text:
    J. WILLIAM CHILTON, Appellant, v. T. S. TAM et al.
    Division One,
    July 1, 1911.
    1. CONSTRUCTIVE SERVICE: Order of Publication. Constructive service, such as .by order of publication, is a harsh method of depriving the owner of his property, and in order to be sufficient to support a judgment the statute permitting it must be strictly complied with.
    2. -: -: Tax Suit: Allegation of Non-Residence. Under the statute, if the county collector seeks to bring into court by order of publication a defendant on the ground that he is a non-resident, he must state in his petition or affidavit that defendant is a non-resident; and if there are several defendants, some of whom are residents and others non-residents, he must name the non-residents; and if they are all non-residents, he must so state.
    3. -: -: -: -: Jurisdiction. The petition in the tax suit named several persons as defendants, and its only statement in reference to their residence was in these words: “Plaintiff further states that the defendant - nonresident -of the State of Missouri, so that the ordinary process of law cannot be served upon -.” Held, there was no sufficient allegation of the non-residence of defendants to authorize the clerk to issue a.n order of publication to them, and such publication gave the court no jurisdiction over them, and its subsequent judgment and sale thereunder were void and passed no title to the purchaser.

      Appeal from Shannon Circuit Court.— Hon. W. N. Evans, Judge.
    Ee versed and remanded (with directions).

      J. W. Chilton and James Orchard for appellant.
    (1) To entitle plaintiff to judgment in this action it was necessary only that plaintiff show a better, title derived from the agreed common source than the title claimed under the common source by defendants. Machine Works v. Brown, 200 Mo. 219; Graton v. Holliday Klotz Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698. (2) In suits for the enforcement of back taxes against non-resident defendants the clerk of the court is authorized to issue an order of publication only in case the collector or some person for him shall allege in his petition, or in an affidavit filed in the cause, that all or a part of the defendants are non-residents of the State. Under no other circumstances has the clerk any authority to issue an order of publication. Sec. 1770, E. S. 1909; Schell v. Leland, 45 Mo. 289; Bick v. Maupin, 124 S. W. 588; Wright v. Hink, 193 Mo. 130; Tooker v. Leake, 146 Mo. 419; Parker v. Burton, 172 Mo. 90; Kelly v. Murdaugh, 184 Mo. 377. Such an allegation, to support constructive service, “Must be definite and unequivocal.” To allege a condition of affairs means to affirm positively, to assert, to declare, to aver such condition of affairs, or state of things. Wade on Notice, secs. 1032-1060; Williams v. Monroe, 125 Mo. 586; Keller v. Keller, 129 S. W. 492; Oelbermann v. Ide, 93 Wis. 669; Albers v. Kozeluh, 68 Neb. 522; Gilmore v. Lampmann, 86 Minn. 493. The allegation of non-residence, unless it applies to all the defendants in terms, should point out, name and designate the defendants against whom it is made; otherwise it does not authorize a publication against defendants not named. Pomroy v. Betts, 31 Mo. 419; Bland v. Windsor, 187 Mo. 132; Clark v. Raison, 104 S. W. (Ky.) 342; Ballard v. Hunter, 85 S. W. (Ark.) 252; Rankin v. Adams, 18 Wis. 292; Van Natta v. Real Estate Co., 221 Mo. 373. Statutes in derogation of common law, suck as those which authorize constructive service of process, are against common right, are harsh in operation, and are to be strictly, even rigidly, construed. Wade on Notice, see. 1030; Ohlmann v. Saw Mill Co., 222 Mo. 62; Young v. Downey, 150 Mo. 317; Harness v. Cravens, 126 Mo. 233; Charles v. Morrow, 99 Mo. 646; Kleber’s Void Jud. and Ex. Sales, secs. 106-111. Though a judgment may be regular on its face, and may recite that defendants therein were served with process, yet if the files in the cause show the process therein was void and unauthorized, the judgment will stand impeached. The files in the cause are part of the record and are of equal dignity with the judgment itself. Further, when the whole record shows a certain kind of service the courts will presume the same to have been the only kind of service had in the cause. Feurt v. Caster, 174 Mo. 303; William v. Monroe, 125 Mo. 586; Adams v. Cowles, 95 Mo. 506; Milner v. Shipley, 94 Mo. 109; Crow v. Myersick, 88 Mo. 415; Blodgett v. Shaffer, 94 Mo. 671. The statutory requisite of an allegation of non-residence of defendants, to authorize the issuance of an order of publication is jurisdictional. Parker v. Burton, 172 Mo. 90; Tooker v. Leake, 146 Mo. 419; Hutchinson v. Shelley, 133 Mo. 400; Blodgett v. Shaffer, 94 Mo. 671.
   VALLIANT, J.

— This is a suit under section 650, Revised Statutes 1899, to quiet • title to the north half of section 25, township 31, range 4 west, in Shannon county.

It was agreed at the trial that Eugene F. Sawyer and wife and James W. Cummer and wife were the common source of title. Plaintiff introduced in evidence a deed from those parties duly executed dated December 29, 1906, and duly recorded. Plaintiff then rested.

Defendants introduced in evidence a sheriff’s deed under special execution on a judgment for taxes against the land, rendered March 10, 1897, in the circuit court of Shannon county. In the suit in which the judgment was rendered the State on relation of the collector of revenue of Shannon County was plaintiff, and S. L. Nichols, James Buck, Joseph S. Tam, James W. Cummer, Mary B. Cummer, Eugene F. Sawyer and Kate M. Sawyer were defendants. There was no service of process in the case and no appearance of defendants, but an order of publication against them as nonresidents, and proof of publication filed. The order of publication was made by the clerk in vacation and recites that the plaintiff’s petition states “among other things that the defendants are non-residents of the State of Missouri and cannot be summoned in this action by the ordinary process of law.”

Plaintiff in rebuttal introduced in evidence a duly certified transcript of the record in the case, including the petition on which the order of publication was based. The only statement in the petition in reference to the residence of the defendants was as follows:

“Plaintiff further states that the defendant-non-resident-of the State of Missouri, so that the ordinary process of law cannot be served upon-.”

The court rendered a decree finding among other things “that the allegation of non-residence of the defendants in said tax suits as the same appears from the certified copy of said petition in said tax suit is a sufficient allegation of the non-residence of the defendants in said tax suit to authorize the clerk of the court in which said tax suit was filed to issue an order of publication thereon at the filing of said tax suit.” The court then decreed that the defendants T. T. Springer and Charles E. Riggs were the sole owners of the legal and equitable title to the land in suit and the plaintiff had no title or interest in it. From that decree the plaintiff appeals.

The only question in the case is, was the statement in the petition in the tax suit sufficient to justify the order of publication?

The process by which what the law calls constructive notice is given, and by which a man’s property may be seized and sold under a judgment rendered in a suit of which he had in fact no notice at all, is a harsh process, it is allowed by law only from necessity, and when a plaintiff would avail himself of it he should make a strict compliance with the law that allows it.

The statute under which the plaintiff in the tax suit obtained the order of publication now in question, section 2022, Revised Statutes 1899, now section 1770, Revised Statutes 1909, says: “if the plaintiff or other person for him shall allege in his petition, or at the time of filing same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are non-residents of the State, .... the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the nonresidents,” etc. In the next section it' is provided that if “part of the defendants are residents of the State, process shall be issued against them as in other cases.”

Under that statute, if a plaintiff seeks to reach his adversary by publication in- a newspaper on the ground that he is a non-resident, he must state in his petition or affidavit in unequivocal terms that the defendant is a non-resident, and if there are several defendants and some are residents and others non-residents he must name the non-residents. On reading the petition in the tax suit in question it is clear that a printed form was used in preparing it and the pleader forgot to fill the blanks in the clause relating to the non-residence of the defendants. There are seven persons named as defendants, but it is not stated that they are all nonresidents and there is no statement that either or if either which one of them is a non-resident.

That statement in the petition was not sufficient to authorize the order of publication and therefore the order and its publication were not sufficient to give the court jurisdiction of the defendants in that suit or of their interest in the land.

The judgment is reversed and the cause remanded to the circuit court with directions to enter a decree adjudging the plaintiff the sole owner in fee of the land in suit.

All concur.


source: Caselaw Access Project

author: BLAIR, C. PER CURIAM. VALLIANT, J.

license: Public Domain

text:
    CITY OF ST. LOUIS v. FRANK E. WILLIAMS, Appellant.
    Division One,
    July 1, 1911.
    1. MUNICIPAL REGULATIONS: Repugnant to Statutes. Except in matters of purely local and municipal concern the regulation of which'has been committed to the municipality, the ordinances of the city of St. Louis, where they are repugnant to the general laws of the State, are not valid, and no one can be con-" victed for a violation thereof.
    2. -: -: Automobiles: Identification Numbers. The Legislature has" the power to. enact a general statute regulating identification of numbers on automobiles, and has enacted such a statute, and, therefore, ordinances on the same subject enacted by a city are repugnant thereto, and so far as in conflict therewith are invalid.
    3. -: -: -: -: Requirement for Display of City License Number. The requirement of the ordinance that the number of the city license shall be displayed.on the auto-., mobile is in conflict with the statute which says that the owner of an automobile “shall not be required to place any other mark of identity upon his motor vehicle” than the registration number registered with the Secretary of State. The purpose of the statute requiring the display of a number is to facilitate the identification of the motor car whose driver has been guilty of negligence or of an offense against speed regulations, and more than one number displayed on the rear of the machine tends to confuse and to destroy accurate observation or identification.

      Held, by VALLIANT, X, dissenting, that the ordinance and statute are not in conflict. The word “identity” used in the statute does not mean that the number is to be the means of identification of the vehicle driven in excess of speed regulations, etc., but it refers to the things required in the foregoing part of the statute, that is, the vehicle described in the certificate of registration issued by the Secretary of State, which description contains the name of the owner, his residence, the name of the maker, his place of business, the kind and class of the machine, etc.
    The words of the statute are added thereto as a proviso, and a proviso has reference only to what is contained in the body of the enactment, and can have no existence separate and apart therefrom, and is intended to restrict the application of the general clause; and giving to this proviso its legitimate interpretation it means that no other evidence to identify the machine as the one registered under the' statute by the Secretary of State shall be required. It cannot be said that the Legislature intended by a proviso, which is naturally susceptible of an interpretation that refers to another subject, to take away from the city the right to require the automobile licensee to display its license number as evidence of his compliance with its ordinance imposing a license.
    4. -: -: -: -: -; To Facilitate Enforcement of License: Incident. The display of the city license number on the automobile is not necessarily incident to the power to license and tax such vehicles granted to the city. The power to license and tax is not dependent upon the display of the license number. Besides, the ordinance does not require that a license tag be displayed. What it does require is an “identification number” on the rear of the machine.

      Held, by VALLIANT, X, dissenting, that the charter admittedly confers on the city power to impose a license tax upon automobiles, and the right to require the licensee to display his license number as evidence that he is a resident of the city, subject to the license tax and has paid it, is a reasonable requirement, and is a necessary incident of the power, for without it the ordinance cannot be adequately enforced; and that ordinance does not infringe upon the statute which requires the display only of such a mark or sign as identifies the machine as one registered with the Secretary of State.

      §. -: -: -: -: License Tag: Convenience. Mere considerations of convenience, for instance, that the display of a license tag would facilitate the collection of the license tax which the State has empowered the city to impose upon automobiles, cannot be permitted to thwart the legislative will, nor held to empower the city to exercise an authority expressly denied it by general statute, namely, to require the display on the automobile of its license number in addition to the number which the State requires.
    Appeal from St. Louis Court of Criminal Correction; — ■ . Hon. W. A. Taylor, Judge.
    Reversed.

      Seddon & Holland and F. C.'Sharp for appellant.
    The charge of the information is a violation by the defendant of a city ordinance. The only ordinance offered in evidence, claimed by the city at the trial to have been violated, is contained in sections 1553, 1554, 1555 and 1557, of the general ordinances of the city. The defendant was convicted solely for an act claimed to have been a violation of this ordinance. Our point is that article 4, section 53, of the Constitution of Missouri provides that the ordinances of the City of St. Louis shall always be “in harmony with and subject to the Constitution and. Laws of Missouri,” and that the said ordinance is in direct conflict with the general law of the State regulating automobiles and is therefore void. As the defendant was convicted, sentenced and fined for a supposed violation of a void ordinance, he was deprived of his constitutional protection. St. Louis ex rel. v. Karr, 85 Mo. App. 608; State v. Stein, 2 Mo. 56; In re Jilz, 3 Mo. App. 243; State ex rel. v. Railway, 117 Mo. 15; State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Higgins, 125 Mo. 364; State v. Lindell, 151 Mo. 162; Badgley v. St. Louis, 149 Mo. 122; State v. Police Court, 80 Mo. App. 206; St. Louis v. Dorr, 145 Mo. 466; Kansas City v. Bacon, 147 Mo. 259; Railroad v. Citizens, 148 Mo. 665; Constitution of Missouri, art. 4, sec. 53.

      Lambert E. Walther and Truman P. Young for respondent.
    (1) The ordinances in question are a valid exercise of the charter powers of the city, expressly reserved by the State law relating to automobiles. St. Louis City Charter, art. 3, see. 26, pars. 1 and 5; art. 5, secs. 1, 3, 15, 25; R. S. 1909, see. 8520; St. Louis v. Green, 7 Mo. App. 468; St. Louis v. Green, 70 Mo. 562; St. Louis v. Woodruff, 4 Mo. App. 169; St. Louis v. Weitzel, 130 Mo. 618; Kansas City v. Corrigan, 18 Mo. App. 316; Kansas City v. Richardson,.90 Mo. App. 450; Springfield v. Smith, 138 Mo. 644. (2) The State and city may tax the same thing and may require licenses for the same thing, whether a business, an occupation or a tangible piece of property. Simpson v. Savage, 1 Mo. 203; State ex rel. v. Bell, 119 Mo. 70; State exrel. v. Baker, 32 Mo. App. 100; Aurora v. McGannon, 138 Mo. 38; Monett v. Hall, 128 Mo. App. 91. (3) The State and city may enact police regulations covering the same subject; such regulations will be construed together and both will be allowed to stand unless they aré mutually contradictory. St. Joseph v. Levin, 128 Mo. 588; St. Louis v. De Lassus, 205 Mo. 578; Gower 'v. Agee, 128 Mo. App. 427; State v. Kessels, 120 Mo. App. 233; Joplin v. Jacobs', 119 Mo. App. 134; Kansas City v. Oppenheimer, 100 Mo. App. 527; Cauble v. Craig, 94 Mo. App. 675. (4) The right to compel automobiles to display their, license numbers is a necessary incident to the right to compel- them to be licensed.- The grant of a power implies all the incidents of the power. When the end is conceded the means are implied. McCulloch v. Maryland, 4 Wheat. 316; Logan v. U. S., 144 U. S. 263. (5) The proviso to Sec. 8505, R.S.1909, is merely a legislative construction of the statute and cannot be held to negative the provisions of Sec. 8520 or to limit the charter powers of cities.
   BLAIR, C.

— By an ordinance of the city of St. Louis, of date March 19, 1907, it was required that on every automobile operated in that city there be displayed, in a prescribed way, for the purpose of identification, the number' of its city license, the sections in question reading as follows:-

“Section 1553. That hereafter, all automobiles operated in the city of St. Louis, shall display identification numbers as herein provided. Such numbers shall be not less than five inches high, and the line marking the numbers shall be white and be five-eighths of an inch wide at every point and such numbers shall be placed at least three-fourths of an inch apart.
“Section 1554. All such numbers shall be painted on black or blue signs or placques of wood, metal or leather, or directly on the machine itself, provided the machine be painted black at this particular place; and such signs or placques shall be so attached to the machine that they will not sway in any direction independently of the motion of such machine. The numbers shall be of arabic numerals. The numbers to be displayed on said automobiles as herein provided, shall correspond with the number of the operating license tag or plate issued to the owner of said automobile, providing further that a license tag or plate bearing numbers and attached to the machine and lighted at night as herein provided may be used as a full compliance with the provisions of this ordinance.
“Section 1555. Such numbers shall be displayed on the rear of the machine, in plain sight as nearly as possible in the middle of the machine, and shall be low enough so as not to be hidden by the hood or any other obstruction on the machine.”

' In August, 1907, appellant violated this ordinance and subsequent proceedings resulted in the judgment from which this appeal was taken.

The case was heard below on an agreed statement of facts which discloses that on the automobile which appellant was operating, its registration number appeared in full conformity to the provisions of the statutes of the State, and that the city license tax imposed by the ordinance to which reference is made in the section quoted, had been paid. The number of the city license did not appear on the vehicle.

Except in matters of purely local and municipal concern (St. Louis v. Dorr, 145 Mo. l. c. 476 et seq.; St. Louis v. Meyer, 185 Mo. l. c. 597) the regulation of which has been committed to the municipality, the ordinances of the city of St. Louis, in instances in which they are repugnant to the general laws of the State, must yield.

This conclusion is supported by constitutional, statutory and charter provisions (Secs. 23, 25, Art. 9, Const.; See. 9582, R. S. 1909; Sec. 26, Art. 3, Charter of St. Louis), the common law (Tiedeman on Mun. Corp. sec. 146) and numerous decisions of our courts (St. Louis v. Meyer, supra; St. Louis v. Klausmeier, 213 Mo. l. c. 125), and is not open to question.

It is not necessary to delimit the field within which the Municipal Assembly of the city of St. Louis may exert its power, freed from the restraint of general laws, to legislate in matters of purely local and municipal concern, but it will suffice to say that the subject-matter of the ordinance in question is clearly one with reference to which the State Legislature has the power to enact a general law (City of St. Louis v. Meyer, supra; City of St. Louis v. King, 226 Mo. l. c. 348; City of Buffalo v. Lewis, 192 N. Y. 199 et seq.); and, consequently, the ordinance itself belongs to that class to the validity of which harmony with the laws of the State is requisite. The motor vehicle law, chapter 83, Revised Statutes 1909, was designed to apply uniformly throughout the State and to repeal all conflicting provisions whether found in statute or in ordinances. [City of Buffalo v. Lewis, supra.]

The sole question presented, therefore, is whether the ordinance above set forth is in conflict with the state law. The section of the statute with which it is said to come into collision is section 8505, Revised Statutes 1909, by which section the manner in which the registration number of all motor vehicles registered in the office of the Secretary of State shall be displayed is minutely prescribed, that section concluding with the following proviso: “And provided, that said owner shall not be required to place any other mark of identity upon his motor vehicle.”

In searching for the meaning of this section and proviso, conditions under the former law may be taken into consideration and the evils to be remedied taken into account. [City of Buffalo v. Lewis, supra.] Prior to the enactment of the section in question, the Act of 1903 (Laws 1903, p. 162) required that a license be procured in each county in which an automobile was operated (State v. Cobb, 113 Mo. App. 156), and that the number of such license be displayed upon the vehicle. It was necessary under the Act of 1903 to secure one hundred and fifteen licenses and display as many license numbers, if an automobile was operated in all parts of the State.

It is apparent that the chief purpose of identification numbers, such as the statute requires, is to enable officers of the law, or bystanders, when occasion requires, to identify these rapidly moving vehicles and prevent their owners or operators escaping, by flight, for which they are so well equipped, responsibility for such offenses against speed regulations as they may commit and for negligence of which they may be guilty.

The presence, on a rapidly moving automobile, of two or more identification numbers between which the observer must choose and which must themselves be “identified,” or distinguished from each other, could have no other effect than, in many instances, to defeat the very purpose for which such numbers are required to be attached to the vehicle.

Doubtless these and like reasons influenced the Legislature to affix the proviso to the section mentioned. In view of these considerations and the plain and unambiguous language of the proviso itself, it would seem that it could hardly be contended that if the words of this proviso are “taken in their plain or ordinary and usual sense” (See. 8057, R. S. 1909) they can be harmonized with the ordinance under which the conviction in this case occurred.

Counsel for respondent contend that the proviso in question has reference solely to marks of identification under the state law and does not interfere with the right of the city to require an additional number to be displayed for the purpose of identifying the vehicle under the city ordinance. If the sole purpose of the required identification number was to proclaim that the state tax had been paid, the contention would be more plausible. But such is not the case. The size, position,’ manner in which they are required to be attached to the vehicle, and the marked difference in these respects between the numbers which motor vehicles are required to carry and those it is customary to require in the case of other vehicles, disclose that there was the additional reason, pointed out above, that these vehicles must often be identified while in swift flight over the streets and highways, to the end that speed regulations may be enforced and responsibility for negligence fixed. In fact, this is the principal purpose of the requirement. [People v. Schneider, 139 Mich. 675; Commonwealth v. Boyd, 188 Mass. 79.]

This salutary purpose would be practically defeated by putting upon the proviso the construction respondent asks, since the appearance of two numbers on the vehicle must necessarily tend to confuse. It was this very thing which the Legislature, in our opinion, intended to prevent. The ordinance in question shows on its face that it was not enacted merely to provide a means whereby the fact that the license tax had been paid might be disclosed. It appears from the ordinance there is other provision made for the issuance to the owners of automobiles of a license tag or plate distinct from'the identification number required by this ordinance to be placed upon such vehicles. Section 1554 of the ordinance provides: “The numbers to be displayed on said automobiles as herein provided, shall correspond with the number of the operating license tag or plate issued to the owner of said automobile, provided further that a license tag or plate bearing numbers and attached to the machine and lighted at night as herein provided may be used as a full compliance with this ordinance.”

It appears, therefore, that the theory of the ordinance is not merely to provide a number to show that the tax is paid, but an additional number for some other purpose, for which it is lawful, under certain restrictions, to substitute the license tag. But it is not for a violation of any ordinance requiring simply the display of a license tag that appellant was convicted, but for a violation of an ordinance which attempted to require him to display an identification number in addition to that required by the statute.

This conviction cannot be upheld upon the ground that no license tag-was displayed, since the proceedings were not brought under an ordinance of that Mnd.

It is further argued in support of the validity of the ordinance, that since the city charter gives respondent the power to license and tax vehicles of all kinds, and since the motor vehicle law itself expressly authorizes all the cities of the State to exact a license tax from resident owners of motor vehicles, the power of respondent to require the display upon automobiles, motor-' cycles, etc., of the numbers of the licenses issued therefor is necessarily incident to the power to license and tax, and that, in fact, the power to license and tax cannot be exercised if the display of the city license number cannot be compelled.

TMs contention assumes that the requirement of the ordinance is that a license tag be displayed.. Such it clearly is not, as indicated above. But were that assumption correct, the Legislature has provided the means of identification asserted to be essential to the exercise of the power of the city to enforce its license ordinances against motor vehicles. With very little additional inconvenience the municipal authorities can utilise this means of identification for all purposes for which identification can be of value in enforcing the collection of the license tax imposed upon automobiles.

Counsel do not suggest any particular in which the enforcement of the license ordinance would be aided by attaching a second mark of identification to each vehicle. It may be that such enforcement would be rendered more convenient by such double identification, but it is certainly not vitally necessary to the exercise of the power to impose a license. Mere considerations of convenience, however, cannot be permitted to thwart the legislative will, nor held to empower the municipality to exercise an authority expressly denied it by general law. [St. Louis v. King, 226 Mo. l. c. 345.]

No such means of identification are required in the cases of vehicles drawn by horses, which, though usually not moving so rapidly as motor vehicles yet move with sufficient rapidity to present equal difficuíty in the matter of identification for the purpose of ascertaining whether the vehicle tax, usually imposed, has-been paid.

The reasons given in support ■ of the contention mentioned would be well enough if addressed to the Legislature, which body has power to repeal and amend laws. We can do neither. Since the proviso in question is subject to but one construction, we cannot do otherwise than put that construction upon it.

It is worthy of note that the Act of 1911 (Laws 1911, pp. 324, 325) opens the way for the city to require motor vehicles to display an identification number ’ elsewhere than on the rear thereof. That act, though of course not applicable to this case, does indicate that the Legislature thought it necessary to amend the proviso to section 8505, Revised Statutes, 1909, in order that the city might require automobiles to display their city license numbers, the amendment still carefully prohibiting their display on the rear of the vehicles where their presence would tend to confuse those undertaking to identify the machines. This amendment amounts to a legislative construction of the proviso in harmony with that which we have given it above. Doubtless the amendment was induced by the presentation to the Legislature of the reasons presented to us in respondent’s brief. That act takes effect August 1, 1911, and it will obviate most of the difficulties with which respondent asserts it will be confronted if a natural construction is put upon the proviso to section 8505.

The power of the city to require the payment of a license tax is not questioned by appellant, and it is unnecessary to further discuss the authorities on that subject to which counsel for the city have directed' our attention. Neither are those eases applicable in which, in the absence of a statutory prohibition, the right of the city to require that the city license number be displayed was upheld.

That portion of the ordinance on which the conviction in this ease rests is invalid. Since a retrial could not change the agreed facts, it is unnecessary to remand the case. The judgment is reversed.

Brown, C., concurs.

PER CURIAM.

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

All the judges concur except Valliant, J., who dissents in opinion filed.

DISSENTING OPINION.

VALLIANT, J.

— Appellant was convicted in a police court in the city of St. Louis of violating a city ordinance; he appealed to the St. Louis Court of Criminal Correction, where he was again convicted and fined ten dollars; from that judgment he has appealed to this court.

The ordinance under which he was convicted is contained in certain sections of the Revised Ordinances of the city approved March 19, 1907, relating to automobiles. Under section 1811, a license tax of ten dollars is imposed on each automobile used in the city. Section 1553 provides: “That hereafter all automobiles operated in the city of St. Louis shall display identification numbers as herein provided. Such numbers shall be not less than five inches high, and the fine marking the numbers shall be white and be five-eighths of an inch wide at every point and such numbers shall be placed at least three-fourths of an inch apart.” Section 1554 requires the numbers to be painted on black or blue signs or plaques of wood, metal or leather, or directly on the machine, provided the machine be painted black at that particular place;' the number to correspond with that on the license tag issued by the city official to the owner. Section 1555 requires the' number to be displayed on the rear of the machine as near as possible in the middle thereof, low enough not to be hidden by any obstruction on the machine. Section 1557 prescribes a penalty for violation of the ordinance.

Appellant’s contention is that the city ordinance requiring the number to be displayed, as therein specified, is invalid because he says it is in conflict with the state statute on the same subject. That is the only point appellant contends for in this case; in their brief the learned counsel for appellant say: “While there are many manifest errors in the record, there is but one point we wish to submit. On this point both parties desire the ruling of this court.”

I. It is not questioned that a city ordinance to be valid must be in harmony with and subject to a general law of the State on the same subject. It is also not disputed that the city has authority under its charter to provide by ordinance for the levying of a license tax on automobiles, and it follows as an incident to that right to levy the tax that it make reasonable and necessary provisions for its collection and that incidental power is rendered all the more necessary when besides the-, collection of the tax there is a police duty to be performed in protecting the lives of people traveling the streets.

If the city is deprived of the power to require that an automobile, as it is driven along the street at a, high rate of speed, display a sign that it may be identified as one on which the license fee has been paid, the right to levy the tax might as well be taken away from the city; men could with impunity defy the law. In the city of St. Louis where there are several thousand automobiles in daily use, how can an officer detect one as running without a license as it. dashes by him on the street, if there is no sign orplaqüe displayed? And, aside from the revenue-feature of the matter, to deprive the city of the power to require some identification of the machine as one owned in the city, as distinguished from one-owned by a non-resident and merely passing through the city, would impair the police power of the-city. It is true after an automobile has been belaid, and its state sign has been read and its registration, number, ascertained, the city officer may communicate with the Secretary of State at Jefferson City and after a while the’ owner of the machine be identified. But that method would be almost as useless as none at all. The Legislature itself recognized the necessity of having some conspicuous sign displayed to show that the owner had complied with the state law; is it reasonable then to presume that the Legislature intended to deprive the city of t]ie right to require like evidence? The learned counsel for appellant in their brief say: “In order to make effective the regulations prescribed it was necessary to make some provision that every automobile wherever and whenever it was being operated in the State should be capable of being clearly and ■definitely identified.” If such evidence of identification is necessary to render the state statute effective, it is ■equally so for the city ordinance. Suppose the. state law had required no sign to be displayed showing that the machine was registered under the state law, what right would any officer have to. halt one on a public highway and demand a show of its license? Without the sign the statute would be of no avail and so it is of the city ordinance. Assuming therefore that the General Assembly had the power to deprive the city of its right to levy the license tax, it did not do so in express terms, and therefore we should not assume that it did so by implication, or that by inadvertence it enacted a statute that so impaired the right as to practically destroy it. We should not so construe this proviso if it is susceptible of any other reasonable interpretation.

- The statute invoked by appellant as rendering the ordinance void is section 8505, Revised Statutes 1909; it originated in an act of the General Assembly approved March 19th, 1907. [Laws 1907, pp. 73-4.] In the first section of that act, now section 8503, Revised Statutes 1909, the terms thereinafter used' are defined. Section two, now section 8503, Revised Statutes 1909, requires every person owning an automobile to file in the office of the Secretary of State a statement giving his name and address, a description of his motor vehicle to be registered, the name of the maker, etc., on a blank prepared and furnished him by the Secretary of State. On the filing of that statement the Secretary of State is to register the machine and assign it a number, and on payment to him of the fee, $5, he is to issue the owner a certificate of the registration and a seal stamped with the registration number and words to show that the machine is registered under the state law. The certificate of registration is to contain the same words and number, the name of the owner, description of the machine, and page of the book in which the machine is registered.

The third section, now section $8504, Revised Statutes 1909, provides that if the owner of the registered vehicle should sell it, the registration is to expire and the certificate' be returned to the Secretary of State with notice of the sale and the name and residence of the purchaser.

Then comes section four, now section 8505, Revised Statutes 1909, which requires the owner of the motor vehicle to have the number of his registration seal conspicuously displayed on the back of the vehicle and in an illuminated device in front so that it can be seen at night; the size of the letters and figures are prescribed and then the section concludes with these words: “and provided that said owner shall not be required to place any other mark of identity upon his motor vehicle.” Those are the words which appellant contends forbid the city to require a sign or plaque displaying the number of the city license to be placed on the vehicle. What is the meaning of the word “identity” as used in that connection? The word identity has for its root the Latin word idem, meaning the same, it is defined by Webster as, “The condition of being the same with something described or asserted.” A stranger presents a check at a bank and is told that he must be identified; identified as what or as whom? As the man named in the check. To say that a thing is the same, without naming the thing with which it is intended to identify it, is to leave the sentence unfinished and make no sense. Webster says identify means “to prove to be the same with something described, claimed or asserted.” The only thing “described” or “asserted” in this statute to which the word “identity” could refer is the vehicle that is described in the foregoing part of the statute, that is, the vehicle described in the certificate of registration issued by the Secretary of State, which description contained the name of the owner, his residence, the mame of the maker, his place of business, the kind and class of the machine, etc. The number that the statute required to be conspicuously displayed was to signify that the machine bearing that sign was the same’ machine as that described in the certificate of registration and the proviso means that no further proof of that fact should be required. The ordinance which requires the number of the city license to be displayed on the machine does not identify it as the machine described in the certificate of registration issued by the Secretary of State, and is not so designed, but it is to identify it as the machine for which the city license, of that number, issued. If the plate containing the state registration number should get knocked off or lost, the plate containing the city license would not in any degree identify the machine as that one for which the Secretary of State issued the certificate. It is therefore not forbidden by the statute.

II. 'The words relied on by appellant are inserted as a proviso to the statute. A proviso has reference only to what is contained in the body of the enactment; it is either an exception or a condition or a limitation on what has preceded.

“Its office,' generally, is, either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extended to cases not intended' by the Legislature to be brought within its purview.” [32 Cyc. .743, n. 56.] “Whether the term implies a condition or not, must of course depend on the context; sometimes it is a mere condition, sometimes it is an exception.” [32 Cyc. 744.] “From a consideration of the office and function of a proviso it would seem to follow that it can have no existence, separate and apart from the provision which it is designed to limit. ‘If it was not intended to restrain the general clause, it was a nullity.’ ” [Endlich on Interpretation of Statutes, sec. 186.]

Giving to • the words contained in this proviso their legitimate interpretation they mean that no other evidence, to identify the machine as the one registered under that statute by the Secretary of State, shall be required.

III. I' do not understand appellant as disputing the proposition that the city has authority under its charter to levy the license tax in question and, as an incident to that right, would have the right to require the owner or operator of the machine to display the sign or plaque containing the license number as required by the ordinance as a means of identifying it with the machine for which the license was granted, if that requirement is not forbidden by the statute in question; but the contention is that that charter right, to that extent, is repealed or superseded by the proviso to the statute.

Eeferring again to the nature of a proviso, I do not see how it can be construed into an enactment repealing or superseding another law to which it makes no reference.

But going back to the original act of March 19, 1907, there is nothing in the title to the act to indicate that the Legislature intended to repeal any law that conferred expressly or by implication on the city any right it then possessed. The title to the act is: “An Act to repeal an act entitled ‘An act regulating the operation and speed of automobiles on the public streets, roads and highways of this State; fixing the an ount of license and prescribing a penalty for violating the same,’ approved March 23, 1903, and to substitute in lieu thereof an act to provide for the (regulation) [registration] of motor vehicles and auto-drivers; to provide regulations for the operation, use and speed of motor vehicles on the public highways; and prescribing penalties and civil liabilities for the violation thereof.”

If the city had the authority to levy the license tax, it had, as incident to the exercise of that authority, the right to require the licensee to display a token or sign as an evidence that he had paid his license. Evidence of that character is required by the Federal government, the State government and the city governments when the license is of such a character as to render its display necessary; it is a reasonable requirement, for without it the law could not be adequately enforced. The General Assembly in enacting this very statute recognized the necessity of such evidence and required it. Can we then say that the same General Assembly intended to take away from the city the right to require this evidence of compliance with its law, when to do so would be equivalent, or nearly so, to taking away the right to impose the tax, and that too when there was no indication in the title of any such purpose? If it had so intended it would have spoken more plainly to that purpose, it would not have veiled its intent in the form of a proviso, which is naturally susceptible of an interpretation that refers to another subject.

The General Assembly of 1911 passed an act repealing the Act of 1907, which is Chapter 83, Revised Statutes 1909, and enacted a new chapter in lieu thereof (Laws 1911, p. 322), by the fifth section of which it is provided that no person should operate a motor vehicle while on a public highway without displaying its registration number in a form therein prescribed on the rear of such vehicle “and no motor vehicle shall display any other number or plate on the rear thereof except as hereinafter provided.” A construction of that statute, of course, is not called for in this case, and we refer to it only to show that the proviso in the Act of 1907, which we have above discussed, will stand repealed when the Act of 1911 goes into effect, and to point to the fact that under this last act it would seem that the city was not forbidden to require a display of its license number, but that the number shall not be placed on the rear of the machine.

In my opinion the city ordinance under which the appellant was convicted is not in conflict with the section of the Act of 1907 referred to, which is section 8505, Revised Statutes 1909. The judgment should be affirmed.


author: BLAIR, C. PER CURIAM.

text:
    CITY OF ST. LOUIS v. FRANK WOODWARD, Appellant.
    Division One,
    July 1, 1911.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge.
    Reversed.

      Seddon & Holland and F. C. Sharp for appellant.

      Lambert E. Walther and Truman P. Young for respondent.
   BLAIR, C.

— The facts in this case are identical with those in the case of City of St. Louis v. Prank E. Williams, reported at page 503 of this Report. Por the reasons given in the opinion in that case the judgment in this is reversed.

Brown, C., concurs.

PER CURIAM.

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

All the judges concur except Valliant, J., who dissents.


author: YALLIANT, J.

text:
    GEORGE MILLER v. NEW MADRID BANKING COMPANY, Appellant.
    Division One,
    July 1, 1911.
    1. BILL OF EXCEPTIONS: Extension of Time: Not Understood' By Judge to Be Extension: Interlocutory Decree. The evidence was taken at the July term, and an interlocutory decree entered, motion for new trial overruled, an appeal ordered, and appellant given until January 3d to file hill of exceptions. At the December term appellant, seeming to realize his appeal was premature, asked and obtained an order setting aside the order granting him an appeal, and when the final decree was rendered on January 3d, and his new motion for a new trial was overruled, he applied for an appeal, which was granted, and on the same day (January 3d) was allowed sixty days in which to file a hill of exceptions, which was filed within that time. KM, that a bill of exceptions must be filed during the term at which the exceptions are taken, or within such time as the court, or the judge in vacation, allows; but as the court, at the July term, gave appellant until January 3d to file his bill and on that day allowed him sixty days in which to file his bill, the bill filed within that time was timely filed, although the court may not have understood its order made on that day to be an extension of the time.
    2. DEED OF TRUST: The Then Sheriff: Power to Sell. The power contained in a mortgage or deed of trust to sell and convey may be conferred without conferring title on the person to whom the power is given. Where a deed of trust confers on a trustee named power to sell upon condition broken, and provides that, in case of his death, the then sheriff may sell, and does not undertake to vest the title in the sheriff upon the trustee’s death, the sheriff is vested with a power to sell, and nothing more, and a regular sale by a subsequent sheriff after the trustee’s death carries the title. [Distinguishing McNutt v. Ins. Co., 181 Mo. 94.]
    8. -: Foreclosure: Sale to Former Grantors in Warranty Deed. Two officers of a hank held the legal title in land for a hank and executed their warranty deed to plaintiff, and received in payment one-third cash and two notes payable to the hank.' At the time of their conveyance there was a deed of trust on the land to secure a note held by them, and after they delivered their warranty deed the sheriff, as substituted trustee, at their revest, sold the property, and. they were present at the sale, bought the land and received his trustee’s deed. The note is long past due and therefore can never be assigned to an innocent purchaser. Held, neither these officials nor anyone else could assert any validity either in the' note or deed of trust securing it, and the title acquired by them at the foreclosure sale inured to the plaintiff by virtue of their warranty deed' to him.
    Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge.
    Be VERSED AND REMANDED (with directions).

      George H. Traylor and Lewis Luster for appellant.
    (1) The petition does not state facts sufficient to constitute a cause of action for injunctive or other relief. There are no allegations that plaintiff has suffered eviction, that defendant is insolvent, nor that plaintiff has no adequate remedy at law. Sec. 3649, E. S. 1899; Connor v.' Eddy, 25 Mo. 72; Jones v. Stanton,. 11 Mo. 433; Barton v.. Eector, 7 Mo.- 525;: State v. Wood, 155 Mo. 447; Eailroad v. Maddox, 92 Mo. 471; Wilcox v. Walker, 94 Mo. 88. (2) There-was no proof that the cashier of the defendant banking company was acting for or had authority to act for the defendant. Windsor v. Bank, 18 Mo. App. 665; U. S. v. Bank, 21 How. 361. (3) The deed of trust, given" by Blanchard can be differentiated from the one in the case of McNutt v. Ins. Co. 181 Mo. 94, and the trial court erred in holding that the foreclosure sale was void.

      A. H. Livingston for respondent.
    (1) There is no bill of exceptions in this case, and therefore nothing before the court but the record proper. Eespondent’s amended petition being in all things sufficient to support the judgment of the trial court, such judgment should be affirmed. The finding of the court that no title passed by sale under the Blanchard-Snauffer deed of trust is supported and based upon the case of McNutt v. Ins. Co., 181 Mo. 94. (2) Under no circumstances could a bill of exceptions filed after the regular- December term go back and cover the trial of the cause had at the July-term. The purported bill was filed Feb. 7, 1908, in vacation. Hence the cause is here without bill of exceptions, wholly on the record proper. Beineman v. Larkin, 121 S. W. 307; Wilson v. Deweese, 123 Mo. App. 587; Simpson v. Scroggins, 182 Mo. 560; State v. Williams, 147 Mo. 14; Smith v. Baer, 166 Mo. 392.
   YALLIANT, J.

— The plaintiff’s complaint is set out in his petition in four separate counts, and in two suits which were consolidated. The trouble grows out of the purchase of 100 acres of land in Howell county by plaintiff of defendant, and the alleged failure of defendant to make good the title to 58 acres. The purchase price of the land was $1,800, whereof the plaintiff paid $600 cash, and executed his two notes for $600 each for the balance, secured by deed of trust on the land purchased. The petition in plaintiff’s first suit is in three counts; in the first, after alleging defect in title to the 58 acres, which defect consisted in an unsatisfied deed of trust executed by one Blanchard, a former owner, for $225, it is alleged that plaintiff had an opportunity to sell the 100 acres at an advance of $1,200 over his purchase price, but on discovery of the failure of title the prospective purchaser declined to buy, and thereby the plaintiff lost $1,200, for which he asks judgment. The second count was the same as the first in statements of facts, except the alleged lost opportunity to sell is not mentioned and the prayer for judgment is that the defendant be required to pay off and satisfy the alleged $225 deed of trust. The third count complains that after making the purchase, when the plaintiff was ready to take possession, he found a tenant of defendant’s in possession, who would not surrender until two months had passed, and the plaintiff was thereby damaged $100, for which he asked judgment.

In the first and second counts plaintiff alleged that it. was a part of the contract of purchase that defendant would furnish plaintiff an abstract of title and when plaintiff delivered his deed of trust to defendant securing the two $600 notes, defendant presented an abstract of title, but would not allow plaintiff to retain it so as to examine it or have it examined, hence plaintiff was fraudulently prevented from discovering the defect in the title.

Defendant’s answer in effect was a general denial.

While that suit was pending, plaintiff filed another suit against this defendant and the trustee in the deed of trust given by plaintiff, in which plaintiff alleged that after service of process in the first suit, defendant caused the trustee to advertise the property for sale, to foreclose the deed of trust, alleging that they had secretly conspired to do so, and plaintiff had just discovered the advertisement. Plaintiff prayed an injunction to prevent the sale. On the filing of that suit the injunction issued.

The answer of the defendants admitted that they had advertised the property for sale to foreclose the deed of trust, but denied all other allegations.

Afterwards plaintiff filed an amended petition in the second ease in which he reiterated the charges of fraud against the defendant Banking Company in-withholding the abstract of title from him, and averred that he had already paid the defendant the full value of all the land of which he received good title and then-offered to quit-claim to defendant that part of the land to which the title was defective and prayed that the two $600 notes given by him be surrendered and cancelled and the injunction be made perpetual. The defendant, the Banking Company, filed a motion to strike out the amended petition, which was overruled, and then filed a motion to dissolve the injunction, which was also overruled, and then filed its answer admitting that it had advertised the property for sale to foreclose the deed of -trust, the notes already being past due, and denied all other allegations.

Before the trial the two suits were consolidated to be tried as one.

In the Blanchard deed of trust for $225, which it is alleged constitutes the defect in the title which defendant conveyed to plaintiff, it was specified that if the maker of the note should refuse or neglect to pay it when it became due the trustee therein named or in case of his absence, death, refusal to act, or disability in anywise the (then) acting sheriff of Howell county, at the request of the legal holder of the note, may proceed to sell, etc., to foreclose the deed of trust. The trustee died and the deed of trust was. foreclosed by sale of the land by C. E. Kimberlin, then sheriff of Howell county, and at that sale the property was bought in by T. H. Diggs and W. H. Garanflo, who were at that time the legal holders of the note secured by the deed of trust; their bid was $400, which the deed recites they paid. Kimberlin was sheriff of Howell county when he made the sale, but he was not sheriff at' the date of the death of the trustee named in the deed. The trustee died December 5, 1900, and at that time the note was past due and unpaid, and J. C. Thomas was sheriff of the county. The decision of the cause seems to have turned on that point, the court finding that because Kimberlin was not sheriff when the trustee died his attémpted foreclosure was invalid, and therefore the deed of trust remained unsatisfied and the defendant’s title to the 58 acres was incomplete.

When the consolidated cases came on for trial the first and third counts in the petition in the first suit were ignored, there was no finding or judgment in reference to either of them, and only incidentally was there any adjudication as to the second count. There was no evidence relating to either of those three counts except in so far as the facts therein stated were in common with facts stated in the petition in the injunction suit. Ail parties seemed to treat the case as if the plaintiff’s whole complaint was merged in the injunction suit and the finding and judgment related to the issues in that suit alone. The cause came on for trial at the July term, 1907, when the court made a finding of the facts and an interlocutory decree. The main fact found was that Kimberlin was not the sheriff on the 5th day of December, 1900, the date of the death of the trustee, the note being then due, and therefore the defendant, “the New Madrid Banking Company, did not get a complete title at such sale, but only bought the equity of redemption in the Blanchard note and deed of trust,” and to that extent the finding was for the plaintiff; the cause was then continued to the first day of January, 1908, “for the purpose of giving time to the New Madrid Banking Company for perfecting the title (to the 58 acres) in the interest of said Miller, or satisfying him in these premises,” etc. The interlocutory decree then went on to say that in case the defendant should complete its title within the time specified, the plaintiff was to pay his two $600 notes, and the costs were to be taxed against defendant Banking Company, but no damages assessed against it. On January 3, 1908, at the regular December term, 1907, the final decree was entered, reciting that the defendant Banking Company, having failed to avail itself of the grace granted to perfect its title, and showing no reason for such failure, and the court finding that the 58 acres were equal in value to two-thirds of the whole 100-aere tract, that the $600 paid at the date of the purchase was the proportionate value of the land defendant had title to when it was conveyed to plaintiff, it was therefore decreed that the temporary injunction be made perpetual and plaintiff recover his costs. From that decree defendant appeals.

In addition to the facts above stated it should also be said that the legal title to the 100 acres of land bought by plaintiff was.never in the defendant bank, but was held by Digges and Garanflo, who were officers of the bank; they made the warranty deed to the land to the plaintiff, but the plaintiff’s contention is that they acted for the bank, and although the bank contends that it was an individual transaction between those gentlemen and the plaintiff, yet there is very little to rest that contention on. Not only were Digges and Garanflo officers of the bank, but the real estate agent who negotiated the trade did so in the name of the bank. Besides the two $600 notes given by plaintiff for the deferred payments were payable to the bank, and the deed of trust given by plaintiff was in the name of the bank as beneficiary. Before the Blanchard deed of trust was foreclosed by sheriff Kimberlin, the bank had transferred the note by indorsement to Digges and Garanflo.

I. Respondent insists that there is no bill of exceptions in the record which can be considered in this court. The facts in reference to that matter are these: The trial began at the July term, 1907, and all the evidence set out in the bill of exceptions was introduced at that term, and the interlocutory decree was rendered then, on August 6, 1907. Defendant seeming to treat the interlocutory decree as a judgment from which an appeal would lie, filed a motion for a new trial, which the court overruled, then filed an affidavit for an appeal, which was allowed, and on the same day, August 6th, defendant was granted ninety days in which to file its bill of exceptions; afterwards in vacation, October 28th, the judge extended the time sixty days from the time theretofore granted, which would extend to January 3, 1908. On the first day of the December term, 1907, the defendant, seeming to realize that his appeal was premature, came into court and asked that the order granting the appeal be vacated, which was done. On the third day of January, 1908, which was in the December term, 1907, the cause came on for final hearing and the final decree was rendered ¿ then on that day, after defendant’s motion for a new trial was overruled, it again filed an affidavit for an appeal, which was allowed, and on that day, January 3, 1908, the court granted defendant ninety days in which to file its bill of exceptions; on February 7, 1908, the defendant filed this bill of exceptions, which embraced the evidence heard and proceedings had at the July term, 1907. If defendant’s time for filing the bill of exceptions had expired before January 3, 1908, it could not embrace in its bill of exceptions the proceedings had at the July term, 1907. No exceptions are preserved unless by a bill filed during the term at which they are taken, or within the time extended therefor by the court, or judge in vacation in the manner prescribed by statute. This has so often been decided that it is deemed unnecessary to now cite authorities on that point. Respondent cites some of them in his brief, to which reference may be made.

It is possible the court did not understand the extension given January 3d as a second extension of the time given at-the July term, but the language is sufficient to give that effect, and we must so consider it. We hold that the bill of exceptions was filed in due time.

II. There is really very little, if any, dispute as to the facts. There is nothing in the evidence to justify the charge of fraud, and the court did not find that there was any fraud. The only point on which the case turned in the mind of the learned trial judge was the supposed invalidity of the sale by Sheriff Kimberhn, and on that point he was guided by what this court said in McNutt v. Ins. Co., 181 Mo. 94. But since the decision in that case, this court, in Feller v. Lee, 225 Mo. 319, has modified, if not overruled the McNuttcase, at least it has authorized a distinguishing of cases of somewhat similar character in which a sheriff is substituted as trustee or authorized to execute the power of sale to foreclose. In an ordinary mortgage the legal title of the mortgagor is in terms conveyed to the mortgagee, but still the mortgagor is regarded in law as the owner of the legal title until foreclosure, or at least until the mortgagee moves for possession on condition broken. The mortgagor may in his deed of mortgage grant to the mortgagee a power of sale to be exercised on condition broken, or he may confer such power, without conferring title, on a third person to be exercised on condition broken and at the request of the mortgagee. A power to sell and convey the title of the grantor may be conferred without conferring title on the person to whom the power is given. A sheriff selling land under execution is not invested with title, he is merely exercising a power conferred on him by law, and so he may exercise a power conferred on him by the owner of the land. The decision in the case of McNutt v. Ins. Co. turned on the language of the deed which, in case of the death, inability, etc., of the persons named as trustees, conferred on the then sheriff of Jackson county, not merely the power.to sell and foreclose the mortgage, but he “shall thereupon become their successor to the title to said property and the same become vested in him in trust for the purposes and objects of these presents,” etc.; then follows grant of power to foreclose. Without intending to make further comment on the decision in that ease, we call attention to the fact that there is no express grant of title to the sheriff in the Blanchard deed; the legal title is conferred on the person named as trustee and he is authorized on conditicn broken and request of the holder of the note to sell, and in case “of his absence, death, refusal to act,' 01 dis bility in any wise the (then) actii g sheriff of Howell county, Missouri, at the request of the legal holder of said note, may proceed to sell,” etc. The grant there is a mere power to sell; therefore the main reasoning of the opinion in the McNutt case, which rests on the fact that in that deed it was provided that on failure of the person named as trustee to act, the title should pass to and become vested in the sheriff, does not apply. We ■are satisfied that in the case at bar it was the intention of the giantor in the deed to confer the power to sell on the sheriff who was such when the conditions arose and the holder of the note so requested.

III. There is another point in this case which is decisive of its merits: Digges and Garanflo held the title to this land, held it as we have already said for the Bank, they executed a warranty deed to the plaintiff for the whole tract, including the 58 acres on which was the Blanchard deed of trust, they also held the $225 note secured by that deed of trust; it was at their request that Sheriff Kimberlin undertook to execute the deed and sell the land; the deed recites that it was done at the request of the legal holder of the note; they were present at the sale, bought the land and took the sheriff’s deed. Under those circumstances neither they nor any one else could ever assert any validity either in the note or deed of trust securing it. The note could not be assigned as to an innocent indorsee, because it is long past due.

We hold that the sale by Sheriff Kimberlin was a foreclosure and satisfaction of the Blanchard deed of trust and that the title acquired by Digges and Garanflo inured to the plaintiff by virtue of their warranty deed to him.

The j udgment is reversed, and the cause remanded to the circuit court with directions to enter a decree dissolving the injunction and rendering judgment for the defendant Banking Company on all the counts in plaintiff’s two suits, and that the injunction suit be dismissed as to defendants Catron and Miller.

All concur.


text:
    MILAN BANK, Appellant, v. HENRY RICHMOND.
    Division One,
    July 1, 1911.
    1. PROMISSORY NOTE: Surety: Limiting Liability By ParoL A surety on a promissory note may by parol prove he is a surety, but he cannot limit his liability to pay the whole debt by proving a simple oral agreement, made by the payee bank’s' officials, to the effect that in case the principal defaulted he would have to pay only so much of the debt which the written instrument binds him to pay. In spite of such oral agreement, the parties to the written instrument are still bound by its. terms and in the manner that contract binds them.
    2. -: -: -: Set Up By Another Surety. Nor can one surety set up for other sureties a defense they could not set up for themselves. He cannot limit or obviate his obligation to pay a promissory note to a bank on the ground that its officials, without his knowledge at the time he signed the note, had orally agreed with other sureties that, in case of the principal’s default, the bank would hold them liable for only so many dollars each.
    3.------ : -: -: -: To Obtain Other Sureties. An oral agreement by the bank officials with a surety, before he signed as such, that the names of two other persons would be secured as sureties before delivery of the note, and the securing of such other persons to sign the notes as sureties under an agreement that, if they had to pay, their liability would be limited to a certain smáll sum, will not avail to release said surety on his obligation to pay the whole note. In the absence of fraud, mistake, failure of consideration, etc., a. surety must abide the terms of his written undertaking as to-the amount of his liability, despite an oral agreement to the-contrary.
    4. -: -: Representation That Collateral Note Is Good.. A representation that the persons whose names appear on a. note are as “good as gold” does not constitute a warranty that the signatures are genuine. Representations by the bank officials to the surety that the bank held a note for a certain sum-by a firm “who are as good as gold,” and that the note would' be held as collateral security for the note the surety was asked' to sign, is not a representation that such firm had signed the note, and is not a defense to a suit on the note which the-surety signed, and especially should it not'he held to he a defense where there is no evidence that the firm were not solvent, and there is evidence that the collateral note was a forgery and that the surety had knowledge that his principal had previously forged notes, and there is no evidence that the bank officials had knowledge of such prior forgery.
    5. -: -: Representations: Knowledge of Falsity. In order to discharge a surety it is not necessary that the creditor have knowledge of the falsity of a. representation which he makes as a fact and by which he induces the surety to obligate himself for his principal’s debt.
    6. -: -: -: Reliance Thereon By Surety: Inquiry Leading to Knowledge. It is competent to permit the surety to testify that he relied upon the representations made to him by the payee of the note as facts, and was induced thereby to sign the note; nor does it destroy the surety’s defense when sued on the note that he had knowledge of certain facts which might have put him on inquiry.
    7. INSTRUCTION: Burden of Proof. After the court has correctly instructed as to the burden of proof, it is unnecessary and may be misleading to further instruct the jury that “on passing upon any issue in this case they should find in favor of the party having the preponderance of the evidence.”
    8. IMPEACHMENT: Supporting Witness’s Veracity By Proof of Reputation. A charge in the answer that the bank official had made certain false representations to defendant, which induced him to sign the note to the plaintiff bank, did not put the official’s character in issue so as to justify the introduction of evidence in support of his good reputation, nor would evidence in support of those charges do so; nor would the fact that the official went on the stand and denied he made -those representations. None of these things amounted to an impeachment of his general reputation for veracity and honest dealing.
    Appeal from Macon Circuit Court.— Hon. Nat M. Shelton, Judge.
    Reversed and remanded.

      Calfee & Painter, Harber & Knight, Guthrie & Franklin for appellant.
    (1) There is no averment in the petition that the plaintiff had a right to believe the alleged statements or that he acted prudently in believing them. MeNealey v. Baldridge, 106 Mo. App. 11; Funding Co. v. Heskett, 125 Mo. App. 531; Davis v. Ins. Co., 81 Mo. App. 267; Cahn v. Reid, 18 Mo. App. 115; Lovelace v. Suter, 93. Mo. App. 438; Bank v. Trust Co., 179 Mo. 648. (2) The evidence fails to show any ground or reason authorizing the defendant, Richmond, to trust the alleged representations, but shows his complete opportunity to make investigations. (3) The evidence fails to show any wilful fraud on the part of the plaintiff. Green v. Warren, 83 Mo. App. 574; Bank v. Trust Co., 179 Mo. 648. (4) Defendant’s instructions are erroneous and prejudicial. Authorities supra; Mires v. Summerville, 85 Mo. App. 183. Slaughter v. Gerson, 13 Wall. 379; Andrus v. Smelting & Refining Co., 130 U. 5. 643; Farnsworth v. Daffner, 142 U. S. 43; Mabardy v. McHugh, 202 Mass. 148, 132 Am. St. 484; Chase v. Rusk, 90 Mo. App. 25; Remmers v. Remmers, 217 Mo. 541; Ins. Co. v. Wolfson, 124 Mo. App. 286; TextBook Co. v. Lewis, 130 Mo. App. 158; Laclede Co. v. Tie Co., 185 Mo. 25; Cummings v. Kent, 44 Oh. St. 92, 58 Am. Rep. 796; Gridley v. Dole, 4 N. Y. 486. Mansur-Tibbets Co. v. Ritchie, 143 Mo. 587; Norman v, Oberle, 90 Mo. 666; Muenks v. Bunch, 90 Mo. 500; Henry v. Buddecke, 81 Mo. App. 360; Redpath v. Lawrence, 48 Mo. App. 428.

      A. W. Mullins, Wilson & Clapp, Wattenbarger 6. Bingham for' respondents.
    (1) The plaintiff offered no objection to the defendant’s instructions, neither did it object to the court’s giving the instructions. . It is therefore precluded from objecting to them in the appellate court. Merely excepting to the action of the trial court in giving them is not sufficient. Sheets v. Ins. Co., 226 Mo. 613; State v. Reed, 128 S. W. 4. (2) Defendant’s instructions properly declare the law. Brokerage Co. v. Gates, 190 Mo. 391; Bank v. Gay, 114 Mo. 208; Nauruan v. Oberle, 90 Mo. 666; Chase v. Rusk, 90 Mo. App. 25; Miller v. Rankin, 136 Mo. App. 430; Cottrill v. Krum, 100 Mo. 397; BrolasM v. Carr, 127 Mo. App. 286; Leach v. Bond, 129 Mo. App. 315; White v. Reitz, 129 Mo. App. 307; Lucher v. Keeney, 98 Mo. App. 394. (3) The evidence discloses that McCallister, the cashier, had charge of the .fiscal affairs of the Bank, and had the power to pass on all notes taken by the Bank. His acts were therefore the acts of the Bank and appellant is bound thereby. Bank v. Dick, 73 Mo. App. 354; Young v. Hudson, 99 Mo. 107; Bank v. Hughlett, 84 Mo. App. 268; Powers v. Woolfolk, 132 Mo. App. 354. (4) The evidence of the defendant that he relied on the representations of McCallister were admissible. 6 Eney. Ev. 69; Aekman v. Jasper, 179 Pa. St. 463; Baker v. Mathew, 115 N. W. 15. (5) Evidence as to the general reputation of McCallister was not admissible. He had been contradicted, not impeached. Berryman v. Cox, 73 Mo. App. 67; Browning v. Railroad, 118 Mo. App. 449. (6) The court did not err in giving instructions. This transaction being conceived in fraud, the bank can not now be heard to say that-the agreement so made with Moran and Ford was merged in the note and thereby exclude this evidence and deny us of our defense. As between the parties to the note, want of consideration or fraud can always be set up as a defense to defeat a recovery on the note. Culp & Co. v. Powell, 68 Mo. App. 238; Remmers v. Remmers, 217 Mo. 541. Moran and Ford could have defeated a recovery on the note sued on in excess of $250 as to each of them — and this the bank conceded by the dismissal of this suit against them; and if the note was invalid as to them by reason of fraud in obtaining their signatures to the note, then Henry Richmond, being a surety, could not have enforced contribution from them as co-sureties, and it would have operated as a release as to him as surety on the note.. The question in this ease is fraud on the part of plaintiff bank and a note so obtained can not be enforced. This is not a question of varying tbe terms of a note or a written contract. If fraud is attempted to be perpetrated of course sucb fraud is never set out in any provision of tbe note. A note is simply an instrument for tbe absolute and unconditional payment of money, but tbe right to defend against it on tbe grounds of fraud has never been denied by tbe courts of this State. Tbe plaintiff does not admit tbat it made any of tbe representations charged in defendant’s answer, but.positively denies each and all of them. Tbe jury believed tbe testimony of Henry Richmond, Joe P. Moran and Alec Ford and returned into court tbe verdict for defendant. If Moran and Ford were told by MeCallister and Orear tbat they would only be bable on tbe note for $250 each and signed tbe note with tbat express understanding, then a court of equity in a proper proceeding brought by them would reform tbe contract. Hence this evidence was admissible in tbe suit by tbe Bank against Richmond, who signed with tbe express understanding tbat Moran and Ford would sign tbe note and thus become jointly liable with him to tbe extent of whatever property they owned, not for $250 only.
   BLAIR, C.

— In January, 1906, tbe Milan Bank sued respondent on a note for seven thousand dollars signed by respondent and four others. Tbe answer admitted the bank’s incorporation and tbat respondent signed tbe note, but averred tbat be did so as surety for his son and was induced to sign by false representations of tbe bank officials to tbe effect tbat (1) tbe principal bad put up collateral notes of tbe value of $3800, and tbat among these was one note for $3585, “which was good;” (2) tbe bank bad taken a mortgage on seventy-six bead of steers which they knew belonged to tbe principal; (3) tbe note sued on would also be signed before dehvery by Amon Richmond, Joe P. Moran and J. A. Ford, and (4) that Moran was the owner of three hundred and twenty acres of land unincumbered.

The answer negatives the truth of these representations, avers that the signatures to the $3585 note were forged, that the seventy-six head of steers were not the property of the principal, that Moran owned but two hundred acres of land and that was incumbered, and Moran otherwise indebted, and that though Moran and Ford signed as sureties the note in suit, yet they did so by reason of the bank’s agreement to hold them liable for but $250 each. •

In support of his defense respondent detailed the following conversation with the officers of the bank:

“He [McCallister, the cashier] was in the front part of the bank. He was not inside of the rail, but on the outside. We went back to Orear’s office; when we went back there he asked me or told me that Henry is overdrawn in the bank, and is behind seven thousand dollars. He has got two notes in here, five thousand dollars with some payment on it, and we would put the notes together and would make a seven-thousand-dollar note, and he said one of those notes you had ought to know something about. He said, ‘Your brother Amon will sign it, Alex. Ford and Joe Moran.’ He said, ‘You know what Amon and Alex are worth, and Joe Moran,’ he said, ‘has got three hundred and twenty acres of land all clear.’ I said, ‘Joe, I could not sign a note like that. I could not begin to pay it without selling my home, I don’t want to do that.’ He said, ‘Henry has got thirty-eight hundred dollars of notes here, and one is on the Peters Commission Company. This company is as good as gold, and I am ready to say that the note is all right.’' Mr. Orear spoke up and said, ‘That will leave thirty-two hundred dollars.’ Joe then said, ‘We have got a mortgage on seventy-six head of two-year-old steers we know belong to Henry, and will release the mortgage as soon as the note is signed up and delivered to the bank,’ and I said, ‘Well, Joe, if that is all right I reckon I can sign it,’ and he said, ‘That is just the way it is. I will give you ninety or one hundred and twenty days for the notes to come due, and turn his cattle and it will put him right on his feet.’ I said T will go and see Henry.’ I went and seen Henry, and found him on the east side of the square. I talked with him a little bit, about that note.”

On returning to the bank with his son, respondent without further ado signed the note in suit.

There was testimony to the effect that Moran and Ford signed with an “understanding” that they would be responsible for no greater sum than two hundred and fifty dollars each. This “understanding” was not based upon any direct promise of the bank officials to that effect, but rather' upon statements to that effect made by Ford and Moran themselves to the bank officials.

The names of the payers on the three thousand five hundred and eighty-five dollar note mentioned in the answer are indicated by the evidence to have been forged by W. H. Richmond. There is no evidence that the persons whose names appeared on this note were insolvent.

The cattle referred to in the answer were sold by W. H. Richmond to one McCullough in March, 1905, and simultaneously repurchased under an agreement whereby McCullough was to retain possession of the cattle until October, 1905, when he was to be paid the purchase price and one dollar per month per head in addition thereto. Richmond paid McCullough one hundred dollars down on this account. It does not directly appear whether McCullough had paid Richmond for the cattle or whether the contract was merely one for pasturage. One Ryan, however, was surety on the contract and took the cattle in November, 1905, paying McCullough the purchase price and one dollar per month per head for the cattle. The bank had a mortgage on ninety-two steers located by that instrument on the Maggart farm owned by McCullough at the time of respondent’s conversation with the bank officials.

At the time he signed the note in suit, respondent knew his son, the principal in the note in suit, had a short time theretofore forged his, respondent’s name, to a note for five hundred dollars, and testified that his name on one of the five thousand dollar notes taken up by the note in suit was also forged. He did not advise the bank officials' of these facts. The note in suit was given to consolidate two five-thousand-dollar notes, less some credits, on each of which W. H. Richmond, respondent’s son, was principal, on one of which respondent’s and Amon Richmond’s names appeared as sureties, and on the other the names of Ford and Moran.

Between the dismissal of a former attachment and the commencement of this action, respondent stripped himself of practically all his property, the property in part being transferred to a younger son, and the pro-needs of the rest being turned over to respondent’s wife.

I. So far as concerns Ford and Moran, neither fraud in securing their signatures, nor mistake, nor failure of consideration as to them, is pleaded. [Kulenkamp v. Groff, 71 Mich. 675.] Had they been defendants in the case, they could not have been heard to say that their liability was limited, by a simple oral agreement to that effect with the bank officials, to a sum less than that expressed by the terms of the note. A surety may prove the fact of his suretyship by parol, of course, but ‘not to affect the terms of the contract, but to prove a collateral fact and rebut a presumption. The. parties still remain bound by the same instrument and in the same manner.’ [Brandt on Suretyship and Guaranty, see. 38.] This rule is not broad enough to let in, in this case, proof by parol to cut down the sum the surety has engaged by the writing to pay in case of default of his principal.

.If Ford and Moran could, by such agreement, have limited tbeir liability to two hundred and fifty dollars, they might have limited it to one dollar. Did such a rule exist, the obligations of sureties would depend, not upon the instrument they signed, but upon their veracity and the credulity of the jury. [Kulenkamp v. Groff, supra.]

That in the absence of fraud, mistake, failure of consideration, etc., even a surety must abide the terms of his written undertaking as to the amount of his liability, despite a prior parol “understanding” to the contrary, is settled. [Smith’s Admrs. v. Thomas, 29 Mo. 307; Ewing v. Clark, 76 Mo. 545, 8 Mo. App. 570; Coats v. Swindle, 55 Mo. 31; Jones v. Shaw, 67 Mo. l. c. 670; St. Louis Perpetual Ins. Co. v. Homer, 9 Metc. 39; Hunt v. Adams, 7 Mass. l. c. 522; Dendy v. Gamble, 59 Ga. 434; Goddard v. Hill, 33 Me. 582; Huey v. Pinney, 5 Minn. l. c. 317; Singer Mfg. Co. v. Potts, 59 Minn. 240; Carter v. Hamilton, 11 Barb. 147; Concord Bank v. Rogers, 16 N. H. 9; Catlin v. Harris, 7 Wash. l. c. 546.]

It follows that respondent’s efforts to predicate his release upon the alleged agreement of the bank officials to secure the signatures, as sureties, of Ford and Moran and the further allegation that, though such signatures were secured, there was an oral agreement limiting their liability, must fail. Respondent can not set up for Ford and Moran a defense they could not set up for themselves. [St. Louis Perpetual Ins. Co. v. Homer, supra.]

It was error to admit testimony and instruct on the contrary theory.

II. The court instructed the jury that they must find for respondent if they found that the officers of the bank falsely represented to him “as an inducement for him to sign .... as surety . . . that the principal in said note, W. E. Richmond, had put up with said bank as collateral security on his indebtedness, promissory notes amounting in the aggregate to the sum of $3800, and that among said collateral notes was one for $3585, which was good,” etc.

This portion of the instruction is a literal copy of certain allegations of the answer.

It is at least doubtful whether there was any evidence that any notes were “put up with the bank as collateral security,” and it is certain there was no representation that ,. the signatures to the $3585 note were genuine. A representation that a note is “good” imports both the solvency of the makers and the collectibility, by suit, of the note. [Cooke v. Nathan, 16 Barb. 342.] But a representation merely that the persons whose names appear on the note are “good” does not constitute a warranty that the signatures are genuine.

Respondent testified that the cashier stated to him that the Peters & Brandom Company was as “good as gold.” The answer does not assail and the evidence does hot impeach the solvency of Peters & Brandom. Respondent was advised of the facility with which his son wielded his pen. He did not disclose his knowledge thereof to the bank officials.

There being no representation as to the genuineness of the signatures to the $3585 note, and no evidence that the signers thereof represented to be solvent were otherwise, the trial court erred in instructing that the fact that the signatures to the note mentioned were forged constituted of itself a defense. If the bank officials had had knowledge of the forgery and then had made use of their possession of the note to induce respondent to become surety for his son, a different question would be presented. The instruction did not proceed on this, theory.

The additional statement of the cashier, “and I am ready to say this note is all right,” was but an expression of opinion, which did not enlarge the statement that the company was “as good as gold.”

III. After correctly instructing as to the burden of proof, the court, at respondent’s instance, instructed the jury that “in passing on any issue in this case they should find in favor of the party having the preponderance of the evidence.”

This instruction fails to direct the jury as to their duty in case, in their minds, the evidence preponderated for neither party. While we do not decide that the giving of the instruction constituted reversible error, we do say that it was wholly unnecessary and might have been misleading. It should not have been given.

IV. It is asserted that the trial court erred in refusing to permit appellant to support the witness MeCallister by proof that his general reputation for truth and veracity and honesty and fair dealing was good. The record discloses merely that after respondent and his witnesses testified, MeCallister went upon the stand and contradicted them in several particulars, as did other officials of the bank. His reputation was not directly assailed by proof that it was bad, nor was. there proof in rebuttal, by way of impeachment, that-he had made contradictory statements out of court. The cross-examination to which he was subjected was-no more than a fair effort to test his memory and the truth of his direct testimony.

The answer, in effect, charged MeCallister with-having made certain false representations to respondent,, but that charge did not put his character in issue so as to justify the introduction in his support of general evidence of his good reputation (Black v. Epstein, 221 Mo. l. c. 305; Dudley v. McCluer, 65 Mo. 241; Gordon v. Miller, 111 Mo. App. 342) and, since the avermentsof the answer did not put his character in issue, it follows that evidence in support of those avermentswould not do so. So far as the offer to prove the good. reputation of the witness as to truth and veracity is concerned, it is sufficient to say that mere conflict of testimony does not warrant the admission of such evidence. [State v. Fogg, 206 Mo. l. c. 716.] It is unnecessary for us to discuss the doctrine of the cases which are cited (Browning v. Railroad, 118 Mo. App. l. c. 459; Cox v. Polk, 139 Mo. App. l. c. 265) in this connection, since the rule they and like eases announce is inapplicable on the record made in the case before us.

Y. Appellant contends that knowledge of the bank officials of the falsity of the representations made by them must be proved before respondent can rely upon such representations to discharge him. Such is not the law. In order to discharge a surety it is not necessary that the creditor have knowledge of the falsity of a representation which he makes as a fact and by which he induces the assumption of the relation. [Woolley v. Louisville Banking Co., 81 Ky. l. c. 537; Harter Co. v. Pearson, 26 Ohio Cir. Ct. Rep. 601; Willis v. Willis, 17 Simons, 218; Molson Bank v. Turley, 8 Ont. l. c. 307.] The trial court did not err in'refusing certain instructions out of harmony with this principle.

YI. There was no error in permitting respondent to testify that he relied upon the representations made, and was induced to sign as surety by reason of his belief in them. [Blaney v. Rogers, 174 Mass. l. c. 280.] Nor does it destroy respondent’s defense that he may have had knowledge of certain facts which might have put. him upon inquiry. , Even in actions for damages for fraud and deceit, “a man to whom a particular and distinct representation has been made is entitled to-rely on the representation and need not make further inquiry, although there are circumstances in the case from which an inference inconsistent with the representation might be drawn” (Kerr on Fraud, 80; Cottrill v. Krum, 100 Mo. l. c. 405), and in the case of false rep-reservation made to induce a surety to sign a note this rule is somewhat further relaxed.

The question as to whether respondenthad knowledge of the actual facts when he returned with his son to the hank and signed the note was for the jury under proper instructions.

The judgment must he reversed and the cause remanded for further proceedings not inconsistent herewith.

Brown, C., concurs.

PER CURIAM.

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

All the judges concur.