author: BROWN, C. PER CURIAM. GEAYES, J.

text:
    HUBERT M. HARVEY, Appellant, v. JAMES LONG.
    In Banc,
    July 2, 1914.
    1. SUIT IN EQUITY: Findings of Fact: Appeal. Where the pleadings are purely equitable and frame no issues'of fact to be tried by a jury, they must be tried by the court, and, it being the duty of the Supreme Court upon appeal in such case to examine the evidence and draw its own conclusions of fact as well as of law, a failure of the trial court to make special findings is not prejudicial error.
    2. DEED: Delivery: Husband and Wife: Husband Retaining Possession of Conveyance to Wife. A husband had conveyed certain of his lands to his wife. Afterward, being embarrassed financially, he thought he saw an opportunity to sell the tract he had conveyed to her, and he promised that if she would sell he would deed to her the land now in controversy. Her land was finally sold for $9600, of which sum about $2000 was applied to her use. Her husband then made and acknowledged a deed to the wife for the land he had promised her, and took the deed home, as she says, and read it to her, but she did not accept it because it wasn’t “just the way she thought it ought to be.” Two witnesses testified that afterward the husband told them he had conveyed the land to his wife. Immediately after the husband’s death a friend of the family, after a talk with the widow, pried open the deceased’s desk, took therefrom the deed and gave it to the widow, who had it recorded. She afterward sold and conveyed the land to the defendant and appropriated the purchase price to her own use. Her son brings suit against the defendant to quiet title. Held, that the defendant must prevail, the evidence showing a sufficient delivery of the deed to the wife. [GRAVES, J., dissents in a separate opinion, in which WOODSON and BOND, JJ., concur.]
    Appeal from Saline Circuit Court. — Hon. Samuel Davis, Judge.
    Aeeirmed.

      Hubert M. Harvey pro se; R. P. Spencer and Morton Jourdan for appellant.
    (1) Plaintiff’s request for written findings of fact and conclusions of law having been made at the close of the evidence and before judgment was improperly-refused. R. S. 1899, sec. 695; R. S. 1909, sec. 1971; German-Am. Ins. Co. v. Trimble, 86 Mo. App. 546; Bailey v. Emerson, 87 Mo. App. 220; Fahy v. Grocery Co., 57 Mo. App. 73. (2) The deed from plaintiff’s father, Hubert M. Harvey, Sr.,- to defendant’s grantor was never delivered. Huey v. Huey, 65 Mo. 689; Turner v. Carpenter, 83 Mo. 333; Tyler v. Hall, 106 Mo. 313; Mudd v. Dillon, 166 Mo. 110; McNear v. Williams, 166 Mo. 358; Maddox y. Gray, 75 Ga. 452; Hayes y. Boylan, 177 111. 409; Walls v. Ritter, 180 111. 616; Cook v. Brown, 34 N. H. 460; Fisher v. Hall, 41 N. Y. 416; Steffian v. Bank, 67 Tex. 513; Garner v. Risinger, 37 Tex. Civ. App. 378; Lang v. Smith, 37 W. Va. 725; Note to Brown v. Westerfield, 53 Am. St. 550. (3) The deed from plaintiff’s father to defendant’s grantor was of no effect because not delivered during the life of the grantor. Givens'v.' Ott, 222 Mo. 395; Dohman v. Schliel, 179 Mo. 593; Miller v. Physick, 24 Ark. 244; Fitzgerald v. Goff, 96 Ind. 28; Old v. Doty, 61 Iowa, 22; Taft v. Taft, 59 Mich. 785; Van Aueringer v. Morton, 4 Whart. 382. (4) When a deed, though acknowledged, is in the possession of the grantor there is a presumption of non-delivery. Miller v. Eshleman, 43 Leg. Int. (Pa.) 447; Burton v. Boyd, 7 Kan. 17; Hatch v. Hoskins, 17 Me. 391; Patterson v. Snell, 67 Me. 559; Powers v. Russell, 13 Pick. (Mass.) 69; Parrot v. Avery, 159 Mass. 594; Alexander v. De Kernel, 81 Ky. 345. The burden of proving delivery was on respondent, and appellant is not bound to prove non-delivery by evidence of equal dignity as the fact of acknowledgment. Tyler v. Hall, 106 Mo. 313; Burke v. Pence, 206 Mo. 339; Devony v. Koyne, 54 Mich. 118; Shattuck v.- Rogers, 44 Kan. 266. (5) The testimony as to admissions of plaintiff’s father is of little weight and cannot establish or destroy plaintiff’s title. Johnson v. Quarters, 46 Mo. 427; Kinney v. Murray, 170 Mo. 674; Williams v. Keef, 145 S. W. (Mo.) 425.

      Reynolds & James and Dug gins <& Dug gins for respondent.
    (1) It is immaterial that the trial court failed to make any written finding of the facts, as requested by the appellant. This is an equity case; the whole record is before this court. It fully appears therefrom that the appellant, the respondent and the court treated it as an equity suit. The last paragraph of appellant’s brief uses this language: “And as this is an equity case and all the evidence is in the record.” This court, in commenting upon the case of Blount v. Spratt, 113 Mo. 53, uses this language: “We then held and now hold, that, in equity cases, it is not only the privilege, but the duty of this court to examine the evidence and draw our own conclusions of fact as well as of law.” Milter v. McCaleb, 208 Mo. 575; Shaffer-v. Dotie, 191 Mo. 387; Fitzpatrick v. Weber, 168 Mo. 572; Patterson v. Patterson, 200 Mo. 340. (2) The deed from appellant’s ancestor, Hubert M. Harvey, deceased, to Mary B. Harvey, the appellant’s mother, was sufficie t to convey the equitable title to the real estate involved, to the said Mary B. Harvey, and upon the death of the said Hubert M. Harvey, the legal title to said land, immediately followed the equitable title, and likewise vested in said Mary B. Harvey. Christ v. Kuhner, 172 Mo. 118; Stark v. Kirchgraver, 186 Mo. 642. (3) The deed of said Mary B. Harvey to the respondent, James Long, conveyed to, and vested in him the full legal title to the land involved in this suit. (4) The question of delivery of the deed is generally one of intention of the parties and may be either actual or constructive. Burke v. Adams, 80 Mo. 504; Sneathen v. Sneathen, 104 Mo. 201; Crowder v. Searcy, 103 Mo. 97; Rumsey v. Otis, 133 Mo. 85; Hamilton v. Armstrong, 120 Mo. 597s Tobin v. Bass, 85 Mo. 654; Coulson v. Coulson, 180 Mo. 715; Standeford v. Standeford, 97 Mo; 231; Rodgers v. Carrey, 47 Mo. 235. A formal delivery is not essential, nor are expressed words necessary. 13 Cyc. 561; 5 Am. & Eng. Ency. Law (1 Ed.), 441. A manual delivery of a deed is not necessary; it being sufficient if it be apparent either from the words or acts of the grantor, that it was his intention to treat the deed as his, and to make a delivery of the same. Authorities above cited: Coulson v. Coulson, 180 Mo. 709. (5) Placing the deed with other papers of the grantor, after delivery to the grantee, coupled with the fact that it could not be found until after the death of the grantor, when it was discovered among his other papers, does not affect the prior delivery. Rumsey v. Otis, 133 Mo. 85; Allen v. Degroodt, 105 Mo. 442; Redd v. Smith, 125 Cal. 491. (6) The delivery may be inferred from a variety of circumstances. It may be inferred from the grantor’s acts or declaration made at the time or subsequently thereto; from attendant or subsequent events. 2 Jones on Real Property, sec. 1220. The delivery may also be presumed from the. fact that a deed, properly executed and acknowledged is placed upon record. R. S. 1899, secs. 932, 935, 3123; Burke v. Pence, 206 Mo. 339. The deed in question, in the case at bar, was duly signed, sealed, acknowledged and certified and recorded in tbe proper county, where the land was situated and thereby imported a delivery as of the date of the deed. Bunnell v. Bunnell, 64' S. W. 424. (7) Again, a delivery of said deed may be inferred from the fact that the grantee dealt with the property as her own, had control of the same, rented it out, collected the rent, mortgaged and sold the same. Land Co. v. Zeitler, 182 Mo. 282. (8) The delivery of said deed is presumed when made in pursuance to a former arrangement or contract, as it is presumed to have the grantee’s consent, without a formal delivery and acceptance. 2 J ones on Real Property, sec. 1280; 13 Cyc. 730; Allen v. De Groodt, 105 Mo. 442; Everett v. "Whitney, 55 Iowa, 146; Jones v. Swazze, 42 N. J. L. 279. (9) Again, a delivery is more readily presumed in transaction between husband and wife, on account of the relationship existing between the parties. In the case of Rumsey v. Otis, 133 Mo. 95, this court uses this language: “The fact that this deed was after-wards found in the possession of Merrill Otis (the husband), considering the relationship of husband and wife, did not rebut the presumption of delivery to her.” (10) Delivery is also presumed from the possession of the deed. In the case at bar, the said Mary B. Harvey, the respondent’s grantor, had possession of the deed, and full and complete possession of the land, for over ten years. 13 Cyc. 734; Land Co. v. Zeitler, 182 Mo. 282; Allen v. DeGroodt, 105 Mo. 442. (11) In this great business world we are compelled to rely to a great extent upon presumption. As was said in Gass v. Evans, 244 Mo. 343: “This because: The controlling maxims are: All things are presumed to be legitimately done, until it is proved to the contrary; all things are presumed to be done solemnly. ’ Chlanda v. Transit Co., 213 Mo. 261; 2 Coke, Litt. 6 B. What ought to be done is easily presumed. Those maxims evidence a rule of convenient public policy universally applied and without which great distress would spring in the affairs of men. They abide until facts proven to the contrary make them take flight. They apply with peculiar force to official acts. Hartwell v. Park, 240 Mo. 537.” Maien v. Brock, 222 Mo. 84. (12) Considering the facts in the record, and the law bearing thereon, as stated, the respondent, Long, has not only made a prima-faeie case of the delivery of the deed, in question, thereby procuring title from Hubert M. Harvey, the appellant’s father; .but has made a case from which there is no escape, for the appellant. All of the presumption arising from the law and from the facts as shown by the record in this case constitute such evidence as can only be overthrown by clear, countervailing evidence to the contrary. 2 Jones on Real Property, 1290; Burke v. Adams, 80 Mo. 512; Burke v. Pence, 206 Mo. 337; Elliott v. Shepard, 179 Mo. 392; Barrett v. Davis, 104 Mo. 549; "Webb v. Webb, 87 Mo. 540; Riecke v. Westerhoff, 10 Mo. App. 358; Morrison v. McKee, 11 Mo. App. 594.
   BROWN, C.

— Suit begun in Saline County Circuit Court August 12, 1908, to determine the title to a farm of one hundred seventy-odd acres of land in that county. The plaintiff is the son and sole heir of Hubert M. Harvey, who died at his residence in Chicago, Illinois, February 26,1895, intestate. He was about twenty-two years old when this suit was instituted. Both parties claim under the elder Harvey; the plaintiff as heir and the defendant as grantee in a deed from Mary B. Harvey, the widow of the deceased and mother of the plaintiff. She claimed title by a deed from her husband dated August 12,1893. The delivery of this deed is the principal issue in the case. The petition was a formal one framed upon section 650, Revised Statutes 1899.

The answer is very long. In addition to the general denial, it pleads, in substance: (1) That the defendant is in an innocent purchaser for value from Mrs. Harvey, having paid $10,875 for the land, and there being no reason to suspect any weakness in her title as shown of record, and believing it to be good. (2) That out of the purchase money he paid liens resulting from money borrowed by Mr. Harvey in his lifetime and secured by deeds of trust executed by himself and wife, as well as like incumbrances placed by Mrs. Harvey after his death. (3) That after Mr. Harvey’s death and in 1896 Mrs. Harvey had brought suit in the circuit court for Saline county against the plaintiff and John'L. Bolen, the administrator of the estate of Hubert M. Harvey, deceased, and obtained judgment vesting in her the legal title to the land. (4) That if the deed from Mr.-Harvey and his wife had not been delivered, it had fallen into the hands of Mrs. Harvey by the negligence of the grantor so that his heir is estopped from denying its complete execution. (5) That the deed from Harvey to his wife was made in pursuance of a contract then fully executed on her part whereby she had conveyed to him, or to another at his direction, her own farm of one hundred sixty acres, in consideration of his promise to convey to her the land in question. It asked equitable relief upon the facts so stated.

The reply, with considerable "detail, puts in issue the matter specially pleaded in the answer.

The question of the delivery of the deed grows out of the following facts which are not disputed. About eleven o’clock on the morning of Mr. Harvey’s death Mr. John L. Bolen, who had been a neighbor of the family in Missouri, and was the nearest business friend and adviser of Mrs. Harvey after the death of her husband, received a telephone message from the physician that Mr. Harvey had just died and asking him to come to the house. He went out there, where he met Mrs. Harvey and the doctor, and one or two neighbors. He talked with her about the Missouri land, and she told him about this deed. He said she should have it recorded. Pie went down to Mr. Harvey’s office, forced open his desk, not having a key, and got out all his private papers including the deed in question, and took them to Mrs. Harvey’s house; and at her instance sent the deed to Marshall, Missouri, for record.

The circumstances affecting the making of this deed as disclosed in evidence are as follows: Mr. Hubert M. Harvey was a lawyer who resided in Marshall, Saline county, Missouri. He owned two farms in that county, one of them the land involved in this suit, and the other 160 acres lying near it. In April, 1890, he determined to remove to Chicago. His wife did not want to go. She consented, however, but before going #she wanted him to deed her some land, and on April 19 he conveyed to her the 160-acre tract through one Burruss as a conduit of the title. He went to Chicago during the same month and she followed him in September of that year. Law practice did not come to him with alacrity in his new home. He undertook to speculate in real estate in north Chicago and ran behind in it. He lost some property by foreclosure and in the summer of 1892 desired very much to raise money. At that time he thought he saw an opportunity to sell Mrs. Harvey’s land and promised that If she would sell he would deed her the land in controversy. It was a slow sale and in July, 1892, he borrowed $7000 from J. P. Huston, he and his wife giving their note therefor secured by mortgage on both tracts of land. The note ran five years at seven per cent, interest. During that year he succeeded in negotiating a sale of Mrs. Harvey’s quarter section to one Blackburn, conveying to him on January 5, 1893, by warranty deed for $9600. Out qf this, after paying the Huston loan and interest and expenses he had a little, more than $2000. Of this $500 was given to Mrs. Harvey. He invested $1000 for her in stock which afterward proved to he worthless. The remainder was expended in repairing a house they had purchased on the south side, taking the title in Mrs. Plarvey’s name, and which she desired to be in condition to rent during the Columbian exposition, which she did, receiving $1500. as rental. This house was purchased after the return of Mrs. IParvey from a visit to Missouri in 1892, $2500 being paid on it. Where this money came from — whether from the sale of a house they had previously purchased in north Chicago or from the Huston loan or other funds — does not appear. It does appear, however, that this cleaning up did- not-put an end to Mr. Harvey’s financial necessities, the title to the remaining tract, the one now in controversy, being strewn with evidences of his need for money. She joined with him in a deed of trust given December 12, 1893, to secure the payment of their note for $2000 borrowed from George A'. Murrell, and also in a like deed dated April 12, 1894, to secure payment of his note for $382 borrowed from D. N. Burruss. These were unpaid at the time of his death. After his death Mrs. Harvey seems to have taken care of them. The note to Burruss was paid June 1, 1895, and on April 15, 1896, she made a deed of trust of this land to secure $2500 borrowed from Thomas R. Lawless and Mary J. Woodson and the Murrell note was then paid. This was satisfied in its turn from money realized from a loan of $3250 from John B. Henderson secured by deed of trust on the same land. This last mentioned deed of trust was also satisfied on May 15, 1903, out of the proceeds of a loan of $5000 from the Prudential Insurance Company of New Jersey, and this and a second mortgage for $1568.93 to the Farmers Savings Bank of Marshall, Missouri, made November 16, 1905, were satisfied by the defendant as a part of the purchase price of $10,875 paid Mrs. Harvey for the land.

Mrs. Harvey seems, after her husband's death, to have taken up the education of her boy. She kept a boarding house in Columbia for five years while he attended the Missouri State University, graduating from the law department just before the bringing of this suit.

In addition to the undisputed evidence that the deed in question was prepared by Mr. Harvey in pursuance of an agreement with his wife that he would convey the land' in controversy to .her, two witnesses testified directly that Mr. Harvey had stated to them, in substance, that he had conveyed the land to his wife. Mrs. Harvey’s statement of the facts relating to the delivery of the deed is as follows:

“Q. Do yon remember when it was made? A. Yes, sir.
“Q. Did your husband deliver it to you at that time? A. No, sir.
“Q. .Did he offer to give it to you? A. He brought it out to me and read it to me. I was getting dinner at the time. He read it aloud to me and I told him I didn’t like it.
“Q. Did you accept it when he offered to give it to you? A. No, sir, I didn’t want it that way; it wasn’t just the way I thought it ought to be.
“Q. Why didn’t you accept it, Mrs. Harvey? A.. Well, I don’t know anything about deeds, but before we moved to Chicago,' understand Mr. Harvey went there in April, 1890, but I didn’t want to go and didn’t go until September, and before I went I wanted, him to deed me some land. I didn’t want to go to Chicago, so he deeded me that 160 acres sold to Mr. Blackburn. He deeded that land to my brother, and my brother deeded it to me; then when he deeded this land I wanted him to deed it to somebody , so they could then deed it to me, and so I wouldn’t take this deed that way.
‘Q. Because it was made directly to you instead of to a third party? A. Yes, sir.”

I. The appellant has assigned for error that the court refused, in disregard of the request of plaintiff made after the close of the evidence at the trial, and before judgment, to state in writing his conclusions of facts found separately from the conclusions of law.

The petition asked no relief excepting the purely equitable one that his title be established and quieted as against the defendant. The special defenses of the answer look solely to the distinctively equitable remedies of subrogation, specific performance and equitable estoppel. . Applying the more definite and conclusive test of our code of civil procedure by which these pleadings must be judged, they frame no issue of fact to be tried by a jury (R. S. 1909, sec. 1968), but must be tried by the court unless it .elect to take the opinion of a jury upon some specific question of fact. [Id., sec. 1969.]

It is now firmly settled by the adjudications of this court that in such cases, it being our duty to examine the evidence and draw our own conclusions of facts as well as of law, a failure of the trial court to make special findings is not prejudicial error. [Blount v. Spratt, 113 Mo. 48; Miller v. McCaleb, 208 Mo. 562, 575; Walther v. Null, 233 Mo. 104, 110, 134; Kuczma v. Droszkowski, 243 Mo. 57, 61.]

II. The real question in the case arises upon the delivery of the deed from Mr. Harvey to his wife. In coming to the consideration of this we are met at the first step by the relationship of the parties. They are husband and wife; members of a single family of which he is, in contemplation of law, the director and head. They are the natural agents, each of the. other, in the performance of the duties of their respective positions. It would exhibit the same superfluity of caution in the wife of a business man to keep a strong box of her own for the' safe keeping of her important papers, as for a man to keep in office or kitchen a separate repository in which he might personally control the food provided for the idiosyncrasies of his own palate. Care and watchfulness of her property interests come as naturally within his province, as do care and watchfulness of the menage within hers. Paraphrasing the oath of Tlie Three Musketeers, it is, in their relation, both for one, one for both. This relation ought to be and is considered in determining whether a deed remaining in the physical custody of the grantor husband has been delivered to the wife. [Rumsey v. Otis, 133 Mo, 85, 96.]

Our statute (Sec. 2818, R. S. 1909) provides: “Every instrument in writing, conveying or affecting real estate, which shall be acknowledged or proved, and certified as hereinbefore prescribed, may, together with the certificates of acknowledgment or proof, and relinquishment, be read in evidence without further proof.”

It is but giving effect to the ordinary meaning of these words to say that they make the certificate of acknowledgment required by statute prima-facie evidence of every element necessary to constitute the due execution of the deed including both its signing and delivery to.the grantee. This is surely reasonable, for it is the official record of the solemn and contemporaneous admission of the grantor to that effect, than which there can be no' higher evidence, not even that of a disinterested witness who saw the acts. This has been frequently asserted by this court. [Parkinson v. Caplinger, 65 Mo. 290, 294; Burk v. Pence, 206 Mo. 315, 339; Barbee v. Bank, 240 Mo. 297, 306.] In addition to this presumption we have the testimony of those to whom Mr. Harvey said, in substance, thát he had conveyed the land to his wife, and the fact proven and admitted in argument, that he had promised to do so for a consideration fully executed on her part.

It has frequently been held that to constitute a delivery it is not essential that the deed be actually transferred. In Bunnell v. Bunnell, 64 S. W. 420, 424, the Court of Appeals said: “If the grantor, when executing it, intends it as a delivery, and this is known to and understood by the grantee, and they treat the estate as having actually passed thei'eby, it will have that effect though the instrument be left in the possession of the bargainor. [Washb. Real Prop. 261; Cecil v. Beaver, 28 Iowa, 241; Tobin v. Bass, 85 Mo. 654; Gould v. Day, 94 U. S. 405.] Delivery may be shown by acts without words, or words without acts, or by both combined. [Hughes v. Easten, 4 J. J. Marsh. 573; Shoptaw v. Ridgway (Ky.), 60 S. W. 723; Martin v. Bates (Ky.), 50 S. W. 38; Ward v. Small, 90 Ky. 198. This court has also contributed several well considered declarations to the same effect. [Allen v. DeGroodt, 105 Mo. 442; Standiford v. Standiford, 97 Mo. 231, 239; Crewder v. Searcy, 103 Mo. 97, 118, citing Cannon v. Cannon, 26 N. J. Eq. 316; Burke v. Adams, 80 Mo. 504.] In the case last cited, the rule is clearly stated by Philips, C., as follows: “The intent to convey is evidenced by the act of making out and duly executing and acknowledging a deed. The delivery may be evidenced by any act of the grantor by which the control, or dominion, or use of the deed is made available to the grantee. It is not necessary it should be handed over actually to the grantee, or to any other person for him. It may be delivered under certain circumstances, though it remain in. the possession of the maker.’’’ In the case last above cited the learned Commissioner quotes from the language of Judge Spencer in Jackson v. Phipps, 12 Johns. 421, as follows: “This delivery must be either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing; or it may be both; but by one or both of these it must be made; for otherwise, though.it be never so well sealed and written, yet is the deed of no force.” In the same case he quotes from Burt v. Cassety, 12 Ala. 734: “It is of no importance whatever that the vendee was not present when the deed was made. She is presumed to assent to it as the deed was for her benefit. ’ ’ The same idea has been approved by this court (Crowder v. Searcy, supra) in a quotation from Bryan v. Wash, 2 Gilm. 568, in its application to conveyances by those standing in a confidential relation to the grantee, as follows: “It must be remembered, that the law presumes much more in favor of the delivery of deeds in case of voluntary settlements, especially when made to infants, than it does in ordinary cases of bargain .and sale. The same degree of formality is never required, on account of the great degree of confidence which the parties are presumed to have in each other, and the inability of the grantee, frequently, to take care of his own interests. The presumption of law is in favor of the delivery, and the burden of proof is on the grantor to show clearly that, there was no delivery. It was so adjudged by Chancellor Kent, in the case of Souverbye v. Arden, 1 Johns. Ch. 255, where he says: ‘A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and decisive proof that he never parted, or intended to part, with the possession of the deed, and even if he retains it, the weight of authority is decidedly in favor of its validity.’ ” And if the deed is delivered withoxft the transfer of possession to the grantee and without his acceptance, expressed or implied, such acceptance relates to the making of the deed which becomes valid ab initio, and as said by this court in Rumsey v. Otis, supra (p. 95): “The delivery itself is only intended to evidence the purpose of the grantor to give effect to the instrument, and the law presumes much more in favor of a delivery in cases of voluntary settlements in favor of a wife, child, or near relative than it does in ordinary cases of bargain and sale between strangers.”

“The delivery of a deed, so far as the grantor is-concerned, is a matter of intention, and where the intention clearly appears, the act in pursuance thereof will be construed to constitute a delivery.” [Coulson v. Coulson, 180 Mo. 709, 715.] It is hardly to be expected that these acts will be the same in any two cases. That Mr. Harvey intended to convey the land in question to his wife so far as the terms of this deed would accomplish that object cannot be doubted. That Mrs. Harvey accepted and acted upon that theory and appropriated to herself all the benefits that could result, from it, even to the extent of appropriating* to her own use the money paid her for the land by the defendant, is equally true. There can be no more solemn, or, from a moral standpoint, more irrevocable admission that she had accepted the deed and thereby became the owner of the land than this. She says also that the money she received has been spent, so that she cannot return it to the purchaser from whom she has taken it. There is much authority as well as reason for the doctrine that these acts of themselves constitute an acceptance of the deed which relates back to the time of its signing and acknowledgment notwithstanding the intervening death of her husband. The appellant disr putes this. He says that unless her title under the deed was complete before the occurrence of that event, the doctrine of relation affords no bridge over which the acts occurring on either side may pass and mingle with each other. Accepting this statement without expressing any opinion upon the question so presented, we will consider whether or not the evidence establishes the delivery of the deed in the lifetime of the grantor. We have already seen that the acknowledgment raises a legal though rebuttable presumption of its complete execution by signing and delivery, including its acceptance by the grantee, so that it may be introduced in evidence as complete without further proof of any of those facts. Added to this are the admissions of the grantor against his own interest, that he had parted with the title to the land hy conveyance to his wife. Then we have the sworn statement of Mrs. Harvey that she knew of its execution; that he both showed it and read it to her, offering it to her at the same time. Then comes the fact which does not depend upon disputable evidence and which furnishes the ground and substance of this case, that Mrs. Harvey assumed that the deed and the land were hers, by taking possession of it as against this plaintiff heir and holding it and selling it. We have seen that as between husband and wife the rule is peculiarly applicable that the delivery of a deed may lie in the intention of the husband while the instrument still remains in his possession. Although this rule has been generally applied in cases of voluntary settlements, the reasons supporting it becomes still stronger where the deed rests upon a valuable consideration lending its weight to the presumption. For this reason it is unnecessary that we should enter upon the intricate question of what became of the money realized from the sale.of Mrs. Harvey’s quarter section.

Against this evidence, aided by the presumption which the law interposes to prevent injustice being done by the concealment of the actual facts, the plaintiff interposes the theory that the preparation of this deed was what might be called in the American dialect a “bluff” on the part of Mr. Harvey;- the implication is that he did not expect it to be accepted in the form in which it was prepared, nor was he willing to induce her acceptance by conveying the land through a trustee constituted for that purpose; that Mrs. Harvey had declined, for the anticipated reason, to accept it until she discovered that by the death of her husband she could use it to deprive her son of the land. It is true her attorneys suggest that she adopted this course so that she could handle the title for the benefit of the child without having to do so through the expensive process of administration and guardianship, but this explanation must be without merit, for there is no suggestion that the purchase money was appropriated to the use of the plaintiff, nor is there any offer to return any part of it to- the defendant. It is also suggested that there is some significance in the fact that Mrs. Iiarvey joined with her husband in borrowing $2000, for which they gave their joint .note secured by deed of trust upon the land in controversy, and that she also joined with him in the execution of a deed of trust on the same land to secure another note to her brother, Mr. Burruss, for $382. Both these transactions were after the date of the deed in question and the notes remained unpaid at the time of his death. We see no significance in this other than is suggested by the testimony of Mr. Bolen, to the effect that Mr. Harvey was embarrassed in business and needed money.- Under these circumstances it would be natural for a good wife to do what she could to help him. We can also understand the hesitation of both in their embarrassed circumstances, to place of record a deed conveying to the wife so considerable an item of property available for the payment of his debts.

The security and commercial availability of land titles, and the protection of innocent purchasers of such property against fraud and imposition, require that their visible muniments bear the facts relating to their condition, as far as possible, upon their face. For this reason conveyances of such property are required by law to be written, and to carry with them written evidence of their due execution. It would defeat the object of these requirements could the evidence so constructed be overthrown by anything less cogent and convincing than itself. In Elliott v. Sheppard, 179 Mo. 382, 392, we said: “This court, in a number of cases, has spoken in no uncertain terms as to the nature and character of the testimony which will warrant the overthrow of the force and effect of a deed, duly aclcnowledged, all of which appears regular upon its face. The expressions of this court as well as the other appellate courts are uniform — that to warrant the finding that such deed and eértificate of acknowledgment is untrue, the evidence must be clear and satisfactory. [Barrett v. Davis, 104 Mo. 549; Webb v. Webb, 87 Mo. 540; Riecke v. Westenhoff, 10 Mo. App. 358; Morrison v. McKee, 11 Mo. App. 594; Brocking v. Straat, 17 Mo. App. 296.]” To fill this requirement we have the statement of Mrs. Harvey that she refused to accept this deed. On the other hand we have the fact that, pretending to accept it, she sold the land which it represented, and appropriated the money, which she is unable to return. Her earlier act found its incentive in obtaining for herself what should have gone to her son. Her present testimony is to the end that the purchaser whom, if it be true, she deceived, be made to pay her son that which she should in conscience be made to pay him herself. Is there any question which of these things we are required by the law as well as by good morals to believe? As we have already said her present statement is bare of support in the record. Even her reason for rejecting the deed when offered to her stands upon slippery ground. Being a legal opinion, we would expect her to have asked a lawyer whether or not it was well founded. For this reason we cannot keep out the mental suggestion that the thought came to her too late to be available for that purpose. This transaction was had only a few years after the passage of the Married Woman’s Act of 1889, which struck from our legal system the ancient fiction of the common law that husband and wife were one, and could not therefore be separated into the two parties necessary to a contract, and places them on an equality in that respect and gives to the wife all the rights with reference to the separate ownership of lands that she had theretofore enjoyed with reference to the ownership of personal property.. This court has uniformly held that under its provisions she can contract freely with her husband with respect to all kinds of property, including lands, and that they could enforce such contracts against each other at law as well as in equity. [Rice, Stix & Co. v. Sally, 176 Mo. 107, 130; O’Day v. Meadows, 194 Mo. 588; Bower v. Daniel, 198 Mo. 289, 320; Bank v. Hageluken, 165 Mo. 443; Kirkpatrick v. Pease, 202 Mo. 471, 490.] While before 1889 the contract of a married woman for the sale of land could not be enforced (Clay v. Mayer, 183 Mo. 150), their contracts since that time have stood upon the same footing as those of other persons.

The single exception in this line of adjudications is Christ v. Kuehne, 172 Mo. 118, in which, while the question did not arise, as it made no difference whether the wife took a legal or equitable estate by the conveyance involved, the court, for convenience, adopted the view of the appellant that the estate was an equitable one. The effect of the Married Woman’s Act as it then existed was not noticed.

. Under all the facts and circumstances in this case we hold that the testimony of Mrs. Harvey was not sufficient to overcome the prima-facie case arising from the duly acknowledged deed together with the other circumstances in evidence. The judgment -of the Saline Circuit Court must accordingly be affirmed.

Blair, G., concurs.

PER CURIAM.

— This case, having been concurred in in Division by Blair, C., and sent into Banc on dissent of two of the brethren, was reheard, and the opinion of Brown, C., was adopted as that of the court.

Lamm, G. J., and Brown, J., concur. Walker and Faris, JJ., concur in the result. Woodson and Bond, JJ., dissent. Graves, J., dissents in an opinion filed.

DISSENTING OPINION.

GEAYES, J.

— I do not concur in the opinion of our learned Commissioner in this case, nor in the result thereof. I think the evidence in this case disproves the delivery of the deed from the husband to the wife. There is no substantial evidence in this case to show that the husband parted with his dominion over this deed in his lifetime. On the contrary the deed was locked in his private desk with his private papers, and this desk had to be -broken open by a stranger, before the wife got possession of the deed. Grant it (without discussion or decision) that from the signing and acknowledgment of a deed there is a presumption of delivery, yet such presumption is a rebuttable presumption, and in my judgment is thoroughly rebutted in this ease, by the single undisputed and unexplained fact (unexplained if we exclude the evidence of the wife) that the deed was locked up in the husband’s office with his own- private papers. If ever a man maintained dominion over a deed this husband had domin-' ion up to the moment that death claimed him. Not only so, but had matters taken the usual channel, this deed •would have fallen into- the hands of an administrator rather than into the hands of the wife.

Our Commissioner stresses the point that the wife’s conduct disproved her evidence at the trial. Grant this to be true, and it would allow us to reject her testimony from the case, as being unworthy of belief, and would not in anywise bridge the chasm in this title made by the undisputed proof of the fact that the husband held dominion over this deed to the hour and minute of his death. The potency of the fact that this deed was never recorded, and remained in the possession of the husband, cannot be wiped out of this case, however much we question the veracity of the wife. In fact, we doubt whether she was in law competent to testify to some ■of these matters, but if she were, and even testified falsely, the 'undisputed fact of where this deed was found disproved delivery by the husband and disproves that he had parted with dominion over it.

In some ways this is a harsh case for the defendant, yet he is not without some fault. There is enough in the chain of his title to have placed a prudent man upon inquiry. Proper inquiry might have revealed the- true status. In his chain of title was this decree in the case of the wife against her infant son. The petition in that case had it been examined, with the knowledge that there was no proper service upon the infant, would have furnished food for thought and inquiry. Not only so, but we find in the same chain of title deeds of trust upon the property by the husband and in the name of the husband after the date of this deed, a circumstance suggestive when it appeared that the deed was not recorded until after the death of the grantor. So that whilst the defendant might be called innocent in fact he is not innocent in law. lie was bound to follow proper inquiries suggested by the matters properly within the chain of his title.

In my judgment this judgment should be reversed, and the judgment should be for plaintiff as to the title in this land but the defendant should be subrogated to-the rights of some of the lienors who had their liens discharged by his money. The widow’s dower might have to be reckoned with to some considerable extent also. It is clear that the plaintiff should not have this land cleared of the liens placed thereon by the act of the father prior to his'death. I have considered this case from all angles since the promulgation of the opinion by our learned Commissioner, and am convinced that we are treading upon dangerous ground, when we hold, as the majority opinion does, that there was a delivery and acceptance of the deed in the lifetime of the grantor. For this reason I dissent.

Woodson and Bond, JJconcur in these views.


source: Caselaw Access Project

author: LAMM, C. J.

license: Public Domain

text:
    KANSAS CITY v. ST. LOUIS & KANSAS CITY LAND COMPANY, CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY et al., Appellants.
    In Banc,
    July 14, 1914.
    1. CONDEMNATION: Supplemental Proceeding: Purpose of Charter Provision. The object of the provision of the charter of Kansas City, authorizing the city by a supplemental ordinance to institute and carry forward a supplemental curative proceeding, was to afford a remedy when because of any error, defect or omission in the original-condemnation proceeding assessments made against private property cannot be enforced or collected or where property in the benefit district has been omitted.
    2. SECOND HEARING: Correcting Errors at First: Stare Decisis. The stiff general rule is that the lower court is bound by pronouncements made by the Supreme Court in a prohibition proceeding arresting the trial of a case, and so is the Supreme Court upon an appeal from a judgment rendered by the trial court in pursuance to such pronouncements. They become the law of the case, and certainty in the law and the necessity for ending litigation require that they be rigidly adhered to in all subsequent proceedings in the same case except where, upon a second hearing, it is apparent that palpable injustice has been done by them and no injury would result from a different decision, and even then the exception is to be applied with rare circumspection.-
    3. MUNICIPAL COURT: Constitutional. The municipal court created by the charter of Kansas City and empowered to condemn property for a public use and to assess damages and benefits, is a constitutional court. The Constitution authorizes the people of a city of the size of Kansas City to frame their own charter for the government of themselves in municipal matters; and charter provisions relating to the exercise of the power of eminent domain, prescribing benefit districts, assessing private property with benefits, allowing damages for property taken or damaged, and paying the damages out of the city treasury, are all matters of purely municipal concern.
    4. -: Must be Clearly Unconstitutional: Far-Reaching Consequences. The far-reaching effect of destroying the jurisdiction of the municipal court of Kansas City to open and widen streets and assess benefits over a district calls loudly for the application to the charter provision creating it of the rule that a statute can be declared unconstitutional only when it can be shown beyond reasonable doubt to be in conflict with the fundamental law, and that the statute is to be upheld until every reasonable mode of reconciling it with the Constitution has been resorted to and reconciliation found'impossible.
    5. CONDEMNATION: Necessary Parties: Lot Owners Assessed with Benefits. ■ Low owners, whose properties within the benefit district and not taken are subject to assessment of benefits, are not necessary parties to that part of the proceeding relating to the ascertainment of damages to those whose properties are taken; nor is it to deny them due process of law to deny them a hearing on the issue of damages, although the law contemplates that a part of the damages allowed for property taken or damaged will be charged as a benefit to properties not taken within the district. [Following State ex rel. v. Seehorn, 246 Mo. 568.]
    6. -: Damages and Benefits: Eminent Domain and Taxation. It is the law of eminent domain that authorizes the taking of private property for a public use and the assessment of damages for that taken; it is the law-of taxation that authorizes the assessment of the damages for property taken or damaged as a benefit upon that not taken. The two powers are distinct in quality and are governed by different principles.
    7. CONDEMNATION: Property Owners Not Served: Injunction: Extent of Decree. Where in the original proceeding in the municipal court to widen a street certain persons whose property was charged with benefits were defectively served and brought injunction to restrain the collection of the assessments and the decree, unappealed from, was that said assessments in so far as they affect plaintiffs or their properties are annulled, the whole proceeding was not annulled, but only so much of it as related to plaintiffs and their properties.
    8. -: -: Supplemental Proceeding. And the charter provision relating to supplemental proceedings to cure defects, errors and omissions in the original proceedings, and to charge the properties of persons who were defectively served in the original proceedings with their share of the damages ascertained and adjudged therein, is applicable to plaintiffs who have by injunction obtained a decree enjoining the collection of the benefits assessed against their properties in that proceeding.
    9. - -: -: -: Omitted Property. It is allowable to say that assessments of lots within the benefit district owned by persons who repudiated the proceeding in which they were made and had them annulled, were erroneously made or omitted to be made.

      10. -: All Damages to be Assessed as Benefits. Where the ordinance requires just compensation for private property taken in widening a street to “be assessed, collected and paid according to law,” and that the amount of damages “allowed for private property taken shall be wholly raised by special assessments made against” private property in the benefit district •“in accordance with article 6 of the charter,” and the charter was followed and the city was assessed with its share of the damages “in accordance” therewith, it will not be held that the ordinance was void for that “it requires the amount allowed for private property taken to be wholly raised by special assessments against private property described in the benefit district,” for that would be to give to the ordinance a harsh and strained construction, since it also requires the damages to be “assessed, collected and paid according to law” and “in accordance with” an unobjectionable, article of the charter.
    11. -: Description of Property In District. Neither in the ordinance in the original proceeding, nor in the ordinance in the supplemental proceeding to bring in omitted property and charge it with its share of the damages, is it necessary to describe by metes and bounds or some other equally definite description, each particular tract of the 13,000 in the benefit district.
    12. -: -: Order of Publication: Waiver of Defective Descriptions. An appearance and/ trial on the merits waives ob-* jections of form in the order of publication to the property owners whose property is to be assessed with benefits.
    13. -¡Supplemental Proceedings: Lands in Litigation. Where , certain lands were in litigation at the time of the original proceeding and no assessment of benefits was made against them, and the person to whom they were adjudged as the result of the litigation was defectively served in that proceeding, they may, in the supplemental proceeding, be assessed with their due proportion of the benefits as tracts “erroneously assessed” or “omitted to be assessed.”
    Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge. ,
    Affirmed.

      White $ Lyons, Warner, Dean, McLeod & Lang-worthy, Sebree, Conrad $ Wendorff, Ball $ Hyland, Kenneth McC. DeWeese, Watson, Watson é Alford,t Cowherd, Ingraham, Durham $ Morse and Scarritt, Scarritt, Jones & Miller for appellants.

      (1) The charter of Kansas City could not confer original civil jurisdiction on the municipal court, and so much of sections 1 and 2 of article 6 and section 10 of article 4 of the charter of 1908 as purports to do so, is violative of sections 1, 22, 34, 36 and 37, article 6, of the Constitution of Missouri, and section 15 of the Schedule of the Constitution, conferring civil jurisdiction exclusively on circuit courts except as otherwise provided and of section 16, article 9, of said Constitution, authorizing Kansas City to frame and adopt a charter, and is inconsistent with the Constitution and laws of the State. R. S. 1909, secs. 8578, 8663, 6050; State v. Fry, 4 Mo. 190; Abbott on Mun. Corp., sec. 584; Spencer v. Sulley Co., 4 Dali. 474; Industrial School v. County, 40 Wis. 326; Dillon on Mun. Corp. (5 Ed.), secs. 744, 745, 632; People v. Howell, 5 Colo. 412; Lafron v. Dufracq, 9 La. Aim. 350; Ottawa v. Carey, 108 U. S. 121. See also dissenting opinion in State ex rel. v. Seehorn, 246 Mo. 541. (2) The judgment in the , court below deprived appellants of their property without due process of law, in violation of the Fifth and Fourteenth amendments to the Constitution of the United States, in that no notice was ever given them of the pendency of said proceedings as required hy> sections 2, 3, 4, 6 and 7, of article 6, of the charter of Kansas City. Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation District, 111 U. S. 701; Belling-ham Bay & B. C. Co. v. New Whatcom, 172 U. S. 314; St. Louis v. Rankin, 96 Mo. 497; Lumber Co. v. Mc-Crimmon, 164 Fed. 759¡.Railroad v. Wright, 207 U. S. 137; Prichard v. Norton, 106 U. S'. 124; Londener v. Denver, 210 U. S. 373; Railroad v. Backus, 154 U. S. 421; Irrigation District v. Bradley, 1-64 U. S. 112. (3) The judgment of the trial court denied to these appellants the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States, in denying them a hearing on the question of the value of the land taken or damaged under proceedings under Ordinance 3209. (4) The court erred in holding that said proceeding under Ordinance 3209 could be supplemental after it had adjudged said proceedings null and void as to the Union Pacific Railroad Company et al., and the court erred in not sustaining appellant’s contention that said judgment was res adjudicata as to all issues involved in said suit, and, that a void proceeding could not be supplemental after such proceedings were declared null and void. Daniel v. Carroll, 19 111. 226; Nelson v. Roundtree, 23 "Wis. 367; Merritt v. Kewanee, 175 111. 552; Cooley on Const. Lim., p. 382. (5) The municipal court was wholly without authority under the terms of the charter to “hear and determine the cause” or to empanel a jury therein by reason of the failure to publish the court order of notice and of the proceedings — a publication “necessary to the validity thereof.” Charter 1908, sec. 2 (p. 255); Shaifner v. St. Louis, 31 Mo. 264; State ex rel. v. Gill, 84 Mo. 248; Kansas City v. Mulkey, 76 Mo. 247; St. Louis v. Brinckwirth, 204 Mo. 305. (6) Section 23, article 6, of the charter, concerning supplemental proceedings to cure “any error, defect or omission” in the original proceedings, has no application to the case at bar. Here there was nothing to supplement. (7) Original Ordinance 3209 is void on its face in that it requires that “the amount allowed for private property taken shall be wholly raised by special assessments made against the property described” in the benefit district, contrary to the provisions of the charter (Sec. 3, art. 6), which expressly directs that there shall first be assessed against the city “the amount of benefit to the city and public generally, inclusive of any benefit to any property of the city,” and the balance, if any, against the several tracts of private property in benefit district. No citizen was bound to pay any attention to an ordinance in inviium, containing such a provision as did the one in question.

      A. F. Evans, Jay M. Lee and J. G. Petherbridge for respondent.
    (1) The legality of the municipal court of Kansas City has been established and its jurisdiction to try condemnation proceedings, including this supplemental proceeding,-has .been upheld by this court. State ex rel. v. Seehorn, 246 Mo. 541, which is supported by the following cases and citations: Baldwin v. Philadelphia, 99 Pa. St. 164; McCormick v. Payette Co., 150 Pa. S-t. -190; Swift v. Tyson, 16 Peters (U. S.), 18; Fennell v. Common Council, 36 Mich. 185; Shattuck v. Kincaid, 49 Pac. 758; Industrial School v. Supervisors, 40 Wis. 328-; In re Cloherty, 2 Wash. 137; People ex rel. v. Curley, 5 Colo. 412; Lafron v. Dufrocq, 9 La. Ann. 350; Ottawa v. Carey, 108 U. S. 110; Meagher v. Storey County,'5 Colo. 196; Hagerstown v. Dechart, 32 Md. 369; Edenton v. Wood, 65 N. C. 379; Ex parte Pagg, 44 S. W. 294; Blessing v. Galveston, 42 Tex. 641; Sec. 1, art. 6, Constitution; Sec. 10, art. 4, Charter of Kansas-City; Sec. 16, art. 9, Constitution; R. S. 1899, sec.-6360; Sec. 22, art. 6, Constitution; State ex rel. v. Field, 99 Mo. 355; Kansas City ex rel. v. Scarritt, 127 Mo. 650; Kansas City v. Ward, 134 Mo. 186; Kansas City v. Oil Co., 140 Mo. 466; Kansas City v. Bacon, 147 Mo. 259; Brunn v. Kansas City, 216 Mo. 116; Kansas City v. Smart, 128-Mo. 289; Leonard v. Sparks, 117 Mo.- 108; Ex parte Kilburg, 10 Mo. App. 446; 1 Dillon Mun. Corp. (5 Ed.), secs. 237, 238; Secs. 6, 8, 12, art. 5, Constitution 1820; Sec. 1, art. 5, Constitution of 1820, as amended in 1822; Laws 1851, p. 88; Laws 1852, p. 244; Secs. 1,13, 21, 23, art. 6, Constitution 1865; Laws 1867, p. 18; Laws 1870, p. 327; Laws 1872, p. 397; Laws 1875, p. 196; Secs. 1, 22, art. 6, Constitution of 1875; Sec. 1, art. 7, of the Charter of 1889; Sec. 1, art. 6, of the Charter of 1908; Worthington v. London, etc., Co., 164 N. Y. 81; State ex inf. v. Lund, 167 Mo. 241; Barber Co. v. French, 158 Mo. 547; Corrigan v. Kansas City, 211 Mo. 627; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Bacon, 147 Mo. 270; Meier v. St. Louis, 180 Mo. 409; Morrow v. Kansas City, 186 Mo. 684; Brunn v. Kansas City, 216 Mo. 108; 2 Dillon on Mun. Corp. (5 Ed.), pp. 1115, 1117; 1 Dillon on Mun: Corp. (5 Ed.), pp. 110, 111, 112. Dillon cites the following Missouri cases : Kansas City v. Oil Co., 140 Mo. 458; State ex rel. v. Tel. Co., 189 Mo. 83; Morrow v. Kansas City, 186 Mo. 675 ; Westport v. Kansas City, 103 Mo. 141; Kansas City v. Stegmiller, 151 Mo. 189; St. Louis v. Western Union Tel. Co., 149 U. S. 465. Note 3 Dillon (5 Ed.), p. 1621, citing: State v. Ramsey County Dist. Ct., 87 Minn. 146; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 259. (2) The appellants in the original proceedings were not necessary parties in so far as such proceedings related to the amount of the award as damages for property taken or damaged, and were not entitled to notice thereof. The city and the property-owners whose property was taken or damaged, were the only necessary parties to the original proceedings relating to the amount of the award allowed for property taken or damaged. State ex rel. v. Seehorn, Judge, 246 Mo. 583; Kansas City v. Smart, 128 Mo. 272; Kansas City v. Ward, 134 Mo. 179; St. Louis v. Brinekwirth, 204 Mo. 280; St. Louis y. Ranken, 96 Mo. 497; St. Louis v. Calhoun, 222 Mo. 44; St. Louis v. Buss, 159 Mo. 12; Pleadwell v. Glass Co., 151 Mo. App. 51; 1 Page & Jones on “Taxation by Assessment,” 213; Goodrich y. Detroit, 184 U. S. 432; Voight v. Detroit, 184 U. S. 115; Adams v. Roanoke, 102 Va. 53; Londoner v. Denver, 210 U. S. 373; Spencer v. Merchant, 125 U. S'. 345; Garnett v. St. Louis, 25 Mo. 505; Newby v. Platte Co., 25 Mo. 258; Uhrig v. St. Louis, 44 Mo. 458. (3.) The supplemental proceedings and the assessment of benefits thereunder were authorized by the Kansas City charter and were in accordance with the law of this State, and not in violation of the Fourteenth Amendment of the United States Constitution, nor in violation of appellants’ rights. Sec. 23, art. 6, Kansas City Charter; State ex rel. v. Seehorn, 246 Mo. 568; St. Louis v. Buss, 159 Mo. 12; Drainage Dist. v. Richardson, 237 Mo. 71. And all cases cited under Point 2. (4) The decree of the circuit court in Union Pacific Railroad Company v. Kansas City did not nullify the amount of damages made in the original proceeding for the property taken. It only nullified the benefit assessment against its property under that proceeding. (5) The charter “provisions of St. Louis and Kansas City on condemnation proceedings are not materially different, and the opinion and decision of the court in State ex rel. v. Seehorn, 246 Mo. 568, were right and .should be followed. St. Louis v. Brinckwirth, 204 Mo. 280; St. Louis v. Ranken, 96 Mo. 497; St. Louis v. Calhoun, 222 Mo. 44; St. Louis v. Buss, 159 Mo. 9. (6) The original ordinance is not void or in conflict with the charter of Kansas City. Sec. 2, art. 6, Kansas City Charter; Lamar v. "Wiedman, 57 Mo. App. 507, 514; St. Louis v. Lanigan, 97 Mo. 180; Kansas City v. Smart, 128 Mo. 293; Kansas City v. Block, 175 Mo. 444. (7) The supplemental ordinance is not void or uncertain. Sec. 23, art. 6, Kansas City Charter; Lyman v. Farris, 5 N. W. 523; People v. Railroad, 247 111. 340; 2 Black on Judgments (2 Ed.), sec. 584, pp. 882, 883; .State ex rel. v. Rainey, 74 Mo. 229; MoEntire v. Williamson, 63 Kan. 282; Clark v. Wolf, 29 Iowa, 197; Montgomery v. Walker, 25 So. 586; Parker v. Scrogin, 11 La. Ann. 631; Ashton v. Rochester, 133 N. Y. 193. (8) The matters herein are res adjudicate. State ex rel. v. Seehorn, 246 Mo. 541; State ex rel. v. Seehorn, 246 Mo. 568; State ex rel. v. Broaddus, 238 Mo. 189.
   LAMM, C. J.

— This is an appeal by corporate owners of property in Kansas City whose parcels were assessed to pay benefits to meet an "award of damages to other persons whose property was taken or damaged in a proceeding to widen a street.

Kansas City, in 1909, undertook to open and widen Sixth street from the east line 'of Bluff to the west line of Broadway, by condemning forty feet of private property on the south side of the street — Sixth street leading from the bottoms up town and being the main travelled thoroughfare for heavy hauling between the two. The authority for this proceeding was ordinance No. 3209, and, as there are several ordinances in the record, we will.call this the “original ordinance” passim. Under this original ordinance and in supposed compliance with charter provisions (Article 6, 1908) condemnation proceedings were instituted in a court known as the “municipal court” and ripened into judgment whereby damages were awarded for the land taken in the rise of $166,000, and the same amount was assessed against the city and over 13,000 different tracts owned by individuals and corporations, lying ■ within a benefit district prescribed by said original ordinance. No appeal from this judgment was taken, either by any landowner whose property was condemned, nor by any landowner whose property was assessed with benefits. On that judgment the city col-, lected of those benefit assessments the rise of $89,000 to pay said award of damages. Presently, and with matters in this fix, a certain railroad company, The Union Pacific, discovered the service on owners whose parcels were subject to assessment of benefits was defective. and brought its suit in equity in the circuit court of Jackson county against Kansas City and its officers, among them one Flynn. The life of the bill was injunctive relief in its favor (as an owner of property within the benefit district and which was assessed with benefits) against such assessment of benefits in the condemnation judgment under the original ordinance. Other parties in like fix (say, two or three) intervened. As there are several suits mentioned in this record, we will call this the “Flynn suit” to identify it. The Flynn suit ripened into a decree in favor of plaintiffs and intervenors. It is sufficient to say of the Flynn suit that the ’condemnation judgment under the original ordinance was not assailed for lack of jurisdiction in the municipal court, to hear any condemnation proceedings and assess any benefits to pay damages awarded therein (a newly discovered theory, now pressed), but in substance that case proceeded on the theory that plaintiff had no notice of the proceeding and hence the judgment as to it was void. The chancellor found a lack of notice and process (the order of publication required by the charter was not published a sufficient time) and that the several assessments made against plaintiff’s and intervenors’ properties were void because of such lack of service. Hence the municipal court had acquired no jurisdiction of them. The scope and object of the decree in the Flynn case are indicated by the following excerpt:-

“It is, therefore, considered, ordered, adjudged and decreed by the court, that said assessments, in so far as they effect [sic] or purport to effect [sic] plaintiffs or any of them or any of their several properties, be and the same are hereby annulled and for naught held; that the several assessments against the respective properties aforesaid of the plaintiffs and each of them be and the same are hereby set aside and annulled; the defendant Kansas City; M. A. Flynn, City Clerk; U. E. Weary, Clerk of said Municipal Court, and the officers and agents of said city, be and they are each of them perpetually restrained and enjoined from making out, certifying or attesting any tax bills against the several properties of the plaintiffs or any of them under and by virtue of said assessments, and that plaintiffs have and recover from the defendant, Kansas City, the costs herein expended and have execution therefor.”

Neither side took an appeal from the Flynn decree and it remained operative as a perpetual injunction against collecting such unpaid assessments.

With things in this fix, it seems that Kansas City attempted to repeal the original ordinance presumably for the purpose of abandoning the proceeding and returning to those paying assessments the amounts so paid. But the city was reckoning without its host; for pending such repeal measure, another injunction suit was brought in the Jackson Circuit Court — this time against the city and in favor of those property-owners whose lands had been condemned under the original ordinance and who had been awarded damages, to-wit, one Tuller and others. These new suitors, Tuller and others, took the position in their bill that on recognized equitable principles the city, under its charter, could not repeal the original ordinance and abandon such condemnation proceedings so far as those persons were concerned whose property had been taken or damaged and to whom damages had been awarded by the judgment, where (as here) benefits had been assessed and in part paid, and where (as- here) such property-owners had appeared, tried out the issue as to them and recovered their damages, and where (as here) the judgment was not appealed from. We will call this case the “Tuller case” for convenience. This Tuller • case also ripened into a decree whereby the city was, in effect, perpetually'enjoined from repealing the original ordinance and abandoning the condemnation proceeding, and this decree also was unappealed from, but remained operative as a perpetual injunction.

By the decrees in the Flynn and Tuller cases the city (to borrow the homely, similitude of one of its briefs) was enjoined “fore and aft. It could neither go forward nor backward.” In this peculiar condition it enacted an ordinance, No. 7539, -which we will call the “supplemental or curative ordinance.”'- The general object and purpose of this supplemental ordinance was to authorize a proceeding to assess and spread the balance of the benefit assessments (viz., those unpaid under proceedings on the original ordinance) over the non-paying properties in the benefit district. This supplemental ordinance was based on the authority of section 23, article 6, of the present charter of Kansas City, and ran on the theory the unpaid benefit assessments were void. The charter provision in question, together with the supplemental ordinance, will be found set forth in haeo verba in State ex rel. v. Seehorn, 246 Mo. l. c. 549 et seq. (q. v.), and they will not be reproduced here. The object of said sensible charter provision was to afford a remedy when by any error, defect or omission in condemnation.proceedings, assessments made against private property cannot be enforced or collected or where property in the benefit district is omitted, etc. In such case it was provided that the city may by ordinance institute and carry on supplemental proceedings to make a proper assessment against any parcel of property in the benefit district erroneously omitted or erroneously made in the first proceeding, etc.

Presently under such supplemental and curative ordinance, a new proceeding was instituted in the municipal court to make a new assessment against such properties within the benefit assessment district as had not accepted the former judgment by payment. Proper charter notice was given and, among others, the present appellants, save one, appeared. The assessments left unpaid under the original proceeding on this original ordinance were spread by this new proceeding over the nonpaying parcel's in the benefit district, assessing to Kansas City her share, and the appellants here, save one, appealed from that judgment to the circuit court of Jackson county and the case was assigned to Judge Seehom’s division. In that court such proceedings were had that the case reached a stage of the trial where Judge Seehorn announced his determination to try out the question of the amount of damages awarded to property-owners whose property was taken or damaged under the original proceeding as well as the question of assessing and spreading benefits over nonpaying properties within the benefit district — his view being that the nonpaying property-owners to be assessed with benefits were necessary parties to a proceeding awarding damages, hence a judgment void as to one was void as to the other; that to award damages and lay or spread assessments to pay them constitute an indivisible proceeding with two objects riding together.

The pleadings in this supplemental proceeding warranting such contentions, two prohibition suits were brought in this court to stop the trial in Judge See-horn’s court — one we will call the ‘ ‘ Graham-Seehom case;” the other, the “Tuller-Seehorn case.” Preliminary rules in prohibition issued and those cases will be found reported in the 246 Mo. at pages 541 and 568 respectively.

So far as pertinent here, the Graham-Seehom case held in judgment the main question: Had the charter court, known as the “Municipal Court,” any jurisdiction whatever of any condemnation proceedings. That question we answered in the affirmative by holding the court a constitutional repository of power in that behalf. In the Tuller-Seehorn case several questions were decided. One was that in supplemental or curative condemnation proceedings, brought.in the municipal court under a supplemental ordinance, as here, an appeal would lie in favor of a property-owner or any party interested to the circuit court. Another was that where such supplemental proceeding under such supplemental ordinance related only to making assessments on property against which an assessment was erroneously made in the original proceeding or was erroneously omitted to be made, as here, the jury should not include in their verdict the assessment of benefits and damages on property properly included in the first verdict — i. e., those properties taken or damaged the owners of which appeared at the first trial and acquiesced in the judgment, or those properties assessed with benefits which the owners paid — but the scope of their verdict could not extend beyond the assessment of property so wrongfully made or omitted to be made. Another question decided was that the verdict and judgment in the original proceedings were valid and binding as to those who appeared and accepted them, and cannot be taken either as interlocutory or as vacated because of an appeal in the supplemental- proceedings to the circuit court. Another question decided was that Kansas City by its charter may through its common council repeal an ordinance for widening a street and thereby a judgment for compensation and benefits in a condemnation proceeding is made void; but that such repeal is, by charter provision, restricted to “any time before any of the parties assessed with benefits shall have paid the amounts so assessed;” that the charter provision providing that no assessments made in the original proceeding in widening a street “shall be affected or interfered with for the reason that any other assessment made in the same proceeding may be invalid in whole or in part” is the basis of the power given in the charter to the city by supplemental proceedings to subject only property omitted by mistake o,r illegally assessed to its proportional part of the -costs of the improvement, and leaves the assessment of other property in the original proceeding, either with damages or benefits, stand as regular and not to be tried anew on an appeal in a supplemental proceeding, absent an appeal from the judgment in the original proceeding, as here, and present a payment of benefits and an award of damages to persons appearing, as here. Other reasons based on other charter reasons are given for that conclusion, and, among other things, it was held that .the fact that a condemnation proceeding was an entirety and the fact that the damages and benefits must balance each other are no sufficient reasons for vacating the original judgment of the municipal court-as to damages and benefits settled by it and acquiesced in, and are no sufficient reasons for a trial de novo of such particular matters on an appeal to the circuit court from a judgment in a supplemental proceeding. Another question decided in the Tuller-Seehorn case is thus correctly epitomized in the eighth syllabus:

“Property-owners in the benefit district whose property is not taken but which will be charged with its share of the damages to be paid for the property taken for the street, are not necessary parties to the issue of the'value of the property to be taken for the street; nor is it a denial of due process of law to deny to them a day in court to aid in preventing an unduly high valuation of the property to be taken, whose value in the end must be assessed against their property. The necessary parties are the city as plaintiff and the owners of the property to be taken as defendants; though, as a matter of grace, the owners of other property in the benefit district may be permitted to aid in preventing a too high valuation.”

Accordingly in the Tuller-Seehorn case our writ issued and the circuit court of Jackson county was prohibited from trying the question of the amount of damages awarded to those property-owners whose property was taken or damaged by the widening of Sixth street under the original unappealed-from judgment.

Accordingly in the Graham-Seehorn case we denied a writ of prohibition. .

When our judgments went down in those prohibition cases, the circuit court of Jackson county resumed the trial of the appeal from the judgment of the municipal court in the supplemental proceeding at the point the trial was arrested by our preliminary rules in prohibition, proceeding to verdict and judgment in those particulars in line with our pronouncements in the prohibition cases, the verdict assessing part of the damages against the city, and part against the non-paying parcels of property in the benefit district, including appellants ’ parcels.

Of the 13,000 tracts involved in the assessments of benefits, an aggregation of only thirteen corporate defendants appeal on due steps on a joint bill of exceptions. There is an appellant, the Union Depot Bridge and Terminal Railroad Company, that joins in questions raised by its co-appellants, but also raises questions singular to itself. Those questions will be considered separately.

What we have to say in determining this appeal may be put under the following heads:

(1) Questions determined in the Tuller-Seehorn and G-raham-Seéhorn cases.

(2) New questions arising at. the trial after our judgments in those two prohibition cases went down (and herein of those left open).

(3) Questions singular to the appeal of the Union Depot, etc., Co.

Of these seriatim.

I. Of questions determined in the Tuller-Seehorn cmd Graham-Seehorn cases.

Broadly, and as a main proposition, it is contended by appellants’ aggregation of veteran counsel that we determined nothing .correctly in those two cases. Therefore, nothing was set at rest and every question there involved must be reagitated and redetermined. To that end we are cited to the same authorities relied on to sustain the self-same propositions advanced in briefs in those cases and rule'd adversely. It must be apparent that if there was a general rule allowing two hearings on the same questions it would be a blazing infirmity in the law. If courts put themselves in a limbo of nonsense and set themselves continuously to planting and then pulling up, weaving and then ravel-ling (vide the classical legend of Penelope’s web), to stitching and then ripping, or, what amounts to the same thing, to deciding and then setting aside their own solemn adjudications, men and their posterity would think ill of our understanding. The doctrines of the law of the case are related to "stare decisis and res adjudicada and are the settled doctrines of this court —doctrines having their exceptions in emergencies, hut none of those exceptions apply here. There would be no end to litigation and no certainty in the law unless we adhered rigidly to the general rule of the law of the case and applied the exception to that general rule with rare circumspection and only when a palpable wound had been inadvertently given to justice and where no injury would result from a change in our judgments. In the named prohibition cases we halted the trial below on the prayer of these appellants. Why so? To s.ettle vital questions of jurisdiction they deemed necessary to a just hearing. We did settle them on full consideration and the trial judge resumed the trial at the point he was arrested and thereafter proceeded with it in conformity with our rulings. Delay has occurred in a matter of pressing public moment and outlays have been made on the strength of our rulings. We deem it in the nature of a scandal to the administration of the law to undo at this late day what we have done, by treading back on our tracks and sending this proceeding out of court with a tangle of confusion left behind and to the detriment of a great city, unless we are forced to do so by the imperious call of the law itself. We hear no such call. We see no such necessity. The stiff general rule is that the lower court was bound by our former decisions and so are we on second appeal. [Gracey v. St. Louis, 221 Mo. l. c. 5 et seq., and cases cited.] We apply that rule.

(a) It is argued on behalf of appellants, in effect, that the municipal court in which the proceeding originated is not a constitutional court for the purpose of condemning property, but that, under that instrument, exclusive jurisdiction rested in the circuit court. The industry of counsel (who, indeed, left no stone unturned) in pursuit of authority has been unable to cite us to, a single Missouri case sustaining them. There is an array of them running counter in theory. The Constitution provides for a municipal court. It contains provisions authorizing the people of certain cities to frame th'eir own charters governing themselves in municipal matters, and that they may alter and amend them.

In a line of great cases in this court on all-fours, wherein appeared great lawyers to raise questions and elucidate contentions, it has uniformly been ruled that those charter provisions relating to the exercise of the right of eminent domain and the power to prescribe benefit districts, spread benefits over lots therein, pay damages for property condemned under the exercise of the right of eminent domain, are one and all matters of purely municipal concern and are governed by charter provisions. As pointed out in the GrahamSeehorn case it was ruled that jurisdiction was properly lodged in the municipal court. This conclusion was arrived at by considering the Constitution, the charter and the pertinent general doctrine of a line of unshaken cases. Accordingly on the authority of the Graham-Seehorn case we disallow the point to appellants. In a somewhat similar case in New York (Worthington v. London G. & A. Co., 164 N. Y. 81), where the question was whether a municipal court of the City of New York had jurisdiction, and where it had been ruled adversely by some inferior courts, Bartlett, J. (speaking to sncli decisions and for the Court of Appeals) used apposite language, viz.: “This decision has such a serious effect on the business interests of a great city containing about three millions and a half of inhabitants, that the question may well be asked whether a situation is not presented where the familiar rule of construction may be applied most rigidly, that a statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and that until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to and reconciliation has been found impossible, the statute will be upheld. ”

The rule invoked by- the New York court to prevent a statute’s perishing by construction is the trite doctrine of this court to be found in almost every volume of its reports.

Take this case, to illustrate, the far-reaching effect of destroying the jurisdiction of the municipal court of Kansas City in opening and widening streets and spreading benefits over a district, thereby striking down all it has done and all its predecessor, the may- or’s court, did in that city in such matters of emphatic municipal concern, led us in the Gfraham-Seehorn case by permissible rules of construction, to sustain the constitutional jurisdiction of the municipal court. We were glad to do that then and we are glad to stand by - that ruling now. Stare decisis.

(b) It is argued on behalf of appellants who, it must be remembered, are not lot-owners whose property was taken or damaged, but are lot-owners' whose properties are assessed with benefits, that they were entitled to be heard as parties on the question of the amount of damages, that to deny them a hearing on that- issue violates those constitutional provisions guaranteeing due process of law and equal protection of the law. But this contention (with a group of related ones we will not enumerate) was squarely held in judgment in the Tuller-Seehorn case and squarely decided against appellants. That case must be read with this, for we will not, reformulate or reproduce its doctrines'. Appellants had due process of law in the trial nisi on the question of benefits. They attempted to show there were none and took the verdict of the jury thereon and on the amount, if any. That question (benefits) relates to the power of taxation, while the part of the proceeding relating to the taking and damaging of property rests on another power, to-wit, the exercise of the sovereign'power of eminent domain. They are distinct in quality and are governed by different principles. We ruled in the Tuller-Seehorn case, in effect, that lot-owners whose properties were subject to assessment in the benefit district were not necessary parties to that part of the proceeding in the sense that the validity of the judgment depended on notice to them; that as the parties whose properties were taken or damaged in the original proceeding appeared to the notice given and submitted to judgment, the amount of their damages became res adjudieata and were not open to further inquiry. The Tuller-Seehorn case stands on its own reasoning and on the authorities it cited and reviewed. We deem the question, therefore, foreclosed.

II. Of new questions arising at the trial after our judgment in the prohibition cases went down {and herein of those left open).

(a) It is argued that the decree in the Flynn case was res adjudieata; that the effect of the ruling in that case was to make void the entire original proceeding, hence there was nothing to supplement by a supplemental proceeding. If appellants’ premises were true their conclusion might be allowed as sound. But under our rulings in the prohibition cases, supra, the premises are not true, henee the conclusion is unsound. Hereinbefore we set forth the material part of the Flynn decree and therefrom it appears that certain assessments alone were made void. The decree was cautious and precise in that regard. Now, in our judgment in the Tuller-Seehorn case the original proceeding so far as the amount of damages for property taken was concerned and so far as the assessments of benefits on lots whose owners acquiesced in the decree and paid the benefits were concerned, was upheld. We but follow that ruling in disposing of the point in hand, as we have done.

(b) It is argued by appellants that section 23, article 6, of the charter relating to supplemental proceedings to cure errors, defects and omissions in the original proceeding has no application to the case at bar. We disallow the contention. The charter provision and the supplemental ordinance are set forth in full in the Graham Seehorn case, 246 Mo. l. c. 549 et seq. (q. v.) The charter provision is a sensible one. In carrying through condemnation proceedings errors and omissions, despite care and pains, are likely to arise, where, as here, there are a vast number of tracts and many tract owners involved, and such supplemental proceedings are provided for in said charter provision, inter alia, “to properly assess against any piece or parcel of private property against which an assessment was in the first proceeding erroneously made or omitted to be made, the proper amount such private property, exclusive of the improvements thereon, is benefited by the proposed improvement,” etc. Certainly in the case at bar it is well within a proper use of English' to say that the assessments of lots within the district owned by persons who repudiated the proceeding were erroneously made or were omitted to be made in a true sense. To rule as appellants' ask us would crib and confine the charter provision to bounds too narrow to meet the* mischiefs at which it was aimed. Our bounden duty is is to construe it (if allowable in reason so to do) to meet those mischiefs and thus further its evident purpose. Accordingly the point is disallowed to appellants.

(c) It is further argued on their behalf that the original ordinance is void on its face for that it requires the amount allowed for private property taken to be wholly raised by special assessments against the property described in the benefit district. The point hinges on the fact that, section 3, article 6, of its charter directs there shall be assessed against the city the amount of benefits to the city and public generally, inclusive of any benefit to any property of the city, and that the balance, if any, be spread over the several tracts of private property in the benefit district. The original ordinance is unhandsomely worded, but when due effect is given to all its words and its intendment is allowed to arise on the whole instrument, it will appear that the construction sought to be put upon them is unnecessarily harsh. A law ought not to be tortured so that a vice may appear by wringing it. The ordinance has the following provisions:

“And all private property within said limits is hereby taken and condemned for public use as a part of Sixth street and just compensation therefor shall be assessed, collected and paid, according to law. The amount allowed for private property taken, shall be wholly raised by special assessments made against the property described in the next succeeding section in accordance with article 6 of the charter of Kansas City, Missouri.”

It will be observed it requires that compensation for condemned property “shall be assessed, collected and paid, according to law.” It will also be observed that those assessments must be made “in accordance with article 6 of the charter of Kansas City, Missouri.” We do not think the Validity of the supplemental proceedings breaks .on the-point made. This because:

(1) Counsel point us to no provision of the charter requiring the ordinance to make the quoted recitals and we have not been able to put our finger on one. The charter stands on its own legs and, in that regard, seems self-enforcing. It is full and explicit, leaving no room for doubt in the particulars in hand, and, as to them, does not seem to need the adventitious aid of any ordinance.

(2) Giving effect to all the ordinance words and construing them with the charter, to which the ordinance points for the law and for the rule of making assessments, its meaning is clear enough, to-wit, that the charter is to be followed.

(3) Moreover, that was. the trial theory. The charter was followed. The city was assessed its charter share and not a particle of injury came to appellants because of the objectionable phrase.

(4) But more (and most of all) the instant proceeding, in those parts vitally affecting appellants, was under the supplemental ordinance (246 Mo. l. c. 550 et seq.), and that ordinance pointed only to the charter and made a call on its provisions for the rules to govern the supplemental proceeding.

Accordingly the point is disallowed to appellants.

(d) Finally it is argued that the supplemental ordinance is void on its face because (we quote from appellants’ “points and authorities”) “this ordinance in vague, indefinite and uncertain in its terms and does not comply with said section 23, which required the proceedings to be ‘to properly assess against any piece or parcel of private property against which an assessment was in the first proceeding erroneously made or omitted to be made, the proper amount,’ etc., and further that ‘such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be acquired or as'sessed,’ etc.”

Ill the evolution of their argument under this head the order of publication to property-owners is criticised for alleged equivalent vices. But it will be observed that the order of publication is wholly distinct from the ordinance and that the point made does not include that step in the proceeding directed to giving-notice by order of publication. Appellants appeared to the order and tried their case on the merits. We do not say that where that is done a case might not be put where an objection might not be made at the hearing to the order of publication. But we do say that an appearance and a trial on the merits leave parties in an uncommonly serious predicament in so far as objections to. the form of the order are concerned. We think there.is no substantial merit in this phase of the matter.

As we gather it appellants contend that the supplemental ordinance should have described by metes and bounds or sonie definite description each particular tract of the 13,000 erroneously omitted or erroneously assessed in the original proceeding. We do not think so. If we rule in that way as to the supplemental ordinance it would follow that the original ordinance should particularize by precision of description each separate tract in the benefit district. Why prescribe such an enormous publication descending into so many particularities in which a variation from the fact would breed a new crop of errors and omissions'? The settled practice has been not to descend to such particularity. Up to this time notice to the property-owners generally in the described benefit district and defining the district, as here, have been sufficient to bring in interested parties. It was sufficient in this instance. They came in. Not one of them had any difficulty in finding where the shoe pinched him. Each knew the issue involved and directed its proof to that issue. So that while we have been informed and instructed by the ingenious refinement of the point, we have not been convinced ' it is sound.

(e) Some criticism is indulged on the instructions. It would swell this opinion beyond bounds to reproduce all of them, and thereby by ocular demonstration show that they did not conflict with each other but announced propositions of law agreeable to our rulings in the G-raham-Seehorn and Tuller-'Seehorn cases. We are of opinion appellants received favorable consideration at the hands of the court in instructions and that the verdict of the. jury and judgment of the court ought not to be disturbed on that score.

III. Of questions singular to the Union Depot Bridge and Terminal Railroad Company.

The. Union Depot Bridge & Terminal Railroad Company owned a small tract of land in the benefit district, was assessed a small benefit thereon in the original proceeding and paid the assessment. As we grasp it, it also laid claim to . shore land on the Missouri River in the benefit district. There were other claimants for this land, among them the city, and a suit was pending in the Federal court to determine and settle title. Things were in this fix when the original condemnation proceeding was tried. We think it clear that no assessment whatever was made against this land by the original verdict and judgment. In the map filed with the original ordinance to initiate the original proceeding these disputed shore lands were marked “owned or claimed by the Union Depot Bridge and Terminal Railroad Company and Kansas City, Missouri,” indorsed across them. The record is not as plain as it might be and it is possible that different hypotheses might spring because of obscurity, but a study of it leads us to the conclusion these shore lands were omitted-— doubtless owing to the fact that the ownership was in controversy. Between the time of the first verdict and judgment and the time of the supplemental proceedings a compromise was made in such Federal suit and by agreement between an aggregation of claimants certain tracts of these shore lands were given to appellant and certain parts respectively to other litigants, and a decree was entered in the Federal court vesting and quieting these respective titles. When the supplemental proceedings were brought to a head by verdict and judgment the several tracts of shore land awarded the present appellant by that decree were assessed with benefits — at first, in gross, but (subsequently by amended decree) the benefits were spread in a definite amount over each separate tract. It does not seem this appellant appeared and took any part in the trial under the supplemental ordinance and proceeding. It had the same notice by publication all other tract-owners had, but it chose the course of keeping in the background. When the verdict came in in the supplemental proceeding assessing its shore land tracts with benefits, it for the first time appeared and filed a motion for a new trial. In a nutshell it claims that the judgment in the first proceeding was res adjudicata on the question of its liability to assessment for these lands. This contention splits itself into branches. In the first place the hypothesis is indulged that the lands are covered by the assessment of benefits against the city in the original proceeding. Again, that they are covered by a clause in the original verdict to the effect that against lots and parcels of land lying within the benefit district as prescribed by the ordinance “and not hereinbefore mentioned and described, we assess no benefits.” If the latter view be taken then appellant confronts the proposition that the first verdict in that behalf was a nullity because of lack of notice. On the other hypothesis it is sufficient to say that the record does not bear out the theory. Appellant came into the case late, and on a motion for a new trial. It filed no affidavit of newly discovered evidence. It brought to the attention of tlie court the Federal decree on that motion. That was not newly discovered, but we pass the point to let the matter ride off on its merits. We are of opinion that the land was erroneously omitted in the first as-, sessment and that appellant' ought not to complain over paying its share of the cost of the improvement with its coappellants and all other property-owners in the benefit district.

Other questions are raised we deem immaterial. There are a superabundance of briefs in the case, and, doing the best we can with the record, we are of opinion the judgment below was right “and should be , affirmed. It is so ordered.

All concur'except Graves and Woodson, JJ., who dissent for the reasons stated in their dissent in State ex rel. Graham v. Seehorn, 246 Mo. 541.