author: WALKER, J.

text:
    RICHARD T. BRIGHTWELL et al. v. HOWARD B. McAFEE, Appellant.
    Division Two,
    April 8, 1913.
    1. PLEADING: Quit-Claim Deed: Mortgage: Allegation of Subsisting Debt. An allegation that certain lands belonging to plaintiffs were conveyed to defendant by quit-claim deeds, absolute in form but for a nominal consideration, under an agreement that the defendant was to sell portions of said lands and pay off a debt o'f the grantors secured by a subsisting mortgage on the land, and reconvey to them the remainder of the lands, is a sufficient allegation of a subsisting debt between the parties. If one owes a debt and causes another to pay it. an action for money had and received will lie against him. [Distinguishing Jones v. Hubbard, 193 Mo. 163.]
    2. DEED AS MORTGAGE: Paroi Proof: Grounds: Character. Parol testimony is admissible to prove that a deed absolute on its face is. a mortgage. In this jurisdiction the ground for the admission of such testimony is that the denial of the true character of the deed hy the grantee is a fraud on his part, which gives a court of equity jurisdiction, and thus enables it to hold to the oral or implied defeasance as effectually as if it had been a formal written one. But to sustain a decree declaring the instrument to be a mortgage and permitting the. grantors to redeem, the parol testimony must be clear, convine ing and credible.
    3. -: Pertinent Testimony: Consideration: Value of Property. Evidence of the purported consideration for the deed, absolute on its face and of the actual value of the property conveyed, is competent and material in establishing that the deed was intended as a mortgage.
    4. -: -: Mortgage: Financial Condition of Grantor. And it is also pertinent to show that the grantors were in straitened circumstances, that they had no. other property, and that the lands conveyed were incumbered with a mortgage then past due.
    6. -: -: Declarations of Parties. The declarations and statements of the parties before and at the time the conveyance absolute on its face was made, are material as showing their intent that it was to be considered a mortgage. A request by defendant of a witness to help him sell the land, and statements by the defendant that in accepting title to the property his purpose was to save the grantors their home, that all he wanted was to get enough out of it to pay the mortgage debt and turn the balance back to them, and that the deed had been made to him to enable him to sell to the best advantage, are all pertinent and material, as going to show the deed was intended for a mortgage.
    6. -;-; Receipts: Equivocal Testimony of Grantee. Receipts signed by the grantee showing money received by him from the grantors, and stated by them to have been in repayment of money advanced by the defendant for them, are also pertinent evidence, especially when they read “on account of land contract;” and in connection with them, the grantee’s failure to account in any way for money received by him from the grantors, after the deed was executed, should also be taken into consideration, as should also the equivocal character of his testimony.
    7. -: -: Possession Retained: Increase in Value. The fact that the grantor remained in continuous possession of the land long after the execution of the deed absolute on its face, their rights thereto being unquestioned until a marked appreciation in the value of the property, is a fact not to be ignored in determining whether or not the deed was intended for a mortgage.

      Appeal from Platte Circuit Court. — Eon. Alonso D. Burnes, Judge.
    Affirmed.

      John T. McRuer and George W. Day for appellant.
    (1) The amended petition in this case is fatally defective. If it is designed to state a conveyance in trust, it fails to state that the trust was manifested by some writing, and if it is designed to state that the conveyance was intended to be an equitable mortgage, it fails to state facts showing that the relation of debt- or and creditor existed between the parties, or that such relation was subsequently to arise — mere conclusions not being sufficient. R. S. 1899, sec. 3416; R. S. 1909, sec. 2868; Cornelius v. Smith, 55 Mo. 533; Heil v. Heil, 184 Mo. 673; Crowley v. Crofton, 193 Mo. 421; Jones v. Hubbard, 193 Mo. 147. (2) The evidence was insufficient to establish that- either of the quit-claim deeds was a mortgage.' Such evidence must be clear, unequivocal, and convincing, leaving no reasonable doubt-in the mind of the chancellor. Quick v. Turner, 26 Mo. App. 29; Bobb v. Wolff, 148 Mo. 344; Gerhardt v. Tucker, 187 Mo. 46. (3) The lease and option-to-purchase contract pleaded in the answer of defendant Mc-Afee fixed and determined the rights of the parties. Duell v. Leslie, 207 Mo. 658; Jones v. Hubbard, 193 Mo. 147; Bailey v. Trus.t Co., 188 Mo. 492; Forrister v. Moore, 77 Mo. 651; Turner v. Kerr, 44 Mo. 429 ; Slow-ey v. McMurray, 27 Mo. 113; White v. Land Co., 49 Mo. App. 450; King v. Groves, 42 Mo. App. 168.

      Norton B. Anderson, Andrew D. Gresham and John W. Coots for respondents.
    (1) In order to ascertain whether the two -quitclaim deeds of the Brightwells to appellants of April 10 and July 28, 1897, constituting one and the same transaction, were intended by the parties at the time as an equitable mortgage, courts of equity will consider: 1, The continued occupancy of the property by the mortgagor; 2, Inadequacy of price; 3, Continued holding of the evidences of debt paid' off by appellant; 4, The continuance of a debt from the Bright-wells to appellant; 5, The application of respondents to appellant for a loan at the first. All this indicated that the quit-claim deeds were intended by the parties to be a mortgage, or in the. nature of a mortgage. Bobb v. Wolf, 148 Mo. 344; Book v. Beaseley, 138 Mo. 461; Cobb v. Day, 106 Mo. 295. Ignorance, weakness of mind, old age, incapacity, pecuniary necessity and the like on the part of the other, these circumstances combined with inadequacy of price, may easily .induce a court to grant relief, defensive or affirmative. Cobb v. Day, 106 Mo. 301. And while it may be held that the burden of proof is on him who asserts that a deed absolute on its face is- a mortgage, yet this is different where the transaction had its inception in an application for a loan. Cobb v. Day, 106 Mo. 278; Book v. Beaseley, 138 Mo. 455. On a denial of the trust character of the conveyance, by the grantee, equity will treat his denial as a fraud, and hold him as firmly to the verbal defeasance, as though it had been a formal written one. Chance v. Jennings, 159 Mo. 544. (2) The right of the Brightwells to redeem could not be defeated by the pretended lease signed by them in March, 1898, and never signed by appellant. It is axiomatic, that once a mortgage, always a mortgage and all doubts must be resolved in favor of its being a mortgage. Reiley v. Cullen, 159 Mo. 331; Bender v. Marie, 37 Mo. App. 246. The right of the mortgagor is never extinguished until a regular foreclosure and sale. And this is the law no matter if the parties both intended otherwise. It is a condition that arises not by contract but by operation of law, and often in spite of contract. Lipscomb v. Talbott, 243 Mo. 1; Riley v. Cullen, 159 Mo. 331; Wilson v. Drumrité, 21 Mo. 325; White v. Land Co,, 49 Mo. App. 464; Reiley v. Cullen, 159 Mo. 332; Chance v. Jennings, 159 Mo. 554; Brant v. Robertson, 16 Mo. 129. (3) Appellant’s counsel seem to contend that on April 10, 1897, tbe date of tbe execution of tbe quit-claim deed to appellant by tbe Brightwell s, as there was then no existing debt from them to tbe appellant, this deed absolute on its face, could not be considered a mortgage. Counsel seem to lose sight of tbe fact that, within three days-after the execution of this deed to appellant, viz., on April 13, 1897, appellant entered into a redemption bond as security with the Brightwells as principal, for the redemption of the property from the Hamilton deed of trust, and on the 28th day of July, 1897, advanced the sum of $667.30 of his own funds for the extinguishment of that debt. “It may be taken as universally true in law, that no conveyance can be a mortgage, unless it is made for the purpose of securing the payment of a debt, or the performance of a duty, either existing at the time the ■ conveyance is made, or to be created, or to arise in the future. Brant v. Robertson, 16 Mo. 143.
   WALKER, J.

This is a suit in equity to divest the title to certain lands in Platte county out of defendant, and vest it in plaintiff.

The prayer is for an accounting and that the deeds transferring the land be declared to be mortgages, and for other proper relief. From a judgment for plaintiffs, defendant appeals.

The suit was originally brought by Richard T. Brightwell and Sallie L. Brightwell, his wife, as plaintiffs, against Howard B. McAfee, as defendant. Sallie L. Brightwell subseqtiently died, and a revivor was had in the names of the present plaintiffs; two of the heirs of the deceased, declining to consent to be joined as plaintiffs, were made defendants. •

In 1891 Sallie L. Brightwell and Richard- T. Brightwell, her Husband, executed a deed of trust to secure a note made to A. J. Hamilton for $1513. Hamilton thereafter died, and his administrator caused the trustee named in tire deed of trust to advertise the -land for sale, and on April 10, 1897, it was sold and bought in by the administrator. A few days after the sale, the Brightwells, with McAfee, the defendant, and others as sureties, gave a redemption bond, which was filed and approved in the circuit court of Platte county.

Prior thereto an arrangement had been entered into by the Brightwells and McAfee, under which the former were to deed all the property covered by the Hamilton deed of trust to McAfee; on the day of the sale of the land under the deed of trust, the Bright-wells made a quit-claim deed to McAfee for a purported consideration of five dollars, of all the land described in the Hamilton deed of trust, absolute in form, but contended by the plaintiffs to he by way of security to McAfee for the repayment of the money he proposed to obtain and advance for them to redeem the property from the said deed of trust; to accomplish this, he was to sell such portions of the land as would he necessary to raise money to pay off the Hamilton debt and expenses, etc., incident thereto, after which the remaining portions of the land not sold,, were to be reconveyed to Mrs. Brightwell. This deed was not recorded. On July 28, 1897, the Brightwells executed another deed to the same land to McAfee for the purported consideration of one dollar, the purpose only, admitted in appellant’s answer, being to correct an.error or defect in the description of the land contained in the deed first mentioned. The last deed was filed and recorded. On the same day the last mentioned quit-claim deed was executed to McAfee, he sold twenty-five acres of the land to Jane Perril for $1200 and received the money therefor, and executed a deed of trust to M. Noll, Jr., on the home place of the Brightwells to secure a note for $800; and paid to the administrator of Hamilton $2067.37 in full of the debt and interest which had been secured by the deed of trust aforesaid, and received a full release by a quitclaim deed made to him, said McAfee. In the payment of this debt, McAfee used the $1200 he had received from Mrs. Ferril, the $800 he had realized from Noll, Jr., and advanced $667.30 out of his own funds. From November 1, 1897, to October 16, 1900, McAfee sold twenty acres of the Brightwell land to the Southwest Loan & Land Company for $700, a lot to S. S. Aker for $225, and other portions of said land to Nancy A. Tabler for $425; in addition to these sums received by him, the Brightwells paid him in cash at different times, up to June 11, 1906, the aggregate sum of $993.74. On April IN, 1808, McAfee paid off the Noll deed of trust and received a full release of the same. The total amount of money received by McAfee from the sale of the portions of the land, with the additional sum paid to him by the Brightwells in cash, is $3483.74. The total amount expended by him for all purposes was about $2567.30. According to the undisputed evidence, therefore, a cash balance, $816.44, remained in McAfee’s hands to cover any possible interest, insurance, taxes, repairs and other expenses incurred on account of said land. During the entire time of these transactions the Brightwells remained as they had been long before, and as Bichard T. Brightwell and the administrator of Sallie L. Brightwell were at the time of this suit, in absolute possession of the portion of the lands not sold. At the time of the foreclosure under the Hamilton deed of trust these lands were worth from $6000 to $8000, and at the time of the trial the remainder of the lands not sold was worth from $4000 to $5000.

Such portions of the petition filed ’herein as are necessary to a review of defendant’s objections thereto, are as follows:

“And. plaintiffs state that the said Sallie L. Brightwell being so the absolute owner of said real estate, she, together with her husband, the plaintiff, Richard T. Brightwell, did make, execute, acknowledge and deliver to one Albert J. Hamilton their promissory note for the sum of $1513 dated on the 18th day of June, 1891, with interest thereon from date at the rate of ten per cent per annum, and to secure said note did make, execute, acknowledge and deliver to George W. Day, as trustee for said Albert J. Hamilton, their certain deed of trust on all of said lands, which said deed of trust was duly recorded in the office of the recorder of deeds in and for said county of Platte in Book 26 at page 155'.
“And plaintiffs further state said Albert J. Hamilton died intestate on or about the-day of-, 1896, in Platte county, and'that one A. C. Hamilton was duly appointed and legally qualified as administrator of the estate of said Albert J. Hamilton, deceased, and as such administrator became the legal holder of said promissory note; that the said Sallie L. Brightwell and her husband, the said Richard T. Brightwell, having made default in the payment of said promissory note, the said George W. Day, as trustee as aforesaid in said deed of trust, on the request of the said A. C. Hamilton, administrator as aforesaid, and the legal holder of said promissory note, did proceed to foreclose said deed of trust by advertising all of said real estate for sale on the 10th day of April, 1897, in accordance with the provisions of said deed of trust.
“And plaintiffs state that the said Sallie L. Brightwell, being then in great financial embarrassment, and being ignorant of business matters, and being unable to procure sufficient ready money with which to pay said note and deed of trust, she, together with her husband, the plaintiff Richard T. Brightwell, in order to prevent a sale and sacrifice of their said lands by such foreclosure of said deed of trust, did apply to the defendant McAfee for a loan to take up said note and deed of trust; that while ¿aid defendant at that time could not make a loan to said Sallie L. Brightwell to take up said note and deed of trust, he did agree with her and her said husband to stop said sale and to save to her said real estate from said sale and sacrifice; that by some arrangement, the exact nature of which plaintiffs are not fully advised, the said defendant did procure a postponement or stay of said proceedings; that said real estate at the time aforesaid was well worth more than double the amount of said lien and debt against the same, and at a fair valuation was worth at least the sum of eight thousand dollars.
' “And plaintiffs further state, that after the stay of the proceedings of foreclosure aforesaid, an arrangement and contract was entered into by said Sallie L. Brightwell and the plaintiff, Bichard T. Bright-well, with the said defendant, whereby the defendant did agree with them that if they, the said Sallie L. Brightwell and Richard T. Brightwell, would convey all of their said real estate to him, the said defendant, he would sell off portions of said property sufficient to pay off and discharge said indebtedness and recon-vey to them all that remained thereof, and that he would thus save for them all of said property that was possible to be done, and would in good faith restore all of the balance to them as aforesaid; that thereupon, the said Sallie L. Brightwell and B-ichard T. Brightwell, reposing full confidence and trust in the defendant McAfee and in consideration of the premises and trust aforesaid, did make, execute, acknowledge and deliver to said defendant their quitclaim deed conveying to him all of their said real estate hereinbefore described, which said deed was dated the 20th day of July, 1897, and acknowledged on the 28th day of July, 1897, and duly' recorded in the office of the recorder of deeds in and for said county of Platte, in Book 39, at page 130, a certified copy of which deed is herewith filed and marked ‘Exhibit A.’
“Ancl plaintiffs state that said deed of quit-claim' purported on its face to be in consideration of the sum of five dollars and other good and valuable considerations, and on its face appeared to convey to defendant McAfee all of the real estate of the said Sallie L. Brightwell hereinbefore described, and stated therein that it was understood and agreed that said instrument was intended to convey and was made to transfer and convey and fully and completely all the right, title and interest of the said Sallie L. Brightwell in and to any and all real estate that she then had or owned, situate, lying and being in the town, now city of Parkville, and its additions, and in Pettis township, all in the aforesaid county and State, to the said defendant ; that while said quit-claim deed thus appeared on its face to be an absolute conveyance of said real estate to the said defendant, it was in truth and in fact intended by said parties at the time to be only a mortgage and security to the said defendant to secure to him the said loan and advancements made or to be made by him to release said property of the lien of said deed of trust and to prevent a foreclosure and sale under the same, and to enable said defendant to make sales of certain portions thereof to raise funds for the purpose of paying off and discharging said indebtedness.
“And plaintiffs' further state that on the same day, to-wit, on the 28th day of July, 1897, after the execution and delivery of said deed of quit-claim to defendant McAfee as aforesaid by said Sallie L. Bright-well and her husband, the said defendant did make, execute and deliver to Jane Ferril a deed to a part of said real estate, viz., the 25-acre tract aforesaid at and for the sum of $1200 and received the purchase price therefor; that on said 28th day of July, 1897, the said defendant did take up and pay off the note and deed of trust aforesaid, so executed by said Sallie L. Brightwell and husband Albert J. Hamilton as aforesaid, and that said A. C. Hamilton, administrator as aforesaid, did on said date then and there, make, execute, acknowledge and deliver his deed of quit-claim in satisfaction of said note and deed of trust, which said deed of quit-claim was duly recorded in the office of the recorder of deeds in and for said county in Book 29 at page 636; that said debt and note on said date at the time the same was so paid off by the defendant McAfee amounted to the sum of $2667.30; that on the same date, to-wit, on the 28th day of July, 1897, the said defendant did make, execute and deliver to one M. Noll, Jr., a deed of trust for $800 on a portion of said premises, which said deed of trust was duly recorded in the office of the recorder of deeds in and for said county in Book 39 at page 133; that the said defendant did on said date receive said sum of $800 from said M. Noll, Jr., by said loan, and said sum and the said sum of $1200 received of Jane Ferril, as aforesaid, from a sale of a portion of said real estate, was by said defendant paid to said A. O. Hamilton, administrator as aforesaid,, towards the extinguishment of said note and deed of trust, and the defendant McAfee thereupon advanced the sum of $667.30 to complete the payment thereof.
“ Plaintiffs further state that the defendant Mc-Afee by deed dated November 1, 1897, did convey of said real estate the twenty-acre tract as aforesaid to the Southwestern Loan & Land Co., a corporation, for the price and sum of $760, and received the same; that said deed is duly recorded in the office of the recorder of deeds in and for said county in Book 38 at page 469; that on the 15th day of April, 1898, the said defendant did convey to S. S. Aker a certain portion of said real estate for the sum of $225, by deed of that date, which said deed is duly recorded in the office of the recorder off'deeds in and for said county of Platte in Book 40 at page 87; that on the 16th day of October, 1900, by deed of that date, the said defendant did convey to one Nancy A. Tabler certain portions of said real estate for the price and sum of $425, -which deed is duly recorded in the office of the recorder of deeds in and for said county in Book 44 at page 286.
“And plaintiffs further state that in addition to the several sums of money.so received by the defendant McAfee from the said sales of portions of said real estate to divers persons as aforesaid, the said' Sallie L. Brightwell did pay to said defendant in cash at divers times to be applied on said advancement on the Hamilton deed of trust and loan for M. Noll, Jr., aforesaid as follows: July 28, 1898, $200; February 2, 1899, $22.95; July 28, 1899, $51; January 29, 1900, $33; July 31, 1900, $41.25; January 28, 1901, $25.54; July 31, 1901, $75; January 28, 1902, $75; July 29, 1902, $100; February 24, 1903, $100; July 30, 1903, $40; January 28, 1904, $60; August 2, 1904, $75; May 1, 1905, $75; June 11, 1906, $60, and the sum of $225 received from the sale of certain lots to S. S. Aker, as aforesaid, which said sum was received by the said defendant on April 15, 1898.
“Plaintiffs further state that upon the payment of the last payment to said defendant by said Sallie L. Brightwell, on the 11th day of June, 1906, she then and there demanded of the defendant McAfee that he reconvey to her all of said property remaining after the aforesaid sales of the same, and for an accounting by said defendant as to the amounts he had received from sales of said property and from the several payments to him by said Sallie L, Brightwell as aforesaid, which the said defendant failed and refused to do and still so refuses and fails to do.
“Plaintiffs further state that since the execution and delivery of said quit-claim deed to defendant McAfee by said Sallie L. Brightwell and the plaintiff Richard T. Brightwell, as aforesaid, the said Sallie L. Brightwell remained in the full and undisputed possession of all of said premises not sold and conveyed by said defendant, and so continued in such possession up to the time of her death, and that the plaintiff Richard T. Brightwell is now in possession thereof; that the said Sallie L. Brightwell up to and including the 11th day of June, 1906, paid to the defendant McAfee in actual cash to reimburse him on account of his advancements to clear said property of said Hamilton deed of trust and said Noll loan, the sum of $1158,74 as aforesaid, which said sum added to the several sums received by the said defendant from sales of portions of her said real estate as aforesaid, makes the sum of $3543.74 in actual cash that said defendant has received for the purposes of said trust, and so these plaintiffs say that the defendant McAfee has been fully paid each and every obligation, claim or demand which he may or by right could claim against said real estate, the said Sallie L. Brightwell or these plaintiffs, and cannot lawfully or in equity hold or claim said property for or on account of any claim legal or equitable by reason of the trust under which said property was conveyed to him as aforesaid.
“Plaintiffs state that they desire to redeem said property remaining unsold from the claim of defendant McAfee under and by virtue of the said quit-claim deed so. executed and intended by the parties as a mortgage and security to the said defendant and to enable him to sell off portions thereof to satisfy and release it from the lien of said Hamilton deed of trust, as aforesaid, and the plaintiffs are ready and willing and here offer, to pay to said defendant whatever sum that may be found to be due him by virtue of the premises, if anything there be so due to the said defendant; and plaintiffs are further ready and willing and here offer to repay and reimburse the said defendant any su'ms of money legally and properly expended by him under and in accordance with the terms and conditions under which said real estate was conveyed to Mm by said quit-claim deed as aforesaid, with interest thereon from the respective dates when such payments, if any, were made, and plaintiffs stand ready and willing to comply with ¿11 the terms and conditions of said contract and trust so made and entered into with the said defendant by the said Sallie L. Brightwell and the plaintiff Richard T. Brightwell aforesaid.”

The answer set np a number of defenses, not necessary to be considered, the defendant having in his assignments of errors narrowed the issues to the sufficiency of the petition, and that the quit-claim deeds made by the Brightwells to him were intended as absolute conveyances and not as mortgages. For this reason we omit the so-called lease and option-to-purchase contract.

McAfee made no attempt to account for the moneys received by him from the sales of portions of the land and the cash paid to him by the Bright-wells, his counsel contending that the plaintiffs had misconceived their cause of action; that the lease and option-to-purchase contract was the determinative factor in the case, and that the same had been ignored by the trial court; that since plaintiffs challenged that instrument upon grounds which they made no effort to establish, the cause would turn upon the effect of that agreement or its performance or non-performance; that the question of mortgage or no mortgage was not an issue, and that no good could come of a showing of receipts and expenditures, and other charges of defendant thereunder.

On the trial the court found that the two quitclaim deeds, although absolute in form, were intended by all the parties thereto at the time of the execution and delivery of same as equitable mortgages to secure the defendant McAfee for a certain loan or advancement then agreed to be made by him to Sallie L. Brightwell and Richard T. Brightwell, and which was made by bim in conformity thereto, and that said defendant before the filing of the petition herein has been fully paid off and reimbursed in every part of said loan or advancement by him made on account of said quit-claim deeds, together with all interest, costs and charges by bim incurred by virtue thereof, and full and reasonable compensation for all of his services in connection therewith. And that since the death of the said Sallie L. Brightwell, who died intestate, her administrator is in the possession of the lands in question; whereupon the court decreed, that the two quit-claim deeds made by the Brightwells to McAfee were in the nature of mortgages, and that they were so intended by all the parties thereto at the time of the execution thereof, and that the plaintiffs herein are entitled to a redemption of said lands, and that the debt, interest and costs secured thereby to the defendant McAfee have been fully paid off and discharged, and said lien fully satisfied, and that all the right, title, claim and lien by virtue thereof to the said McAfee be and the same is hereby divested out of him and vested in the plaintiffs, and the two defendants Annie Davis and Mary Breen,' heirs of the deceased Sallie L. Brightwell. And that plaintiffs have and recover of defendant McAfee their costs and charges in this behalf expended, and have thereof execution.

Other facts not appearing m the foregoing statement will be referred to as required in the opinion.

I. The allegation contained in the petition that the lands in question were conveyed to the defendant by quit-claim deeds absolute in form but for a nominal consideration, under an agreement that the defendant was to sell portions of said lands and pay off a debt of the grantors, and reconvey to them the remainder of the lands unsold, is a sufficient allegation of the creation of a subsisting debt between the parties.

If one owes a debt and canses another to pay it, an action for money bad and received will lie against him. [Henderson v. Koenig, 192 Mo. 690; Montgomery v. Wise, 138 Mo. App. 176.]

In an Alabama case as nearly identical in its facts with the case at bar as one case can well be with another, the bill avers that “being indebted to Brawner and Opp, who were pressing for the payment of their claims, and being in need of money to pay the same, complainant ‘arranged with J. E. Shreve, to pay and satisfy orator’s debts to the said Brawner and.Opp? and the said J. E. Sbreve paid and satisfied said debts to said Brawner and Opp, . . . and the orator to secure the said Sbreve did, ... by absolute deed of conveyance, in which orator’s wife joined, convey to the said Sbreve in fee simple the following described lands,’ etc.; . . . that the consideration for said deed was the payment by said Sbreve of complainant’s indebtedness to Brawner and Opp; . . . ‘that said deed’ . . . (so made by complainant to Sbreve) ‘although it appears to be absolute on its face, was not intended by orator and the said J. E. Sbreve to be such, but it was at the time of the making of said deed expressly understood and agreed between orator and the said J. E. Sbreve that the said deed and the said premises thereby conveyed were to be held as security merely for said consideration, and that orator should have until, to-wit, the 1st day of January, 1904, to redeem said lands.” The court in ruling on said bill said: “It is averred in positive terms that complainant procured the respondent Sbreve to pay complainant’s indebtedness to Brawner and Opp; and to secure Sbreve for the amount so paid, the complainant executed to him an absolute deed, but that it was agreed and understood at the time between complainant and Shreve that the deed should stand merely as a security for the amounts paid by Shreve to Brawner- and Opp, and that complainant should have the right to redeem the land. The money paid to Brawner and Opp was for debts due from the complainant to them, and was paid by the respondent Shreve at the instance and request of the complainant. No question of law is better settled in this State than that ‘if one who owes a debt, by any contrivance causes another to pay it, the action for money paid will lie against him.’ The hill by its averments shows that the money was paid to Brawner and Opp at complainant’s request, and, being paid at his request, that created an obligation on his part to repay. Certainly to secure Shreve for the payment of his money, if a plain mortgage had been given, there could be no question of the relation of creditor and debtor. The fact that the security was taken in the form of an absolute deed does not alter the principle involved. On the facts averred in the bill, there would be nothing to prevent Shreve from enforcing his security by a bill to foreclose.” [Shreve v. McGowin, 143 Ala. 665.]

If the petition here had simply alleged generally the creation of an indebtedness or that a security existed by reason of the conveyance of the land to the defendant, the criticism leveled at the petition in the like case of Jones v. Hubbard, 193 Mo. 163, would apply; but instead, all the material facts necessary to aver the existence of either- of said conditions are minutely set forth and the rule requiring a plain, concise statement of the matters in issue is fully complied with. [Newham v. Kenton, 79 Mo. 382.]

The manner in which the defendant acquired the title to the lands in question and his holding of same was pleaded with sufficient certainty to entitle the plaintiffs to a hearing in a court of equity.

The other essential averments in a pleading of this character are stated with formal particularity. The petition is not subject to valid objection.

II. The plaintiffs assumed the burden of showing the real nature of the transaction. [Cobb v. Day, 106 Mo. l. c. 296; Worley v. Dryden, 57 Mo. 226.] The evidence was parol. Testimony of this character is admitted by courts in almost all jurisdictions, to prove that a deed absolute on its face is a mortgage, the grounds therefor being variously stated. Our courts admit it on the ground that the denial óf the true character of the deed by the grantee is a fraud on his part which gives a court of equity jurisdiction of the case, and thus enables it to hold to the verbal or implied defeasance as effectually as if it had been a formal written one. [Cobb v. Day, 106 Mo. 278, 17 S. W. 323; Book v. Beasly, 138 Mo. 455, 40 S. W. 101; Jones v. Bush, 156 Mo. l. c. 375.]

This is the rule most generally stated. In some jurisdictions, however, it is said that parol testimony is not to contradict the deed, but to establish an independent equity based on the interest of the parties. [Shields v. Simonton, 65 W. Va. 179.]

Whatever reasons may be assigned for the rule it is now too well established to admit of question.

The testimony introduced to sustain the issues in this case consisted of various conditions, circumstances and facts. It was shown that the grantors were elderly people and in very straitened circumstances when they made the agreement which led to the transfer of their property to defendant, their sole possessions consisting of the land subsequently conveyed to the defendant, which was burdened with an encumbrance to secure the payment of the note then past due. The admissibility of this testimony was authorized. [Montgomery v. Beecher, 31 Atl. (N. J. Ch.) 451; Steel v. Black, 56 N. C. (3 Jones’s Eq.) 427; Blackwell v. Overby, 41 N. C. (6 Ir. Eq.) 48; Husheon v. Husheon, 71 Cal. 407; Reed v. Reed, 75 Me. 264; Gilchrist v. Beswick, 33 W. Va. 168.]

The nominal considerations expressed in the deeds, in one instance five dollars and in the other one dollar, were shown to have been the only consideration that passed at the time the deeds were executed or thereafter. The reasonable value of the property conveyed at that time was not less than $7000 or $8000. Evidence of the purported consideration and the actual value is pertinent and material in á case of, this character. [Bacon v. Nat. Ger. Am. Bank, 191 Ill. 205; Flagg v. Mann, 31 Mass. 467; Becker v. Howard, 75 Wis. 415; Glass v. Hieronymus Bros., 125 Ala. 140, 82 Am. St. Rep. 225.]

The declarations and statements of the parties before and at the time the conveyance was made are material to show their intent. Samuel H. Grayden, one of the witnesses for the plaintiffs, testified that the defendant asked him what he could do towards assisting in making sales of the property up there (referring to the property which had been conveyed to him by the plaintiffs). Defendant stated he was doing this for. the purpose of saving those old people their home; that all he wanted was to get enough out of it to pay off the mortgage.and give them back what •was left after doing so. Defendant, the witness says, told him that the deed had been made to him by plaintiffs to enable him to sell to the best advantage. Robert P. McGeehan, another witness for the plaintiffs, stated that the defendant told him that he wanted witness “to go ahead and sell it” (referring to the property conveyed by plaintiffs) “and get enough money to pay off the claims, to save the house and lots for the old people.” In another talk witness had with the defendant, the latter said that he had, or was about to take, the title of the Brightwell property in his own name and pay the Hamilton claim off; that by so doing he would be enabled to save some money and had taken the deed in his own name for that purpose. In still another conversation, defendant said it was his intention to sell off enough of the property to pay the debt and save the balance for the Brightwells.

In connection with the testimony of this character, a number of receipts were introduced in evidence showing payments of cash at different times by Mrs. Bright-well to the defendant, stated by her and her husband to have been in repayment of cash advanced by the defendant for them. All except two or three of these receipts made at different times after the conveyance of the property to the defendant, state on their face “on account of land contract.” These entries are straws, but they tend strongly, when taken in connection with other testimony, to show how the defendant then construed the transaction with the plaintiffs. Admissions, declarations and statements of a defendant under such circumstances as these are always admissible in evidence. [Spencer v. Schuman, 132 Ga. 515.]

Another fact that may be taken into consideration is the equivocal character of the defendant’s, testimony and his failure to attempt in any way to account for the money received and paid out by him for the BrightiVells, either from the sale of lands or cash paid out of his own funds on their account.

Evidence in a case of this character to sustain a decree must be clear, convincing and credible. [Gerhardt v. Tucker, 187 Mo. 46, 85 S. W. 552.] . The continuous possession of the unsold property by the Brightwells up to the wife’s death, and thereafter by her husband and administrator, their right thereto unquestioned, is a fact not to be ignored in determining how the defendant regarded their holding until long after Mrs. 'Brightwell’s death and the marked appreciation in the value of the property. While this is an equity case in which it becomes our duty to review the entire evidence, an animadversion upon the conduct of an individual should be avoided, if possible. It will suffice for us to say that the entire cast and coloring of this case indicates that the purpose of the making of the quit-claim deeds by the Brightwells to the defendant was simply in the nature of a mortgage or a security to him, and not as absolute conveyances. The evidence is sufficiently clear and conclusive to authorize an affirmance of the finding and decree of the trial court, and it is so ordered.

Brown, P. J., and Faris, J., concur.


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    WILLIAM M. SPICER et al. v. BENJAMIN F. SPICER, Appellant.
    Division Two,
    April 8, 1913.
    1. EVIDENCE: Shown by Abstract as Admitted: Shown by Additional Abstract as Excluded. Where appellant contends that certain evidence, shown by his abstract of the record to have been admitted, was erroneously admitted, and respondents file an additional abstract, to which appellant raises no objection, showing that the evidence was excluded, it will be assumed that the additional abstract is correct.
    2. QUIETING TITLE: Adverse Possession: Evidence: Reputation: Introduced by Record Holder. Title cannot be proved by reputation, but, upon the issue of title by adverse possession, the great weight of authority is that the adverse claimant may introduce evidence to the effect that he is the reputed owner, for the purpose of showing that his claim was notorious, and therefore brought to the knowledge of the owner. Likewise, such evidence is admissible when offered by the parties claiming under the record owner, as in rebuttal, or as tending to show the absence, of the notoriety of the adverse claim. It tends, at least, to negative knowledge upon the part of the record owner, and the adverse claimant should protect his rights by asking an instruction limiting its effect.

      3.-:-: “Notorious” Defined. “Notorious,” as applied to adverse possession, means, “generally Known and talked of; universally recognized; conspicuous; well, widely or commonly known.”
    4. -: -: Burden of Proof: Includes Proving Adverseness. The burden of proving title by adverse possession is upon the party who aserts it, and the admission by the opposite party of the claimant’s possession does not relieve the claimant from' proving it adverse. Mere possession does not create title by limitation, however long continued.
    5. -: -: Prima Facie Evidence: Deeds and Records: Not for Jury. Where certain deeds, acknowledged in accordance with Sec. 2818, R. S. 1909, a copy of a will and its probate, certified in accordance with Sec. 565, R. S. 1909, and an order of the probate court, proved by the original record, are introduced in evidence, .they constitute in that form prima facie evidence of their execution, and when there is no evidénce to the contrary their execution is not an issue for the jury.
    6. -: -: Evidence: Instructions: Tenancy of Adverse Claimant. In a suit to quiet title, to which the defendant pleaded adverse possession, it is held that there was evidence warranting the giving of instructions which included the question whether defendant held as tenant of plaintiffs’ testator.
    7. -; -; -; Record Title Proved: Question for Jury. Where, in a suit to quiet title, the evidence showed plaintiffs to be the record owners, the question of defendant’s title by adverse possession was for the jury.
    8. -: -: Parties: Executor with Order to Rent to Pay Debts. While an executor with an order from the probate court to rent the real estate to pay debts, is not a necessary party to a suit to quiet title under Sec. 2585, R. S. 1909, he has such claim or interest in the land as to make him a proper party plaintiff.
    9.-: -: Order of Court Regular on Face: Presumption.. Where the order of the probate court giving an executor authority to take possession of and rent the testator’s land for two years to pay debts was regular on its face, it will be presumed that the court acted regularly and with due authority.
    10.-: -: Parties: Executor with Order to Rent for Two Years: Sec 13-9, R. S. 1909. Section 139, R. S. 1909, empowering the probate court to order an executor to take possession of and rent the land of his testator “for a period not exceeding two years” does not mean that in all cases the executor shall, at the end of two years from the date of the order, ipso facto lose all control or interest in the land, but it does mean that he shall have the possession and the right to rent the land for a period not exceeding two years. And the fact that defendant was, when such an order was made, in possession of the land in question, claiming adversely, and continued for over two years, or until the trial of this suit, in such possession, does not prevent the executor from being a proper party plaintiff to a suit to quiet title.
    11. REPETITIOUS INSTRUCTIONS: Properly Refused. Instructions are properly refused when they are merely repetitions of the law declared by the court in other instructions given at the request of the same party.
    Appeal from Platte Circuit Court. — Hon. Alonso D. Burnes, Judge.
    Affirmed.

      James W. Boyd and James H. Chinn for appellant.
    (1) The reply of plaintiff admits appellant’s possession of said lands for and during thirty-five years next before the institution of tins suit. In said reply it is‘not alleged or claimed that defendant’s possession was of a character different from the possession of defendant as alleged in his answer. After said admission as to possession to defendant in said reply, we find the following words: “And each and every other allegation made and contained in said answer they deny.” Now, the character of defendant’s possession is fully set forth in his answer, as follows: ‘ ‘ That he has been in the actual, adverse, open, hostile, exclusive and continuous possession of said lands and real estate under claim of exclusive ownership for and during the last thirty-five years.” The character of his possession is therefore not denied by the reply, and according to the reply his possession during said thirty-five years was of such a character as that alleged in his answer. (2) Under the law, the executor or administrator is not entitled to the possession of the real estate of Ms decedent. He has no right to bring a snit to declare the title. He is not a representative of the heirs as to the title. Secs. 147,148, 149 and 150, E. S. 1909; Grant v. Hathaway, 215 Mo. 147; Thorp v. Miller, 137 Mo. 231; Hall v. Bank, 145 Mo. 418; Bur-dyne v. Mackey, 7 Mo. 374. (3) The real estate descends to the heirs. This doctrine has been so often stated that it is not necessary for the appellant to repeat it. McKee v. Downing, 224 Mo. 126; McQnitty v. Wilhite, 218 Mo. 586; Thorp v. Miller, 137 Mo. 238. (4) So far as the executor is concerned, there is nothing in the case to show that the probate court had authority to make the order which the plaintiffs read in evidence, dated October 7, 1907. The plaintiffs should have shown some fact authorizing the court to make an order. Sec. 139, E. S. 1909; McKee v. Downing, 224 Mo. 126; McQnitty v. Wilhite, 218 Mo. 186; Thorp v. Miller, 137 Mo. 231; Hall v. Bank, 145 Mo. 418; Lang-ston v. Canterbury, 173 Mo. 130. “The lands of a decedent descend to his heirs (or devisees if so the will reads), and the possession of the land and defense of the title and all of its incidents belong to the heirs or devisees, and the personal representatives have nothing at all to do with it; no concern in the matter. ’ ’ Grant v. Hathaway, 215 Mo. 141; Aubuchon v. Lory, 23 Mo. 99; Chambers v. Wright, 40 Mo. 482; Woerner, Admn., secs. 338, 376; Hale v. Darter, 5 Humph. (Tenn.) 80'; 18 Cyc. 297-9; 11 Am. & Eng. Ency. Law {2 Ed.), 838. But assuming for the purpose of the argument that the court did make that order, it is absolutely certain that the executor could not have any right to the possession of said land after the expiration of two years. Sec. 139, E. S. 1909. The alleged order was made October 7, 1907. The case was tried December 20, 1909. At the time of the trial, it is impossible to conceive that the executor had any interest in these lands. Grant v. Hathaway, 215 Mo. 141.

      Martin E. Lawson, James H. Hull and. George W„ Day for respondents.
    (1) The answer set np adverse possession. A hostile possession'is requisite to a title by adverse possession. The reply admitted the possession, but denied that it was hostile. This made an issue as to-the character of defendant’s possession. E. S. 1909, secs. 1811, 1806; Ilunnewell v.' Burchett, 152 Mo. 614 ; Stevenson v. Black, 168 Mo.' 560; Long v. Coal & Iron Co., 233 Mo. 731. (2) One of the things defendant undertook to prove was that his claim of ownership of the land was notorious. This for the purpose of raising a presumption that his brother William knew of such claim. Evidence to show the reputed ownership of the farm in the neighborhood was therefore properly received. Maxwell v. Lawson, 151 IJ. S. 603; Sparrow, v. Hovey, 44 Mich. 744; Long v. Coal & Iron Co., 233 Mo. 731; Drumm-Flato Com. Co. v. Bank, 107 Mo..App. 426; Neudeck v. Grand Lodge, 61 Mo. App. 105; ilunnewell v. Burchart, 152 Mo. 614; Knight v* Knight, 178 Ill. 553. (3) The order of the probate court entitled the executor to the possession of the land in controversy, to enable him to rent it, collect the rents, and make repairs, and by the express terms of the statute he could maintain an action for the recovery of such real estate. Therefore he had an interest in it to be determined. E. S. 1909, secs. 139, 2535; 22 Cyc. 1581, 1582, 1583; Ball v. Woolfolk, 175 Mo. 278; Utter v. Sidman, 170 Mo. 284; Meriwether 'V. Love, 167 Mo. 514; Huff v. Land & Imp. Co., 157 Mo. 65. (4) Eespondents were not bound to show any authority for that order. The court will be presumed to have acted upon a proper showing. If there was no such showing, it devolved upon the appellant to put in evidence such facts as would make void the order. Langsten v. Canterbury, 173 Mo. 131. (5) Orders and judgments of the probate cpurt, relating to matters within their jurisdiction, will be presumed to have been regularly made and entered, and will have accorded to them the same favorable presumptions as judgments of our circuit courts. Macey v. Stark, 116 Mo. 494. (6) The order of the probate court did not become extinct two years after its making. The two-year limitation is on the period of time for which the executor may rent the land. R. S. 1909, sec. 139. (7); Appellant’s defense was that he had taken away the title of his brother by an adverse possession. Therefore the court properly instructed the jury that they must find for the plaintiffs unless they found that defendant had acquired the title to said land in the manner required by other instructions, all of which related to title by adverse possession. Hunnewell v. Burchett,' 152 Mo. 614; Stevenson v. Black, 168 Mo. 561.
   WILLIAMS, C.

This suit was instituted in the circuit court of Platte county, Missouri, to determine and define the title to eighty acres of land described as the west half of the southwest quarter of section 21, township 52, range 33, in Platte county, Missouri.

The petition alleges that William A. Spicer died testate June 30, 1907, seized of an estate in fee simple in said land; that his will was duly approved and admitted to probate in the probate court of Clay county, Missouri, on July 10, 1907; that by the terms of said will said real estate was devised to plaintiffs, William M. and George H. Spicer, share and share alike; that plaintiff William M. Spicer was named as executor in said will, and was by said probate court duly appointed as such executor, and letters of administration issued to him; that on October 7, 1907, said probate court, being satisfied that it was necessary to rent said estate for the payment of debts, made an order of record requiring said executor to take possession of and rent said real estate, which order, the petition alleges, is still in force and effect; that defendant is in possession of said real estate, claiming some title, estate or interest therein, bnt that said defendant has no title, estate or interest in said property. The prayer of the petition aslcs the court to determine and decree the title, estate and interest of the respective parties, and to adjudge and determine that said defendant has no title, estate or interest in or to said property.

The answer first sets up a general denial, except' that defendant admits that he is in possession of said land. For further defense and answer defendant alleges, first, that he is the owner in fee simple title to said land; second, that he has been in the actual, adverse, open, hostile, exclusive and continuous possession of said land, under claim of exclusive ownership, for and during the last thirty-five years, and that said William M. Spicer, as executor, is neither a necessary nor proper party to this suit, and that defendant should not in law or otherwise be burdened with his pretensions as such alleged executor.

Plaintiffs filed a reply, admitting that defendant has been in possession of said land for a period of thirty-five years, and denying each and every other allegation made and contained in said answer.

The case came to trial December 20, 1909, and by agreement of the parties the same was tried before a jury, which trial resulted in a verdict and judgment in favor of plaintiffs, fixing the respective interests of plaintiffs as described in the petition. Defendant appealed.

Plaintiffs introduced in evidence recorded deeds and title papers, or duly certified copies of same, beginning with the United States patent, dated May 1, 1846, down to the warranty deed, dated March 25, 1865, from Thomas P. Hardesty and wife to the testator. The documentary proof thus adduced constituted a complete' chain of conveyances from the Government down to said William A. Spicer, except that no deed was introduced from Absalom H. Waller to one Thomas S. P. Cravens. This missing link in the chain of title was supplied by proof of the death of said Waller and wife, and a showing made as to the heirs of said Waller, and then a quitclaim deed from the Waller heirs to William M. and George H. Spicer, plaintiffs herein, and devisees as aforesaid in said will. This quitclaim deed recited that in 1858 said Waller had executed and delivered to said Cravens a deed conveying said land to Cravens, but that said deed was never recorded. A further showing in this regard was made to the effect that said Waller, as judgment creditor, had caused said land conveyed to Cravens to be levied upon and sold under execution in November, 1864, at which sale said Thomas P. Hardesty, testator’s grantor, became the purchaser. Plaintiffs then introduced in evidence that portion of the will of William A. Spicer, deceased, showing the devise of said land to said William M. and George II. Spicer, plaintiffs herein. Plaintiffs were nephews of testator, and are also nephews of defendant, testator and defendant having been brothers.

Defendant’s evidence tended to show that up to the time of the trial, and for thirty-five years prior thereto, defendant had been in continuous possession of the land, tilling the soil, harvesting the crops, and-selling some of the surplus products; that about nineteen years before the trial he had purchased fruit trees and set out an orchard on the farm; that he also purchased some barbed wire, had some posts made, and built a barbed wire fence along the north and west portion of the farm, facing the public highway, and put some woven wire fencing around the yard. He also planted some shade trees in the front yard, and shingled the dwelling house twice, the first time many years before the testator’s death, and the second time after that occurrence. About twelve years before the trial defendant built a small log crib, with a shed extension which was used as a buggy shed. Several years before the trial he built a hen hou'se and smokehouse on the premises. About twenty-one years before the trial he had the entire house plastered, and had also new floors put in the kitchen, once before and again after the death of the testator. Some of defendant’s children testified that defendant had always sold the surplus products of the farm; that to their knowledge no rent was ever paid by defendant; that defendant always claimed to own the place by calling it “home,” and that the testator was seldom bn the place.

William L. Frazier, brother-in-law of defendant, testified that in 1893 he, together with some neighbors, including defendant, were planning to go to Oklahoma to attend the opening of the Strip and try to get some land, that witness told testator that defendant was going with them, and that the testator replied, “You let Ben stay where he is at; he has got a good home there, and I want him to stay there and take care of Betty (defendant’s wife) and the children;” that in a few minutes defendant came along, and the testator said to him, “Ben, I have given you a good home where you are at, and want you to stay there and take care of Betty and the children. ”

Jane Wingo testified for defendant that about 1900 she was looking for a farm to purchase, and called upon the testator for the purpose of seeing about the purchase of this eighty acres, but that testator told her the place was not for sale, and that he had given it to Ben. Later, on cross-examination, this witness changed her testimony, saying that the testator, in replying to her inquiry about the farm, said that it was not for sale, and that he had told Ben that if he lived there until he died the place would be Ben’s, but that he wanted to reserve the privilege of making his home there if he so desired.

One of defendant’s witnesses, on cross-examination, testified that about thirty years before the trial, .-and two. years after defendant moved to the place, the testator hired and paid him (witness) to gather a field of corn on the place and store it on the premises, and that the testator had live stock on the place when the defendant moved there and gradually sold the stock off. Another witness for defendant, on cross-examination, said that during the period of defendant’s possession the common understanding of the people of the neighborhood was that the testator, William A. Spi--cer, owned the farm, and another of defendant’s witnesses testified on cross-examination that defendant had more than once told him that the place belonged to his brother, the testator.

At the close of defendant’s evidence plaintiffs introduced rebuttal testimony, proving by a large number of witnesses, some of whom were defendant’s close neighbors, that it was the general reputation or understanding in the neighborhood that the testator William A. Spicer, deceased, was the owner of the farm, and that they had never heard defendant claim to own it. One witness testified that at the time defendant set out the .orchard on the farm, he was asked why he was putting out an orchard on a farm he did not own, and that defendant replied, “There was a good orchard on the farm when I went there, and I want to leave it in as good a fix. when I leave it.” Other witnesses testified that testator kept horses on the farm, more or less, during all the time that defendant was in possession prior to testator’s death.

George W. Spicer, brother of defendant and also of the testator, testified that from the year 1889 down to 1906 he had paid all the taxes on said eighty acres for the testator, and another witness testified to paying the taxes on the land for the executor since the testator’s death.

The land assessment books of Platte county were offered in evidence, showing that for four years, from 1904 to 1907 inclusive, this land stood on the assess-meat books in the name of the testator. "Witnesses testified to two conversations bad with, defendant, in which he stated in effect that if the testator did not cover the house and fix up the fences, he would leave there.

Witness Ben Moore testified that in 1893 defendant came out of the house in which the testator was, and appeared angry, and that when he came down into the yard where witness and some other persons were standing, he said, “If Will (meaning testator) don’t fix up that house he was going to leave it; he was getting tired of paying rent, and living outdoors.”

Witness Shanklin testified that he was seventy-one years of age, had lived in the neighborhood since 1841, a portion of the time on the farm adjoining the one in controversy, and that about ten or fifteen years before the trial he asked defendant why he did not put the meadow on the place in corn, and that defendant replied, “Will would not allow him to, or would not let him. ’ ’

Claib Thornhill testified that in 1882 or 1883 he built the barbed wire fence along the road on the northwest corner of the farm, that the testator paid him for doing it, and that about fifteen years before the trial defendant hired him to build a fence half way across the eighty acres, saying that he had been trying to got his brother Will to build it, but that he did not take any interest in it; that at another time he heard defendant say “rent was so high he could not pay it in this country, and he was going south to see if he could hunt him out a home.”

J. W. Markwell testified that he lived on a farm adjoining this land on the east, that there was a division line hedge fence between the two farms, that he had trimmed the hedge for ten or twelve years, and that testator had paid him for half of his work. This witness also testified that defendant hold him at one time that he was paying as much rent as anybody, that he had never heard defendant claim the place before the testator’s death, and that testator had horses on the farm most of the time.

Mrs. George W. Spicer testified that abont twenty years before the trial, defendant told her that “by the time he paid his rent there he had nothing much left for the children.”

Dr. Barr’s testimony was in deposition form, and to the effect that he purchased a stack of hay located on this land during the time defendant was in possession, and that he had paid testator for it by giving the testator credit on a bill.

Prank Burkhead testified that in 1905 or 1906 he heard defendant ask the testator about plowing up some sod on the place, and that testator told defendant not to plow it up. This witness further testified that the testator kept horses on the place during a portion of the time; that at one time testator sold one of these horses, and witness went to the farm to get the horse and deliver it to the purchaser, and that defendant helped him catch the horse.

William Eobertson testified that about the year 1906, while hunting on the farm in controversy, he was introduced to defendant, and that later on the same day he saw defendant again and asked him how much he would take for the place, defendant replying, “The land is not mine — I am just a renter; I rent it from my brother. ’ ’

Defendant Avent on the witness stand to give sur-rebuttal testimony, and denied each and every one of the statements ascribed to him by plaintiffs’ witnesses. Two other witnesses for defendant testified that Claib Thornhill never built the barbed wire fence along the road.

Appellant contends that the court committed error, first, in admitting certain evidence offered by plaintiffs; second, in giving plaintiffs’ instructions 1, 2 and 3; third, in refusing defendant’s instructions A, B, C, and D.

I. Appellant contends that the court erred in admitting certain portions of the will of William A. Spicer, deceased, which stated that he was the owner of the land in controversy, and that it was rented to defendant. Appellant’s abstract of the record shows that these portions of the will were admitted, hut respondents filed an additional abstract, showing that said portions of the will were not introduced, but were, upon objection of defendant, excluded from the evidence, and not read to the jury. Appellant having raised no objection to respondents’ additional abstract, it must be assumed that that portion of the record is as shown by such additional abstract, and further discussion of the point would serve no useful purpose.

The court permitted plaintiffs, over objection and exception of defendant, to show by a number of witnesses that the general reputation or. understanding in the neighborhood was that testator William A. Spicer, up to the time of his death, was the owner of the land involved. It is well settled that title cannot be proven by reputation. [2 Wigmore on Evidence, sec. 1587.] However, upon the issue of title by .adverse possession, the great weight of authority is that the adverse claimant may introduce evidence to the effect that he is the reputed owner, for the purpose of showing that his claim was notorious, and therefore brought to the knowledge of the owner. In the case of Maxwell Land Grant Co. v. Dawson, 151 U. S. l. c. 603, the court says:

“There was no error in admitting testimony to the effect that the land claimed by Dawson was generally reputed to belong to him. Claiming as he did by open, notorious and adverse possession of these lands for a period sufficient .... to give him good title, it was competent to prove that it was generally understood in the neighborhood, not only that he pastured his cattle upon these lands, hnt that he did so under a claim of ownership, and that his claim and the character of his possession were'such that he was generally reputed to be the owner. ... It had an important hearing upon the notoriety of his possession.”

To the same effect are the following authorities: Sparrow v. Hovey, 44 Mich. 63; Lusk v. Pelter, 101 Va. 790; Owen v. Moxon, 167 Ala. 615; Knight v. Knight, 178 Ill. 553; 2 Ency. of Ev., p. 683 (a); 1 Cyc., p. 1148 (b); Wigmore on Ev., vol. 1, sec. 254; vol. 2, p. 1941 (9).

While the evidence in the case at bar was not offered by the adverse claimant to show the notoriety of his claim, as was true in the cases cited above, but was offered by the parties claiming under the record owner, yet the same was admissible as in rebuttal, or as tending to show , the absence of the notoriety of defendant’s adverse claim, and, at least, was evidence tending to negative knowledge upon the part of the record owner. “Notorious,” in the sense here used, has been defined by this court to mean, ‘ ‘ Generally known and talked of; universally recognized; conspicuous; well, widely or commonly known.” [Long v. Lackawanna Coal & Iron Co., 233 Mo. l. c. 740.] Appellant cites no authority as supporting his contention, but asserts that respondents’ counsel in arguing the case to the jury, laid undue emphasis on the evidence as proof of title. Appellant could have protected his rights in this regard by requesting an instruction limiting the use of this evidence to the purpose above indicated, but failed to do so. In the case of Owen v. Moxon, supra, the court, in discussing the effect of evidence of this character, says:

“If it tended to show ownership, or facts other than notoriety of the possession, the appellant should have requested a limitation to this effect, but cannot put the trial court in error for letting it in, as it was relevant for certain purposes, and the objection attempted to keep it out entirely.”

II. Appellant insists that error was committed by the court in giving plaintiffs’ instructions 1, 2 and 3, in that, first, said instructions impose upon the defendant the burden of proving his title by adverse possession; second, they fail to submit to the jury the issue as to whether the will and the deeds were executed; third, that there was no evidence upon which to base that portion of the instruction telling the jury that if the occupation, possession and control of defendant over said land were enjoyed by defendant as tenant of the testator, the defendant could not recover.

As to the first proposition, it is sufficient to say that the burden of proving title by adverse possession is upon the party who asserts it. [Buswell on Limitations and Adverse Possession, sec. 236; 1 Cyc., p. 1143; Dameron v. Jamison, 143 Mo. 483; Smith v. City of Sedalia, 152 Mo. 283.] The application of this rule to the present case is not in anywise disturbed, as contended by appellant, by the fact that plaintiffs admitted that defendant had been in possession of the land for thirty-five years. The admission of mere possession did not relieve defendant from proving the elements constituting adverse possession. “Mere possession does not create title by limitation, however long continued.” [Crowl v. Orowl, 195 Mo. 338.]

With reference to the second contention, the deeds were duly acknowledged so as to come within the scope of section 2818, Revised Statutes 1909. The certified copy of the will and probate thereof conformed to the requirements of section 565, Eevised Statutes 1909. The order of the probate court directing the executor to take possession and rent the land was proven by the original record thereof. The documentary proof in the above form was prima facie evidence of the execution thereof. [Barbee v. Bank, 240 Mo. 297.] Defendant offering no evidence to the contrary, the execution of the documents, thus proven and uncontradicted, was not an issue for the jury’s determination, and the court committed no error in assuming that said documents were properly executed. In discussing the effect of such prima facie evidence, Mr. Justice Story, in the case of Kelly v. Jackson, 31 U. S. (6 Peters) 622, says:

“What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose. The jury are bound to consider it in that light, unless they are invested with authority to disregard the rules of evidence, by which the liberty and estate of every citizen are guarded' and supported. No judge would hesitate to set aside their verdict and grant a new trial, if, under such circumstances, without any rebutting evidence, they disregard it. It would be error on their part, which would require the remedial interposition of the court. In a legal sense, then, such prima facie evidence, in the absence of all controlling evidence or discrediting circumstances, becomes conclusive of the fact.”

Appellant’s third contention is not substantiated by the evidence, which we have carefully reviewed. There was evidence of statements made by defendant, during his occupancy of the land, to the effect that he was a tenant of his brother, the testator, and of other statements of his concerning the payment of rent.

III. At the close of all the evidence, appellant requested the court to instruct the jury that the plaintiffs were not entitled to recover. This request was properly refused. The evidence showed plaintiffs to he the record owners, and the question of defendant’s title by adverse possession was for the jury to determine, under proper instructions. In this regard, appellant very ingeniously insists that, at least, he was entitled to have this instruction so far as the claim of William M. Spicer, as executor, was concerned, on the grounds, first, that he was neither a necessary nor proper party; second, that even if he was a proper party, the plaintiffs failed to prove that the probate court had authority to make the order giving the executor authority to take possession of and rent the land for two years f^r the purpose of paying debts, as provided by section 139, Revised Statutes 1909; third, that though the probate court did have such authority, the two years given by the statute had expired between the date of the order of the probate court and the trial of the cause.

With reference to the first objection, we are of the opinion that, while the executor was not a necessary party, he had such a claim or interest in the land involved as to constitute him a proper party. Section 2535, Revised Statutes 1909, is very broad in its scope, and it has been held by this court that a tenant under a written lease has such an interest or claim as to come within the purview of this statute. [Mann v. Doerr, 222 Mo. 1.]

As to the second objection, it is sufficient to say that the order of the probate court was regular on its face, and. when this is true it is to be presumed that the probate court acted regularly and with due authority. [Macey v. Stark, 116 Mo. l. c. 494.]

As to the third objection, appellant misinterprets the statute, section 139, Revised Statutes 1909. The statute does .not mean that in all. cases .the executor, at the expiration of two years from the date of the order, shall ipso facto lose all control or interest in the land hut it does mean that he shall have the possession and the right to rent the same for a period not exceeding two years. In this ease, the executor never had the possession, and could not have rented the land, the defendant being in possession of the same claiming it as his own. If appellant’s construction of the statute were adopted, the statute would in many instances be evaded and rendered useless, and the heirs of an estate, or any person wrongfully in possession of the land, could,, by contesting litigation for two years, virtually defeat the executor’s right in that regard. Whenever consistent with reason, that construction which will make the statute operative should be applied. “It is a cardinal rule that all statutes are to be so construed as to sustain rather than ignore or defeat them; to' give them operation if the language will permit, instead of treating them as meaningless.” [2 Lewis’ Sutherland on Stat. Construction (2 Ed.), sec. 498.] Appellant cites many authorities to the effect that real estate descends to the heirs, and that the executor or administrator has no right to the possession thereof, but all those cases deal with a situation where the probate court has made no order, as was done in this case, and are therefore not in point.

Appellant’s refused instructions B, C, and D, so far as they contained declarations of law applicable to the case, were merely a repetition of the law declared by the court in the other instructions given at the request of defendant, and their refusal was not error.

The judgment of the circuit court is affirmed.

Boy, C., concurs.

PER CURIAM. — The above opinion by Williams,

C., is adopted as the opinion of the court.

All the judges concur.


author: BLAIR, C.

text:
    KEYES FARM & DAIRY COMPANY, Appellant, v. E. M. PRINDLE.
    Division Two,
    April 8, 1913.
    1. CONTRACTS: Construction. A contract between the defendant, a dairyman, and the plaintiff, a milk company, is construed and held, not to obligate the defendant to deliver to plaintiff all the milk, cream, etc., produced on his dairy farm.
    2. -: -: No Conflict in Evidence: For the Court. Although a contract be conceded to be in itself ambiguous, its construction is nevertheless for the court and not for the jury where there is no real conflict of evidence upon any of the essential facts necessary to be considered in construing it.
    Appeal from St. Louis City Circuit Court. — Ron. , William M. Kinsey, Judge.
    Affirmed.

      Bernard Greensfelder for appellant.

      Lyon & Smarts and Dwight D. Currie for respondent.
   BLAIR, C.

This is an appeal from a judgment for defendant in an action for damages for defendant’s refusal to. ship to plaintiff the milk produced by him at his dairy in Creen county, Illinois, the petition alleging that under the contract herein-after set out defendant was obligated to deliver plaintiff his entire product. Defendant concedes the contract bound him to ship plaintiff certified milk and cream in quantities sufficient to meet the requirements of the customers plaintiff had secured for those particular commodities, but avers other shipments were to be made at his option. Defendant offered to continue to perform the contract according to his construction of it, but this did not satisfy plaintiff and this suit followed.

During the two years prior to the execution of the contract in question defendant shipped milk and cream to plaintiff, a corporation engaged in selling dairy products to consumers in St. Louis. Meanwhile the St. Louis Pure Milk Commission (hereafter referred to as the Commission) had been established, had adopted and registered as a trade-mark the words “Certified Milk” and had prescribed numerous regulations to be observed by dairies in producing and marketing milk as a condition precedent to granting them permission to sell milk in St. Louis as “certified milk.” In addition to the requirements as to sanitation, the exclusion of tuberculous animals from the herd, etc., “certified milk” was required to be bottled at the dairy and the bottles packed in ice. Accompanying each bottle was a certificate in the form of a printed slip furnished by the Commission, which only those dairies complying with the Commission’s regulations were authorized to use. Milk thus certified sold in St. Louis for fifteen cents per quart.

In the spring of 1906 the manager of plaintiff company conceived the idea of attempting to build up a certified milk business, plaintiff not then receiving any milk of that character though marketing large quantities of uncertified milk, eream, etc. To accomplish this purpose plaintiff took up the matter with defendant and these negotiations resulted in the execution, in March, 1906, of the contract for the alleged breach of which this action was brought. The essential parts of the contract are:

“Party of the first part (Prindle) agrees to supply party of second part (Keyes Farm & Dairy Company) with milk and cream from his dairy herd in Glreen county, Illinois, according to rules, regulations and requirements of the St. Louis Pure Milk Commission, as specified in printed circular of information concerning the requirements of the St. Louis Pure Milk Commission for certified milk — a printed copy of which is hereto attached and made a part of this agreement. And party of second part agrees, for and in consideration of the snm of $1 to party of first part in hand paid, the receipt of which is hereby acknowledged, to purchase from party of the first part his entire product of pure milk and cream, or either, for the term of five years from date hereof, delivered daily in sweet and merchantable condition, at prices and terms hereinafter mentioned, delivered f. o. b., Union Station, St. Louis, Missouri.
“For certified milk in cans furnished either by party of second part or at his request, through St, Louis Pure Milk Commission, 16 cents gallon. For skim milk in cans furnished to party of first part, 7 cents gallon. For cream in such denominations of butter-fat percentage as may from time to time be ordered, 3 cents per point, according to Babcock test, at 3 cents per p(o)int.
“For certified milk in bottles furnished by party of second part, f. o. b., Union Station, St. Louis, Mo., packed in boxes furnished by party of first part, said milk to be bottled, labeled and shipped in boxes with cracked ice surrounding the bottles, 9 cents per quart, f. o. b., Union Station, St. Louis, Missouri, conditioned, however, that if party of second part secures contract to furnish the St. Louis Pure Milk Commission, St. Louis, Missouri, with its requirements for milk, skim milk, and cream, that party of second part shall and will pay unto the party of the first part, in regular monthly settlement, one-half of net profits derived from sales to the St. Louis Pure Milk Commission for season of 1906, or any renewal or extension of such contract with said Commission during the term of this contract; and conditioned, further, that party of sec-: ond part does hereby agree to take not less than one case of bottled certified milk daily, first shipment to commence not later than April 10,1906, and to increase orders for such milk as fast as demands and requirements of customers of party of second part necessitate, and in consideration of the extra expense entailed by party of the first part in remodeling bis barn and premises to conform to requirements of St. Louis Pure Milk Commission, party of the second part does hereby obligate itself not to produce from its own farm, or purchase from others, any certified milk in bottles until the entire supply of party of the first part shall first have been exhausted by sales to party of second part, and party of second part further hereby obligates itself to take any excess of milk and cream, skim milk, or either, as may be ordered, during the term of this contract, which is not required by party of second part, in bottles or in cans, by sale to St. Louis Puré Milk Commission, produced by party of first part, delivered in cans of party of first part, in good condition, f. o. b., Union Station, St. Louis, Missouri, at the following prices: For cream, 3 cents per point; for whole milk, not less than 3 80/100 butter-fat, 16 cents per gallon; for skim milk, 6 cents per gallon. Party of the second part is to pay for any advertising in- connection with the sale of certified milk, and no portion of such cost for advertising shall be charged against party of first part in settlement for the monthly profits from sale to St. Louis Pure Milk Commission, in event contract is awarded to party of second part to furnish said Commission with its requirements for milk, skim milk, or cream for season of 1906, or any other period covered by the terms of this agreement.”

July 23,1906, defendant’s dairy was inspected and approved by representatives of the Commission and defendant authorized to use the Commission’s trademark and market his product, as certified milk, through plaintiff, as his St. Louis agent. In his contract with the Commission defendant bound himself to observe the Commission’s regulations and plaintiff contemporaneously executed a bond to secure its own observance, as defendant’s agent, of all regulations of the Commission applicable to agents of approved dairies selling certified milk. At the time of the execution of the contract between them plaintiff, with defendant’s knowledge, was endeavoring to secure a contract to furnish milk to the Commission for the year 1906. This endeavor was unsuccessful. In August, 1906, defendant began shipping to plaintiff certified milk, bottled and packed as required by the Commission, in sufficient quantities to supply those of plaintiff’s customers who desired such milk. In May, 1907, plaintiff secured the contract to supply the Commission with milk until February, 1908, and obligated itself to furnish milk from defendant’s dairy or some other approved by the Commission, this contract binding plaintiff to observe the Commission’s requirements for certified milk, etc., except plaintiff was expressly granted permission to ship the Commission’s milk in sealed cans instead of bottles. Thenceforward defendant shipped plaintiff bottled milk as before and also shipped milk in cans for the Commission’s own use. On September 21, 1907, the Commission rescinded its contract with plaintiff. At this time plaintiff was selling to consumers about 108 quarts of certified milk from defendant’s dairy but much the greater portion (sixty-five or seventy gallons) of the milk defendant produced was required to supply the Commission.

During the period from the execution of the contract between plaintiff and defendant until the inspection and approval of defendant’s dairy and the execution, July 23, 1907, of the contract between plaintiff and the Commission, defendant could not produce certified milk, but no complaint is made or damages claimed for that reason, the contract between plaintiff and defendant admittedly having been entered into in anticipation of defendant’s thereafter bringing his dairy up to the Commission’s standard and in expectation of some delay in doing so. The real foundation of plaintiff’s action is its claim that the contract entitled it not only to such certified milk as its customers •required but also to all the rest of the milk defendant produced and that this residue it was by the contract entitled to require defendant to ship to it at St. Louis in cans. It is not contended defendant, under the Commission’s regulations, had the right to ship or that plaintiff had the right to market any milk as certified milk except that bottled at the defendant’s dairy and shipped in accordance with the Commission’s regulations relating thereto, except that which by special permission in its contract with the Commission in May, 1907, plaintiff was permitted to have shipped for the Commission in sealed cans instead of in bottles. That the term “certified milk,” so far as defendant had any right to ship it and plaintiff to sell it in St. Louis (with the single exception mentioned) meant and means bottled milk, produced at an approved dairy, shipped in the prescribed way and sold as received, is incontrovertibly established on the record in this case.

By agreeing to supply plaintiff with milk and cream ‘ ‘ according to the rules, regulations and requirements of the St. Louis Pure Milk Commission,” as by the contract he did agree, defendant simply agreed to supply plaintiff with certified milk, since compliance with the Commission’s rules, regulations and requirements was exactly what was necessary to enable defendant to produce and furnish to plaintiff and plaintiff to sell in St. Louis ‘ ‘ certified milk. ’ ’

It is true prices are fixed by the contract for certified milk in cans but this provision itself discloses that it was inserted in contemplation of the anticipated contract to furnish milk to the Commission and in anticipation of the exception subsequently made in that contract when it was secured. The subsequent provision obligating defendant to take, at designated prices, any excess of milk, cream, etc., produced by defendant and “which is not required by party of second part in bottles or in cans, by sale to St. Louis Pure Milk Commission,” further dispels any idea that defendant’s covenant to supply certified milk to plaintiff obligated him to ship any save bottled milk except that furnished in cans to the Commission. It is clear that the parties were contracting’ with reference to two things, i. e., (1) certified milk sufficient to fill plaintiff’s requirements and (2) any milk defendant might produce in excess of the quantity necessary to supply such certified milk customers as plaintiff might secure. Defendant bound himself to furnish to plaintiff certified milk in sufficient quantities to meet the demands of plaintiff’s customers for that commodity. The excess of his product, however, defendant clearly had the option to require plaintiff to take but did not obligate himself to sell it to plaintiff. The consideration for this is expressly stated to be the expense to which defendant was put in remodeling his barn to conform to the requirements of the Commission. In substance the contract was that in consideration of. defendant’s bringing his dairy up to the Commission’s standard and supplying plaintiff with such quantity of certified milk as its customers required, plaintiff agreed to pay certain prices for certified milk and to guarantee defendant a market for the excess of his product, if any. The purpose of the contract was to develop a demand for certified milk, which, finally, would equal the entire quantity of milk defendant might produce. . This appears from the contract as well as from the evidence adduced by both parties. There can be no dispute ■about it. In the beginning plaintiff had practically no sale for certified milk. That defendant’s product'would exceed plaintiff’s requirements until customers were found was concededly in the contemplation of the parties. For such excess plaintiff simply guaranteed a market at designated prices.

Even if it'could be successfully contended that the Commission’s regulations permitted, generally, the shipment, from the dairy to St. Louis, of certified milk in cans sealed and certified, yet tlie record discloses that plaintiff, after the cancellation of the Commission’s contract with it, had no cnstomers for certified milk in that form and the contract did not bind defendant to supply plaintiff with certified milk for which it had no cnstomers. There is no pretense plaintiff had, after September 21,1907, cnstomers for any certified milk save that shipped in bottles. Bnt the contract, viewed in the light of the indisputable facts, is too clear to warrant discussion. It may be, as suggested in a motion filed, that portions of the evidence have been omitted in printing the record but we have no recourse save to pass upon the record as filed in this court. There is no real conflict of evidence upon any of the essential facts necessary to be considered in construing the contract involved, and in such circumstances, though the contract be conceded to be in itself ambiguous, its construction is nevertheless for the court and not the jury. Plaintiff was entitled to all the certified milk it needed to supply its customers. This defendant was willing and offered to continue to furnish, but plaintiff demanded the shipment to it of the excess of defendant’s product, to which it clearly was not entitled, and it was upon this rock the joint enterprise went to pieces. Plaintiff had no cause of action for damages. This conclusion renders it unnecessary to examine the instructions, since the court should have directed, in the first place, a verdict for defendant. -

The judgment is affirmed.

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

All of the judges concur.


text:
    W. ALBERT KARABACEK v. O. H. RICHARDS, Administrator, Respondent, And HARRY TROLL, Administrator, Appellant.
    Division Two,
    April 8, 1913.

      1. INTERPLEADER: Dismissed as to One Defendant: No Right of Appeal to Other Defendant. An order of the circuit court in an interpleader suit that “the court, having heard and duly considered defendant O. H. Richard’s plea to the • jurisdiction , . . doth order that the same he, and is, hereby sustained, and that this cause be, and the same is hereby dismissed as to said defendant,” was not a final judgment as regards the other defendant, and the other defendant cannot appeal therefrom.
    2. -: -: ;-: Sec. 2088, R. S. 1909: Not Party Aggrieved. A defendant in an interpleader suit cannot appeal from an order of court dismissing the cause as to the other defendant on his plea to the jurisdiction. He is not “aggrieved” • thereby within the meaning of Sec. 2038, R. S. 1909.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Appeal dismissed.

      Henderson, Marshall & Becker for appellant.
    (1) A final judgment is such as disposes of the case (not necessarily the controversy) and leaves the parties powerless, to proceed further in that court. 23 Cyc. 665, 672; G-awtry v. Adams, 10 Mo. App. 29: (2) The appellant had a right to appeal from the judgment of the circuit court, dismissing the case. Sec. 2038, R. S. 1909; Stid v. Railroad, 211 Mo. 418; Thomas v. Elliott, 215 Mo. 603. The statute has been held to mean that the party aggrieved is one who is affected by the judgment. McMurray v. Bank, 74 Mo. App. 394; Thomas v. Elliott, 215 Mo. 598. And also that any person having a substantial interest in the subject-matter may appeal. Nolan v. Johns, 108 Mo. 431; In re Switzer, 201 Mo. 66. And further, that the right of appeal is not limited to those who are, parties on the face of the record. State ex rel. v. Horner, 16 Mo. App. 197. The motion to dismiss the appeal should therefore he overruled.

      William F. Woerner for respondent.
    ■ (1) An appeal is allowed only to a “party to a suit aggrieved by any judgment,” etc. A defendant in an interpleader suit wherein the plaintiff asks for relief cannot complain because of a holding that his codefendant is not within the court’s jurisdiction. The plaintiff, hut not either defendant, could have complained of a ruling (if it had been erroneous, which, however, it was not) that practically cut the ground from under plaintiff’s prayer for an order of inter-pleader against the defendants, as the bill was filed by plaintiff to obtain such relief. And he could have dismissed the bill at will without consulting the defendants or either of them, and the latter could not complain. It was not filed for Troll’s benefit. The latter is not in law aggrieved because the relief asked against him is not granted the plaintiff. The bill of interpleader has never passed the initial stage wherein plaintiff alone is affected. The defendants have never been required to interplead, so that Troll has never asserted any right or asked any relief, and hence none was denied him. On the record the failure to require an interpleading by defendants is rather in his favor than a decision adverse to him. At all events nothing was done in the slightest way adversely affecting any of Troll’s rights or interests. He is not a party aggrieved. Only an aggrieved party can appeal. E. S. 1909, sec. 2038; State ex rel. v. Talty, 139 Mo. 379; McMurray v. Bank, 74 Mo. App. 394; Christopher v. Kelly, 91 Mo. App. 93; 2 Cyc. 631, 633; Woerner on Administration, see. 544. (2) Even if Troll bad been an aggrieved party, yet tbe record does not show any final judgment for or against bim or anybody else, nor even any final disposition of tbe case. No judgment against Troll is appealed from, not even an order of dismissal. An appeal will not lie under these conditions. K. S. 1909, sec. 2038; Baker v. St. Louis, 189 Mo. 375; Dale v. Copple, 53 Mo. 321; Imp. Co. v. Marr, 168 Mo. 252; State ex rel. v. Mosman, 231 Mo. 474.
   WILLIAMS, C.

This is an interpleader suit, instituted in tbe circuit court of tbe city of St. Louis. Plaintiff’s petition alleges that be is a resident of St. Louis, and that on October 30, 1903, he borrowed $7800 of one Peter Meier, executing bis note tberefor, wbicb note was secured by deed of trust on certain real estate in tbe city of St. Louis; that said note is due and unpaid, and that said Peter Meier, tbe owner of said note, died August 6, 1908, then and there being a resident of Jersey county, State of Illinois. That defendant O. H. Richards was duly appointed administrator c. t. a. of said estate in Illinois, and in such official capacity claims to have possession of said note, and has demanded that payment of said note be made by plaintiff to bim as such Illinois administrator. That afterwards, defendant Harry Troll, public administrator of tbe city of St. Louis, Mo., applied to tbe probate court-of said city for letters of administration upon tbe estate of said Peter Meier, deceased, and that on or about September 12, 1908, letters of administration on said estate were duly issued by tbe probate court to defendant Troll, who thereafter, in bis official capacity as such administrator, claimed and demanded that tbe fund aforesaid be paid to bim. That tbe Illinois administrator claims tbe right to collect said debt, by reason of tbe fact that said note was in tbe possession of said Meier at the time of his death, and has since passed to the possession of, and is now held by, him as such administrator. That the Missouri administrator claims the right to collect said debt, because the same is secured by deed of trust upon property located in the city of St. Louis, Mo., and that the situs of the debt is in St. Louis, Mo., and belongs to him in his official capacity as the Missouri administrator of the estate of said deceased. Plaintiff then offers to pay the fund to the clerk of the court as soon as the court has acquired complete jurisdiction of the parties; prays that, said defendants be brought into court to interplead for said fund, etc., and that defendants be restrained from commencing any action or actions against plaintiff in respect to the above matter.

The bill is duly verified, and the plaintiff by affidavit states that the bill is not filed in collusion with either of the defendants, and that defendant O. H. Eichards, administrator, is a non-resident of the State of Missouri and cannot be served with the ordinary process of law in this State.

Defendant Troll, administrator, etc., was personally served with process, and defendant Eichards, administrator, etc., was notified of the suit by an order of publication duly published. Defendant Troll filed answer and interplea setting up his claim to the fund and the right to administer thereon. Defendant Eich-ards, by limited and special appearance, filed his plea to the jurisdiction, alleging his non-residence, and that it was not competent for the court to obtain jurisdiction of the person in a cause of the nature of the present suit' merely by publication, and moved the court to dismiss the cause for lack of jurisdiction over him. The circuit court, passing upon the plea to the jurisdiction, made the following order:

“The court, having heard and duly considered defendant 0. H. Eichards’, administrator’s, plea to the jurisdiction of the court heretofore filed herein,. does order that the same be, and is, hereby sustained, and that this cause be, and the same is hereby, dismissed as to said defendant.”

Thereupon defendant Troll, appellant, filed affidavit for an appeal to this court. No further order or judgment was made or entered by the court, except the order granting an appeal to this court and the order allowing the filing of bill of exceptions.

Defendant Richards has filed in this court a motion to dismiss the appeal, stating as grounds therefor, (1) that the judgment or order appealed from is not a final judgment, within the meaning of section 2038, Revised Statutes 1909, and (2) that the appellant is not an “aggrieved party,” within the meaning of said' section, and is not therefore entitled to take an appeal.

Appellant files suggestions in opposition to the motion to dismiss the appeal, and assigns as error the circuit court’s action in sustaining the plea to the jurisdiction.

There was no final judgment of the circuit court as against appellant. So far as the record shows, the suit is still pending against him in the circuit court, and no disposition of the cage ag to him has been made. “The rule of appellate practice is well settled in this State that a judgment entry is not final so as to authorize an appeal unless it makes some disposition of all the parties to the record.” [Rock Island Implement Co. v. Marr, 168 Mo. 252.] But even assuming, arguendo, that the order made did amount to a final judgment in the cause, yet appellant was not a party such as was “aggrieved” thereby, within the meaning of section 2038, Revised Statutes 1909. The claimant cannot demand as a matter of right that his claim be tried and satisfied by an interpleader suit. He cannot even enter into collusion with the stakeholder or debtor for that purpose, and the settled practice in such suits requires that plaintiff shall accompany his hill with an affidavit that “the suit is not brought in collusion with either of defendants.” [4 Pomeroy’s Eq. Juris. (3 Ed.), sec. 1328.] The benefits of such a proceeding are for the plaintiff’s protection, due to the peculiar .situation he is in with regard to the debt he owes or the stake he holds, and he alone is aggrieved if the judgment denies him the right to the protection and benefit of such a suit. “The supreme object of an in-terpleader is to protect the plaintiff, the stakeholder, and not the claimants against him.” [5 Pom. Eq. Juris. (3 Ed.), sec. 39.] Especially is this true with reference to the first stage of the interpleader proceeding, beyond which this suit has not progressed. “When a bill of interpleader is dismissed upon the demurrer of one only of the defendants, the other defendant cannot appeal from such decision. He is not prejudiced, for it is still open to him to sue the person holding the subject-matter in dispute.” [Maclennan on Interpleader, p. 328.] Defendants in interpleader suits cannot appeal from judgments dismissing the bill of interpleader. [13 App. Cases D. C. 202; 4 Am. and Eng. Ency. Law and Prac., p. 82.]

The appeal is dismissed.

Roy, G., concurs.

PEE CUEIAM. — The above opinion by Williams, C., is adopted as the opinion of the court.

All the judges concur.