author: BOND, J. LAMM, J.

text:
    LUTA M. HARDING v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    March 15, 1913.
    1; PRACTICE: Peremptory Instruction for Plaintiff. Where the petition states a cause of action and its allegations are proven, and the answer contains neither a general nor a specific denial, but only affirmative defenses which do not constitute a cause of action, it is not error for the court to peremptorily direct the jury to find for plaintiff.
    2. NEGLIGENCE: Peremptory Instruction for Plaintiff. Where the petition alleges general negligence on the part of defendant in the operation of its railroad and trains, on one of which plaintiff’s husband was being carried at the time he was killed in a collision between defendant’s trains, and defendant’s answer admits it was a common carrier and that plaintiff’s alleged husband was on defendant’s train at the time a collision took place, and avers that he was riding on a pass issued at the request of the United States Government by which he had been placed on said train for the purpose of distributing mail, that he assumed all risk of injury that might occur to him by reason of the fact that he was so carried on said train, and that plaintiff had received from the Government an indemnity or insurance of $1000 for her husband’s death, which payment was a bar to the action, on proof that plaintiff’s husband was killed in the manner stated in the petition, that he was her husband, and that his death occurred through the negligence of the station agent in failing to deliver a telegraphic dispatch notifying the trains at what point they should pass, the court is authorized to give a peremptory instruction to the jury to find for plaintiff. The answer contained neither a general nor a specific denial of the allegations of the petition, but the only issues tendered were the affirmative defenses set up by it, and they did not constitute a-defense. Such an answer does not traverse any statement of the petition, and hence does not deny that .deceased was plaintiff’s husband.

      LAMM, J., dissenting on the point that the answer raised no issue of fact because of its form, but concurring on the ground that the technical error of directing a verdict for plaintiff in no way affected the merits, since only one verdict is possible under the established facts or would be tolerated or allowed to stand by the court.
    3. -: Postal Clerk: Riding on Pass. The fact that plaintiff’s husband was a mail clerk, riding on defendant’s train on a pass requested by the United States, did not render him any the less a passenger.
    4. -: --: Indemnity from Government. The fact that plaintiff received from the United States one thousand dollars as an indemnity for the loss of her husband, killed by a collision while he was riding on defendant’s train and engaged in distributing the mails, did not debar her from bringing and maintaining suit against the railroad company for negligently killing him.
    5. -: Instruction: Measure of Damage. The negligent failure of a railroad company’s servants to cause the telegraphic . orders for the running of its trains to be delivered to the trainmen and to be observed, is negligence of the kind referred to in Sec. 5425, R. S. 1909.
    6. -:--: -: Error Invited by Defendant. An instruction asked by defendant and refused by the court, telling the jury that $2000 was the proper verdict unless they should believe that plaintiff would have received more from her husband in money and support had he not been killed, invited any error the court may have committed in giving an instruction for plaintiff telling the jury that they must assess her damages for the negligent killing of her husband at not less than $2000, and invited any error the .court may have committed in submitting the case as one authorized by Sec, 5425 instead of by Secs. 5426-7, R. S. 1909.
    Appeal from St. Louis City Circuit Court. — Hon. Eugene McQuiUin, Judge.
    Abbirmed.

      Robert T. Railey and James F. Green for appellant.
    (1) The court erred in directing a verdict for the plaintiff. Milliken v. Comm. Co., 202 Mo. 655'; Wolf v. Campbell, 110 Mo. 114; Gregory v. Chambers, 78 Mo, 298; Bryan v. Ware, 4 Mo. 105; Vaulx v. Campbell, 7 Mo. 224; 1 'Thompson on Trials, sec. 1037; Bank v. Hammond, 124 Mo. App. 177; Gannon v. Gas Co., 145 Mo. 519; McReynolds v. Railroad, 115 Mo. App. 680. (2) Harding was not a passenger on defendant’s train, and therefore proof of a collision did not make a prima-facie case in plaintiff’s favor. Price v. Railroad, 113 U. S. 221; Martin v. Railroad, 203 U. S. 292. (3) Plaintiff’s instruction on the measure of damages was erroneous. Boyd v. Railroad, 236 Mo. 75; Wilburn v. Railroad, 36 Mo. App. 215; Camp v. Railroad, 94 Mo. App. 284; Hart v. Railroad, 94 Mo. 256; Badgely v. St. Louis, 149 Mo. 122; Stephens v. Railroad, 96 Mo. 207. (4) The failure of an operator to deliver an order to a conductor is not negligence in operating a train, and therefore an instruction authorizing a recovery under Sec. 5425, R. S. 1909, was improper. Culbertson v. Railroad, 140 Mo. 63; Higgins v. Railroad, 36 Mo. 432; Casey v. Railroad, 205 Mo. 724.

      Glendy B. Arnold and Frank T. Miller for respondent.
    (1)- Where all of the material allegations of plaintiff’s pétition are admitted by the defendant, a peremptory instruction to the jury to return a verdict for the plaintiff is always proper. Wolff v. Campbell, 110 Mo. 114; Stephens v. Barber Supply Co., 67 Mo. App. 587; Crawford v. Stayton, R31 Mo. App. 263; Hoster v. Lang, 80 Mo. 234; Wilbur v. Railroad, 110 Mo. App. 689; Casey v. Bridge Co., 114 Mo. App. 65; Magoffin v. Railroad, 102 Mo. 540. Every fact essential to plaintiff’s right to recover was admitted by the defendant, both by its amended answer and by its counsel at the trial. (2) Appellant’s only instruction given to the jury, admits that the deceased was the husband of the plaintiff. (3) “It is fundamental that what is admitted by the pleadings is unnecessary to be shown by the testimony.” Such admissions may be either express or implied. McKenzie v. Railroad, 216 Mo. 1; Lynch v. Railroad, 208 Mo. 1. (4) The plea of contributory negligence contained in defendant’s amended answer admits the material allegations of plaintiff’s amended petition. Allen v. Transit Co., 183 Mo. 411. (5) The amended answer in this case contains no denial of the allegations in the amended petition. The allegation contained in defendant’s answer, that: “Defendant denies each and every allegation in such petition contained not hereinbefore expressly admitted,” has been held by this court not to be a general denial. Derzell v. Ins. Co., 176 Mo. 253. (6) “A United States postal agent riding on a railroad train in .the discharge of his duties, under a contract between the government and the company, occupies the position of passenger with respect to the company’s liability for its negligence.” Mellor v. Railroad, 105 Mo. 455; Jones v. Railroad, 125 Mo. 666; Magoffin v. Railroad, 102 Mo. 540; Breeden v. Insurance Co., 220 Mo. 327. This is the rule in all the States where this question has come up for decision, except in one State. 6 Cyc. 542. (7) Plaintiff’s instruction on the measure of damages is not erroneous. “If an instruction given for the plaintiff on the measure of damages is not erroneous in itself, but is' good as far as it goes, the defendant must, if it desire an instruction which is more specific or which contains limitation, ask such.” Waddell v. Railroad, 213 Mo. 8. (8) The failure of the operator to deliver the order was negligence on the part of the defendant in the operation of its train, giving plaintiff a cause of action under Sec. 5425, R. S. 1909. The telegraph operator handling train orders, controlling the movements of defendant’s trains, is engaged in the operation of such trains. Melloy v. Railroad, 173 Mo. 75; .Iiennessy v. Railroad, 173 Mo. 86. (9) Conceding without admitting, that deceased was a free passenger and a “licensee” on the defendant’s train, as contended by defendant, still plaintiff is entitled to recover on the pleadings and evidence. Under all the decisions the railway company owes its “licensees” ordinary care. The collision was ftroof of the breach of this duty. (10) Appellant’s answer admits that deceased was riding on its train with its knowledge and consent, on a free pass. Under this admission deceased was a free passenger and entitled to the same degree of care as a passenger for hire. Young v. Railroad, 93 Mo. App..267; Jones v. Railroad, 125 Mo. 666.
    STATEMENT BY THE COURT.
    This action is for damages on account of the death of William H. Harding, who was a railway postal clerk and was killed in a collision between two of defendant’s trains, on one of which he was being carried, near Knobnoster, Missouri, July 2, 1908.
    The petition alleges general negligence of the defendant in the operation of its railroad and trains.
    The answer of defendant admits its incorporation, its business as a common carrier of passengers, and that plaintiff’s alleged husband was on defendant’s train when a collision took place; avers that he was riding on a pass issued at the request of the United States Government, by whom he had been placed upon said car for the purpose of'distributing the mail instead of making distribution at stationary post offices of said Government; that the only compensation received for the transportation of the United States mails is paid by the Government at so much per hundred pounds; that plaintiff’s alleged husband was at the time of his injury in a standing posture, and was injured on that account; and averred that he had assumed all risk of injury that might occur to him by reason of the fact that he was so carried on said train; that plaintiff had received from the United States Gov-eminent $1000 indemnity or insurance for her husband’s death, which payment it alleged was a bar to this action; that the injury sued for was the result of the direct contributory negligence of the plaintiff’s alleged husband. The answer concluded, to-wit: “Defendant denies each and every allegation in said petition contained, not hereinbefore expressly admitted.”
    The evidence disclosed that the plaintiff’s husband was killed in the manner stated in the petition; that he was at that time earning a salary of $1200 a year; that he was the husband of the plaintiff; and that the injury occurred through the negligence of a station agent in failing to deliver or communicate a telegraphic dispatch warning the trains at what point they should pass.
    At the conclusion of the testimony, the court gave an instruction at plaintiff’s request and over the objection of defendant, to-wit:
    “The court, instructs the jury that, under the pleadings and evidence in this case, you will return a verdict in favor of the plaintiff for not less than two thousand dollars, nor more than ten thousand dollars, in the discretion of the jury.”
    The jury returned a verdict for $5500. The defendant duly perfected an appeal to this court.
   OPINION.

L

BOND, J.

(after stating the facts as above).— The only question presented for review is the correctness of the instruction set out in the foregoing statement. Appellant insists that there were two issues which arose on its answer resting on matters m pais, and touching which oral testimony was adduced; that these issues should have been submitted. This contention is made on the theory that its answer denied the allegations of the petition, that plaintiff was the wife of the deceased, and that the collision was negligently caused. But this notion overlooks the fact that the answer of defendant was in the form of neither a general nor specific denial; and, hence, the only issues tendered by it were the affirmative defenses therein set up. As to, these, defendant adduced no' evidence in support of any of them which were sufficient in law to preclude a recovery. The fact that plaintiff was an employee of the Government, riding on a pass, did not render him any the less a passenger under the settled law of this State. [Magoffin v. Railroad, 102 Mo. 540; Mellor v. Railroad, 105 Mo. l. c. 460; Jones v. Railroad, 125 Mo. l. c. 676.] Neither did the receipt by plaintiff of an indemnity on the death of her husband debar her from bringing this suit. As to the remaining special defenses (contributory negligence and assumption of risk) no evidence whatever was given on the trial, and no error is assigned in the brief in this court. This leaves the case to rest on the admitted and undenied allegation of the petition, that plaintiff ’s husband was killed while occupying the legal status of a passenger, by the negligent operation of defendant’s trains. This state of the matter, in the absence of countervailing evidence, entitled plaintiff to an instruction to find in her favor. [Stephens v. Koken Barber Supply Co., 67 Mo. App. 587; Wolff v. Campbell, 110 Mo. 114.] This result was caused by the omission of defendant to insert either a general or specific denial in its answer, as authorized by statute. If the answer had contained a separate defense of a general denial or a specific denial of the allegations of the petition, then the defendant would have been entitled to a submission to the jury of any issues thus joined; but defendant did not take either course. Its answer was a unit; it was not subdivided into paragraphs or separate defenses, but the whole, including the last paragraph referred to, was set forth without break or separation in one continuous body pf allegations. It has been repeatedly ruled in this State that such an answer does not have the effect of traversing any of the statements of the petition, and that .the only issues arising upon it are those which are joined by the reply denying its affirmative defenses. [Dezell v. Fidelity & Casualty Co., 176 Mo. l. c. 279; Young v. Schofield, 132 Mo. 650; Boles v. Bennington, 136 Mo. 522; Snyder v. Free, 114 Mo. 360; Long v. Long, 79 Mo. 644; State ex inf. v. Delmar Jockey Club, 200 Mo. l. c. 63, 64.]

Testing defendant’s answer by this rule, it will be seen that the effect of its express admissions and the want of a general or specific denial were sufficient to establish plaintiff’s prima-facie right to a recovery, and that the instruction under review was proper unless it contained reversible error in some other respect, than the failure to submit to the jury the question as to whether plaintiff was the wife of the deceased, or whether the collision of defendant’s trains was negligent.

II.

The defendant claims the instruction was erroneous as to the measure of damages, in that it told the jury they must find not less than $2000. We think there was no error in this.' First, because the negligent failure of defendant’s servants to cause the running orders of its trains to be observed was a negligence of the kind referred to in section 5425, Revised Statutes 1909; and the measure of damages specified in that section was properly stated in the instruction. Secondly, but if the cause of action had been one under the succeeding sections of the statute (sections 5426-7), still there was no reversible error in the present instruction, for the reason that defendant by its instruction numbered 6 (refused by the court) asked the court to submit to the jury that $2000 was the proper verdict unless they should believe plaintiff would have received more from her husband in money or support” had he not been killed. This action of defendant clearly invited any error in the present instruction which it might have contained if this suit had been brought under different sections of the statute. [Whitmore v. Supreme Lodge, 100 Mo. l. c. 47; Clippard v. Transit Co., 202 Mo. l. c. 446; Smart v. Kansas City, 208 Mo. l. c. 204.]

The judgment in this case is affirmed.

Woodson, P. J., and Graves, J., concur in result; Lamm, J., concurs in separate opinion.

OPINION CONCURRING IN RESULT.

LAMM, J.

Error to be reversible on appeal must materially affect the merits or substantial rights of appellant. So the statutes ordain and so runs the good sense of the thing. All things, says Coke, are sustained or impugned either by reason or authority. The rule in regard to reversible error may -rest on either.

Quicked by such precepts it is plain that, on all the facts of this case, there was no reversible error in the instruction. This, because:

On the proof educed and admissions there was only one side to the case.. Observe the witnesses were uncontradicted and unimpeached by direct testimony or by the physics of the matter. Therefore, there could have been only one just .result, viz., that reached. Moreover, in ultimate legal effect liability was assumed to exist as a matter of law by both parties. I do not mean that defendant in so many words admitted liability, but what it did in its pleading accompanied by what it failed to do in its proof was tantamount to that. Hence, the technical error of directing a verdict in no way affected the merits. When only one result is possible and would be tolerated or allowed to stand by the court, as here, why in reason may the court not say so and have the matter over with? Under the peculiar facts of this record (and putting my concurrence on that sole ground) I concur in the result reached by my learned brother Bond, but I do not agree that the answer raised no issue of fact because of its form. As I understand our decisions, such has not been hitherto the trend of the doctrine of this court. The unhappy form adopted has been criticised, but to let a case break on such mere form of answer where it was unassailed below and the merits are here for adjudication, has not been the rule. The practice of the court is the law of the court. (Cursus curiae est lex curiae.) In Long v. Coal & Iron Co., 233 Mo. l. c. 732 et seq., the cases on this head are reviewed.


source: Caselaw Access Project

author: BLAIR, 0.

license: Public Domain

text:
    JAMES A. HENLEY v. M. L. SULLIVANT, Appellant.
    Division One,
    March 15, 1913.
    1. EQUITY: Reformation of Contract: Mistake. Equity has power to reform a written contract, which, hy reason of a mutual mistake of fact, fails, in a material particular, correctly to express an actual previous oral agreement.
    2, -: -: -: Evidence. The evidence in this case is held to have the clearness, cogency and certainty requisite to warrant the exercise hy a court of equity of the power to reform a written contract for the sale of land on the ground of mutual mistake of fact.
    Appeal from Cass Circuit Court. — Hon. Nick M. Bradley, Judge.
    Affirmed.

      James C. Rieger and A. A. Whitsitt for appellant.
    So strong is the legal presumption that a written contract, unambiguous and complete in itself, contains all the terms of the agreement between the parties that parol evidence will not be heard in an action on a contract to vary or contradict its terms. Meredith v. Holmes, 105 Mo. App. 352; Evans v. Mfg. Co., 118 Mo. 646; Tracy v. Iron Works, 104 Mo. 193. Evidence clear and convincing, that there has been a mistake, and that it was a mutual mistake must be produced, fully satisfying the mind of the chancellor, before a written instrument can be changed. Parker v. Vanhoozer, 142 Mo. 621; Kilpatrick v. Wiley, 197 Mo. 164'; Judson v. Mullinax, 145 Mo. 630; Underwood v. Cave, . 176 Mo. 1; Sweet v. Owens, 109 Mo. 1; Griffin v. Miller, 188 Mo. 327; Bartlett v. Brown, 121 Mo. 353; Brown v. Gwinn, 197 Mo. 499; 1 Story’s Equity Jurisprudence, secs. 157-161; Pomeroy’s Equity Jurisprudence, see. 856; Fanning v. Doan, 139 Mo. 392; Lanyon Vi Chesney, 186 Mo. 540. The effect of the words “more or less” or other expressions of similar import, added to the statement of quantity, can only be considered as intending to cover inconsiderable or small differences one way or the other, and do not in themselves determine the character of the sale. Nor can they be regarded as stipulations intended to cover any after discovered errors, and inquiry is pertinent and proper while the contract remains executory. 2 War-ville on Vendors, secs. 832-833. Where land is described by metes and bounds “containing” a given number of acres “more or less” metes and bounds will govern in the absence of fraud. Mires v. Summerville, 85 Mo. Ápp. 183; McGhee v. Bell, 170 Mo. 133; Sickle v. Iron Co., 84 Mo. 161.

      Charles W. Sloan, R. T. Railey and James T. Rurney for respondent.
    The power of the court to correct and reform the contract made between the parties so as to express the real purpose and intention is undisputed, either by bill to foreclose or in answer where affirmative relief is sought. Leitensdorfer v. Delphy, 15 Mo. 167; Williamson v. Brown, 195 Mo. 332; Scott v. Gordon, 109 Mo. App. 695; Owens v. Railroad, 110 Mo. App. '320; Henderson v. Beasley, 137 Mo. 199; Ezell v. Peyton, 134 Mo. 484; 20 Am. & Eng. Ency. Law (2 Ed.), 825; 24 lb. 648-9. And the evidence was overwhelming that the Dr. James Dunn, Jr., property only was intended to be sold, and that part of description by metes and bounds, was erroneous.
   BLAIR, 0.

This is a suit to reform and enforce, after reformation, a contract whereby plaintiff agreed to sell and defendant to purchase property in the city of Pleasant Hill. The contract description is of a tract twenty-four rods wide, from east to west, and thirty rods long, from north to south, “containing 3 acres, more or less” and “being known as the Dr. James Dunn, Jr., place.” The petition alleges, in effect, that the dimension from north to south should have been given as twenty instead of thirty rods. The question argued in this court is as to the sufficiency of the evidence to establish mutual mistake. It will be observed that the description by metes and bounds in the contract includes four and one-half acres and that which the petition alleges to be correct includes, exactly three acres.

In 1866 Dr.- James Dunn, Jr., acquired title to the south two acres of the tract and in 1867 erected a residence thereon and otherwise improved it and occupied it thenceforward. In 1881 one Phelps owned one acre 'adjoining Dunn’s property on the north, twenty-four by six and two-thirds rods, and this he Sold to Dunn, describing it as “containing one acre” but gave its metes and bounds as twenty-four by sixteen and two-thirds rods. Phelps had no title to the north ten rods of the parcel included in the meets and bounds then given though he did own the south one acre.

Dunn, until his death in 1884, occupied the three acres to which he had title, and his enclosure, so far-as the evidence shows, never included any of the north ten rods of the parcel described by metes and bounds in the Phelps deed. For a great many years the fence forming the north boundary of the inclosure around the residence erected by Dunn had been where it was when the present controversy arose. Owing to Dunn’s long occupancy the premises occupied by him became generally known in the community as “the James Dunn place” or “the Dr. James Dunn place.” So well was it known by this designation that interests in it were sometimes conveyed by that description and defendant, through his attorneys, in examining the abstract, accepted these conveyances as sufficient to. devest the interests thus described. As stated none of the northern ten rods in the parcel described by metes and bounds in the Phelps deed and in the contract was in the enclosure which was known as the James Dunn place and several of Dunn’s heirs in conveying their interests, ignored the error in Phelps’s deed. One of the heirs, however, executed a deed of trust in which he included the ten rods and a sale occurred under this conveyance. His interest was also* sold under execution and the whole four and one-half acres described in the deed. This description was carried forward in subsequent deeds and was used in the deed from one Arnold by which plaintiff acquired whatever title he had. This deed to plaintiff did not describe the property as “the Dunn place” but, as in case of most of the others, did give the quantity conveyed as “three acres.”

In 1901 defendant moved to a large farm adjoining Pleasant Hill and in 1907 seems to have moved into that city. He knew “the Dunn place” and in 1907 talked with plaintiff about renting it but these negotiations bore no fruit. In the spring of 1908 defendant arranged to purchase the premises from plaintiff and took possession some time in April and began repairing and papering the house, expending probably $150 for these and kindred purposes before the execution of the written agreement May 23, 1908. Defendant moved his family into the house about that date, having moved part of his household gdods prior thereto. In the contract the premises were described (by metes and bounds) as twenty-four by thirty rods “containing three acres, more or less . . . said property being known as the Dr. James Dunn, Jr., place.” Plaintiff and defendant went together to the scrivener and the latter-and plaintiff testify the scrivener was told, merely, that plaintiff was selling and defendant buying the “Janes Dunn place.” The scrivener asked for the description and plaintiff handed him the Arnold deed. The description by metes and bounds (twenty-four by thirty rods) was, in the absence of the contracting parties, copied from this, but to this description was added; “said property being known as the Dr. James Dunn, Jr.,-place” and “containing 3 acres, more or less.” On the same day, under an agreement to pay rent until the trade was closed, defendant gave plaintiff a check “for rent Dunn property month of May.” Subsequently, on the same agreement, defendant paid $60 “for account rent Dunn property.” He was then and had been for months occupying “the Dunn place.”

After the execution of the contract sought to be reformed plaintiff forwarded an abstract as agreed and defendant submitted it to an attorney who returned it with several requirements. In one of these he pointed out that Phelps, in his deed to Dunn, described two and one-half acres “when he owned only one acre” and that “at this point James Dunn, Jr., owned a three-acre tract, although he had deeds calling for four and one-half acres.” In another requirement, referring to a subsequent deed executed in 1885 by one of James Dunn’s heirs, the examiner in construing that part of the description relating and referring to “the land conveyed by Phelps to Dunn” points out that it “seems to cover the north one acre of the land in question.” These requirements were brought directly to defendant’s attention but neither he nor his attorney ever suggested that Phelps’s lack of title to the north ten rods described in his deed to Dunn constituted a defect in the' title of the tract defendant was purchasing. The requirements were discussed by plaintiff and defendant and the former, with defendant’s knowledge of his intent, instituted a suit to quiet title in so far as that was necessary to meet the requirements made by defendant’s attorney. There was judgment in this suit in January, 1909. ■ The abstract was recertified to date and, at defendant’s request, sent to him in Kansas City. Subsequently, plaintiff tendered defendant a deed to the twenty-four by twenty rod tract and defendant said he had the abstract and wanted to look over it and would let plaintiff know in a week. Defendant then submitted the abstract to another attorney who wrote plaintiff saying, in substance, that the title was “not good to the three acres,” was good only to the ground inclosed and in defendant’s occupancy; that this amounted to only a little over two acres; that plaintiff had delayed beyond the date fixed by the contract for closing the trade; and asking the return of the money paid on the contract and sums expended on the property.

J. V. Hon owned, and for at least fifteen years had occupied, the ten rod strip which defendant claims was properly included in the contract. Defendant knew of Hon’s occupancy before he*executed the contract.

Defendant admits he was present when the directions were given as to drafting the contract in suit but says that plaintiff merely told the scrivener to copy the description from the Arnold deed. Defendant also testified plaintiff told him he owned part of the ground in Hon’s inclosure. Plaintiff denies having made this statement.

The Dunn place as inclosed at the time defendant’s occupancy began and for some time theretofore contained about two and two-fifths acres within the fences. That part outside the fences, but included in the description in the deed tendered, is said to be in certain adjacent streets. The abstract showed this fact by a plat but no requirement relating thereto was made by defendant or his attorney, nor does it appear that any streets were ever platted or dedicated by any one owning the property or that the public has acquired any rights by user.

The court gave judgment reforming and enforcing the reformed contract as prayed and defendant appealed.

The power of a court of equity to reform a written contract which by reason of a mutual mistake of fact fails, in a material particular, to express correctly an actual previous oral agreement of the parties is not questioned. Neither is it contended this is not a proper case for the exertion of that power if the facts are as alleged in the petition. It is not suggested that equities of third persons have intervened or that plaintiff has been guilty of any, culpable negligence in the premises. •

The sole error assigned, the sole insistence of defendant’s counsel, is that the evidence adduced lacks the clearness, cogency-and certainty requisite to warrant the exercise of the power to reform a contract on the ground of mutual mistake. The question presented is, therefore, purely one of fact.

In this ease the evidence is overcast with no suspicion arising from long delay in instituting suit nor is this court under the necessity of speculating as to what explanations of statements and conduct the hand of death has stricken from the record. The suit was begun promptly upon the heels of the first claim made by defendant under the error in description now sought to be reformed and both parties to the contract involved are living and testified in the case. Further, in considering the evidence it must he remembered the trial judge had the witnesses and parties before him and deference is due his findings by reason of that fact.

At the outset it is to be observed that the description in the contract is ambiguous. In the description by metes and bounds the length of the parcel, from north to south, is set down as thirty rods. To the description by metes and bounds is added, however, the statement, in effect, that the property intended is “The Dr. James Dunn place” and the acreage given corresponds to that part of the description and to that of the tract described in plaintiff’s tendered deed and not to the acreage of the parcel described by metes and bounds in the contract.

The evidence is conclusive that the “Dr. James Dunn place” did not include and never had included the ten rods now in dispute. Dunn had neither title to nor possession of them. On the contrary Hon had °Pei1 possession for many years and no claim is made his title was in any way defective. The James Dunn place was and had long been known in the community as such and defendant knew it by that name. He took possession of it and paid rent on it by that name before entering into the contract in suit. His only obligation to pay rent related to the land he agreed to buy.- He and his attorneys who examined the abstract ignored the ten rod strip in submitting requirements as to the title. These requirements explicitly recognize the fact Dunn never had title thereto. After all this defendant consented to plaintiff’s instituting suit to quiet title to meet the requirements made, which bore no relation to the ten rod strip. These things point conclusively to the fact that defendant understood he was buying the James Dunn place as known by that designation. The scrivener and plaintiff testify that the instructions given at the time the contract was drawn were that defendant was buying the Dr. James Dunn place.

It is true that defendant denies this, but, besides the testimony of the two witnesses mentioned, he is confronted by the fact this description was put into the contract by the scrivener though not included in the Arnold deed (which defendant says was all that was given the scrivener from which to secure the description) and confronted also by his own conduct which is wholly inconsistent with his present claim. Under the contract as reformed defendant will get all he thought he was buying in the first place. There is nothing in the record to show lack of title in plaintiff to that part of the three acre parcel lying outside the Dunn inclosure. As stated above no dedication of streets was attempted to be proved nor was any user shown. Had defendant desired to base an agreement upon the existence of streets upon a part of the ground plaintiff contracted to convey it was incumbent upon him to adduce some legal evidence of their existence. This court would not be justified in disturbing the judgment on the ground of the insufficiency of the evidence. The judgment is affirmed.

Brown, G., concurs.

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

All the judges concur.


author: BROWN, C. PER CURIAM.

text:
    JOHN W. JACKSON, Appellant, v. HORRELL JOHNSON et al.
    Division One,
    March 15, 1913.
    1. PLEADING: Petition: Sec. 650, R. S. 1899. A petition under Sec. 650, R. S. 1899, is not rendered insufficient by a combination of proper allegations with, statements of legal conclusions and demands for relief not appropriate to that act.

      2. -: -: Demurrer: Waiver. All defects in a petition to which defendant does not demur before issue joined, except those of failure to state a cause of action and lack of jurisdiction, are waived.
    3. ADMINISTRATION:-Sale: Personal Service. An order of the probate court for an administrator’s sale to pay debts is void if there is no personal service upon resident heirs as required by Sec. 152, R. S. 1909.
    4. -: -: By Original Administrator: Report and Deed Made by Administrator De Bonis Non. The deed of an administrator de bonis non, based on a sale by the original administrator, is void unless it refer to, and there was filed, a petition therefor by the purchaser or his successor, and unless the administrator who made the sale filed a report, in accordance with Sec. 168, R. S. 1899, which was approved by the court.
    5. -j Guardian's Deed. A guardian’s deed is void where the land was not sold for any purpose authorized by law, and where no order of approval was entered by the probate court.
    6. MORTGAGE: Pledge. A mortgage, though in form a conveyance of the legal estate, is in substance only a pledge of the land for the mortgage debt.
    7. NOTES: Indorsement: “For Collection.” Indorsement of a note “for collection” destroys its negotiability and limits to that purpose the authority of the transferee.

      S. TRUSTEE’S SALE: Note Paid Before Sale. A sale under a deed of trust is void where the note secured was paid before the sale and was never owned by the person whom the sale deed recites as owner.
    Appeal from New Madrid Circuit Court. — Eon. Eenry G. Riley, Judge.
    Reversed and remanded.

      John A. Eope for appellant.
    (1) No notice of the application to sell the real estate was personally served on the heirs of Lot Fletcher, each and all of whom were residents of New Madrid county. The statute requires personal service of such notice; it is a necessary prerequisite; and in the absence of such notice to the heirs, as in this case, the probate court is without authority or jurisdiction to order a sale. Sec. 152, R. S. 1909; Valle v. Fleming, 19 Mo. 754; Young v. Downey, 145 Mo. 250. (2) Another bad feature of the so-called administrator’s sale is the fact that the 400 acres of land for which' Lot Fletcher paid Beardslee $1,000 in 1891 and shown by the testimony to have been worth perhaps more than $5,000 in 1895, was purchased at the price of five dollars by Mitchell, one of the appraisers, who, only a few days thereafter, conveyed the land for a nominal consideration of one dollar to defendant Johnson’s grantor, Spies. The price of five dollars is so grossly and outrageously inadequate as alone to justify the inference of fraud and to réquire cancellation of the administrator’s deed. Derby v. Donahoe, 208 Mo. 699; Nelson v. Brown, 23 Mo. 21; Cordon v. Oneill, 96 Mo. 350; Curd v. Lackland, 49 Mo. 451; Davis v. McCann, 143 Mo. 177. (3) With respect to the so-called curator’s deed to Spies, respondent Johnson’s grantor, the pretended order of sale does not set forth any finding by the court of any of the grounds which are named in the statute as authorizing sale of a minor’s real estate.' R. S. 1909, secs. 430-436. There was no curator’s report of sale, and no approval thereof by the probate court. R. S. 1909, sees. 173, 177, 433. (4) The timber taken by Spies paid the debt and satisfied the deed of trust, which thereby became functus officio, and the sheriff was without power as trustee to sell the property. “There can be no valid sale after the debt secured by the mortgage has been paid.” 2 Jones on Mortgages, secs. 1906, 1902; 1 lb., secs. 943, 972; McNair v. Picotte, 33 Mo. 57; Pease v. Pilot K. I. Co., 49 Mo. 124; May v. Mortgage Co., 138 Mo. 452; Land Co. v. Zeitler, 182 Mo. 272.

      Russell, Deal $ Joslyn and J. J. Russell for respondent Horrell Johnson.

    (1) The record in this case does not disclose that there was personal service on the heirs of the deceased who were residents of the county, if such they were at the time the application was made. Neither does it appear from the record of the proceedings of the probate court or in the files or returns appertaining to this estate that personal service was necessary, that is, that the heirs were residents of the county. In the absence of such a showing, regularity will be presumed. It will be presumed that the probate court did its duty and investigated the matter and ascertained that no personal service was necessary. Robins v. Boulware, 190 Mo. 33; Covington v. Chamblin, 156 Mo. 574; Desloge v. Tucker, 196 Mo. 587. (2) The report of sale was filed and approved at the February term, 1895, of the probate court which was in strict conformity to the law. R. S. 1899, sec. 166. (3) Appellant’s counsel concedes that the sale under the deed of trust was in all respects regular and sufficient to pass the title if the debt secured thereby had not been paid. He contends strenuously, however, that the debt was paid because his witnesses claim to have heard Spies say something at some time or other to Harve Fletcher about paying this debt against the land and building a $400 house on the land in consideration of Spies getting the timber. We say that every act of Harve Fletcher as administrator of this estate completely refutes the statements made by these several witnesses. In the inventory which he filed describing this land he said it was subject to this deed of trust. In the last notice of sale of real estate which he published, and this was done long after Spies had bought the timber according to appellant’s witnesses, he said it was bound by this deed of trust and when he sold it he did so subject to this deed of trust which was just a short time before he died. There is another strong circumstance which goes to show that this debt was not paid, namely: Claims to the amount of $2,241.84 had been allowed against the estate of Harve Fletcher, and the first annual settlement approved by the court showed a balance of $82.77 in the hands of the administrator belonging to the estate. Cook, one of the creditors, was seeking to have the land sold and it was sold. If the fact is that the payment of the $700 Beardsley debt that was a lien on this land became a matter of “general notoriety” and “general knowledge” and “general reputation,” it is indeed, passing strange that some of these creditors, who had more at stake than anybody else, did not ascertain that fact and purchase the land when it was sold to Harve Fletcher, the administrator, subject to the deed of trust, and contest the question in the courts. The price paid, plus the $700, was not inadequate and therefore the authorities cited by appellant on inadequacy of consideration have no application. It is a commonplace of the law that to set aside so solemn an instrument as a deed for fraud requires proof of a character so high and stringent as to go beyond the mere preponderance of the testimony, and remove all reasonable doubt. Weissenfels v. Cable, 208 Mo. 533.
   BROWN, C.

One Lot Fletcher, who is the common source of title of the parties to this suit, was, up to the time of his death, a resident of New Madrid county. In December, 1891, he purchased from W. R. Beardsley, a resident of Morley, Scott county, Missouri, for the sum of one thousand dollars, the four hundred acres of land which is the subject of this suit, together with another tract of forty-eight acres. Of the purchase money he paid in cash three hundred dollars, and made two promissory notes to Beardsley, each for the sum of three hundred and fifty dollars, with interest at the rate of sis per cent per annum, and secured their payment by a deed of trust on the land. Both were dated December 28, 1891, and one of them was due in twelve months and the other in twenty-four months. The land was timbered, and Mr. Fletcher cut and hauled out something like two barge loads of the timber, which lay on the bank of the river at the time of his death. This amounted to somewhere in the neighborhood of 200,000 feet.

He died February 6, 1892, leaving a widow, Mrs. Martha Fletcher, who afterward married John Cobb, and the following named children as his only heirs: Ruth Fletcher, born in 1881; Ida Fletcher, born in 1882; Pearl Fletcher, born in 1883; Mattie Fletcher, born in 1884; Hattie Fletcher, born in 1886, and William Leslie Fletcher, born in 1890. Before this suit was instituted Ruth married one Jean Flowers, Ida married John Keene, Mattie married James Keene, Pearl married Osner Cobb, and died in 1900, leaving no surviving child, Hattie married Ed Ward and Leslie was single at the time of the trial. Hpon the death of Lot Fletcher his brother, Harvey Fletcher, was appointed by the probate court for New Madrid county the administrator of his estate, which he thereupon took into his possession and proceeded to administer. The record shows that in addition to the land involved in this suit the administrator inventoried 204% acres of other lands in New Madrid county. He sold the corn crop of 1891 for $1,268.35, and sold ash and cottonwood timber which had been cut by intestate to the amount of $1648.21, and had other personal property appraised at $1,030.

The administrator also sold to one Jesse W. Spies, a lumber and mill operator in Cairo, Illinois, the standing timber on the 448 acres. The consideration of this sale is one of the matters in dispute.

The records of the New Madrid Probate Court contain the following entry as of the February term, 1894:

“A. O. Cook, one of the creditors of said estate, presents a petition for the sale of the real estate of said Lot Fletcher to pay the debts of said Fletcher, and the court finding that the personal property heretofore sold is entirely insufficient for the payment of the debts allowed against said estate, it is now ordered that the said administrator proceed at once to sell the real estate as by law directed.” This is the only mention in the record of Mr. Cook or his petition. At the same term an order of publication issued, reciting that it was made upon the petition of Harvey Fletcher, administrator of the estate of Lot Fletcher, deceased, for an order of sale of certain real estate described in it, including that here in suit, and was returned with proof of publication on February 17th and 24th and March 3rd and 10th and 17th. At the May term, 1894, an order of sale was made upon this notice. The record contains no direction for any other notice than this, nor do the files contain any such notice. The heirs of Lot Fletcher whose interests are involved in this suit testified that no personal notice was given.

On February 11, 1895, the probate court ordered L. Newbauer, public administrator, to take charge of the estate of Lot Fletcher as administrator de bonis non. On March 15, Newbauer presented “his settlement as administrator of the estate of Harvey Fletcher, deceased, former administrator of the estate of said Lot Fletcher, deceased, which is examined and approved.” On March 16th is the following entry: “In the matter of Estate of Lot Fletcher, deceased; L. Newbauer, administrator de bonis non. Report of sale of real estate:

“Now comes L. Newbauer, administrator de bonis non of the estate of Lot Fletcher, deceased, and files his report of sale of the real estate made to [sic] Harvey Fletcher, former administrator of the estate of said Lot Fletcher, deceased, said Harvey Flitcher having died after making sale of the real estate described in order by this court, all of which is approved and confirmed, and the said administrator de bonis non is ordered to execute, acknowledge and deliver to W. W. Pinnell a.deed in due form of law, conveying to the said W. W. Pinnell all the right, title and interest which the deceased had in same at the time of his death in the following described real estate: The southwest quarter of section 16 in township 22 north, range 15 east, containing 160 acres; and also to execute, acknowledge and deliver to C. L. Mitchell a deed in due form of law, conveying to the said G. L. Mitchell all the right, title and interest which the deceased had in the same at the time of his death in the following described real estate, to-wit: The east half of southwest quarter and east half of section 10 in township 22, range 15 east, containing 400 acres; it having been satisfactorily proven to the court that said sale was legally and fairly conducted pursuant to the order of the court, and in accordance with the statute.” The report of sale referred to, after describing the land and making some formal statements not important here, states, in substance, that Harvey Fletcher, as administrator, sold the land on November 13, 1894, after having had the same appraised by O. L. Mitchell, W. W. Pinnell and Charles G-reen, three disinterested householders, and given four week’s notice by advertising in a newspaper published in the county, and that at the sale William W. Pinnell purchased the one hundred and sixty acres not included in this suit for the sum of fifty dollars and C. L. Mitchell was the highest bidder for the four hundred acres included in this suit for the sum of five dollars, subject to the lien of a deed of trust for seven hundred •dollars, to William Beardsley, and that the puchasers had complied with the terms of their purchases respectively. This report was verified by the affidavit of Newbauer, stating that he was not interested in the property sold except as stated in said report. The report also stated that Harvey Flitcher died on the first day of November, 1894. The order of sale recited in this report states that notice of the application had "been published in the. weekly record, etc., but mentions mo personal notice to the heirs.

On April 9,1895, the following entry was made in the records of the New Mardid Probate Court in vacation. “It appearing to the court that Ida B. Fletcher, Ivory P. Fletcher, Mattie L.' Fletcher, Hattie M. Fletcher and William L. Fletcher, minor heirs of Lot Fletcher, deceased, have no curator of their respective estates derived from their father, it is ordered that Louis Newbauer be and is hereby appointed curator, who is ordered to take charge of said minors at once.”' At the May term there is an entry stating, in substance, that the curator filed an inventory showing that he had no personal estate in his hands belonging to-the minors, and asking for a sale of their real estate, and it was thereupon “ordered by the court that said curator be and is hereby authorized and empowered to sell the real estate at either public or private sale, first having the same appraised according to law, for not less than three-fourths of the appraised value thereof, for cash, and report his proceedings therein to the court at the next term thereof.” At the following term (the children having no further use for a curator), Newbauer filed his final settlement and was discharged. In this settlement he charges himself with the “amt. rec’d for parents’ eq. of redemption in land conveyed by deed of trust, $5,” and takes credit for probate fees to amount of $5, leaving “balance due-on estate, nothing.”

In connection with this last “sale” the appraisement values the 400 acres sold at five dollars, “subject to a deed of trust for four hundred dolars.” The-paper on file as a report of this sale is neither sworn to nor signed, and does not state either the price at which the laud was sold or the name of the purchaser. There is no record of the approval of a report of sale-by the court.

On the 12th day of August, 1895, Newbauer, as curator of the estate of Ruth Fletcher, Ida B. Fletcher, Ivory P. Fletcher, Mattie Fletcher, Hattie Fletcher- and William Fletcher, minors, made a deed in the usual form of a guardian’s deed reciting a private sale and purporting to convey the interest of his wards in the four hundred acres described, to J. W. Spies.

Mr. Spies states in his testimony given for defendants that, having paid the first of the two Beardsley notes out of moneys going to the Lot Fletcher estate as payment for the standing timber he purchased from it, he “took up” or “bought” the second note to protect himself and this timber and keep anyone else from foreclosing, lie thought he could hold it until he got his timber off. He did not consider it worth anything with the timber off, “with all the tops and everything we left on it.” The history of both these notes is more fully developed by the testimony of Mr. J. J. Hunter, another witness for defendants, who was cashier of the Scott County Bank, at Morley, Mr. Beardsley’s home town. Being shown the second note he-said that his bank bought it from Mr. Beardsley before its maturity, and that when it was due he sent it to the People’s Bank of New Madrid (of which Mr. Lee Hunter was cashier) and it was paid. The Scott County Bank got the money. He also stated that the other note was held by his bank, and was collected directly through the City National Bank at Cairo. The second note, which was • in court, contained four indorsements, stated in the record as follows: “For value received, I assign the within note to Scott County Bank. William R. Beardsless. And further indorsed by Lee Hunter, cashier, or order, for collection. Scott County Bank, Morley, Missouri. August 16, 1894, pay the City National Bank of Cairo or order for value received without recourse. People’s-Bank, Lee Hunter, Cashier. Without recourse, J. W. Spies.” Mr. Spies, after having failed to induce Mr. Mott, the trustee in the Beardsley deed of trust, to exercise his power, procured the sale of the 448 acres of land by the sheriff of New Madrid county, the substitute provided by the terms of the instrument, and became the purchaser of the price of $17.50. The trustee’s deed, made to him by the sheriff on June 24, 1895, recited a public sale as of that day, upon default in the payment of both notes. Spies and wife, on August 5, 1899, conveyed the four hundred acre tract to the defendant Johnson and one Amos L. Phillips for the stated consideration of $1100. On November 2, 1901, Phillips and wife by warranty deed, reciting a consideration of one dollar, conveyed the undivided one-half of the same land to Johnson.

C. L. Mitchell, by quitclaim deed dated April 3, 1895, for the recited consideration of one dollar, conveyed his interest in the land purchased by him at the administrator’s sale, to Spies. Further facts will be stated in the opinion as reference to them may become necessary.

I. It is evident that in attempting to sell this land through the instrumentality of the probate court" no consideration was had for the rights or interests either of the creditors of the estate of Lot Fletcher or of his infant heirs. The sole and only possible object of either proceeding was to take from these children such interest as they had, and to transfer it to some one who stood in better position than they to control the instrumentalities to which the law confided their care and protection. This is illustrated by the pretense to sell the land at guardian’s sale. Harvey Fletcher, who was appointed by the court the curator of the estate of these minors in 1893, died, and on April 9,1895, Newbauer, the public administrator, was appointed curator of the five younger children in his stead. On May 20, 1895, apparently without having given bond, he filed an inventory and petition for the sale of the real estate, stating that he had no personal estate in his hands belonging to them, and it was thereupon ordered by the court that he be authorized to sell the real estate at either public or private sale aud report his proceedings at the next term. At the August term of the same year and on August 20th he filed his “first and final settlement” as curator of the six heirs in which the only charge against himself was $5, the proceeds of this real estate, and the only credit, probate fees to the amount of $5, leaving “balance on estate, nothing.” This settlement was approved and he was thereby discharged. In the meantime his only act as such guardian had been to have the land appraised at $5 and to sell it, at private sale, to Mr. Spies for the same amount.

This farce has its counterpart in the sale of the same land for $5 by the administrator to one of the appraisers. Such proceedings, however, having for their object the perversion of the processes of law to improper purposes, have sopaetim.es been perpetrated with such skill and attention to prescribed formalities as to afford to purchasers who have not participated in or had knowledge, express or by legal implication, of their wrongful character, the foundation upon which to establish unassailable titles; and the inquiry _ arises as to whether or not such a result has been secured in this case. This suit was instituted after the passage of the Act' of March 15, 1897, entitled “An act to enlarge the jurisdiction of courts of record in suits to determine and quiet the title to real estate.” [Laws 1897, p. 74; R. S. 1899, sec. 650.] It provides as follows:

“Section 1. Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain.and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree tbe title, estate and interest of tbe parties severally in and to sucb real property.”

Section five declares tbe act to be remedial in its character, and that it takes tbe place of statutes which bad failed in their object; so that it is only obeying tbe express intention .of tbe Legislature to give it sucb interpretation as will aid in tbe accomplishment of tbe purposes of its enactment. _ It also provides that tbe proceedings in sucb cases shall conform in all respects to the provisions of tbe existing civil code.

Tbe petition avers title in fee in tbe plaintiff, and that tbe defendant Johnson claims title under certain proceedings wbicb are distinctly alleged to be void at law, and if not, to be voidable in equity. It asks tbe court “to adjudge and decree plaintiff and said Hattie and William Fletcher to have title in fee to said land, and to further adjudge and decree that defendant has no title or interest whatever in said land or any part thereof, except tbe dower interest of Martha A. Fletcher, widow as aforesaid.” These allegations and tbe prayer for relief quoted, seem to include everything required by tbe Act of 1897, and they lose nothing, in this respect, by combination with statements of legal conclusions and demands for relief not appropriate to that act, wbicb is, by its terms, applicable to legal and equitable titles. Tbe Code provides (R. S. 1909, sec. 1800) that tbe defendant may demur for tbe .causes, among others, that there is a defect of parties plaintiff or defendant, or that several causes of action have been improperly united. It also provides that “if no sucb objection be taken, either by demurrer or answer, tbe defendant shall be deemed to have waived tbe same.” This court has accordingly held, with great uniformity, that, with the exception wbicb it makes of tbe two cardinal defects of failure to state a cause of action and lack of jurisdiction in tbe court, all defects in the petition are waived whenever, in the evolution of a lawsuit, the case has advanced to the stage of issue joined upon the facts. [White v. Railroad, 202 Mo. 539; Hendricks v. Calloway, 211 Mo. 536; Stone v. Perkins, 217 Mo. 586.] This case having, without objection, reached and passed that restful stage to final judgment, it only remains to determine whether any cause of action stated in the petition against any defendant, has been sustained.

II. It being admitted that Lot Fletcher is the common source of title and that his title descended to his heirs and remains in them, unless it has been divested by certain proceedings which occurred after his death, the validity and effect of those proceedings constitute the real subject of injury upon this appeal.

It is first asserted that the land was sold and conveyed for the payment of the debts which Fletcher owed at the time of his death. If - this was lawfully done the title of the heirs, and consequently that of the plaintiff who claims under three of them, was thereby divested.

The statute under which the proceeding relied on was taken (E. S. 1909, sec. 152) provides that whenever a petition for the sale of real estate for the payment of the debts of a decedent shall be filed in the probate court, it shall order that all persons interested in the estate be notified thereof, and that “unless the contrary be shown on the first day of the next term of the court, an order will be made for the sale of the whole or so much of such real estate as will pay the debts of the deceased.” The court made this order, and directed that the notice be served by the publication of a copy of the order in a newspaper. The statute went further, and provided that it should not only be so published, but “that in all cases where such administration is had, there shall be personal service of the notice required by this section on such heirs or devisees,” and that upon proof of publication and service of notice as above provided, the court shall hear the testimony and may make an order for the sale of the real estate. No discrimination is made between the two classes of notice. The expression of one is as mandatory as the expression of' the other, and the service of one is made as necessary to the jurisdiction as service of the other. [Thompson v. Pinnell, 237 Mo. 545.] Upon the return of the order the court actually made the inquiry required by the statute and recorded its finding that the notice had been published in a newspaper according to the terms of its order, but made no finding or statement that any other notice had been given. There is no denial of the fact that at the date of the death of the father and the appointment of the administrator his six children were “residents of the county” where the administration was had, and that they continued to be so during all the time to which this inquiry relates. The law required this residence to be a matter of record in the court where these proceedings were had. [R. S. 1909, sec. 22.] The same court had also taken, in 1903, jurisdiction of their estate, and held it during all the time these various attempts were being made to strip them of it. This required a further record of their residence (Id., sec. 405), so that the court was, at all times, judicially informed of that fact. Its finding as to the manner of service is not aided or supplemented by any process, return or other paper in its files, and no attempt is made to dispute the oral evidence that no such service was had. Reliance is placed alone on a presumption that the court would not have acted without the “proof” of notice which the statute expressly requires as a condition precedent to its action. In other words, it is contended that, although the court had no jurisdiction to proceed to the trial of the issue before it without notice to the parties to be bound by it, yet it might obtain such jurisdiction by proceeding to the trial of the merits of the controversy without having given the notice. It is unnecessary to determine how far this presumption of jurisdiction of the person extends in proceedings of this character where it is founded solely upon the silence of a court which can only speak through its records. Such is not the case here. The court has tried the statutory issue of notice, and has entered that fact and its finding upon that issue in its records, in which all mention of personal service is omitted. We cannot, for the purpose of paving the way for the disregard, by the courts, of safeguards provided by the statute, extend this finding to jurisdictional matters to which it does not refer. The order of sale was, for reasons we have stated, void.

III. The statute in force at the time the proceeding for the sale of this land was had, required that the administrator, at the next term of the court after the sale, make a full report of his proceedings, to he “verified by affidavit stating that he did not directly or indirectly purchase such real estate or any part thereof, or any interest therein, and that he is not' interested in the property sold, except as stated in said report” (E. S. 1899, sec. 167), and that (Id., sec. 168) “if such report and proceedings .of the executor or administrator be not approved by the court his proceedings' shall be void.” The Legislature has not left it to the courts to determine the effect of a neglect of these proceedings. If they are not present, the report and its approval, we have only to obey the legislative mandate, and pronounce the proceedings void. It is true that section 171 provides that if “any executor or administrator .shall remove from the State, resign or die, or his letters be revoked after the sale of any real estate, and before executing any deed therefor, the purchaser, his heirs, assigns or grantees, may petition the court, stating the facts; and if he satisfy the court that the purchase money has been paid, the court shall order the executor or administrator then acting, or, if after final settlement, the sheriff of said county, to execute and acknowledge to the purchaser, his heirs, assigns or grantees a deed, referring to the petition and order of the court with such other recitals as provided by section 173, which deed shall be executed accordingly, and shall have the effect to all intents and purposes as if made by the executor or administrator who made the sale,” but there is nothing in this section which authorizes the executor or administrator de bonis non, or the sheriff, to do anything more than to execute a deed. He is only authorized to do this upon petition of the purchaser or his representative in title, which must be referred to in the deed. These requisites are entirely lacking, and for this reason alone, the deed would be void on its face. The report can only be made by the executor or administrator who made the sale, and whose mind is the only available repository of the facts which must be stated in it on oath, and it must be recited by the executor or administrator de bonis non, or sheriff, as the case may be, in the deed authorized by the section quoted.

IV. We have carefully examined the brief of respondent, and fail to find in it any claim based upon the guardian’s deed in the case, or excuse for any one connected with the perpetration of that transaction. The record shows that the land was not sold for any purpose authorized by law; that the curator was appointed. solely for the purpose of divesting the Fletcher children of whatever title or interest they had in the land in suit; that to do this was his only act as curator; that having done it he appropriated the entire estate of his wards as an insignificant contribution to the cost, and retired without having had the effrontery to ask the court to approve the “sale,” and1 that no order of approval was entered. This proceeding has no tendency to strengthen the respondent’s title.

V. While the farce described in the last paragraph was still being acted in the New Madrid Probate Court, Mr. Spies was not otherwise idle. Claiming to be the owner of the two notes secured by the deed of trust from Lot Fletcher and wife to Louis W. Mott, trustee for Beardsley, he requested the trustee to foreclose by sale under the power contained in the deed. Mr. Mott refused. -The sheriff then, as the substitute named in the deed, sold the land, at the request of Mr. Spies, who became the purchaser. The trustee’s deed executed by the sheriff in pursuance of this sale contains all the recitals called for by the terms of the deed of trust under which it was made, including the recitals that Mr. Spies had become the holder and legal owner of both the notes, and that default had been made in the payment of both. The question whether this sale and conveyance had the effect of transferring the legal title to the purchaser is, perhaps, the most difficult one in this case.

The issues both of law and fact were tried together by the court without the intervention of a jury, and its only finding is a general one for the defendants. It was asserted by the plaintiff in the trial that both the notes secured by the Beardsley deed of trust had been paid before the trustee’s sale to which we have just referred, but there is nothing in the record which directly or necessarily indicates that the court considered that question; while, in the view we have taken, it has assumed a position of first importance. Under these circumstances we are not called upon, even were this srich an action as is described in section 1968, Revised Statutes 1909, as one for the recovery of money only, or of specific real or personal property, to presume that the court found upon that particular issue against the appellant, unless it had before it substantial evidence upon whicb it might reasonably so find. We do not decide that this is such a case or such a question as is required by the code to be tried by a jury. We do not consider it necessary to make any inquiry upon that point, but will assume, for the purposes of this case that the rule applicable is as we have stated it.

There is nothing better settled in this State than the reasonable doctrine that a mortgage, though in form a conveyance of the legal estate, is in substance only a pledge of the land for the mortgage debt. In upholding this doctrine (Benton Land Company v. Zeitler, 182 Mo. 251) this court quoted with approval (Id., 273) from Perry on Trusts [5 Ed.], vol. 2, sec. 602i, as follows: “Performance of the conditions of the deed on the part of the grantor, or tender of performance before the sale, will defeat the power of sale in a mortgage or deed of trust. Such performance or tender extinguishes the power; and a sale after wards under the power, even to an innocent purchaser will be void.” This doctrine only enforces to the letter the terms of the defeasance of the most of these instruments, which provide, like the one we are now considering, that upon the performance of the condition the deed shall be void. Chancellor Kent (4'Kent’s Com., 194, note) recognizing the state of the law in this country on the subject said: “I am persuaded that most of the courts of law in this country would not now tolerate a claim of title under a mortgage admitted or shown to have been fully and fairly satisfied by the payment of the debt.” The plaintiff claimed that the notes were paid by Spies in pursuance of a contract with Harvey Fletcher, the administrator of Lot Fletscher’s estate, by which the latter had sold him some timber belonging to the estate, and the payment of the notes was assumed as a part of the consideration. The terms of this contract therefore became an important issue in the trial. The theory of plaintiff, as stated above, was strongly supported by his evidence. Mr. Spies, against plaintiff’s objection, made on the ground that the other party to the transaction was dead, admitted that he paid off the note first due in this transaction, but denied that the contract required him to pay the other one. As to this, he testified indiscriminately that he “took it up,” and “paid it,” and “bought it,” as those different forms of expression were respectively suggested to him by the defendants’ attorney who examined him in chief. It makes no difference how far he may have been competent or incompetent to speak to this issue if the transaction as defendant has proved it speaks for itself. Its voice must control us in this inquiry.

It was proved by the defendant, and is necessarily admitted as a part of his case that both those notes were transferred before maturity by Beardsley, who lived at Morley, Scott county, Missouri, to the Scott County Bank of that city. The one first due -was collected by that bank through the City National Bank of Cairo, being paid by Mr. Spies. The other note, which is the bone of contention in this case, remained the property of the Scott County Bank. There is niching suggestive of any process by which it could be deprived of that ownership without its consent or knowledge. The note itself,- bearing its written indorsement, was present in court at the trial and, in connection with the testimony of Mr. J. J. Hunter, the cashier of its owner, who was introduced by defendant for that purpose, tells its subsequent history. It was indorsed by the Scott County Bank to Lee Hunter, cashier, or order, for collection. Lee Hunter was cashier of. the People’s Bank of New Madrid, where the maker had resided in 'his lifetime. This indorsement, as copied in the record, reads by Lee Hunter instead of pay Lee Hunter; but it is evidently a mistake which, like the ones which immediately follow it, in which “Beardsley” is written “Beardsless,” and the many others with which this record abounds, results from the abandonment to stenographers and printers of the duty which lawyers assume by their retainer, to present their cases properly to the courts. In this instance, however, it only complicates the duty of the court, for were every word of this indorsement eliminated excepting only the words “for collection” and the signature of the bank, it would be equally destructive of the negotiability of the note; and would have no other effect than to constitute the indorsee and those taking it through the indorsement until the restriction should be removed by the owner, its agents for the purpose stated in the indorsement. On this point Mr. Justice Miller, in Sweeny v. Easter, 1 Wall. 166, 173, said: “The words ‘for collection’ evidently had a meaning. That meaning was intended to limit the effect which would have been given to the indorsement without them, and warned the party that, contrary to the purpose of a general or blank indorsement, this was not intended to transfer the ownership;” and on page 174 he said: “The indorsement in the present case was not intended to give currency or circulation to the paper. Its effect was just the reverse. It prevented the further circulation of the paper, and its effect was limited to' an authority to collect it.” This same doctrine has been frequently asserted in this State. [Northwestern National Bank v. Bank of Commerce, 107 Mo. 402; Mechanics Bank v. Valley Packing Co., 70 Mo. 643, 4 Mo. App. 200.]

Mr. Justice Story, in Kelly v. Jackson, 6 Pet. 632, has in his own lucid way given us a definition of the term “prima-facie evidence” when applied to conditions like these. He said: “In a legal sense,, then, such prima-facie evidence, in the absence of all controlling evidence, or discrediting circumstances, becomes conclusive of the fact; that is, it should operate upon the minds of the jury as decisive to found their verdict as to the fact.” In this case the statement of the quasi trustee in his deed, that Mr. Spies had, before the 24th day of June, 1895, become the holder and legal owner of the note in question, and that it remained unpaid, is the prima-facie evidence relied on to establish those facts. It includes, as a grammatically inseparable part, the assertion that he was the holder and legal owner of both notes, and that both were unpaid, which is confessedly untrue. This is a “discrediting circumstance,” because it shows that the sheriff recklessly made the statement in disregard of the rights of the debtor whom it was his duty to protect in all reasonable ways, or, that having investigated, he had been deceived. We will, however, dismiss this question with the remark that the trustee whose mere statement is to constitute the evidence upon which one of his beneficiaries is to be deprived of his property, should make some effort to fortify himself with the truth. The evidence being, by the terms of the statute as well as of the deed, only prima-facie in its force, we will pass to the “controlling evidence” of its truth or falsity.

Recognizing that evidence to sustain the recital of the trustee as to the ownership of the note and the existing default in its payment, was called for, the defendant, as we have already said, introduced the note and indorsements showing that the Scott County Bank was its owner, and had sent it out for collection with its negotiability destroyed. He then introduced the cashier of that bank, who testified that the note was paid and the money returned to the bank through the correspondent to whom it had been indorsed and sent for that purpose.

This was the case with which the defendant went to the court upon the issue of the payment of the note before the sale. There was no disputed fact necessary to be considered. The issue was one of law, and our conclusion is, that notwithstanding the recitals of the trustee’s deed, Mr. Spies was never the owner of the note in question, and that it had been paid to the true owner before the sale, and that for this reason no title was conveyed by the deed made by the trustee in pursuance of such sale, and that the defendant Johnson, even were he an innocent purchaser, without notice of the infirmity, would take nothing by reason of it. He does not, however, stand in the position of an innocent purchaser. The record of his own title papers was before him. Pie was himself an abstractor of titles, and would naturally feel interested in knowing why the land that he and his partner were paying a thousand dollars for had been sold to their grantor four years before in foreclosure of a deed of trust which constituted a first lien upon it, for seventeen dollars and fifty cents. Looking at this deed he would have found the recital that the trustee, whose duty it was to make the sale upon the occurrence of a default, if requested by the cestui que trust, and to apply the proceeds on the debt (Land Co. v. Zeitler, 182 Mo. 251, 272), had refused such a request by his grantor who, two months after the trustee’s sale, had accepted a guardian’s deed for the same land, reciting that the deed of trust was still in force for four hundred dollars. These circumstances would seem to be sufficient to put a sane man upon inquiry as to their true meaning.

It follows from what we have already said, that notwithstanding the several deeds and proceedings under which the defendant Johnson claims, the legal title to the lands in controversy remained in the heirs of Lot Fletcher; that by the deed of October 15, 1903, .the plaintiff acquired all the title and interest of Ruth L. Flowers, Mattie L. Keene and Ida B. Keene as such heirs, and as heirs of their deceased sister, Ivy Pearl Cobb, and is entitled to maintain this suit to have the title and interest of the respective parties ascertained, declared and adjudged by the court. The judgment of the New Madrid Circuit Court is accordingly reversed, and the canse remanded to that court for further proceedings in accordance with this opinion, with permission to the plaintiff to amend his petition and to make new. parties thereto if he shall be so advised.

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

All the judges concur.

ON MOTION FOR REHEARING.

PER CURIAM.

The respondent, on motion for rehearing has cited the following cases decided by this court, to which it had not previously directed our attention : Curtis v. Moore, 162 Mo. 442; Smith v. Boyd, 162 Mo. 146; and Adams v. Carpenter, 187 Mo. 613. Upon the authority of these cases it is insisted that we were in error in our approval of the doctrine stated by this court in the later case of Benton Land Company v. Zeitler, 182 Mo. 251, in a quotation from Perry on Trusts as follows: “Performance of the conditions of the deed on the part of the grantor, or tender of performance before the sale, will defeat the power of sale in a mortgage or deed of trust. Such performance or tender extinguishes the power; and a sale afterwards under the power, even to an innocent purchaser, will be void.” Although we held in this case that no innocent purchaser had intervened, yet the fact that in Smith v. Boyd, supra, this court, speaking through Marshall, J., held that a sale and conveyance under a deed of trust which had been paid but not satisfied of record was sufficient to give a good title to one not charged with notice of such, payment, makes it proper that this case should not be finally disposed of without reference to that authority. It was placed on the ground that the policy of the registry law is that the title and all that affects it, should be disclosed b] the public records and that a purchaser will be protected against unrecorded conveyances, outstanding equities, secret liens and conditions of wbicb he bad no notice. [Id., p. 154.]

While the Legislature evidently bad tbis theory before it in tbe enactment of' tbe recording laws, and expressly provided in case of deeds that “no sucb instrument in writing shall be valid, except between tbe parties thereto, and sucb as have actual notice thereof, until tbe same shall be deposited with tbe recorder for record” (R. S. 1909, sec. 2811), it declined to apply it to tbe satisfaction upon tbe records of mortgages and deeds of trust. On tbe other band, as was said by tbis court in McNair v. Picotte, 33 Mo. 57, 71, it provided that “tbe failure to enter satisfaction on tbe margin of tbe record of tbe mortgages might subject tbe mortgagees, to penalties but has no effect to keep tbe mortgages in existence; it was only a failure to supply convenient evidence of a fact accomplished.” Tbe learned judge who delivered tbe opinion of tbe court in Smith v. Boyd, supra, did not notice tbe McNair case. Although be cited Pease, v. Iron Co., 49 Mo. 124, in wbicb tbe doctrine contrary to bis opinion was directly and emphatically stated and Hagerman v. Sutton, 91 Mo. l. c. 531, in wbicb we said, “But for tbe note tbe mortgage never would have existed; it owes its birth and being to tbe note and ceases to exist when tbe latter is discharged,” be does not seem to have noticed their bearing upon tbe case before him. Since tbe decisions in Smith v. Boyd tbe court seems to have been as emphatic in its adherence to tbe old doctrine as it bad been before, as appears in Land Company v. Zeitler, 182 Mo. 251, cited in tbe opinion in this case, as well as from tbe later case of Adams v. Carpenter, 187 Mo. 613, in wbicb we said through Burgess, J., who delivered tbe opinion of tbe court (p. 636), that if tbe note secured bad been paid before tbe trustees’ sale, tbe sale would have been void. We see no reason to depart from what we consider tbe just and salutary doctrine of these decisions, and so far as the contrary doctrine is stated in Smith v. Boyd, supra, and tacitly recognized in Curtis v. Moore, supra, those cases are disapproved. We see no reason why our former judgment should be modified as ashed in the motion for a rehearing. The motion is overruled.


author: PER CURIAM.

text:
    THE STATE v. WILLIAM and MARTHA WOODSON, Appellants.
    Division Two,
    March 18, 1913.
    1. APPELLATE JURISDICTION: Criminal Cases. In criminal cases the appellate jurisdiction of the Supreme Court is governed hy the grade of the offense and is limited to felonies.
    2.--: -: Felony: Misdemeanor. The term “felony” under the code means any offense for which the offender, on conviction, shall he liable to punishment by death or imprisonment in the penitentiary. The term “misdemeanor” includes every offense punishable only by fine or imprisonment in the county jail, or both.
    3. -: -: -: Not So Designated In Statute. Where no classification of the offense is made other than the fixing of the penalty, a felony is an offense for which the accused may he imprisoned in the penitentiary, although the jury may, if authorized by statute, inflict punishment by fine or imprisonment in the county jail, or both, and such fine or imprisonment does not deprive the Supreme Court of appellate jurisdiction. But where the statute has classified offenses other than by fixing the penalty, and has prescribed that under a charge of a felony the accused may he convicted of a misdemeanor, the courts of appeals have appellate jurisdiction. [Overruling State v. McMahill, 214 Mo. 310; State v. Wilson, 230 Mo. 647; State v. Wilson, 140 Mo. App. 726; State v. McGovern, 159 Mo. App. 134.]
    4. -: Receiving Stolen Property. Where defendants were charged with having knowingly received personal property of the value of $37 and upon conviction their punishment was assessed at a fine of $100, the Court of Appeals, and not the Supreme Court, has jurisdiction over their appeal. The offense charged belongs to that class of offenses in which misdemeanors are included in the charge of felonies.

      Appeal from Lafayette Criminal Court. — Hon. John A. Rich, Judge.
    Transferred to Kansas City Court of Appeals.

      Clarence Vivion and Chiles Chiles for appellants.

      John T. Barker, Attorney-General and Thomas J. Higgs, Assistant Attorney-General, for the State.
   ON MOTION TO RE-TRANSPER TO KANSAS CITY COURT OP APPEALS.

PER CURIAM.

The. defendants were jointly charged with having knowingly received stolen property aggregating the value of $37, under section 4554, Revised Statutes 1909. Upon a trial they were convicted in the circuit court of _ Lafayette county and their punishment assessed at a fine of $100.

They appealed to the Kansas City Court of Appeals, which court transferred the case here on the ground that the information charged a felony and hence the court did not have jurisdiction.

The attorney-general now moves to re-transfer the case to the Kansas City Court of Appeals for the reason that this court has no jurisdiction, because the conviction was for a misdemeanor.

A review of the statutory provisions and the authorities of our court on the subject of jurisdiction in cases' of this character, is not improper in this connection.

In criminal cases the appellate jurisdiction of this court is governed by the grade of the offense and is limited to felonies. [Article 6, section 12, Constitution, and section 5 of the Amendment of 1884 thereto; State v. Zinn, 141 Mo. 329, 333.]

The term “felony” under our code means any offense for which the offender, on conviction, shall be liable to be punished with death or imprisonment in the penitentiary. [Sec. 4923, R. S. 1909.]

The term “misdemeanor” includes “every offense punishable only by fine or imprisonment in a county jail, or both.” [Sec. 4925, R. S. 1909.]

The well known meaning of these terms would render reference thereto unnecessary except to present an orderly statement of the law in regard to the matters under consideration. In a long line of decisions beginning with Johnston v. State, 7 Mo. 183, it has been held by this court where no classification is made of the offense other than'the fixing of the penalty, that a felony is an offense for which the accused may be imprisoned in the penitentiary, although the jury may, if authorized by statute, inflict punishment by fine or imprisonment in a county jail, or both, and that such finding does not deprive this court of appellate jurisdiction. [State v. Melton, 117 Mo. 618; Id., 53 Mo. App. 646; State ex rel. v. Foster, 187 Mo. 590, 603; State v. Herrick, 158 Mo. App. 487.]

But where the statute has classified offenses other than by fixing the penalty and has prescribed that under a charge of a felony the accused may be convicted of a misdemeanor, as in felonious assaults where the punishment may be for a common assault (Sec. 4904, R. S. 1909), and in grand larceny where the punishment may be for-petit larceny (Sec. 4549, R. S. 1909), the courts of appeals have appellate jurisdiction. [State v. White, 109 Mo. 223; State v. Saye, 109 Mo. 224; State v. Wilson, 126 Mo. App. 302, 306; State v. Amos, 165 Mo. App. 213.]

Cases are to be found in our reports (State v. McMahill, 214 Mo. 310; State v. Wilson, 230 Mo. 647; Id., 140 Mo. App. 726; State v. McGovern, 159 Mo. App. 134), which announce a contrary rule in regard to appellate jurisdiction in criminal cases, but in view of the express terms of the statutes referred to, which authorize convictions of lesser offenses when involved in and necessarily proved in the introduction of the evidence in regard to greater offenses, we are of the opinion these cases do not correctly declare the law, and are, therefore, overruled.

The offense charged in the case at bar is in its nature accessorial to that of larceny; its kinship to larceny is shown by the statute which prescribes the punishment for its commission the same as for a like grade of larceny (sec. 4554, supra); for example, if stolen property of the value of $30 or more is alleged to have been knowingly received, as in the ease before us, and it is shown upon the trial that the property is of less value than $30, the defendant may be convicted of a misdemeanor. Thus it will be seen that the offense here charged belongs properly to the class of cases in which misdemeanors are included in the charge of felonies, and hence within the appellate jurisdiction of the Court of Appeals. We find this conclusion sustained by our Supreme Court in State v. Greenspan, 137 Mo. 149, which is as nearly on all-fours with the case at bar as one case can be with another. The conclusion from the foregoing is that this case should be transferred to the Court of Appeals, there to be heard and determined, and it is so ordered. ‘


author: EOY, C.

text:
    THE STATE v. SIDNEY SYKES, Appellant.
    Division Two,
    March 18, 1913.
    1. INSTRUCTIONS: Alibi. The failure of the trial court to instruct on the defense of alibi is not error warranting reversal where the court’s attention was not called to the propriety of such an instruction.
    2. -: Reasonable Doubt: Unintelligible Statements. It is not error either to give or to refuse to give, in a criminal case, the usual instruction on reasonable doubt, i. e., that it is “a substantial doubt . . . and not a mere possibility of the defendant’s innocence,” and where it is given it is not error to refuse another asked by the defendant upon the same point which is unintelligible.
    3. EVIDENCE: Young Children. Held, that the testimony of two children, who were seven and nine years old, was properly admitted by the trial court in this prosecution for rape.
    4. INSTRUCTIONS: On Point Covered by Others. It is not error in a criminal trial to refuse to give an instruction asked • by defendant upon a point which has already been fully covered by an instruction given by the court.
    5. -: Rape: Attempt: Evidence. Where the evidence for the State in a prosecution for rape showed the actual commission of the crime, and there was no evidence tending to show an unsuccessful attempt, an instruction on attempted rape was properly refused.
    6. RAPE: Evidence: Appeal. The evidence in this prosecution for rape is held to be sufficient to support the verdict of guilty.
    'Appeal from St. Louis County Circuit Court- — Hon. G. A. Wur deman, Judge.
    Abitbmed.

      Zach. J. Mitchell for appellant.

      Elliott W. Major, Attorney-General, and Charles G. Bevelle, Assistant Attorney-General, for the State.
   EOY, C.

Defendant was convicted of raping Eita Washington, a girl nine years old, and was sentenced to twenty years in the penitentiary. Both parties are negroes. The child lived in St. Louis, but spent the slimmer with her grandparents, Eiehard Lewis and wife, at Florissant. The Lewis home had two rooms on the ground floor and one upstairs. Lewis had three sons, two of whom slept at home and worked around in the vicinity. A boy, Bichard Jones, seven years old was staying there. Lewis and the defendant had been cutting corn, working in the same fields. Both testified that the defendant quit cutting corn because he was not able to continue doing so. Lewis did not state what defendant’s ailment was. Defendant said he quit because the cutting made his arm sore. On September 14, 1910, Lewis and his wife left home early, he to cut corn, and she to wash at the house of a family in the vicinity. Lewis testified that he told the defendant to stay at home and take care of the children. Defendant - on the stand denied that statement.

Defendant testified that a few minutes after Lewis and wife left, he got breakfast and left, and that the two children were the only ones left at home. He testified that he went to Florissant and spent the whole day with John Pope in the shed near a saloon, can-ning’ beer, playing cards and shooting craps, occasionally going into the saloon for beer. He stated on the stand that he went back to Lewis’s- about six-thirty or seven o’clock and that Lewis was then at home.

The stenographer’s notes of his evidence on a previous trial were read in evidence showing that he said on the former trial that he left the saloon about three-thirty in the afternoon.

The prosecutrix testified to facts indicating that defendant ravished her forcibly and against her will. She was not able to tell at what time in the day it occurred. She said nothing to anyone until about September 24th, when it developed that she was horribly afflicted with gonorrhoea, as shown by the evidence of the physician who examined her, and of others. She then told that the defendant had mistreated-her.

Defendant continued to sleep at Lewis’s until he was arrested. On the first trial defendant was convicted, but the verdict was set aside for some error in the proceedings. Defendant testified that he left the saloon in the evening in company with John' Pope, John Lewis, Bud Cordell and Tucker Creen. None of them testified.

There was no evidence as to whether the defendant had a venereal disease.

The boy, Richard Jones, corroborated the prosecutrix as to the commission of the offense. Objection was made at the trial to allowing the prosecutrix and Richard Jones to testify, for the reason that they were too young. The objection was overruled.

The mother of the prosecutrix was present at the trial, but was not put on the witness stand by the State, nor were the three uncles of prosecutrix. The grandmother was dead at the time of the trial.

The court did not instruct on the subject of an alibi, but with that exception it instructed on all the law of the case, including the subjects of the presumption of innocence, reasonable doubt and good character. By an instruction, reasonable doubt was defined as follows:

“Reasonable doubt as used in these instructions, to entitle the defendant to an acquittal on that ground, means a substantial doubt arising in your minds upon careful consideration of all the facts and circumstances proven in the case and not a mere possibility of the defendant’s innocence.”

' The court also gave this instruction:

“The mere fact that the said Rita Washington was in a physical condition that indicated that she had been criminally assaulted, if you so find, from the evidence, is not itself sufficient to warrant you in finding that such condition was the result of an assault upon her by the defendant, and the burden of proving that the assault was made upon her by the .defendant is upon the State and such proof must be made to your satisfaction beyond a reasonable doubt, as heretofore in these instructions defined.”

Among the instructions was the standard one as to the credibility of the witnesses, which did not call attention to any particular witness.

The trial court’s attention was not called to the question of an instruction on an alibi either at the trial or in the motion for a new trial.

The defendant asked the following instructions which were refused:

“The mere fact that the said Rita Washington was criminally assaulted, if you so find from the evidence, is not of itself sufficient to warrant you in finding that her condition was the result of an assault upon her by the defendant, and the burden of proving that the assault was made upon her by the defendant is upon the State and such proof must be made to your satisfaction beyond a reasonable doubt, as heretofore in these instructions defined, then you are bound to presume that the said Rita’s condition w'as from other source or cause, no matter whether the evidence shows what the source or cause was or not.”
“The defendant’s, guilt must be established beyond a reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists, that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt, unless he be so convinced by the evidence, no matter what the class of evidence, of the defendant’s guilt, that a prudent man would feel safe .to act upon that conviction in matters of the highest concern and importance to his own dearest personal interest.”

I. The failure to instruct on an alibi is not in this case reversible error. The court’s attention was no^ oa^e(^ propriety of such an instruction either at the trial or in the motion for a new trial. [State v. Dockery, 243 Mo. 592, l. c. 599.]

II. We appreciate the point made "by the defendant as to the definition of reasonable doubt. We think that such definition should not be used. It has been both condemned and commended by this court. Appellants sometimes ask for a reversal because such definition was not made. On the contrary, sometimes, as in this case, they ask for a reversal because it is made. It was said by Sherwood, J., in State v. Robinson, 117 Mo. l. c. 661: “It is difficult to explain simple terms like ‘reasonable doubt’ so as to make them plainer. Every attempt to explain them renders an explanation of the explanation necessary.”

The instruction in the form given in this case was approved by Gantt, J., in State v. Nerzinger, 220 Mo. l. c. 49, as follows: “As said in State v. Leeper, 78 Mo. 470, its use in this form is almost canonized, and this court has often admonished the circuit courts that it is better to adhere to instructions that have received the approval of this court and not attempt definitions which add nothing to the meaning of well understood terms.”

It is not reversible error to give or refuse such a definition. The instruction on reasonable doubt asked by the defendant and refused by the court was properly refused. We can clearly understand the first sentence in it, viz.: “The defendant’s guilt must be established beyond a reasonable doubt.” The remainder of the instruction is unintelligible to us.

III. It was not error to admit the evidence of the prosecutrix and of Richard Jones over the objection that they were too young. We have not set out their evidence at length, but we have examined it to. assure ourselves on that point. The little boy appears to be rather unusually intelligent for one of his race, age and opportunity. The little girl in many respects showed dullness by her testimony. But we are satisfied that the trial court exercised a sound discretion in overruling the objection. In the case of State v. Headley, 224 Mo. 177, the prosecutrix was only five years old and the principal other witness was seven. In that case, as in this, there was.no doubt that somebody committed the offense. The admission of the evidence of the children was sustained.

IV.The instruction as to the consideration tó be given to the fact that Bita Washington had been assaulted, if such were the fact, which was asked by defendant and refused by the court was supplied by the instruction given by the court on the same subject. The given instruction was drawn so as to fully protect the rights of the defendant.

V.Appellant makes the point that the court should have instructed on the subject of an attempt to rape. The evidence for the State showed the actual commission of the crime.' There is no evidence tending to show an unsuccessful attempt. Under such circumstances the instruction was properly refused. [State v. McCaffery, 225 Mo. l. c. 623, and cases cited.]

VI.Appellant contends that there is no evidence to support the verdict of the jury and calls attention to the fact that the uncles of the prosecutrix who lived at the same house did not testify, and the inference was suggested that their guilt prevented them from being put on the stand. That suggestion is .not entirely without foundation. We have not overlooked the fact that defendant continued to sleep at Lewis’s house until he was arrested. That fact tended to show innocence. The uncles also remained there. They were equal in that respect. It is difficult to convict people who are innocent — sometimes difficult to convict those who are guilty, but rape, seduction and incest are crimes which stand in a class by themselves. Convictions for these crimes are often procured through perjury — perjury committed to shield the character of the prosecutrix or some one else. We have, therefore, examined the evidence in this case with unusual care; but have not found anything therein which raises substantial doubt in our minds of the correctness of the verdict of the jury. The judgment of the trial court is, therefore, affirmed.

Williams, G., concurs.

PEE CTJEIAM. — The' foregoing opinion of Roy, C., was modified by the court and as modified is adopted as the opinion of the court.

All the judges concur.