitled, to correct and reform a sheriff’s deed in equity?

The general doctrine (subject to exceptions not in this case) and the reasons underlying it were stated by Justice Story, when on the circuit (Bright v. Boyd, 1 Story 1. c. 487), to be: “This is not the case of the defective execution of a power created by the testator himself; but of a power created and regulated by statute. Now, it is a well-settled doctrine that, although courts of equity may relieve against the defective execution of a power created by a party, yet they cannot relieve against the defective execution of a power created by law, or dispense with any of the formalities required thereby for its due execution; for otherwise the whole policy of the legislative enactments might be overturned. ’ ’1 To the same effect is the text of his work on Equity Jurisprudence (1 Story’s Eq. Jur. (13 Ed.), sec. 96; Ibid, sec. 177).

In Moreau v. Detchemendy, 18 Mo. 522, it was attempted to correct a sheriff’s deed by a suit in equity. The relief was denied on the authority of the text above and of Bright v. Boyd, and it was pointed out by Gamble, J., that the statutes since 1807 have contained provisions for the completion of sales and the execution of conveyances by sheriffs and that they furnish the remedy to be applied in such cases, and not the power of a court of equity, j That case was followed in Moreau v. Branham, 27 Mo. 351.

In Ware v. Johnson, 55 Mo. l. c. 503, the same question was up. In that ease it was alleged that the sheriff’s deed by mistake misdescribed the land and evidence was offered to prove the mistake, which was excluded. It was held by Adams, J., that the testimony was properly excluded, and further: “A sheriff, in sales of land on execution, acts in the exercise of powers conferred on him by statute. His authority to make a deed is derived from the statute, and no court •except the court under whose process he acts, can supervise his proceedings. If he actually levies on a particular tract of land and sells the same as levied on, and by mistake falsely describes the land in his deed, he may, under .the supervision of the court issuing the process, make a new deed which will, as to parties and privies ■ and all purchasers with notice, relate to the time of the sale, and pass the title from that time. If the sheriff who made the sale becomes incapacitated to make the new deed, our statute provides that it may be made by another sheriff, and these provisions of the statutes must be pursued, and furnish the only remedy in such cases. It is a well-settled principle, which needs no illustration or citation of authorities, that a court of equity cannot aid the imperfect execution of a statutory power. The court therefore committed no error in striking out that part of the defendant’s, answer, and in excluding the evidence, and refusing the instruction in regard to the alleged mistake in their sheriff’s deed.”

In Hall v. Klepzig, 99 Mo. l. c. 87, the two Moreau cases and Ware v. Johnson were followed — Black, J., saying: “The court did not, therefore, err in refusing to correct the sheriff’s deed, by making the recital conform to the judgment and execution, even if the místele, was satisfactorily shown.” The concensus of opinion in the highest courts of our sister states lies with the same view. See Stewart v. Wilson, 141 Ala. 405, and a learned and most exhaustive note by Mr. Freeman, following the report of the same case in 109 Am. St. Rep. 33.

The statutory remedy, pointed out by Gamble and Adams, JJ., was in existence at the time of the sheriff’s sale and deed and is now live law (R. S. 1899, sec. 3218) and, on the authority of the foregoing cases, must be held preclusive.

II. If defendant had timely pursued his statutory remedy under section 3218 and had obtained a new and correct deed and was relying on that deed for title in the case at bar, an altogether different question would be up for determination. But on an answer that admits the sheriff’s deed on which he relies is void, and which invokes the power of a court of equity to correct the deed and establish title by such correction, he must be held to stand or fall on the existence of such power. The power failing, as it does, the remedy is shut off. There being no' actual possession of the land by defendant or his grantors, he could not rely on a defective sheriff’s deed creating color of'title, and entitling him to invoke the Statute of Limitations, as a defense. [Shaffer v. Detie, 191 Mo. l. c. 393, et seq.] In fact, he makes no such defense and sets up no title by limitations. Hence, when he offered his void deed in evidence, it was excluded, and properly so.

So that, in order to determine this case, it is not necessary to consider certain subsidiary questions raised by counsel on both sides. For instance, the court excluded the affidavits of Peter H. Scott and F. D. Roberts, offered in evidence by defendant, Scott and Roberts being respectively sheriff and tax attorney in 1882. These affidavits, by agreement, were treated as depositions, subject to objections for materiality. Defendant assigns error on their exclusion. The purpose of these depositions was to show that a tax suit had been brought in 1882 against Sugg & Dixon, which culminated in a judgment against the land in question and other land; that an execution issued, the land was sold on advertisement and the void sheriff’s deed was executed to the purchaser, Carleton. This evidence was offered to reestablish the court files and records that went up in smoke nearly a generation ago, and which were supposed to support the deed. Practically, the affidavits were a bundle of conclusions on the part of affiants and the probative force of the few facts stated did not re-establish a petition, order of publication (Sugg & Dixon being nonresidents), proof of publication, a judgment, an execution and an advertisement of sale sufficient to support any sheriff’s deed whatever. But, observe, all this proof led up to the reformation of the sheriff’s deed, and as it could not be reformed in equity (and was waste paper, as it stood), the ruling of the court excluding the proof becomes by-matter.

HE. The object of section 659 is not to determine title as against the whole world, as in proceedings in rem (Harrison Machine Works v. Bowers, 200 Mo. 219; Graton v. Land Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698), but is to determine issues between adversary parties relating to their respective titles. The sensible and convenient rule for administering justice, having its origin in ejectment suits and relating to a common source of title, has been borrowed and applied in suits under section 650. [See cases, supra.] Applying that rule here, we have John E. Dixon and Edgar G. Sugg as the common source of title. Not only so, but defendant conceded in his answer, as well as in his theory below, and here, that he got title, if at all, through the tax proceedings against Sugg & Dixon. He wants to vest their title, cast on their heirs, out of them and into himself. In this condition of things, if he failed in his proof, there was nothing for the chancellor to do but to settle and determine the title in favor of plaintiffs as against him. This he did, and rightly so, as the pleadings, admissions and evidence stood.

IV. It is.insisted by defendant’s learned counsel that error is apparent on the record in this: It seems though plaintiffs’ counsel suggested Sugg’s death and though his two heirs, Mary Baker and W. T. Sugg, were made parties plaintiff by a timely order of record, yet their names are not inserted in the decree. "Whether their names are spread of record in its caption, we cannot make out — absent caption. Be that one way or the other, the decree as certified adjudges the title to the described real estate be vested in the “plaintiffs,” that defendant be estopped from setting up any claim or title thereto and that “plaintiffs” recover their costs. In the chancellor’s findings, it is set forth that certain named parties are the sole heirs at law of John E. Dixon; that as such heirs at law “said plaintiffs” are seized as owners in fee of the land (describing it); and that defendant had no “right, title, claim or interest in or to said land. ’ ’

On this condition of the record hinges the contention that the decree is erroneous in omitting any reference to "William T. Sugg and Mary Baker, and in apparently decreeing the whole title into' the Dixon heirs.

There is no merit in this assignment of error. Because :

(a) In the first place, defendant was alone concerned with that part of the decree affecting him. He was not concerned with settling the title as between the two groups of complaining heirs. If he lost it, the subsequent proceedings interested him ru> more. It is fundamental that an appellant cannot complain of error unless materially affecting the merits as against him.

(b) Moreover, plaintiffs’ corrected abstract shows that the entry on the judge’s docket was as follows: “6th August, 1903, cause submitted to the court and judgment for the plaintiffs, finding that they are the owners of the lands sued for and that the defendant had no title or any interest thereto.” That entry was amplified into the decree. It was not necessary for the decree to state seriatim the heirs of John E. Dixon, nor the heirs of Edgar C. Sugg. The record shows that plaintiffs introduced evidence establishing that they were respectively the only heirs of Sugg & Dixon, the common source of title. So that, a decree in favor of “plaintiffs” (the Sugg heirs being plaintiffs by substitution of parties under a prior order of the court, together with the Dixon heirs) was full enough and well enough without mentioning names. See 1 Black on Judgments (2 Ed.), section 1166, stating the rule deduced from the adjudicated cases to be that the judgment can be aided by reference to other parts of the same record and that a judgment in favor of “plaintiff” or “defendant” will be sufficient, if the names of the parties thus designated can be ascertained without ambiguity from other parties of the record.

(c) Furthermore, from data existing in the clerk’s office, this judgment could have been corrected by a nune pro tunc entry formally inserting the names of any plaintiffs omitted, either in the .caption or the body of the judgment. Under such circumstances, when aided by the saving grace of the Statute of Joefails (R. S. 1899, sec. 672) as it is, the judgment ought not to be reversed. [Stevenson v. Black, 168 Mo. l. c. 561; R. S. 1899, sec. 660; Morrison v. Turnbaugh, 192 Mo. l. c. 446.]

(d) And, lastly, as the record before us shows that William T. Sugg and Mary Baker were made parties plaintiff, and as the decree went in favor of plaintiffs, the data is here to correct any informality in the caption or body of the decree. We will do so by inserting the names of these plaintiffs and modifying the decree so that its verbiage includes them with the Dixon heirs as owners of the land.

The cause was well tried and the decree, as modified, is affirmed.

All concur.


author: CRAVES, J.

text:
    POWELL et al. v. HUNTER, Appellant.
    Division One,
    May 29, 1907.
    1. DEED OR CONTRACT: Intention. The written instrument signed by Thomas C. Powell and wife recited “that for and in consideration of the sum of five dollars per acre to me in hand paid and to be paid by James W. Cannady, I have this day granted, bargained, sold, and conveyed with deed in fee with general warranty unto said Cannady, his heirs and assigns forever,” 2,260 acres of land. “To have and to hold the said lands, upon the express condition the said Cannady is to pay five hundred dollars within ten days and then pay the remainder in annual installments equal with eight per cent interest from date. A lien is hereby retained on said land [until] fully paid [for], and whenever the said five hundred dollars is fully paid the wife of the said Thos. C. Powell is to join him in the conveyance of the said land.” Held, not to be a deed, but a contract of sale, reserving a vendor’s lien. The language used indicates that Powell had simultaneously with' this instrument made a deed, to be executed by his wife when the five hundred dollars was paid.
    2. -: Vendor’s Lien: Tender of Deed. The instrument sued on being a contract of sale, reserving a vendor’s lien, a bill of equity which asks for judgment for the unpaid purchase price and to enforce the lien, wholly fails to state a cause of action unless it avers a willingness on plaintiff’s part to perform the contract by making a sufficient deed. And the evidence is also insufficient if it fails to show the execution and tender of the deed.

      Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
    Reversed and remanded.

      Faris $ Oliver for appellant.
    (1) This is an action to enforce a vendor’s lien, which has always been held to be an action in equity. Dickerson v. Fisher, 137 Mo. 342; Talbot v. Roe, 171 Mo. 421. And this is true even if the action be regarded, as it is, in a sense a suit for specific performance. Taylor v. Williams, 45- Mo. 80'; Sease v. Cleveland and Coy, 141 Mo. 488. The principles which govern a suit for specific performance are the same as those which govern a suit to enforce a vendor’s lien. Paris v. Haley, 61 Mo. 453. The petition nowhere prays judgment against appellant Wm. Hunter. The sole prayer is for judgment against Cannady alone. Judgment against Hunter cannot be sustained. Rush v. Brown, 101 Mo. 586; Mell or v. Railroad, 105 Mo. 455. Powell agreed to warrant title and his assigns could not recover till he did so, and conveyed an indefeasible title. Fry on Spe. Perf., sec. 5.73; 3 Parsons on Contracts, 380; Sedge-wick v. Hargrave, 2 Yes. 59; Jeffries v. Jeffries, 117 Mass. 184; Hymers v. Branch, 6 Mo. App. 515; Richmond v. Gray, 3 Allen 25; Seaman v. Yawdry, 16 Yes. 390; Bensel v. Gray, 80 N. Y. 517. (2) The petition is fatally defective in that it does not allege that the title attempted to be conveyed by T. C. Powell is good, or offer to make a good title. Luckett v. Williamson, 31 Mo. 54; Wellman v. Dismukes, 42 Mo. 101. The assignees of T. C. Powell cannot recover from Hunter the purchase price of land to which their assignor never had any titLe, and to which they do not contend or insist that he had title, at the time he made the contract or subsequent thereto. The law might do this, but equity will not. Corby v. Bean, 44 Mo. 379; Cravens v. Moore, 61 Mo. 178; Cline v. Vogel, 90 Mo. 239; Steekman v. Harver, 55 Mo. App. 71; Woodard v. Mastin, 106 Mo. 324; Springfield Gro. Co. v. Walton, 95 Mo. App. 526.

      J. R. Breiver for respondents.
    (1) That the instrument made by T. C. Powell, Sr., and his wife, Annie, to Cannady is a deed is so evident and plain that it needs no authority to support the proposition. If this instrument is a deed, it conveyed the property, and therefore neither appellant nor Cannady had any equity. Respondents can conceive of no reason why appellant contends that the instrument made by T. C. Powell and his wife to Cannady is not a conveyance but a contract to convey, unless because of the provision in said instrument that whenever five hundred dollars is fully paid, the wife of said T. C. Powell, Sr., was to join him in said conveyance. An examination of the acknowledgment to said deed shows that T. C. Powell, Sr., acknowledged, said deed on the 6th day of May, 1896, and his wife acknowledged it on the 24th day of June, 1896. This five hundred dollars must have been paid between these two dates, and after said payment said wife joined in said deed in compliance with the condition of said wife’s joining in said deed. (2) Cannady took possession under the deed made by T. C. Powell, Sr., and his wife, on May 6, 1896, and he is estopped to deny said T. C. Powell’s title. That he did take possession under the deed is evident for he, after he went into possession of said land, stated to the said T. C. Powell, Sr., the grantor in said deed, in the presence of the witness Jim Martin, “that when he (T. C. Powell, Sr.,) got him (J. W. Cannady) up a good title to his land that he (Cannady) was ready to pay him (said Powell).” A vendee of land in possession cannot defeat the action "for the purchase money on the ground that his vendor had no title to convey. Isler v. Egger, 17 Mo. 332; Pershing v. Canfield, 70 Mo. 140; Smith v. Busby, 15 Mo. 387; Cartwright v. Culver, 74 Mo. 179.
   CRAVES, J.

Plaintiffs claim to be the assignees of a written instrument, in words and figures, as follows:

“ Caruthersville, Mo., May 6, 1896.
“Know all men by these presents, that I, Thomas C. Powell, of the county of Labe and the State of Tennessee, that for and in consideration of the sum of five dollars per acre to me in hand paid and to be paid by James W. Cannady, of New Madrid, Mo., I have this day granted, bargained, sold, and conveyed with deed in fee with general warranty unto the said James W. Cannady and unto him, his heirs .and assigns forever, the following described tract or parcels of land lying and being in Pemiscot county, Missouri, to-wit: The west half of section 13, all of section 14, except the north half of the northeast quarter, and the north half of section 23, and the east half of the southeast quarter of section 12, and the northwest quarter of section 12, and the north half of the northeast quarter of section 12, and the east half of the southwest quarter of section 12, all of section 15, all of the above lands in township .17, range 12.
“To Have and Hold the said lands upon the express condition the said Cannady is to pay five hundred dollars within ten days and then pay the remainder in annual installments equal with eight per cent interest from date, and is to pay one dollar per thousand for each one hundred thousand feet of timber shipped and said one dollar to be applied as payment of purchase money on said land. A lien is hereby retained on said land is fully paid, and whenever the said five hundred dollars is fully paid the wife of the said Thos. C. Powell, is to join him in the conveyance of said land,
“Witness onr hands and seals, this day and date as first above written.
“T. C. Powell,
Annie Powell,
By daughter, Addié Campbell,
James W. Cannady.
‘‘Witness: Joe F. Ashley.”

This instrument was acknowledged by T. C. Powell, May 6, 1896, and by Annie Powell, June 24, 1896. Both acknowledgments were before a notary public in Pemiscot county, Missouri.

Plaintiff L. B. Powell had and introduced in evidence an assignment of said instrument in these words:

“For value received I hereby assign, sell and convey to L. B. Powell the debt owing me by J. W. Cannady as evidence by a certain deed made by me and date May the 6th, 1896, and recorded in Book 10, at page 313, of the deed records of Pemiscot county, Missouri, also hereby conveying to the said L. B. Powell all my rights to the vendor’s lien in said deed mentioned. This 13th day of February, .1902.
“T. C. Powell,
Annie Powell.”

This was duly acknowledged in Lake county, Tennessee. L. B. Powell then made a similar assignment to plaintiffs J. J. Williams and J. R. Brewer of a forty eighty-thirds interest in said contract or written-instrument. The first-mentioned instrument was filed for record in Pemiscot county, Missouri, June 25', 1896.

The petition, after alleging the execution, delivery and record of the first-named instrument, alleges the execution of the other two, in the nature of assignments, then alleges that Cannady immediately took possession of the lands, and later, August 16-, 1901, said Cannady, by warranty deed, conveyed the west half of section 13, township 17 north, of range 12 east, to defendant, William Hunter; that Hunter had knowledge of said vendor’s lien; that there remains due and unpaid on said debt the sum of ten thousand dollars with accrued interest thereon, at the rate of eight per cent per annum; that Cannady had cut off of said land fifteen million feet of lumber. The petition also admits payments by Cannady of one hundred dollars and five hundred dollars.

The prayer of the petition is in this language: “Wherefore, plaintiffs pray judgment against the defendant J. W. Cannady, for said sum of ten thousand dollars with interest from the 6th day of May, 1896, at the rate of eight per cent per annum, and that the aforesaid land, or enough thereof, be sold to satisfy said judgment. And for such other and further relief as to the court .may seem meet and proper in the premises.”

Defendant, Hunter, answered by general denial and further specially pleaded that he was the owner in fee .thereof; that he purchased the fee title from the heirs of A. B. S. West; that in the purchase from J. W. Cannady, he was purchasing his peace and took and paid for a deed from Cannady by way of compromise and to avoid litigation.

We find also an answer, by leave of court, from William and Mary Cannady. The record does not disclose but they were probably heirs of J. W. Cannady, deceased. Their answer admits the contract and payments and denies all other matters. They further answer by saying that T. C. Powell had no title to the lands mentioned in the contract, and that the payments were made upon the faith that Powell would execute to J. W. Cannady a warranty deed, which he did not do. By amendment to their answer, permitted by the court, they allege their willingness to pay for the lands if plaintiff will make them a good and sufficient warranty deed.

Judgment was for plaintiffs against J. W. Bader, administrator of J. W. Cannady, for $16,275.50; declaring the same a lien upon all the lands mentioned in the contract, which included the land claimed by defendant Hunter, to wit: The west half of section 13, in township 17 north, range 12 east.

Motions for new trial and in arrest of judgment being overruled, the defendant Hunter appealed and perfected his appeal in this court.

There are several conflicts in the testimony upon one or more propositions, but fairly summarized, the case made by the evidence is substantially thus:

Plaintiffs introduced the three several written instruments above described.

It was shown by T. C. Powell, Jr., and J. H. Powell, that T. C. Powell had. assigned the original contract to them in the year 1901, about one year prior to the assignment to L. B. Powell. This they say was done by a writing on the back thereof. One of them admits, however, that it was for collection and that they were to get twenty per cent of what they collected. Both say that they paid nothing for the assignment. Plaintiffs put on these two witnesses, evidently for the purpose of proving the handwriting of the father, but such was their evidence in addition to their identification of their father’s signature. With these written instruments, this evidence from the two Powells, and the evidence of one Martin to the effect that Cannady took possession of the land in dispute shortly after the date of contract, the plaintiffs closed their case in chief.

Singular to say, the original duplicate copy of the contract upon which it was claimed was written the first assignment was not produced, although it was traced to the hands of L. B. Powell. Nor did L. B. Powell testify in the case.

Defendant Hunter, testifying in his own behalf, says that he bought .the laud in dispute from the West heirs. That he claimed title to some land in section one as well as this in section 13; that he found that Cannady had some claim of title to the land in section one, but none to that in section 13, except this contract, and Powell had no title at all to this and could convey none to Cannady. He further says that to avoid trouble he made a trade with Cannady by which he got a deed to the land in both section 1 and in section 13. He admits that Martin, a tenant for Cannady, was in possession and that he afterwards leased part- of the land to Martin.

Defendants further offered Carleton’s Abstracts of Title in Pemiscot county, Missouri, by which it appears that the title passed regularly from Pemiscot county, the admitted common source of title, through mesne conveyances, to one A. A. B. S. West, the last deed in said chain being one from Thomas B. Cooper to said A. A. B. S. West, of date March 9, 1868, and recorded January 25, 1869. At this point trouble begins. Defendants then offer power of attorney from T. P. West, John A. West et al. to J. L. Mosier and T. M. Pierce, dated March 1, 1901, and then a quitclaim deed from Mosier and Pierce and one George S. Hardy, of date June 18, 1901, and another quitclaim deed of date January 9, 1901, from said Mosier, Pierce and George S. and C. P. Hardy to Hunter. Plaintiffs objected to these last three instruments, and among other reasons assigned that the grantors in the power of attorney did not appear to be the heirs of A. A. B. S. West, but of one A. B. S. West. These objections evidently grew out of a deposition of one T. P. West, which defendants introduced. T. P. West undertook to give the heirs of A. A. B. S. West, but when cross-examined said that the name was A. B. S. West. That he was a brother and never heard of there being two A’s in the name. That his brother A. B. S. West died at Jackson, Mississippi, about 1868, as he thought. That the initials A. B. S. stood for Andrew Bennett Spruill. He did not know of his brother having lands in Pemiscot county until informed by Mosier, who was to give him $50 for his interest and the power of attorney. He said that he told Mosier that his brother’s name was A. B. S. West, but admitted that he had signed an affidavit of heirship which was shown at the taking of the deposition. About this affidavit, his language is thus: “I never made no distinction, I told him it was A. B. S. West; I never heard of the other ‘A’ being used at home; I thought the mistake got in there by some typewriter getting in two ‘A’s’ instead of one.”

Defendants also offered the deposition of J. I. Sellers for a like purpose, but the witness had refused to sign it and it was excluded.

The Wests lived in Tennessee, and apparently were ignorant persons.

The evidence for defendants further tends to show a prior assignment upon the written instrument to T. C. Powell, Jr. and J. H. Powell. J. H. Powell being recalled, stated that he was mistaken in saying that he had the original instrument, but that it had been left with J. H. Bragg, an attorney, and Mr. Bragg testified that T. C. Powell, Sr., left it with him and that after his death it was delivered to L. B. Powell. This witness says that there was an assignment upon it to T. C. Powell, Jr., and J. H. Powell; that at the time of the delivery neither T. C. Powell, Jr., nor J. H. Powell was present. Bragg was offered as witness by plaintiffs. For the defendants, Sam. J. Corbett, an attorney, testified that he had seen the original instrument, and that there was an assignment to T. C. Powell, Jr., and J. H. Powell upon it.

There was also evidence of an admission upon the part of Cannady that he had made payments of money on these lands, including taxes to the amount of fifteen hundred dollars. This states the evidence.

The court instructed the jury as follows:

‘ ‘ The court instructs the jury that you should find for the plaintiffs and in determining the amount which you should find you should multiply the five dollars per acre by the number of acres described in the deed read in evidence, and deduct from that amount the sum of six hundred dollars paid by J. W. Cannady, and on the remainder calculate interest at the rate of eight per cent per annum from the 6th day of May, 1896, to the present time.”
The court instructs the jury that the question presented for your determination is whether under the contract between T. C. Powell and Annie Powell, his wife, and J. W. Cannady, entered into in the year 1896, there was or was not at the time of the filing of this Suit on the 23rd day of April, 1902, any money due on- • said' contract by one J. W. Cannady, and if any was due, then, the amount due now.”

And refused the defendant’s instructions, as follows:

“The court instructs the jury that under the evidence in this case your finding should be for the defendants.”
“The court advises you the instrument shown in evidence bound the said J. W. Cannady to pay the sum of five hundred dollars only, annually; that plaintiffs cannot recover except for the time which has elapsed since April 4, 1896, up- to the time of filing this suit on the 26th day of April, 1902, or for six years. That unless you believe that said annual payments have not been paid you will find for the defendants.
“ The court instructs the jury that the party alleging the fact must prove it,- and if you find from the pleadings in evidence in this ease that the plaintiffs have alleged non-payment, and have failed to establish that fact by the evidence, your verdict should be for-the defendants. And in this connection you are instructed that the law presumes payment unless nonpayment is established by evidence.”

The verdict and judgment was as hereinbefore set out.

This is an extremely harsh and peculiar case. T. C. Powell without a shade or shadow of title undertook by the written instrument first hereinabove set out to sell to J. W. Cannady, 2,260 acres of wild lands, at the time in the possession of no one. Cannady took possession, cut a quantity of timber, built two or three tenement houses for his laborers, working at his sawmill, and afterwards by warranty deed conveyed three hundred and twenty acres thereof, together with other lands, to Hunter. Powell dies after having made the two assignments of his alleged vendor’s lien, as hereinafter mentioned. Suit is instituted against Cannady and Hunter. Before trial Cannady dies, and his heirs and administrator are made parties.

In our judgment, the result of this case turns in the first place upon the character of the written instrument, of date May 6, 1896. What is the character of this instrument? Is it a mere contract to sell and convey, or is it a deed within itself? Prom its face can we determine what is the intention of these two deceased individuals? All these are questions presented, and we have in the record but little light save and except the instrument and the conduct of the parties. Plaintiffs, in the first part of their petition, call it a contract, but later denominate it a deed. The defendants look upon it as a contract, and the trial court so names it in the judgment.

If it is a contract, plaintiffs’ petition is fatally defective and the proof necessary for recovery woefully wanting. If it is a deed another view must be taken. We think this instrument is a contract to sell and convey lands, and not the conveyance itself.' The wording is peculiar, intricate and complicated, but from it all we think we can gather an intent upon the part of the parties to deliver a fully executed warranty deed, signed by the grantor and wife at a future time. In this instrument we'find these words: “I have this day granted, bargained, sold and conveyed with deed in fee with general warranty unto the said James W. Cannady and unto him, his heirs and assigns forever, the following tract,” etc. At the end of the instrument we have these words: “And whenever the first five hundred dollars is fully paid the wife of the said Thomas 0. Powell is to join him in the conveyance of the said land.” The first clause quoted would indicate that Powell had on that day executed a general warranty deed to the land, but the latter clause would indicate that the wife was not to sign the deed until the five hundred dollars was paid. If the instrument before us was intended for the conveyance, then instead of saying the wife “is to join him in the conveyance of said land” the parties would have said, “is to join him in this conveyance of said land.” The use of the word “the” clearly indicates that there was another instrument of conveyance in the minds of the parties ; that they did not consider the instrument in suit the “deed in fee with general warranty.” It would rather indicate that the grantor himself had executed, simultaneously with the instrument in suit, a general warranty, in which separate instrument he was to be joined by his wife when the five hundred dollars was paid. And further this instrument in the clause first quoted says: “I have this day granted, bargained, sold and conveyed with deed,” etc. The past tense of the verbs herein used would clearly indicate another instrument, a general warranty deed, which was to be 'later signed by the wife. If this instrument sued upon was the deed, the parties would not have said therein that “I have . . . granted . . . with deed,” etc. If the instrument was understood to be the conveyance itself, why say that, “I have . . . conveyed . . . with deed,” etc., instead of saying that, “I do by this instrument grant, bargain, sell and convey,” etc.?

Again, this instrument speaks of a “deed in fee with general warranty.” There is no such clause in the instrument before us, and this is evidence that the parties had in view another writing as the instrument of conveyance. Even though it be said that, under Revised Statutes 1899, section 907, the use of the words, “grant, bargain and sell,” amounted to a covenant of warranty, these words are not found in this contract of sale. The words here used indicate that at some prior time and by some prior instrument the statutory words had been used. We think the trial court was right in .its judgment, when the instrument was therein called a contract rather than a deed, and that defendant is right in his contention that it is a contract of sale, reserving a vendor’s lien.

The action to enforce a vendor’s lien is equitable in its nature. [Dickason v. Fisher, 137 Mo. 342.] Such liens are in the nature of an equitable mortgage. [Talbot v. Roe, 171 Mo. l. c. 432.]

If the instrument sued upon here is a mere contract of sale, reserving a vendor’s lien, as we think it is, then the bill in equity, filed by plaintiffs, is wholly without equity, ánd states no cause of action, in this, that it fails to aver a willingness upon the part of the plaintiffs to perform Powell’s part of the contract by the making of a sufficient deed with covenants of warranty. The evidence is wholly insufficient, in that it fails to show that Powell and wife ever executed and delivered such a deed, or that such a deed had been tendered at any time, either prior to suit or during suit. And this, too, in the face of the answer of Cannady’s heirs, in which they offer to perform their father’s contract, upon the performance of Powell’s said part of the contract by the delivery of the deed.

Right here, it may be remarked that as indicative of how the parties understood this instrument, we find that Powell, in his lifetime, brought no action, and Cannady, in his lifetime, said that he was ready -to pay when Powell could make him a deed.

Powell and the Wests lived in Tennessee and it may be that Powell thought he could acquire the West title, when he contracted to sell, but afterwards failed so to do-. This might account for the situation. But to leave out all matters of mere conjecture, we think it well settled that this bill is fatally defective as above indicated. In discussing a similar situation, Henut, J., in Pershing v. Canfield, 70 Mo. l. c. 143, said: “The .judgment rendered against the defendant is for the entire ba" nice of the purchase money, but is silent as to the execution of a deed by the plaintiff. While defendant cannot hold the land and refuse to pay the purchase money, neither can plaintiff recover the purchase money until he shows his willingness to comply with his agreement by tendering defendant a deed to the land. He cannot have the purchase money and retain the title to the land. The nearest approach to a tender of a deed by plaintiff is the allegation in the petition that he has always been, and is still willing to comply with his contract. This is not sufficient. He cannot compel the defendant to a specific execution of the contract until he has executed or offered to execute the agreement on his part. The court will not decree a specific performance against one party to a contract, and leave it executory as to the other.”

For the same reason the judgment in the ease at bar is defective and wrong. Under no circumstances should the judgment have compelled the payment of the purchase money under this contract, without compelling the delivery of the deed called for in the contract. It may be that such deed could not be delivered, but if so, that only adds trouble for plaintiffs, for which defendants are in no wise responsible.

In the present shape this bill should be dismissed, but it may be that plaintiffs can so amend as to bring it within the views herein expressed. And should plaintiffs be able to amend, upon retrial defendant Hunter may be able to make more convincing proof of the identity of the West mentioned in the deed and A. B. S. West, whose heirs execute the power of attorney. There may be a mistake in the recording of the West deed. These conclusions obviate a discussion of other questions. The judgment is reversed and cause remanded.

All concur.