author: GRAVES, J.

text:
    GEORGE W. GRAVES, a Person of Unsound Mind, by J. P. CAYCE, Guardian and Curator, Appellant, v. AMELIA GRAVES.
    Division One,
    March 3, 1914.
    1. JUDGMENT: Writ of Error Coram Nobis: Insanity of Defendant: Fact Kown. The purpose of a motion in the nature of a writ of error cormn nobis to set aside a judgment, is to call to the attention of the court some vital fact which at the time of the entry of the judgment was not known to the court. If the record shows that such fact was brought to the knowledge of the court before entry of judgment, for instance, if it was revealed by the petition therein, the motion will not lie, nor can a petition attacking the judgment be considered as such motion. For instance, if the petition stated that the defendant was insane, the fact of his insanity was before the court, and the entry of a judgment against him may be an error of law, but not an error committed by reason of the absence of knowledge of a determinative fact which would have prevented the entry of judgment, and hence a motion in the nature of a writ of error cormi nobis, based on the fact that defendant was insane at the time said judgment was entered, will not avail to annul said judgment.

      2. PLEADING: Cause of Action: Vesting Title to Wife’s Land Deeded to Husband in Partition: Duress. A petition charging that, in an attempt at friendly partition, between a wife and her brothers and sisters, of lands inherited by them from their father, she was coerced by the duress of her husband to have her coparceners deed the land to him, states a cause of action for divesting the title out of him and vesting it in her, if the facts stated amount to duress.
    3. -: -: -: Allegation That Process Was Served on Insane Person Only: Demurrer. A petition to set aside a judgment, which charges that the petition therefor charged that the defendant therein had been adjudged insane and that the summons was served on him alone and that he had no guardian, must be taken as true when a general demurrer thereto is filed; and the court cannot assume that a guardian ad Utem was appointed for said insane person, there being no such allegation in the petition, although the petition in the original suit asked that a guardian ad Utem be appointed for him. Such a petition is good as against a general demurrer. A demurrer admits facts well pleaded in the petition, but it does not admit facts not pleaded; nor can any fact not pleaded be considered in passing on the demurrer.
    4. INSANE DEFENDANT: Summons: Guardian Ad Litem. Where a defendant has been adjudged insane and a guardian has been appointed for him, the summons should be served on such guardian; where no such guardian has been appointed, the summons should be served on the lunatic personally, and upon suggestion of his insanity a guardian ad Utem should be appointed for him, to conduct his defense under the supervision of the court, and then the court has power to render judgment affecting the title of the lunatic’s property. But a judgment rendered against an adjudged lunatic, whose legally appointed guardian has not been brought into court, or for whom no guardian ad Utem is appointd, after suggestion of his insanity has been made, would smack of legal if not actual fraud; and a petition so charging states a cause of action for setting aside the judgment, and is good as against a general demurrer. If a guardian ad Utem was in fact appointed, and that fact was not stated in the petition, that fact should be stated in an answer.
    Appeal from St. Francois Circuit Court. — Hon. Charles A. Killian, Judge.
    Reversed and remanded.

      B. H. Boyer for appellant.

      Merrill Bipkin for respondent.
   GRAVES, J.

This canse reached this court on a mandate from the St. Louis Court of Appeals because title to real estate is involved. Plaintiff and defendant are husband and wife. The present action is one brought in equity to set aside a judgment of the circuit court of St. Francois county, by which judgment the title to certain lands had been decreed out of George W. Graves and vested in Amelia Graves. Plaintiff charges that he is the owner of the lands in dispute, and that such judgment although void (as alleged in the petition) is a cloud upon his title.

In 1904 at the May term of the St. Francois County Circuit Court, Amelia Graves brought suit to have the title of about 376 acres of land divested out of George "VV. Graves, and vested in her. The decree attacked in the case at bar did decree title in Amelia Graves* and divested George W. Graves, the husband, of all title thereto. That petition is attacked in this case* as well as the judgment and proceedings thereon. In that petition Mrs. Graves stated that she was a daughter of David P. Hall, who died seized and possessed of about 1030 acres of land; that said land descended to her and the other children of David P. Hall, and that the heirs agreed upon a partition of the land; that the land involved in the instant action is the part given to her in such partition; that such partition was effected by the several heirs deeding to each other.

From this point the petition had best speak for itself and such portion reads:

“That said land descended to his said children and heirs in equal portions share and share alike, and for the purpose of dividing said inheritance met upon said premises and mutually agreed upon a division thereof, this plaintiff with her husband thereupon exeeuted a deed to each of the other said heirs, conveying to them her interest in each of the tracts selected by them. In consideration of her said conveyance, as aforesaid, the other said heirs were to execute to her their interest in the portion selected by her, but when the time for executing said deed arrived the defendant demanded that since he was her husband, the title to her part of said land should be deeded to him, instead of to her, the said plaintiff, and boldly stated that unless this was done, he would not work on said land or provide for plaintiff; whereupon this plaintiff objected and protested against such a conveyance of her property to him, her said husband, and refused to join in such a conveyance, but defendant still insisted that he must receive the title to her part of said land and again renewing his threats to not work thereon, or provide this plaintiff with support, so impressed the plaintiff with the belief that if she should longer oppose him he would not only carry said threats into execution, but would otherwise conduct himself as to deprive her of all future happinesss and render her condition in life intolerable. By reason of such belief and deep anxiety and stress of mind that it produced, this plaintiff was wholly deprived of the power of longer resisting her said husband’s demands, and other heirs of said David P. Hall, deceased, to-wit, Marinda Mc-Clenahan nee Hall and Peter B. McClenahan, her husband, Edward D. Hall and Mary J. Hall, at the instance and request of defendant, conveyed by a general warranty deed their interest in that part of said tract selected by plaintiff, as her part of her deceased father’s land, to her said husband, the defendant. Said land so conveyed is situated in S.t. Francois county, Missouri, and is further described as follows, to-wit: The north half of the northeast quarter of section 25, township 38, range 5, and the northeast quarter of the southeast quarter of section 12, township 38, range 5, and the south part of the south half of the southeast quarter of section 24, township 38, range 5, and the south part of the south half of the southwest quarter of section 19, township 38, range 6; and the north half of the northeast quarter of section 19, township 38, range 6, and the southeast quarter of the northeast quarter of section 19, township 38, range 6, and the northeast quarter of the northwest quarter of section 30, township 38, range 6, containing in the aggregate 375.80 acres.
“Plaintiff further states that within a few years after the execution of the deed as aforesaid, plaintiff again protested against defendant holding the land that she had inherited from her deceased father and to which she was entitled, and insisted upon a conveyance of the same to her; whereupon the said defendant stated to her that the land belonged to her, and that he would reconvey the same to her: that this promise to reconvey was rendered from time to time until about two years ago, when he finally notified her that he would not only not reconvey the land to her but that he had consulted a lawyer, and intended to have her ejected from the premises.
‘ ‘ Plaintiff further states that defendant had nothing when they were married, but that they immediately moved on the premises in dispute where both plaintiff and defendant lived until about two years ago, when defendant left plaintiff without any cause or provocation whatever, and has refused to provide any means of support for plaintiff. Plaintiff further states that she is in sole possession of said premises and by working and cultivating them is able to provide herself with a scanty support, but if deprived of them would be wholly dependent upon charity for the remainder of her life.
“Plaintiff further states that the defendant has been declared by the probate court of St. Francois county, Missouri, to be insane, and is now confined in Hospital Number 4- of Missouri for the Insane, and plaintiff would therefore ask the court to appoint a guardian ad litem to represent the defendant in this proceeding in the manner provided by law.
“Whereupon plaintiff prays the court to declare the defendant (or guardian representing him) a trustee as to the lands last above described and order him to convey said property to her by good and sufficient conveyance, and for such other orders as to the court may seem meet and proper in the premises, and for costs.”

In that case the summons was served upon George W. Graves. It seems that he had no guardian at that time. Now reverting to the petition in the case before ns at this time it will perhaps be best to set out the material portions thereof, because the case passed off upon a demurrer below. After charging that he was and still is the owner of the land in question, and that he was adjudged insane in 1901 by the probate court of the county, and the previous suit and judgment and that a guardian (now representing him in this suit) was appointed for him, the petition then thus proceeds :

“Plaintiff further states that the petition constituting defendant’s alleged cause of action in the suit instituted as aforesaid by her showing upon its face that the legal title to all of said lands and property aforesaid, and in her said petition described, was at the time in this plaintiff; showing upon its face that this plaintiff, George W. Graves, defendant therein, was a person of unsound mind; that said petition further shows upon its face that said George W. Graves, the plaintiff herein, had been found and adjudged to be a person of unsound mind prior to the institution of said suit by the defendant herein, Amelia A. Graves, and further shows on its face that said Graves, this plaintiff, was at the time of the institution of this suit by defendant, an inmate of State Hospital No. 4 at Farmington, Missouri, for the Insane; that said petition •aforesaid of defendant further shows upon its face that this plaintiff, George W. Graves, has no legally appointed guardian and that the return of the sheriff on the writ of summons sued out by defendant in her suit aforesaid shows upon its face that the summons, was served upon this plaintiff, George W. Graves, and that said summons nor any other process in said cause was ever served upon anyone who was or who purported to be the guardian for this plaintiff. Plaintiff further states that the said petition of defendant aforesaid filed as aforesaid by her as her said alleged cause of action aforesaid shows upon its face that defendant was not entitled to any legal or equitable relief and that said petition further shows that the alleged facts .and matter set forth in her said petition aforesaid and upon which she prayed relief were not such facts and matters as were capable of legal and competent proof, and that the said petition on its face shows that no ■cause of action was therein stated and that no such facts were therein stated as to constitute a cause of action for any purpose. That said petition of defendant aforesaid shows on its face that the allegations therein contained and set forth were not sufficient to support any judgment nor decree of any character whatsoever except an order of dismissal.
“A certified copy of said petition of defendant filed as aforesaid by her against this plaintiff is herewith filed and hereto attached and is hereby made a part of this petition and is marked ‘Exhibit A.’
“Plaintiff further states that the said defendant, Amelia A. Graves, wife of the plaintiff aforesaid, did on or about said 5th day of July, 1904, sue out a writ of summons upon her said petition aforesaid. That thereafter and on or about the 8th day of July, 1904, aforesaid, the sheriff of said county of St. Francois aforesaid, in obedience to the command of said writ of summons aforesaid, did serve saíne by delivering a copy of said writ and a copy of said petition into the hands of the defendant therein, the plaintiff herein, as shown by the return of said sheriff on said summons. That the said summons nor any other process in said cause was ever served upon any one purporting to he the guardian of this plaintiff, the defendant therein, as is evidenced by a certified copy of said writ of .summons, together with a certified copy of the return of the sheriff aforesaid thereon, which are hereto attached and made a part of this petition and marked Exhibit B. ’
“Plaintiff further states that on or about the 15th •day of August, 1904, and during the regular August term of said county court of St. Francois county, Missouri, said cause came on to he heard by the court upon the said petition of the defendant herein in the ■absence of this plaintiff, the defendant therein, and while this plaintiff was restrained of his liberty at the Hospital for the Insane aforesaid and in the absence of anyone who was legally authorized to appear for or on behalf of this plaintiff, and said court aforesaid at the time aforesaid did by its pretended decree and judgment in said cause divest the legal title to .all of said lands and property aforesaid out of this plaintiff, the defendant therein, and did thereby vest •or attempt to vest the legal title thereto in the defendant herein. Plaintiff further states that the record of said cause shows on its face that the court had no jurisdiction over either the person of the defendant therein, or over the subject-matter of the said suit. That the original files in said cause and the record thereof show upon their face that this plaintiff, the •defendant therein, was never served, with process as required by law and that this plaintiff never had his day in court. Plaintiff, therefore, states that said decree is a fraud upon his rights in the premises and that same is a nullity and void.
“Plaintiff further states that the said decree aforesaid entered and rendered as aforesaid in said cause has cast a cloud over the title of his said lands and property, and that by reason and as a consequence of the rendition of said decree aforesaid he has been since said 15th day of August, 1904, and that he still is deprived of the use and enjoyment of his said property and of the proceeds thereof.
“Wherefore the plaintiff prays the court to set. aside, cancel and annul and for naught hold the aforesaid judgment and decree entered as aforesaid against him in said cause, and that he have and recover his costs herein expended.”

To plaintiff’s petition a general demurrer was. filed and by the court sustained, and judgment entered for defendant, thus:

“Now at this day comes plaintiff by his attorney, and defendant in person as well as by her attorney, and defendant withdraws her answer and files demurrer, which said demurrer the court now takes up, is-heard and argued, and the court being fully advised, sustains the same. Therefore it is considered, ordered and adjudged that plaintiff take nothing against defendant by reason of said writ, and that judgment be rendered in favor of defendant for the costs. Plaintiff objects and excepts at this time.”

From such judgment the plaintiff has appealed, and the matter is here.

I. The plaintiff makes two assignments of error, thus:

“The court erred -in sustaining defendant’s demurrer to plaintiff’s bill or petition for the reason that said bill or petition was good as a bill in equity in a direct attack upon a void or voidable judgment.
“The court erred in sustaining the demurrer to plaintiff’s petition for the reason that said petition was good as a motion for review, or in the nature of a writ of error coram nobis.”

These we shall take in inverse order. Plaintiff’s petition cannot he considered as a motion in the nature of a writ of error coram nobis. So considered the finding would have to be against the plaintiff. Upon the very face of the petition it is shown that in the original suit the court was ° . fully advised of the mental condition of the present plaintiff at that time. In the original suit the present plaintiff was the defendant and the present defendant was the plaintiff. It is charged in the original proceeding that the defendant was insane and had been adjudged insane, and was then confined in an asylum. The purpose of a motion in the nature of a writ of error coram nobis is to call to the attention of the court some fatal fact, which at the time of the entry of judgment was not known to the court. If the record shows that such fact- was brought to the knowledge of the court before entry of judgment then a motion in the nature of a writ of error coram nobis will not lie. In such case there is nothing upon which to predicate such a motion. These motions only go to errors of judgment occasioned by the absence of some fatal facts, and not to errors committed with the facts known. To illustrate, if a judgment is entered against one actually insane, and the fact of insanity was not known to the court at the entry of the judgment, then the motion as a general rule will lie, but if the record discloses, as it does here, that the fact of insanity was before the court entering the judgment, then the action of the court in entering the judgment may be an error of law, but not an error committed by reason of the absence of a determinative fact — a fact the knowledge of which would have prevented the entry of the judgment. This court has had occasion to review the doctrine of motions in the nature of writs of error coram nobis, in very recent cases, and it is safe to say that the motion will not lie where the fact relied upon in the motion is one known to the court at the entry of the judgment. [Reed v. Bright, 232 Mo. l. c. 411; State v. Stanley, 225 Mo. l. c. 532; Marble v. Vanhorn, 53 Mo. App. l. c. 364; Asbell v. State, 62 Kan. l. c. 214; 5 Ency. Pl. and Prac., p. 29.]

So that if the plaintiff here is relying upon the fact of insanity to base a motion in the nature of a writ of error coram nobis, there is no foundation for the writ, because the fact was before the trial court in the original case.

If the plaintiff goes further and says that the motion should prevail because of the fact that no service was had upon his guardian in the original suit, this contention must fail for two reasons, (1) because such fact is one patent of record, and we have a statute that applies to such eases, section 2121, Revised Statutes 1909, which statute clearly contemplates the filing of such motion in the original case, which is not true here, and (2) because the plaintiff by the present petition has elected to go into equity or attempt to go into equity, and thus waives his right to follow statutory methods. So that we conclude that the plaintiff’s case must stand here upon the theory that it is a bill in equity to clear his property of an alleged cloud thereon occasioned by the judgment aforesaid.

II. Coming now to the second question raised, does this petition state a cause of action? It does not state a cause of action in so far as it attacks the original judgment on the ground that the petition of Amelia Graves in the original suit did not state a cause of action. That petition is one which would entitle her to the relief prayed had she succeeded in getting the defendant in such suit properly before the court and made proof of the facts charged in the petition. The facts there charged in effect said that Graves procured his legal title to the land by duress. When the marriage relation is considered the allegations of that petition make a good ease. We must therefore seek other substantive allegations in the petition in the instant case,, before we can say the trial court was in error in sustaining a demurrer thereto.

The other allegations of the petition may be shortly stated. It avers that Graves was personally served in the original suit, but that his guardian was not. served, and as these matters can be made to appear from the files in the case, the judgment should be declared void, and set aside as a cloud upon his title. We shall proceed upon the theory that the judgment, is in such shape as to east a cloud upon his title, and for that reason an action in equity will lie. In the brief for the respondent it is stated that in the original suit the court appointed a guiardian ad litem for George W. Graves, before a trial of the cause, and that therefore the proceedings were regular. This matter cannot be considered here. This case stands here upon a demurrer to the plaintiff’s petition. No such averment is made in the petition in the instant case. On the contrary the petition charges that in the original suit he was served personally, as shown by the summons and the sheriff’s return thereon, and that a judgment was rendered against him on that service. Nothing is said either in the petition or the demurrer about a guardian ad litem. We must adhere to the allegations of the petition here. If it states facts for relief, we must sustain it, although outside of the record before us there may be other facts detrimental to plaintiff’s alleged cause of action. These matters might be raised by answer, but not by general demurrer. Nor need we discuss the power of the court to appoint a guardian ad litem, because not within the purview of the issues made in the case. Nor can we consider the charge made in the brief that Graves had no guardian at the date of the former suit, and that the present guardian, joined with him herein, was appointed afterward, for the purpose of this suit, because such question is not here upon the record before us. We can only consider the allegations of the petition and the demurrer. The demurrer admits the facts well pleaded in the petition, but these facts about a guardian ad litem, or the nonexistence of a guardian .at the date of the former suit, are not in the petition.

If it appears, as in the petition charged, that Graves had been previously adjudged insane, and was at the time insane, and confined as a lunatic, and that such fact was known to the court when it rendered the judgment, should the plaintiff have relied upon those facts when coupled with the further fact that the judgment does cloud his alleged title? That is the question here, and the only question. How defendant may obviate these charges by countervailing facts, rests with her upon an answer which she may file, it this petition be declared good.' This petition in effect attempts to charge a legal fraud in the very concoction ■of the judgment sought to be set aside. It charges that the plaintiff in the original suit advised the court that the defendant was insane, and was then confined as such, and with this knowledge the court entered a judgment against him. It does not charge fraud in fact ■or in specific terms. Is such petition good against a general demurrer? It must be noted at this point that the petition nowhere charges that Graves had a g’uardian at the time of the original suit. Had this petition charged that Graves had a guardian at the date of the first suit, then there could be no question that such guardian should have been served with process (R. S. 1909, sec, 514; Bank v. Berry, 79 Mo. App. 472); and the further charges in the petition would have entitled him to relief in equity. Under chapter 2, article 19, which deals with “Guardians and Curators of Insane Persons,” we find this section 514, supra, which reads:

“In all actions commenced against such insane person, the process shall be served on his guardian; and, on judgment against such insane person or his guardian, as such, the execution shall be against his property only.”

This section, as the context of the chapter shows, has reference to lunatics who have been adjudged insane, and had guardians appointed. It has no reference to lunatics without guardians. The general rule is, that a lunatic without a guardian, although having been adjudged insane, can be sued. Thus in 22 Oyc. 1224, it is said:

“An insane person not under guardianship may be sued the same as a sane person. At common law the rule was the same after inquisition of lunacy and the appointment of a guardian or committee; but now if there be a committee or guardian it is generally necessary to join him as a party defendant, and ih some slates plaintiff is required to obtain leave of court before instituting suit against an adjudged incompetent. After restoration to sanity the former lunatic may of course be sued the same as any other person.”

And in such case, where there is no guardian, the •court can appoint a guardian ad litem to make the defense. Thus in 22 Cyc., 1231, the rule is stated:

“But where no guardian or committee has been appointed, or if appointed refuses to qualify or has been removed, the action may be prosecuted or defended in his name, with the sanction of the court, by any •competent person as the insane person’s next friend, even though the lunatic has not been judicially declared insane, if it otherwise appears that he is insane. A next friend may prosecute a writ of error in his insane defendant’s behalf, or may bring a suit to protect the lunatic’s estate through a receivership until a guardian can be appointed; but a suit brought by a next friend is substantially that of the insane person, and he has no authority to bind the lunatic or his estate, and is subject to removal at any time by order of the court.”

And on page 1233 it is further announced as the rule:

“Likewise where a guardian or committee has not been appointed, or if appointed refuses to qualify or has been removed, a guardian ad litem should, upon a proper suggestion or petition, be appointed to defend in the name of the insane person, even though defendant has not been judicially declared insane, if the fact of insanity is shown by affidavit or otherwise. A guardian ad litem so appointed is under the direct control of the court, and may make any defense either by way of answer or cross bill or both that occasion may require or the court may order. ’ ’

This court has specifically recognized the rule in the ease of Bensieck v. Cook, 110 Mo. l. c. 183, Whereat we said:

“The trial court pursued the right course in appointing a guardian ad litem for defendant, Joseph Cook. [Mitchell v. Kingman, 5 Pick. 431; Buswell on Insanity, sec. 132; Sturges v. Longworth, 1 Ohio St. 544.] And the power of the court to appoint such a guardian, of necessity, concedes the power of the court, upon the proper basis of facts being presented, to render a judgment as binding on the lunatic and his property interests, as a similar judgment would be upon a sane person.”

In that case, like this, Cook was in confinement for insanity when service of summons was had. In Cyc. under the paragraph quoted will be found a collection of the cases supporting the rule. It is safe to say that an adjudged lunatic without a guardian, may be sued, by having personal service of summons upon him, but upon suggestion of insanity, a guardian ad litem should be appointed, to conduct his case under the supervision of the court. When such is done, then the judgment binds the lunatic. But the trouble with the case at bar is that this petition seems to aver that this, judgment in the original case was rendered without such steps. If so it states a good cause of action. If no guardian ad litem was appointed, then the lunatic-never had his day in court in the full sense of the term,, and a judgment rendered against him after a suggestion of lunacy as here, would smack of legal if not actual fraud. It may be that this petition has been artistically drawn for the purpose of withholding the fact of a guardian ad litem, but if so the defendant should have cast her anchor windward, and not contented herself with a demurrer. As it stands, we think this petition stated a cause of action, and the trial court erred in sustaining the demurrer. Upon a reversal of this judgment the defendant can by answer supply such facts as are not truthfully outlined in the petition, and thus place all the facts before the court.

Judgment reversed and cause remanded.

All concur.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM

license: Public Domain

text:
    ELLEN GORMAN, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and CITY OF ST. LOUIS.
    Division One,
    March 3, 1914.
    1. CITIES: Streets. The mayor and assembly of St. Louis have-been vested with full power to establish, open, vacate, alter, widen, extend, pave, or otherwise improve, all streets, avenues, sidewalks and alleys in the city. This power is full -and complete, constituting the city the sole judge of when a street shall be opened or closed for public travel, subject, however, to the constitutional inhibition against taking or damaging private property for public use without just compensation.

      2. -: -: Abutting Owner: Right of Access: Taking Private Property. The right of access from the property to a street is the only right appurtenant to private property which is not included within the broad control conferred upon the city of St. Louis by its charter; the right to travel upon the street in any direction is not a property right such as is protected by the constitutional inhibition against taking or damaging private property for public use without just compensation..
    3. -: -: -: Obstruction in Street. An owner of abutting property in St. Louis has not the right to abate by injunction an obstruction in the street on which his property fronts, which obstruction is 250 feet from his boundary line, although such obstruction prevent travel on the street in that direction and be a public nuisance.
    Appeal from St. Louis City Circuit Court. — Eon. George E. Shields, Judge.
    Affirmed.

      Kinealy & Kinealy for appellant.
    (1) Defendant railroad’s solid embankment across Aurora avenue, totally obstructing’ it, is a public nuisance which, the city did not and could not authorize. Lackland v. Railroad, 31 Mo. 180; Lockwood v. Railroad, 122 Mo. 86; Knapp, Stout & Co. v. Railroad, 126 Mo. 37; State ex rel. v. Murphy, 134 Mo. 562; Corby v. Railroad, 150 Mo. 457; Sluder v. Transit Co., 189 Mo. 130; State ex rel. v. Railroad, 206 Mo. 261; Morie' v. Transit Co., 116 Mo. App. 12; Donner v. Railroad, 133 Mo. App. 527. (2) As plaintiff’s property fronts on Aurora avenue and the embankment cuts off access to it along the street from the east she sustains damages different in kind from that of the public at larg*e, and this authorizes her to maintain this suit for an injunction. O’Brien v. Central I. & S. Co., 158 Ind. 218; Vanderburgh v. Minneapolis, 98 Minn. 329; Chicago v. Burckey, 158 111. 103; Re Melon Street, 182 Pa. St. 397; Farrar v. Railroad, 101 Mo. App. 140; Hulett v. Railroad, 80 Mo. App. 90 ; Lackland v. Railroad, 31 Mo. 180; Heinrich v. St. Lonis, 125 Mo. 424; Rnde v. St. Lonis, 93 Mo. 408; Gates v. Railroad, 111 Mo. 28; Glaesner v. Brewery Assn., 100 Mo. 508; Sheedy v.,Brick Works, 25 Mo. App. 527.

      ■Douglas W. Robert for respondent Railroad; Robert & Robert of counsel.
    A private person cannot maintain an action for the abatement of a public nuisance unless the plaintiff can show that he has suffered damage different in kind, not in degree, from the general public. Fairchild v. City, 97 Mo. 85; Carnnan v. City, 97'Mo. 92; Rnde v. City, 93 Mo. 408; Bailey v. Culver, 84 Mo. 531; Kinealy v. Railroad, 69 Mo. 663.

      William E. Raird and Robert RurJiham for respondent City.
    An injunction will not issue, under the facts stated in the petition in this case, to restrain a municipal corporation from permitting the maintenance by a third person of a public nuisance upon the highway. .Dillon, Municipal Corporations (5 Ed.), secs. 109, 242, 243, 301, 689, 1626, 1627, 1628; High, Injunctions, secs. 587, 593,1240; Mnrtaugh v. St. Louis, 44 Mo. 479; Moore v. Cape Girardeau, 103 Mo. 470; Kiley v. Kansas City, 87 Mo. 103; Armstrong v. Brunswick, 79 Mo. 319; Moran v. Car Co., 134 Mo. 641; Harman v. St. Louis, 137 Mo. 494; Bntz v. Kavanaugh, 137 Mo. 503; Sallee v. St. Louis, 152 Mo. 615; Loth v. Theatre Co., 197 Mo. 328; Mehan v. St. Louis, 217 Mo. 35; Ryan v. Kansas City, 232 Mo. 471; McCrowell v. Bristol, 5 Lea (Tenn.), 685; James v. Harrodsbnrg, 85 Ky. 191; Arnold v. Stanford, 113 Ky. 852; McDade v. Chester City, 117 Pa. St. 414.
   BROWN, C.

This suit was commenced in the circuit court for the city of St. Louis, December 28, 1909. The amended petition filed January 17, 1910, is, caption and signature omitted, as follows:

“Plaintiff by leave of court files this, her amended petition, and states that the defendant Chicago, Burlington & Quincy Railroad Company is and was at all the times hereinafter mentioned a railroad corporation and the defendant city of St. Louis is a municipal corporation and political subdivision of the State of Missouri; that plaintiff is the widow of Francis Gorman, who died at the city of St. Louis on or about the 7th day of June, 1904, leaving a last will and testament whereby after bequeathing the sum of five dollars to each of his children he devised and bequeathed unto plaintiff all other property, whether real, personal or mixed, which he owned at the time of his death; that at the time of his death the said Francis Gorman was the owner of the tract of ground hereinafter particularly described and under his will plaintiff became and still is the owner thereof and all the debts and bequests mentioned in the will of said Francis Gorman have been paid and his estate duly administered and settled; that subsequent to the dedication of Aurora avenue as hereinafter stated and prior to the construction of the railroad embankment hereafter described the said Francis Gorman for a valuable consideration purchased and thereby became the owner •of the tract of ground above referred to and particularly described as being a tract of land situated in United States Survey No. 926, having a front of 660 feet on the south line of Aurora avenue and extending southwardly between parallel lines for a distance of 341 feet 8 inches and thence southwardly to the center line between Aurora avenue and Humboldt avenue on which center line it measures 620- feet, said tract being composed of lots 31 and 32 of that part of the subdivision entitled Garden Suburb, by John How, which lies east of the "Wabash Railroad excepting the triangle off of the southeast comer thereof conveyed by said Francis Gorman to the St. Louis, Keokuk & Northwestern Railroad Company, on or about tíre 9th day of January, 1892; that at the time that said Francis Gorman became the owner of said tract of ground the same was in St. Louis county but outside of the city of St. Louis; that thereafter about the year 1876, the limits of the said city were extended so as to include within said city the said tract of ground and all of said Garden Suburb; that said Garden Suburb was a subdivision made by one John How, who duly platted same and recorded a plat thereof in the office of the recorder of deeds of St. Louis county, on or about the 24th day of July, 1868, and which is of record in the office of the recorder of deeds of the city of St. Louis in plat book 6, page 22; that in said subdivision divers streets were platted and dedicated as public streets and highways and amongst them was Aurora avenue, which runs in a general eastern and western direction from Broadway, formerly Bellefontaine road, on the west to the Mississippi River on the east and being the only public street upon which plaintiff’s said tract of ground fronts, and said Aurora avenue ever since has been and still is a public street and highway; that there is no way of reaching plaintiff’s said tract of ground except by passing along Aurora avenue from the east or from the west; that by ordinance No. 15377 of the defendant city of St. Louis, approved December 24, 1889, the St. Louis, Keokuk & Northwestern Railroad Company was authorized by said city to construct, maintain and operate a railroad of standard gauge with a single or double track over, along and across divers streets and alleys in said ordinance mentioned and along a route therein designated and which included the crossing of Aurora avenue at the point hereinafter stated; that purporting to act in accordance with the terms of said ordinance the said railroad company in 1893 constructed its railroad across Aurora avenue at a point about 250 feet east of the eastern line of plaintiff’s said property; that in constructing its said road the said railroad company wrongfully built across said Aurora avenue at the point aforesaid a solid embankment about 30 feet wide on top and With sloping sides and the top of which was and still is about 15 feet above the surface of Aurora avenue; that upon said embankment the said railroad company laid its tracks and operated its trains thereover; that on or about January 1, 1901, said St. Louis, Keokuk & Northwestern Railroad Company sold, conveyed and delivered said railroad and embankment to defendant Chicago, Burlington & Quincy Railroad Company, which has ever since maintained and operated same and still does so; that said embankment entirely obstructs travel along Aurora avenue eastwardly from plaintiff’s property and there is no street or highway crossing or leading into Aurora avenue between the western line of plaintiff’s property and the said embankment of said railroad company; that by the construction of said embankment across Aurora avenue aforesaid the easement incident to plaintiff’s said tract of ground of the right to pass from same eastwardly to the public wharf and the river has been totally destroyed and there is no way of reaching plaintiff’s said property by travel along Aurora avenue from any point east of said embankment and thereby plaintiff has been deprived of her property, to wit, said easement, without due process of law, contrary to section 1 of the amendment 14 to the Constitution of the United States and plaintiff’s said property has been taken and damaged for public use and without compensation contrary to section 21 of article 2 of the Constitution of Missouri and said embankment so built across Aurora avenxie, as aforesaid, is and since its constrnction always has been a public nuisance and said railroad company has been permitted to maintain said public nuisance by the defendant city of St. Louis, which has never at any time taken any steps to cause same to be removed and by the maintenance of said public nuisance plaintiff’s property has been greatly depreciated in value and by reason of said nuisance and the location of said property and of the deprivation by said nuisance of plaintiff’s said easement and right to travel to and from her said property eastwardly along Aurora avenue she has- suffered and will suffer damages different in kind from that suffered by the public at large by reason of the maintenance of said public nuisance and plaintiff states that she has no adequate remedy at law in the premises.
“Plaintiff therefore prays the court to order, adjudge and decree that the said public nuisance be abated and that the defendant railroad company be perpetually enjoined from maintaining said solid embankment over Aurora avenue and from maintaining its tracks across Aurora avenue at the point aforesaid without providing ample and adequate means for traveling along said avenue in vehicles and on foot eastwardly to and from plaintiff’s property and that the defendant city of St. Louis be enjoined from further permitting the said obstruction to be maintained in Aurora avenue as aforesaid and that plaintiff be granted such other and further relief in the premises as shall seem equitable and just.”

To this each defendant demurred generally; the defendant Railroad Company adding the ground that the cause of action, if any, accrued by the erection complained of which was more than ten years prior to the filing of the suit and was therefore barred by the Statutes of Limitations. The court sustained the demurrers and entered judgment for the defendants.

OPINION.

The plaintiff is seeking the aid of the court by injunction to abate and prevent the further continuance of a railroad embankment fifteen feet high across Aurora avenue, a platted street in the city of St. Louis. She is the owner, as devisee of her father, who died in January, 1904, of a lot of ground fronting 660 feet on the south side of the street and extending south the same width 341 feet 8 inches, thence to a line half way to Humboldt avenue, the next street south, where it is 620- feet wide. The land was platted in 1868 by the name of Garden Suburb, and the father became the owner between that time and 1876, when it was taken into the city of St. Louis. Aurora avenue with other streets was dedicated on this plat. In 1889, the city of St. Louis, by ordinance, authorized the St. Louis, Keokuk & Northwestern Railroad Company to cross Aurora avenue with a- single and double track at a point about 250 feet east of the northeast corner of plaintiff’s land. In 1892 plaintiff’s father conveyed to that company a triangle off the southeast corner of the land and in 1893 it built its line across Aurora avenue with a 30-foot roadway on an embankment 15 feet high, and it has, with its successor the defendant railroad company, maintained and operated the structure ever since.

Although there is no charge in the petition that the street in question was ever opened for travel either at the point of the obstruction or opposite to the plaintiff’s land, we will assume, for the purpose of this inquiry, that it was at the time of the construction of the railroad, and ever since has been, opened to the use of the public for all the purposes to which an urban highway of that character may be devoted. That the structure complained of, which constitutes an insurmountable obstacle to all ordinary travel along the street at that point, is not such a purpose is evident, and that it is a public nuisance which may he removed and its further maintenance prevented by a proceeding on the part of the proper public authority follows as a matter of course. The title to all public easements of this character is vested in the State or such municipal corporations or gwosi-corporations as the Legislature has indicated, in trust for all the people of the State for the purposes to which they have been dedicated or otherwise appropriated, and their control has been delegated to such legislative agents for the purposes of the trust. It is evidently contrary to this policy that it should he exercised by any one or more persons to the exclusion of others. In this ease the mayor and assembly of the city of St. Louis have been vested with full power by ordinance to establish, open, vacate, alter, widen, extend, pave, or otherwise improve, and sprinkle,_ all streets, avenues, sidewalks and alleys in the city. This power is full and complete; constituting the city the sole judge when the street shall be opened or closed for public travel, subject, however, to the constitutional inhibition against taking or damaging private property for public use. [Heinrich v. St. Louis, 125 Mo. 424; Christian v. St. Louis, 127 Mo. 109; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560, 572; Glasgow v. St. Louis, 107 Mo. 198.]

This constitutional provision refers, it will he noted, to the taking and damaging of property and not of any purely personal right. As we have already said, everybody has the personal right , , , , ,, , , TX to travel along the street. He may exercise it a hundred times each day or once a year and its nature is the same: the exercise of a public right held in trust for him by the State through its constituted legislative agency, which alone has the power to prepare and preserve the street for his use. With this duty he has no authority to interfere. The right protected by the Constitution because it pertains to his property is the right of access to the street or free passage between Ms property and the street, so that he may go upon it to exercise his public right of travel, and when he has done so return to his own grounds. [Rude v. St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92; Glasgow v. St. Louis, supra; Heinrich v. St. Louis, supra.] While some courts in other jurisdictions have held that the private right of access to the street appurtenant to abutting property includes the right to travel along the street to certain other places witMn limits that thus far have not been satisfactorily designated, this court has consistently adhered to the doctrine that the right of access is the oMy right appurtenant to private property which is not included within such broad control as has been conferred upon the city of St. Louis by the charter provision we have quoted. We do not decide and it is not necessary in tMs case to consider whether circumstances may not exist in which the right of access will be broader than the boundary lines upon the street of the private owner. In this case, however, no such question arises. The averment of the petition is that the “embankment entirely obstructs travel along Aurora avenue eastwardly from plaintiff’s property and there is no street or highway crossing or leading into Aurora avenue between the western line of plaintiff’s property and the said embankment,” whereby “the easement incident to plaintiff’s said tract of ground of the right to pass from same eastward to the public wharf and the river has been totally destroyed” and plaintiff “deprived of her property, to-wit, said easement, without due process of law, contrary to section 1 of the amendment 14 to the Constitution of the United States; and plaintiff’s said property has been taken and damaged for public use and without compensation, contrary to section 21 of article 2 of the Constitution of Missouri,” whereby the property has been greatly depreciated in value. It will be seen that the injury complained of is that he cannot get eastward to the river and public wharf along Aurora avenue and that from the front of his property he must go westward to its west line to leave Aurora avenue and go to other parts of the city. There is no question that the street system of any locality has much to do with the availability of the real estate for many uses and consequently with its pecuniary value, but these are public questions and must be solved in the interest of the public. In opening streets to public travel the municipality assumes serious burdens respecting their maintenance in a safe condition, and in the interest of the general public that pays the bills should be clothed with a discretion commensurate with the responsibility. As we have already said, this is a doctrine to which this court has thus far adhered closely. Three of the cases we have cited, Rude v. St. Louis, Fairchild v. St. Louis and Canman v. St. Louis, grew out of a single circumstance very like the one now under consideration. In the construction of the Missouri Pacific Railway and Wabash, St. Louis and Pacific Railway east and west across High street and Jefferson avenue, two paralid! streets running north and south in St. Louis, the railroad companies depressed their tracks at these streets so that they were rendered wholly impassable f'or teams. They were both improved highways. In the Rude case the plaintiff’s lot, upon which were three buildings — two dwelling houses and a -store — was about 500 feet north of the crossing. He sued the city and the companies for damages and recovered in the St. Louis Circuit Court, but the judgment was reversed here. The court, by Judge Black, said:

‘ ‘ Generally, where damages have been awarded to a property owner for an obstruction in the street, the obstruction has been in that part of the street upon which the property fronted; yet it cannot be said that this is always essential to a recovery. The property may not be on the street, yet may communicate with it by means of a private way, in which, event it would seem that an obstruction at the private way would be an infringement of a private right. Now, in this ease, the plaintiff has perfect access to his property. It is only when he goes south, passing Scott avenue and another street, that he comes in contact with the obstruction, the nuisance. His inconvenience, and that of persons going to and from the grocery, is precisely the same in kind as that of all other persons who desire to use High street. His may be greater in degree, -but not different in kind. The nuisance is a public one, and the physical facts show that the damages to the property are due to a public, and not to a private, wrong. There can be no action for private damages clue to a wrong, which, as to the plaintiff, is' public only.”

Fairchild owned a lot with two dwelling houses fronting Jefferson avenue 315 feet south of the crossing of that street which had rendered it impassable. He recovered judgment in the circuit court which was reversed here on the ground stated by Judge Brace for the court as follows: “The only difference that can be pointed out is, that the property of the plaintiff in the Rude case was on High street, five hundred feet north of the obstruction on that street, and in this case the property of the plaintiffs is on Jefferson avenue, three hundred and fifty feet south of the obstruction.on that street. The ground of complaint is the same in each case, and in each case access to the public street to and from the owner’s property and along it to the whole public street system of the city is unobstructed, though not so convenient perhaps as before this crossing was closed. The inconvenience to every person traveling in a vehicle south of the railroad tracks, who desires to go north directly across them on this public street, and to every person north who desires to go directly on it south across them, of having to make a detour by some adjacent street where crossings are provided, is the injury of which the plaintiff complains in each case. This is a common public injury for which damages cannot be recovered by an individual citizen, although such inconvenience to the public and to him may depreciate the value of his property. With the conclusion reached in that case, which must dominate this, we are satisfied.”

Canman owned property on Jefferson avenue 125 feet north of the crossing, although the disturbance of the surface of the street extended to his lot. He also recovered judgment, which was reversed at the same time by this court, Judge Brace writing’ the opinion, and citing the Rude and Fairchild cases as controlling. These cases, which we are unable to distinguish from the one we are now considering, were decided several years ago, but we still remain of the same mind. In December, 1907, we expressly approved the same doctrine in Realty Co. v. Deere & Co., 208 Mo. 66, 87, in which after approving it as stated in the Glasgow case, supra, we said:

“In Knapp, Stout & Co. v. St. Louis, 153 Mo. l. c. 572, the principle and rule of law announced in the Glasgow ease, as heretofore cited, was unqualifiedly approved, and Judge Gantt, in discussing the subject’ ■of the essential averments in cases of this character to entitle plaintiff to the relief sought, used this language: t Moreover, to entitle plaintiff to relief as an adjoining proprietor it devolved upon it to allege and prove that it owned property fronting or abutting on the part of the street which the ordinance in question vacated. In a word, it must aver facts which show it will suffer a special or peculiar injury and not merely such inconvenience as is cast upon all other persons of that neighborhood,’ citing in support Glasgow v. St. Louis, 107 Mo. l. c. 205; Van De Vere v. Kansas City, 107 Mo. 83; Rude v. St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85.
“In Knapp, Stout & Co. v. St. Louis, 156 Mo. 343, the doctrine announced in the previous cases of Glasgow v. St. Louis, and Knapp, Stout & Co. v. St. Louis, 153 Mo. 560, that to entitle a plaintiff to injunctive relief it was necessary to allege that the property owned by the plaintiff fronted or abutted on a portion of the vacated street, was fully approved.”

As this leads necessarily to the affirmance of the judgment of the trial court it is unnecessary to notice the other points discussed in the brief. We have examined with care the cases cited by the parties from other jurisdictions, and while some of them give color to the contention of the appellant, the great weight of authority is as we have stated, and is supported by the practically uniform adjudications of this court with which we are still satisfied.

The judgment of the circuit court is affirmed.

Blair, C., concurs.

PER CURIAM

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

All the judges concur.


author: WOODSON, P. J.

text:
    GEORGE W. YOUNG, Appellant, v. CALVIN A. HYDE et al.; CYNTHIA YOUNG and WALLACE B. YOUNG, Appellants.
    Division One,
    March 3, 1914.
    1. DOWER: Deed Signed by Wife: Name Not in Body. A deed signed and acknowledged by a wife along with her husband, does not bar her to claim dower in the land conveyed, if her name nowhere appears in the body of the deed as a grantor.
    2. TRUST: Estate Commensurate with Power Conferred. The estate of the trustee is commensurate with the powers conferred by the trust and the purposes to be effectuated by it. The trustee takes exactly that quantity of interest, whatever it may be, which the purposes of the trust and its proper execution may require, and no more.

      3. -: Conveyance of Rents and Income to Trustee: Reservation of Remainder in Grantor: Intention. The owner of land, knowing himself to be a drunkard and a spendthrift, voluntarily conveyed his lands to a trustee with the intention and purpose that the annual rents and profits were to be applied to the use and support of himself, wife and children. Held, that this much of the deed, without more, created an equitable life estate in common, in the rents and profits, in him, his wife and children, with the reservation of the remainder in fee in him (the grantor). Nor is that holding to be abrogated by ;he fact that the deed went on to say that should the grantor die before his children arrived at legal age, then all the rents and profits were to be applied to the use and support of his widow and children until the youngest child arrived at such age, “at which time all the real estate shall vest in the child or children of said grantor, share and share alike,” since the said grantor did not die during the minority of any of his children, and there is now, owing to his extreme old age (85) and the fact that his wife is still living at the age of sixty years, no probability and only a very remote possibility that any other child will ever be born to him, and the contingency upon which the title was to vest in his children did not and cannot arrive.
    Appeal from Buchanan Circuit Court. — Hon. G. A. Mosman, Judge.
    Beversed and remanded {with directions).

      3-eorge Eppler, Charles F. Strop and Eugene Silverman for appellants.
    (1) The trust deed to Anlyffe- C. Hyde, although signed and acknowledged by the wife of George W. Young, to-wit, Cynthia Young, is insufficient to bar her dower. Golden v. Tyer, 180 Mo. 200; McPadden v. Eogers, 70 Mo. 421; Bradley v. Bailroad, 91 Mo. 493; 14 Cye. 954. (2) The trust deed executed by George W. Young did not convey the entire estate. The estate of a trustee is commensurate with the powers created by the trust and the purpose to be effectuated by it; or in other words, the trustee takes that quantity of the estate, whatever it may be, which the purposes of the trust and its proper execution may require, and no more. 39 Cyc. 208; Smith v. Proctor, 2 L. R. A. (N. S.) 172, and note.

      Luke II. Moss and Sterling P. Reynolds for respondent Margaret T. Adcock.
    (1) The pleadings in this case did not call for a construction of the Hyde trust deed, but admitted its execution and sought to overturn it by evidence of adverse possession. The question tried at the circuit was whether Beorge W. Young had title by Statute of Limitations. Astute counsel for plaintiff will not be permitted to try his case on one theory in the trial court and another here. Biggs v. Car Co., 216 Mo. 318; Pulwider v. Bas Co., 216 Mo. 598; Buxton v. Kroeger, 219 Mo. 239. (2) There is no rule of law better settled in this State than the rule which prohibits the life tenant from claiming adversely to the remaindermen. Christ v. Kuehne, 172 Mo. 128; Aubuchon v. Bender, 44 Mo. 565; Pisher v. Sickinann, 125 Mo. 178; Keith v. Keith, 80 Mo. 127. (3) Plaintiff is estopped from claiming adversely to his own deed. Jamison v. Zansch, 227 Mo. 406; Steele v. Culver, 158 Mo. 136; Herman on Estop. & Res. Ad., pp. 707, 1194. (4) The court will appoint a trustee to carry out the provisions of a trust when called upon to do so. Rothenburger v. Barrett, 224 Mo. 200; Perry on Trusts, secs. 38, 45, 240, 244;- Bredell v. College, 242 Mo. 336. (5) The trust deed can not be revoked by the donor by any act of his. It can only be done by concerted action of all parties concerned. Ewing v. Shannahan, 113 Mo. 196; Newton v. Rebenack, 90 Mo. App. 657. (6)- Plaintiff will not be heard on his appeal for a construction of the Hyde deed because that was not an issue in the trial court. Even if he could raise that question it would not benefit him. “The intention of the grantor, as gathered from the four corners of the instrument is now the polar star of construction.” Buxton v. Kroeger, 219 Mo.- 247. (7) Plaintiff executed the trust deed of his own free will evidently for the purpose of preserving this land for his children then minors, on account of his own inebriety and wastefulness. He permitted this deed to stand without question for thirty years and will not now at this late day be heard to question his own deed. (8) The trust deed contains all the apt words of conveyance required by law to convey the fee. Sec. 2793, R. S. 1909. (9) The trust deed creates in Margaret T. Adcock, respondent, and Wallace B. Young, her brother, a vested remainder. Tindall v. Tindall, 167 Mo. 218; Simpson v. Erisner, 155 Mo. 157; Byrne v. Prance, 131 Mo. 639; 4 Kent, Com. (14 Ed.) 202; O’Day v. Meadaws, 194 Mo. 618.
   WOODSON, P. J.

This was a suit instituted in the circuit court of Buchanan county, under old section 650, Revised Statutes 1899, to quiet and determine the title to certain real estate, particularly described in the pleadings.

No question is raised as to the sufficiency of the pleadings, and consequently they are put aside with a summary statement of the issues thereby presented.

A trial was had which resulted in the rendition of a judgment decreeing a life estate in George W. Young, with remainder, share and share alike, in Wallace B. Young and Maggie Young Adcock, and adjudging that none of the other defendants had any right, title or interest in and to said premises, and the contest upon this appeal is entirely between George W. Young, plaintiff, and-Maggie Young Adcock, defendant, and Cynthia Young and Wallace B. Young, also defendants, the last named defendants also having appealed.

The facts of this case are few and undisputed; and the statement of the case, as made by counsel for the respective parties, is practically the same. We will largely draw from that of appellant, because it is somewhat the shorter of the two.

The adverse claimants to George W. Young predicate their claim of interest in and to said land upon a certain trust deed made and executed by him and others, dated September 18, 1878, which was in words and figures as follows:

“This deed of trust, made and entered into this 18th day of September, 1878, between George W. Young of Buchanan county, Missouri, and Mary T. Ridenbaugh of the city of St. Louis, Missouri, parties of the first part, and Anlyffe C. Hyde of Buchanan county, Missouri, party of the second part, Witnesseth:
‘ ‘ That for and in consideration of the sum of five dollars in hand paid by the said party of the second part to the parties of the first part and the trust hereinafter created and impowered, the said parties of the first part have given, granted, bargained and sold and by these presents do give, grant, bargain, sell and convey to the party of the second part and his successors in and to the trusts hereinafter created and impowered the following described real estate lying and being in the county of Buchanan and State of Missouri, to-wit:
“Three hundred and fifty-nine acres of land lying south of St. Joseph and being the farm upon which George W. Young now lives and has been living for several years last past, and being the same farm that was owned by George Young, at the time of his death and known and recognized as the ‘home farm’ of said George Young, deceased, to have and to hold forever in trust for the following uses and purposes, viz.:
“The annual rents and profits of said real estate are to be applied to the support and maintenance of George W. Young and his wife'and children, and should the said George W. Young die before each and all of the children whose support is herein provided for, have if males, arrived at the age of twenty-one years, and if females at the age of eighteen years, then all. the rents and profits arising from the real estate above mentioned are to be applied to the support, use and-maintenance of the widow of the said George W. Young and the child or children of said George W. Young and the descendants of such children, if any, until the youngest child of the said George W. Young so provided for, shall arrive at the age above mentioned, at which last mentioned time, all of the real estate mentioned in this deed shall vest in the child or the children of said George W. Young, share and share alike,- but should the said George W. Young die without children or the descendants of such children, then the annual rents and profits of said real estate mentioned in this deed shall be applied to the use of his widow during her natural life, and upon her death all of said real estate and the title thereto is to vest in Mary T. Ridenbaugh, if living, and if she be dead in her child or children and the descendants of such child or children, but should the real estate herein mentioned as herein provided vest in the children and grandchildren of said Mary T. Ridenbaugh the grandchildren of said Mary T. Ridenbaugh are only to receive an interest equal to that which would vest in the parent of such grandchild or children were such parent the child of said Mary T. Ridenbaugh, and living, it is further expressly understood and provided that in the event the widow of George W. Young accepts the provisions made for her in this deed, that such provisions are to be in lieu of dower, so far as the real estate in this deed mentioned is concerned and that she is to- set up no claim to dower therein as the widow of George W. Young.”

This deed was duly signed, acknowledged and recorded in the Recorder’s office of Buchanan county.

The defendant, Maggie Adcock, set up- certain ether deeds of trust executed by George W. Young and his wife, in favor of Wallace B. Young, and asked for the cancellation of the same. Since, however, they are not material to the merits of this case, they will be eliminated herefrom.

The defendants George Yonng Ridenbangh, Shelby Baker, Cora Baker Choteau, Thomas J. Brown, Gideon Brown, John C. Brown, Felix Brown, Cynthia Yonng, Sarah J. Bailey and Elizabeth Lane, all failed to answer, and in dne time a judgment by default was rendered against them and later the default was made final.

The defendants Calvin A. Hyde, Charles Hyde, James B. Hyde, John H. Hyde, William Hyde, Cassie Edds, Augustus Connor, Plarry Martin, Arch Martin, Julia Martin, Blanch Martin, and Ollie Martin, all filed answers expressly disclaiming any interest in said lands and final judgment was accordingly entered against them.

Those filing disclaimers constitute the only heirs of Anlyffe C. Hyde, the grantee in the trust deed before copied.

The plaintiff, George W. Young, replied denying the execution and delivery of the trust deed before set out, and stated that all parties thereto considered and treated said deed as null and void, and that the plaintiff claimed title thereto by adverse possession, alleging that he had been in the open, adverse, continuous and notorious possession of said lands for more than ten years, etc.

In addition to the judgment previously mentioned, the trial court decreed that Cynthia Young, the wife of plaintiff, still alive, had no interest in said lands.

It is contended by George W. Young that under the undisputed testimony he owns said real estate in fee under the showing made of adverse possession. It is also contended by him that by a correct construction of the deed of trust in question at this time, he is the owner of said real estate in fee.

It is contended by Geo. W. Young, Wallace B. Young, tbe son of George W. Young and Cynthia Young, and by Cynthia Young, also appellants, that Cynthia Young has a life estate in all of said real estate, subject to the life estate of George W. Young; and it is further contended by Cynthia Young that in any event, she is entitled to be endowed in said real estate upon the death of George W. Young, her husband, all of which is denied to her by the decree in question.

The real estate in question descended to plaintiff herein from his father, George Young, who died leaving two children, Mary Ridenbaugh and George W. Young, plaintiff. George W. Young, Sr., died leaving an instrument purporting to be his last will and testament, which in due time was contested and by proper final judgment was set aside so that in effect George W. Young, Sr., died intestate. After said will was set aside Mary Eidenbaugh and George W. Young, this plaintiff, by mutual consent, partitioned their father’s estate, and the property in question in this suit was set aside by agreement to this plaintiff, Mary Eidenbaugh receiving her full share in other property. At that time George W. Young, .plaintiff, was dissipated, and as fully appears from the instrument itself for the purpose of protecting both himself and his family executed the Hyde deed of trust, dated September 18, 1878, before copied. This conveyance by him was purely voluntary, and so far as the evidence discloses, Anlyffe C. Hyde, the trustee, failed to accept the trust and thereafter upon the application of this plaintiff the circuit court of Buchanan county, Missouri, appointed Thomas Brown as trustee under said deed. But the evidence is uncontradicted that Brown never at any time undertook to exercise any powers given to him under said instrument or appointment by said court.

Counsel for appellant sums up the legal propositions presented by this record in the following language:

“Appellants at this time do not contend that the evidence is sufficient to show that the instrument in question was not executed and none of the appellants are at all concerned with that portion of the decree which cancels certain deeds of trust executed by George W. Young et ah, since the Hyde deed of trust was executed.
“Therefore, the questions which are presented at this 'time upon this appeal are as follows :
“First: Does the evidence make a sufficient showing to justify a claim of adverse possession on the part of George W. Young against what is termed the Hyde deed of trust?
“Second: If the preceding question is answered in the negative, what was the nature of the estate conveyed by George W. Young by this Hyde deed of trust and is George W. Young by a proper construction of said deed the owner of said real estate in fee?
“Third: If it be adjudged that George W. Young has a life estate only in said real estate does not the said deed of trust give to his wife, Cynthia Young, a life estate, subject to the life estate of said George W. Young?
“Fourth: If all of the preceding propositions are answered in the negative, is not the decree erroneous against Cynthia Young, in adjudging that she has no right, title or interest in said premises, and does she not in fact and law have an inchoate right of dower which is by the terms of the decree barred?'
“This last proposition is based upon the fact that in the body of the deed of trust, Cynthia Young is not named as one of the grantors, although she signed and acknowledged the said instrument.”

The assignment of errors in this court is as follows :

First — The court erroneously construed the deed to Anlyffe C. Hyde, trustee, bearing date September 18, 1878, and erroneously defined the rights of the parties therein.

Second — The court erroneously adjudged that Cynthia Young had no right, title or interest in the premises in question and that she will not be entitled to dower therein.

Third — The court erred in refusing to adjudge the title of George W. Young to be a fee simple title.

We will consider the errors thus, assigned in the order stated.

I. Attending the first: Did the trial court correctly declare the rights of the parties, as created by the trust deed dated September 18, 1878?

This is the principal question presented by this appeal for our determination, and if answered in the affirmative then the two latter become of no importance; but if answered in the negative, then they may receive further consideration at our hands.

The decree rendered by the trial court was against Cynthia Young, the wife of George W. Young, and debarred her from all claims and rights to inchoate dower in her husband’s real estate, presumably for the reason that she signed the deed of September 18, 1878, by which it purports to convey said lands to Anlyffe C. Hyde, trustee, etc.

The decree in that regard is clearly erroneous for the reason that while the record shows that she signed and acknowledged the deed along with her husband, George W. Young, yet her name does not appear in' the body of the deed as a grantor therein, and for that reason did not convey her marital rights in and to said real estate. The law governing such a question has been announced by this court in numerous cases, among which are the following: Golden v. Tyer, 180 Mo. 196, l. c. 200; McFadden v. Rogers, 70 Mo. 421; Bradley v. Railroad, 91 Mo. 493.

A more serious question is presented regarding that part of the record finding that George W. Young had by said deed of September 18, 1878, conveyed all right, title and interest in and to said real estate, save and except a life estate therein, to Anlyffe C. Hyde, trustee, etc., and adjudging that he only had a life estate, and that Wallace B. Young and Maggie Adcock each owned one-half interest in said lands in fee, subject to the life estate of said George W. Young.

Counsel for appellants contend that the deed of trust executed by George W. Young, to Anlyffe C. Hyde, did not convey the entire estate in said lands, but that the remainder thereof, after providing for the support and maintenance of himself, wife and minor children, was reserved to himself in fee.

Counsel predicate this contention upon the well known principle of law which holds that the “estate of the trustee is commensurate with the powers conferred by the trust and the purposes to be effectuated by it; or in other words the trustee takes exactly that quantity of interest, whatever it may be, which the purposes of the trust and its proper execution may require, and no more.” [39 Cyc. 208; Smith v. Proctor, 2 L. R. A. (N. S.) 172, and note.]

This rule calls for a construction of said trust deed, which must be done in the light of the facts and circumstances as they existed and surrounded the parties at the time of its execution.

'George Young, Sr., the father of George W. Young and Mary Ridenbaugh, had recently died, leaving a large amount of real and personal property situate in Buchanan county, Missouri, of which the land in controversy was a part. While the record shows George Young, Sr., made a will disposing of all his property to the persons named therein, yet it further shows that said will was contested and legally set aside and for naught held.

At that time and long prior thereto George W. Young had been and was then addicted to strong drink, and he was what was known and denominated a common drunkard, and a great spendthrift; and being conscious of his weaknesses in that regard, Mr. Young conceived the idea that it would be wise and humane to make ample provision for the support of himself, wife and minor children.

In pursuance to that idea and for the purpose of partitioning his father’s estate between himself and his sister, Mrs. Ridenbaugh, the trust deed in question was executed. Mrs. Ridenbaugh signed the deed solely for the purpose of releasing her interest as heir in his distributive share of their father’s estate; and George ~W. Young at the same time executed a deed to Mrs. Ridenbaugh releasing his interest in her distributive share of their father’s estate.

Other deeds were executed by the parties at the same time, but they are not material to the questions involved in this case, and for that reason they will not be further noticed.

The record also shows that George W. Young was, at the time of the institution of this suit, past eighty years of age, and that his wife was over sixty years old, he now being about eighty-five, also that many years ago he ceased to drink and is and for many years has been an absolutely temperate man, and no longer wastes or uselessly squanders his means.

If we start with the propositions that George W. Young, the plaintiff, was the absolute owner of the property conveyed by the trust deed to Hyde, that it was voluntarily made by him without a valuable consideration passing to him therefor, solely for the purpose of providing for the support and maintenance of himself, wife and minor children, prompted by a knowledge of his intemperance, that will throw much light upon the intention of the grantor and the purposes the instrument was designed to effectuate. In other words, it is apparent from this record that the grantor, realizing his deplorable condition, and fearing that he might, while in a state of intoxication, waste his substance, and thereby turn himself, wife and children out into the world without any means of support, was induced to execute the trust deed in question, for the purposes stated, and none other.

In that state of mind and with those purposes in view, George W. Young executed said deed, conveying said real estate to Anlyffe C. Hyde, “in trust for the following uses and purposes, viz.:”

(1) “Tke-annual rents and profits of said real estate are to be applied to the support and maintenance of George W. Young, and his wife and children” (who were Wallace B. Young and Margaret Adcock).

■ (2) “And should the said George W. Young die before each and all of the children, whose support is herein provided for, have, if males, arrived at the age of twenty-one years, and if females, at the age of eighteen years, then all the rents and profits arising from the real estate above mentioned are to be applied to the support, use and maintenance of the widow of the said George W. Young and the child or children of said George W. Young and the descendants of such children, if .any, until the youngest child of the said George W. Young so provided for, shall arrive at the-age above mentioned, at which last mentioned time, all of the real estate mentioned in this deed shall vest in the child or the children of said George W. Young, share and share alike.”

(3) “But should the said George W. Young die-without children or the descendants of such children, then the annual rents and profits of said real estate mentioned in this deed shall be applied to the use of his widow during her natural life.”

Under the facts and circumstances of this case, had this deed' stopped at the end of the first clause quoted, there could be but little doubt but what it would have created an equitable estate in common, in the rents, for the life, in George W. Young, his wife, Cynthia Young, and his two children, Wallace B. Young and Margaret Adcock, with a reservation of the remainder in fee in the grantor, George W. Young. But 'the circuit court did not so hold, but upon the contrary adjudged a life estate in George W. Young, with the remainder in fee to his said two children, and decreed that his wife, Cynthia Young, had no right, title or interest whatever in or to said real estate.

Under the rule of law previously announced, was this ruling of the circuit court correct? In my opinion that question must be answered in the negative, and my reasons for so holding will follow.

In the first place, the grantor, George W. Young, was only dealing with the annual rents and profits of the real estate (which words I have italicized in copying the deed, for the purpose of calling special attention to the character of the thing conveyed) and not the estate in the land, as is usually done by such deeds; and in the second place, he did not die during the minority of his children, which contingency was provided for in the second clause of the deed previously quoted, and since both of said children are past their majority, and he having passed the age, in all human probability, if not possibility (notwithstanding the ancient rule of the common law, to the effect that the possibility of issue is never presumed to be extinct as long as a person lives for the purpose of preserving an estate, but never for its destruction) of having other children born unto him, the contingency provided for in this clause of the deed is so extremely remote, amounting almost to an impossibility, the law, looking to the substance rather than to the form, should not resort to said ancient rule of non-presumption, for the purpose of destroying Mr. Young’s estate in the remainder (which he clearly intended to reserve) under the facts and circumstances, where the future birth or nonbirth of children unto him cannot possibly affect the rights of the defendants in this case, for the obvious reason that all possibility of their becoming interested in the land mentioned, under the conditions of this deed, has been forever foreclosed, beyond a physical possibility, and therefore, the remainder of the rents created in their favor of necessity fails.

While we have the authority to pass upon the rights of unborn children in this class of cases (Reinders v. Koppelmann, 68 Mo. 482; Sparks v. Clay, 185 Mo. 393, l. c. 408; Doerner v. Doerner, 161 Mo. 399, l. c. 407, and other cases too numerous to mention), yet we decline to do so in this case for two reasons: first, because of the extreme remote possibility of their ever being born; and, second, because of the doubtful wisdom of passizzg upon the rights of such before birth, which should not be done where the nature of the case does not demazid that it should be done.

Independent of that, uzider the authority of the cases cited, should we adjudge the interests of the unborn children of the appellant, his estate in and to the property would be subject to whatever interest they might be entitled to upon their birth, precisely to the extent that they would be, as if their rights had ziever been adjudged, as in this case.

But in our judgment it is wise and for the best interest of all parties concerned, that the title to this land should be ascertained and determined during the lives of those who, at present, are asserting conflicting claims thereto; and at the same time observe and protect the rights of the unborn, by giving force to the Biblical injunction, ‘ ‘ Sufficient unto the day is the evil thereof,” and we will “take, therefore, no thought for the morrow; for the morrow shall take thought for the things of itself.” [Matthew, 6:34.]

That being true, this clause of the deed has no' force or effect in construing the deed in question under the facts of the case as they exist at this time. Consequently the judgment of the trial court, in decreeing the remainder, if we may so call it, upon the termination of the life estate of George W. Young to his two children in the rents and profits, is in direct-violation of the express provisions of the trust deed made and executed by him on September 18, 1878, and is therefore erroneous.

The holding of the trial court in so far as George W. Young was concerned, would have been correct had he died before his children became of age, because that fact would have brought the case squarely within the terms of the contingency stated in said second clause of the deed. But as previously stated, that fact not having happened during their minority, and there being no probability, even though a remote possibility of other children being born unto him, that clause of the deed does not nor can it ever have any force or effect regarding the defendants.

As previously stated, the decree of the circuit court was also erroneous in so far as it related to the interests of Cynthia Young, the wife of George W., the grantor, not only for the reason stated in the first paragraph of this opinion, but also for the reason to be presently stated.

The third clause of said deed reads as follows:

“But should the said George W. Young die without children or the descendants of such children, then the annual rents and profits of said real estate mentioned in this deed shall be applied to the use of his widow during her natural life.”

It cannot be seriously or otherwise contended, that there is not yet a possibility that George W. Young may yet die without children or their descendants; or to express the same idea in different’ words, the two children of George W. Yonng may yet die without living issue prior to the death of said George W. Young, in which event by the express provisions of the third clause of the deed just quoted Cynthia Young, the widow of George W. Young, would be entitled to a life estate in said real estate, and consequently the construction of the trust deed by the trial court as to Cynthia Young was clearly erroneous.

The remaining provisions of the deed in question relate to certain contingencies regarding Mary Ridenbaugh, the sister of George W. Young, the grantor, and her heirs; since, however, final judgment was rendered against them, by the circuit court, and they not having appealed therefrom, that judgment stands in full force and effect, which renders it unnecessary, if not improper, to discuss or construe those provisions, as they do not throw any light upon the other provisions of the deed.

After a careful consideration of this complex deed, and the decree of the circuit court construing the same, we are of the opinion that the decree is erroneous in the particulars mentioned, and that the grantor, George W. Young, never intended to part with the entire estate in said lands, but only sufficient of the “rents and profits thereof,” to accomplish the purposes which prompted its execution; and after having ascertained and pointed out those purposes, we find that they have been fully executed in so far as the appellants are concerned, there still remains an equitable estate in said lands for the lives of George W. Young and his wife, Cynthia Young, with a remainder in fee in the former after the termination of said equitable estates.

These observations exclude the idea that the fee to said real estate has or can ever vest under the terms of this deed in the living children of George W. Young, although conceding he might have children born unto Mm in the future as was adjudged by the circuit court.

We are, therefore, of the opinion that the true construction and meaning of this deed is: that it created a trust estate for life in the issue and profits, in common for the support and maintenance of George W. Young, the grantor, his wife, Cynthia Young, and his two children, Wallace B. Young and Maggie Adcock, during their minority; and should the said George W. Young die without children surviving him, or the descendants of such children,- then a life estate will vest in the rents and profits of all of said real estate in the widow of said George W. Young; and thereafter the remainder of the estate in fee, which is unconveyed by the deed, remains in the grantor, George W. Young.

The authorities supporting these views are so fully cited and commented upon by those mentioned in this opinion, there remains but little that could be added thereto by way of illustrating the principle of law involved in this case, or its application to the facts hereof.

The foregoing views dispense with the necessity of passing upon the question of the Statute of Limitations.

We are, therefore, of the opinion that the judgment should be reversed, and the cause remanded with directions to the circrnt court to ascertain and decree the interests and estates of the parties in and to the land described, as herein declared.

All concur.


author: LAMM, J.

text:
    EMMA WATHEN RANNEY v. CITY OF CAPE GIRARDEAU, Appellant.
    Division One,
    March 3, 1914.
    1. APPELLATE JURISDICTION: Constitutional Question. In order to bring an appeal within the jurisdiction of the Supreme Court on a constitutional ground it must appear that a determination of a constitutional question is essential to a proper decision of the case.
    2. -: -: Must Be Ruled Below. Usually in order to give the Supreme Court jurisdiction of an appeal on a constitutional ground it must appear from the record that a con-' stitutional question was not only raised in the trial court but was ruled on to the disadvantage of the party appealing.
    3. -: -: Special Tax Bill: Uniformity of Taxation. The ■section of the. Constitution declaring that taxes “shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws, does not apply to special benefit assessments for street improvements. Special assessments for local improvements, while, in a broad sense, referable to the taxing power, are not taxes for public purposes or taxes at all within the purview and sense of the article of the Constitution pertaining to revenue and taxation. This has been the uniform ruling of this court in numerous cases, and the point that a suit on a special tax bill involves the construction of the clause of the Constitution providing for uniformity of taxation is so far classed as stare decisis as to deprive the .Supreme Court of jurisdiction, on constitutional grounds, of an appeal in a suit on a special tax bill for a few hundred ‘ dollars.
    Appeal from Cape Girardeau Court of Common Pleas —Hon. J. L. Fort, Judge.
    Transferred to St. Louis Court of Appeals.

      M. A. Dempsey and R. H. WMtelaw for appellant..

      Wilson Cramer for respondent.
   LAMM, J.

Mrs. Ranney, in tlie Cape Girardeau Common Pleas Court, sued the city of Cape. Girardeau in equity. The life of her bill was to have certain benefit assessments for street improvements and the tax bills issued therefor declared null and void on seventeen grounds. Some of those grounds related to the absence of a publication of a preliminary resolution declaring the street improvements necessary; some, to the fact that the work was not let to the, lowest bidder; some, to the absence of any estimate of the cost of the improvements; some, to omissions, and inadvertences of the city clerk; some, to imperfect property descriptions; some, to informalities in the tax bills; some, to the fact that the ordinance was not presented to the mayor for his approval or signature (Cape Girardeau being a city of the third class) nor was such signature attached to the ordinance providing for the work; some, to other defects of the ordinance; some, to imperfections in the plan adopted for assessment of benefits; some, to the partiality of the committee under whose supervision the work was done;' some, to an alleged illegal exemption of the property of a street railway company; yet others related to other alleged illegalities of the ordinance providing for the work; and, finally, complaint is made of certain omissions and neglects of the street commissioner.

In connection with one or two of said specifications the bill avers that sec. 3 of art. 10 of the Constitution, relating to uniformity of taxation, was violated.

Defendant demurred and, its demurrer being overruled, then answered, admitting some and denying other allegations of the bill, then making certain averments of alleged facts supposed to establish the validity of the tax bills and assessment, among them estoppel. No constitutional point was raised on behalf of defendant.

The court decreed the ordinance authorizing the work to be null and void, as well as the tax bills issued thereon, against plaintiff’s property, and that the latter, involving a hundred or two dollars, be cancelled. It is not apparent that the decree decided any constitutional question adversely to appellant. So, in neither the motion in arrest nor for a new trial was complaint made that defendant- (appellant) had been denied the benefit of any constitutional provision.

On those motions being overruled, defendant excepted and in due time perfected its appeal to the St. Louis Court of Appeals. In that court respondent took up the constitutional cudgels (seemingly refused by appellant) by filing a motion to transfer the cause to this court on the ground that the determination of the cause involves the construction of section 3, article 10, of the Constitution. That section reads: “Taxes may be levied and collected for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and.all taxes shall be levied and collected by general laws.”

Presently that motion was sustained and the cause was transferred to this court by the mandate of that court, in which it is recited as follows: “Now at this day, because a constitutional question is involved, it is considered and adjudged by this court that this cause be transferred to the Supreme Court of Missouri.”

It is of significance that in briefs filed in the St. Louis Court of Appeals and in this court we perceive no point made on either side that a constitutional question is involved.

On such record a question springs spontaneously at the threshold, viz.: Has this court jurisdiction? We are of opinion it has none whatever and that the cause must be retransferred to the St. Louis Court of Appeals which alone has jurisdiction to decide it,. This, because:

(a) In order to bring an appeal within our jurisdiction on a constitutional ground it must appear that a constitutional question is essential to the determination of the case. [Miller v. Connor, 250 Mo. l. c. 683, and pases there cited.] Under that rule jurisdiction does not belong here.

(b) Another rule is that it must appear from the record that a constitutional question was not only raised in the trial court but was ruled on to the disadvantage of the party appealing. [Miller v. Connor, supra, l. c. 684, and cases therein cited.] There may be exceptions, but the present case falls within none of them and under that general rule jurisdiction does not belong in this court.

(c) But there is another insurmountable obstacle to the jurisdiction of the Supreme Court, to-wit: The constitutional provision invoked does not apply to special benefit assessments for street improvements, hence there is no constitutional question in the case. As said, the constitutional question is that the ordinance plan for assessing special benefits and issuing tax bills violates section 3, article 10 of the Constitution. That section ordains that taxes may be levied and collected for public purposes only, must be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and that all taxes shall be levied and collected by general laws. The whole of article 10, of which section 3 forms a part, is in pari materia and relates to revenue and taxation. But, unfortunately for the constitutional point raised by respondent, it has been always ruled that under our former constitutions special benefit assessments for local improvements do not come within the purview of constitutional provisions relating to levying taxes in proportion to the value of the property (now section 4, article 10, Constitution) and it has always been ruled that under our present Constitution the uniformity therein prescribed (section 3, supra, a new provision) has no reference whatever to special assessments for local improvements nor have any of the other sections of article 10, snpra.

The accepted doctrine is that special assessments for local improvements, while, in a broad sense, referable to the taxing power, are not taxes for public .purposes or taxes at all within the purview and the sense of the constitutional provision invoked or within the sense and purview of other sections of the article on revenue and taxation. The question, in one pr another phase, has been here often and, it is believed, has been judicially approached from every conceivable angle, always with the one result already announced. That respondent’s eminent counsel has inadvertently led our esteemed and learned brethren of the St. Louis Court of Appeals into error in supposing that a construction of section 3, article 10, of the Constitution is involved in this case, becomes plain from the standpoint of both precedent and reason by consulting an unbroken line of cases beginning at least as 'early as 1856 and extending down to our last delivery in Banc, as the following cases verify: Lockwood v. St. Louis, 24 Mo. 20; Garrett v. St. Louis, 25 Mo. 505; Newby v. Platte County, 25 Mo. 258; Egyptian Levee Co. v. Hardin, 27 Mo. l. c. 498 et seq.; Sheehan v. Good Samaritan Hospital, 50 Mo. 155; City of St. Louis v. Allen, 53 Mo. l. c. 52 et seq.; Farrar v. St. Louis, 80 Mo. l. c. 386 et seq. (where the authorities up to that date are collated and considered); Adams v. Lindell, 5 Mo. App. l. c. 212 et seq., 72 Mo. 198; City of St. Joseph v. Owen, 110 Mo. l. c. 454 et seq.; City of Independence v. Gates, 110 Mo. l. c. 380 et seq.; Keith v. Bingham, 100 Mo. l. c. 306; Lamar W. & E. L. Co. v. City of Lamar, 128 Mo. l. c. 218 et seq.; Kansas City v. Bacon, 147 Mo. l. c. 282; Heman v. Allen, 156 Mo. l. c. 546 et seq.; Barber Asphalt Paving Co. v. French, 158 Mo. l. c. 554 et seq.; Meier v. St. Louis, 180 Mo. l. c. 408; Construction Co. v. Railroad, 206 Mo. l. c. 179; Construction Co. v. Shovel Co., 211 Mo. l. c. 531 et seq.; Board of Commissioners of Tuberculosis Hospital District of Buchanan County v. Peter, 253 Mo. 520.

In those cases (some in one and some in another) the definition of taxes in a constitutional sense is laid down, the inherent difference between a public tax levied as an impost for governmental purposes and a special assessment for a mere local improvement is pointed out and established, the constitutional provision in judgment here is construed on the reason and philosophy of the matter against its application to special benefit assessments, and the question in hand is foreclosed once for all. We will not reopen it in order to take jurisdiction at this late day. Stare decisis.

The premises all considered, the cause should be retransferred to the St. Louis Court of Appeals for final disposition. It is so ordered.

All concur.