text:
    WILLIAM M. CREWS et al. v. C. T. MAUPIN et al.; and WILLIAM Y. MILLER et al., Appellants.
    Divison Two,
    December 15, 1920.
    1. QUIETING TITLE: Construction of Will: limitations: Action at Law. A suit to ascertain and determine the title which devisees and their bodily heirs took under a will, and to determine the issue of title by limitations, is an action at law.

      2. Will: Remainder: Vested: After-born Children: Cotenants. The testator, after providing for his wife and making certain specific legacies, gave to his four children, Mary, Robert, Perthana and Joseph, the residue, to “be held, used and enjoyed by them only for and during their natural lives and after their death to the children born of their bodies, and in case of either of my children dying without children born of their bodies, the other children shall take the share of such deceased child, to be held with the same limitations as the original bequest;” and directed that “in making the division of my real estate” Robert and Mary should have set off to them the farms on which they then resided, respectively; and by a codicil, he declared that “instead of my son Robert taking the farm on which he lives, I desire that my son Robert and my son Joseph take my home place jointly.” In an attempt to divide the real estate, Mary and Perthana and their husbands conveyed the home place to Robert and Joseph, and they in turn conveyed other lands to Mary and Perthana. Held, that considering the will and codicil together, the testator contemplated and intended that Robert and his bodily heirs should take an undivided one-half interest in fee simple in said home place; that Joseph and his bodily heirs should take, an undivided half interest, therein; that said Robert and Joseph each took a life estate as cotenants; that the children of Robert, born of his body who were living at the time of testator’s death, became vested as remainder-men with the fee simple title to an undivided half interest in said home place, subject to the life estate of their father; that children born of the body of Robert after the testator’s death were entitled to taire' and share as remaindermen with those previously, born; that the children of Joseph, likewise, took the title as remaindermen in the other undivided half; and that the children of Mary and Perthana took no interest whatever under said will and codicil in said home place. •
    3. LIMITATIONS: Cotenants: Conveyance of Life Estate. Where one tenant in common holds possession of land it will be presumed, in the absence of evidence to the contrary, that he holds possession for the benefit of himself and the other cotenants; but such presumption may be refuted by a showing that he has acquired a good title by open, exclusive and adverse possession, under a claim of absolute ownership. Where land was devised to four children and the heirs of their bodies, and one of them for money paid acquired by deed, which attempted to convey the fee simple, title, the interests of the others, and after their death, claiming to be the owner, remained in exclusive possession for ten years after their bodily heirs had reached lawful age and were capable of suing, such remaindermen are barred by limitations.
    4. APPELLATE PRACTICE: Review of Findings: Limitations. In an action at law, tried by the court sitting as a jury, where no instructions were asked and there -tffere no rulings on the admission of evidence adverse to appellants, the findings of the trial court on the question of the possession of plaintiffs being adverse and exclusive and other issues relating to title by limitations, the evidence being substantial, are binding upon the appellate court.
    Appeal from Howard Circuit Court.—Hon. Ernest S. Gantt, Special Judge.
    Affirmed.

      Paul P. Prosser and Alex H. Walker for appellants.
    (1) The court erred in finding and decreeing that the land in controversy, subject to the dower and homestead rights of the widow of testator, was devised by the will and codicil “to Robert D. Maupin and Joseph C. Maupin in equal shares as tenants in common for life, with remainder at their death to the respective children born of their bodies in fee simple,” thereby giving to said Robert U. and Joseph C. and to each of them, and to the children born of their bodies an unequal and greater share in testator’s estate than to his other children, contrary to the express terms of said will and intent of said testator. This issue must be determined by the terms and provisions of testators will fairly construed. (a) “The intention of the testator must prevail unless contrary to some positive rule of law.” Borland on Wills, p. 296; Bredell v. Collier, 40 Mo. 321; Shumate v. Bailey, 110 Mo. 411; Yocum v. Siler, 160 Mo. 281; Peugnet v. Berthold, 183 Mo. 61. (b) “The intention must be gathered from the whole will and not from detached portions thereof.” Borland on Wills, p. 298; Erwin v. Henry, 5 Mo. 469; Carr v. Dings, 58 Mo. 406; Chew v. Keller, 100 Mo. 362; Grace v. Perry, 197 Mo. 550. (c) “A will and its codicils are to be construed together.” Borland on Wills, p. 299; Wells v. Fuchs, 226 Mo. 97. “The codicil is controlling only to the extent necessary to give effect to its provisions.” Borland on Wills, p. 300. (d)’“A word or a phrase occurring more^ than once in a will is presumed always to be used in the same sense.” Borland on Wills, p. 310.. (e) “Where plainly required, words may be supplied or omitted, and words or sentences transposed.” Nichols v. Boswell, 103 Mo. 151; Thompson v. Thompson, 115 Mo. 56; White v. McCracken, 87 Mo. App. 262. (2) The court erred in finding that certain of the grandchildren of the testator, remaindermen in the lands in dispute, were barred by the Statutes of Limitation and that their interests had vested in plaintiffs. “The possession of a life tenant cannot be.adverse to the remainderman.” Sutton v. Casseleggi, 77 Mo, 397; Heckescher v. Cooper, 203 Mo. 293; Hunnewell v. Burchett, 152 Mo. 611; Bowman v. Lee, 48 Mo. 335; Fugate v. Pierce, 49 Mo. 441; Wilkerson v. Ellers, 114 Mo. 245; Nelso v. Brodhack, 44 Mo. 596; Charles v. Pickens, 214 Mo. 213. “Guarantees of life tenants can no more contest the remaindermen’s title by adverse possession than could the life tenants themselves. Their possession, if adverse to an outstanding title, inures to the benefit of the remaindermen.’-’ McCune v. Goodwillie, 205 Mo. 339; Coberly v. Coberly, 189 Mo. 16; Stevenson v. Black, 168 Mo. 549; Hunnewell v. Adams, 153 Mo. 440; Johnson v. Prewitt, 32 Mo. 553; Barber v. Henderson, 1^6 Mo. 566; Rothwell v. Jamison, 147 Mo. 601; Comstock v. Eastwood, 108 Mo. 41; Hecksecker v. Cooper, 203 Mo. 278.

      R. M. Bagby and J. H. Denny for respondents.
    (1) • Appellants acquired no interest in the land in controversy under the will, for the simple reason that this land was a part of testator’s home place, which the codicil devised to Robert D. Maupin and Joseph C. Maupin. (2) If the codicil to the will, did not create a fee simple in, the two sons, then, taken in connection with the whole will, an estate tail was created in them, which was by statute cast into a life estate in the sons with remainder in fee to their respective children. R. S. 1909, sec. 2872-2874; King v. Thies, 272 Mo. 416. (3) The grandchildren of testator took per stirpes the shares of their respective parents, and not the whole per capita. 40 Cvc. 1494; Preston v. Brant, 96 Mo. 552; 2 Jarman on Wills, p. 619, note 18; Romjue v. Randolph, 166 Mo. App. 97; 2 Underhill on Wills, p. 798, see. 599. (4) The agreed statement admits that Mary E. Crews, and the plaintiffs, her heirs at law, have been in the open, notorious, exclusive possession of said land, claiming Ownership and paying all taxes from the 18th day of September, 1882, up to the present time, and that none of the defendants or any one under whom they claim or might claim have paid any taxes on said land or begun any action for the possession of said land prior to the filing of their separate answer in May, 1917. Every element necessary to confer title by adverse possession is here admitted. Fugate v. Pierce, 49 Mo. 441; Bowman v. Lee, 48 Mo. 335. Claim of ownership gives the possession an adverse character. Stevenson v. Black, 168 Mo. 549. The payment of taxes is evidence of the existence of a claim of title by adverse possession. Lumber Co. v. Craig, 154 S. W. 73; Stone v. Perkins, 217 Mo. 586; 2 Corpus Juris, p. 271, sec. 605. It is enough that possession be under a claim of title, to, clothe it with the character of an adverse holding, and to give it efficacy as a defense, when of sufficient duration to be a bar. Tyler on Ejectment & Adverse Enjoyment, p. 683. (4) So that if the will did create an estate tail, or a life estate, in Parthana T. Miller, whatever rights or cause of action, if anv, the appellants ever had, accrued on her death on the 20th day of June, 1903, and was barred by the Statute of Limitations in ten years thereafter, and long before the beginning of this suit. King v. Thies, 272 Mo. 416 ; Sec. 1879, R. S. 1909. (5) The children of testator made a division and equalization after the death of the widow, and Parthana T. Miller was paid her share in money and the land set apart to Mary E. Crews and Joseph C. Maupin, and subsequently divided by voluntary partition between the latter two. This equalization and partition was fair and just, and is binding on the remaindermen. Accord v. Beatty, 244 Mo. 126; King v. Thies, 272 Mo. 422; Stockwell v. Stockwell, 262 Mo. 683; Sparks v. Clay, 185 Mo. 508. (6) Appellants are bound by the covenants in.their mother’s warranty deed, and are estopped to assert any interest in the land as it is admitted that they received from her estate property of equal or greater value than the value of the interest now asserted in the land. R. S. 1909, sec. 2793 and 2875;. Rumsev v. Otis, 133 Mo. 85; Foote v Clark, 102 Mo. 395; State ex rel. v. Bums, 129 Mo. App. 474; Talbert v. Grist, 198 Mo. App. 492. (7) The deeds made by the testator after the will was made, and the operation of law after his death in appropriating' 46 acres of the home place to pay his debts and setting off the remainder as a homestead to his widow, exempted, the whole estate from the operation of the will, and the residue of the home place, on the death of the widow became intestate property, and passed in fee by the warranty .deeds made by the children of testator. 40 Cyc. 1207, 1210, 1211; 30 Am. & Eng. Ency. law (2 Ed.), 652. 655; Cozzens v. Jamison, 12 Mo. App. 452; Shepherd v? Fisher, 206 Mo. 245.
   RAILEY, C.

This is an action at law, commenced by plaintiffs as the children and grandchildren of Mary E. Crews, deceased, in the Circuit Court of Howard County, Missouri, on April 17, 1917, to quiet title to 50.19 acres of land in the southeast quarter of Section 13, Township 51, Range 17, located in said county, and more fully described in the petition. The suit Was brought against the heirs at law of Robert D. Maupin, deceased, who are' named in the petition as defendants; also against Joseph C. Maupin and his children, whoso names are set out in the petition; also against the heirs at law of Perthana T. Miller, deceased, whose names are set out in said' petition, and who are the only appellants in this cause, and are the only defendants who claim any interest in said land adversely to plaintiffs. The petition alleges that plaintiffs are the owners in fee of the real estate aforesaid, as tenants in common, according to their respective interests as alleged therein; that defendants claim some interest in said land adversely to plaintiffs, etc. The court is asked to ascertain and determine the respective interests, titles, etc., of the parties herein, etc.

The heirs at law of Perthana T. Miller, deceased, to-wit, William T. Miller and wife, J.. Earl Miller and wife, and Annie Crews and husband, filed their joint and separate answer, in which they set out the will and codicil thereto, of William M. Maupin, deceased, claim an interest in the real estate aforesaid, under said will and codicil, and likewise plead other matters which will be referred to hereafter.

Respondents filed a reply to the answer aforesaid, admitted certain allegations of the answer to be true, denied all other allegations therein, pleaded the ten-year Statute of Limitations as a bar to the claim of said defendants, as well as other matters, which will be considered later.

It appears from, the record that the notes of the testimony taken by the court stenographer at the trial were burned with the court house at Moberly, and counsel for the respondents and appellants have agreed upon the material facts of the case, as follows:

William M. Maupin was the common source of title. William M. Maupin executed a will and testament on the 8th day of February, 1871, and also executed a. codicil thereto on the 4th day of August, 1873. At the date of said will and codicil, said William M. Maupin was the owner of 585.84 acres of land in Howard County, Missouri, a. description of which is unnecessary. William M. Maupin died on the 13th day of September, 1879, and his said will and the codicil thereto wás duly proven and admitted to probate in the Probate Court of Howard County, Missouri, on the 7th day of October, 1879, and letters testamentary issued to Joseph C. Maupin on the 8th day of October, 1879. Said will and codicil are in words and figures as follows.

“East will and testament of William M. Maupin.

“I, William M. Maupin of Howard County in the State of Missouri, do make and publish this my last will and testament as follows:

“Item 1st. I will and desire that my funeral expenses and all just debts be first paid.
“Item 2nd. It is my will and desire that my beloved wife, Margaret A. Maupin, take such part of my estate to which she may be entitled as dower, but to have choice of such stock as she may desire at valuation.
“Item 3rd. I give and bequeath to my daughter Perthany T. Maupin my Pina Forte to use during her natural life, and after her death to go to her children, but in the event of her death without children, I give the same to my daughter Mary Eliza Crews for her sole and separate use or to her daughters. I desire, however, that the Pina Forte shall not be charged to my daughter Perthany, but she is to have the same over and above the other children.
“Item 4th. I have heretofore given my children Mary Eliza Crews and Robert D. Maupin property valued at three hundred dollars, which is to be charged them, and my other children I desire to have an equal amount of three hundred dollars in property each, which if not in my life-time I desire to be given them out of my estate to make them equal with the others.
“Item 5th. The balance of my estate after providing for my wife and paying the specific legacies above and after giving my son Joseph a good education I wish to be divided among my four children, Mary Eliza Crews, wife of William Crews, Robert D. Maupin, Perthany T. Maupin and 'Joseph Maupin. I will and desire, however, that the property so devised to my children shall be held, used and enjoyed by them only for and during their natural lives and after their death to the children born, of their bodies and the portions to my daughters to be held for their sole and separate use, and in ease of either of my children dying without children horn of their bodies, the other children shall take the share of snch deceased child to be held with same limitations as the original bequest. In the event it is thought advisable to sell any portion of the estate devised, it may be sold by a trustee whom the probate or circuit court shall appoint and the proceeds invested for the use of the children as aforesaid and the property hold for the same use and limit.
< “Item 6th. In making the division of my real estate I desire that my son Robert D. Maupin shall take the farm on which he lives, the value to be ascertained by the appraisement of three disinterested parties appointed by the county or probate court and that my daughter Mary Eliza Crews shall have set off to her the place on which she lives, the value to be ascertained as above, and my other two children and wife to be provided for out of my- estate, all to be valued and set off to them as aforesaid so as to make them equal, and when the shares are unequal to be made equal out of other property or out of my personal estate.
“Item 7th. I have permitted my son Joseph to trade in property thoug’h under age and I desire that he shall keep such property as he has acquired and holds at my house as his own property and not to be charged to him.
“Item 8th. I appoint my wife Margaret A. Maupin and Robert D. Maupin my executors jointly and after the arrival of my son Joseph to the age of twenty-one years, in case I die before he arrives at that age, to act with them as executor, and so far as possible to consult with my friend Thomas Shackleford in winding-up my estate.
“In testimony whereof I have hereunto set my hand and seal the 8th of February, A. D. 1871.
“W. M. Maupin (Seal).
“Attest: T. Shackelford
Th. E. Birch.
‘ ‘ Codicil.
“I, William M. Maupin, do make and publish this my codicil to my last will and testament. Instead of my son Robert 15. Maupin taking the farm on which he lives mentioned in Item 6th I desire that my son Robert D. Maupin and my son Joseph Maupin take my home place jointly to be valued to them as indicated in my said will.
“Witness my hand and seal this 4th day of August, 1873.
“W. M. Maupin. (Seal.)
“Attest: Th. E. Birch”

Oath of attesting witnesses made before J. T. Smith, Judge of the Probate Court of Howard County, Missouri, on the 3rd and 6th of October, 1879.

Testator left surviving him a widow, Margaret A. Maupin, and two daughters and two sons, namely,' Mary E. Crews, wife of William Crews, Perthana T. Miller, wife of William B. Miller, and Robert D. Maupin and Joseph C. Maupin, all of legal age.

Mary E. Crews, then a widow, died intestate, on the 9th day of October, 1916, leaving the plaintiffs in this cause as her only heirs at law.

Robert D. Maupin died on the 11th day of. April, 1905, leaving defendants Cleve T. Maupin, R. Lee Maupin, Bettie Edwards, Blanche Hackley, Mattie Joe Miller, and Aggie Bes grove as his children and only heirs at law, who were all of full age át that time.

Perthana T. Miller died on the 20th day of June, 1903, leaving the defendants, William Y. Miller, J. Earl Miller and Annie Crews, her children and only heirs at law, who were then all of full age.

After making said will and codicil, to-wit, on the 30th day of September, 1875, said William M. Maupin, and Margaret A. Maupin, his wife, by their warranty deed of that date, recorded in Book 18, page 433, in the office of the Recorder of Deeds of Howard County, Missouri, conveyed to his daughter, the said Mary E. Crews, in fee simple, sixty-five acres of land, being the same land on which she was living at the date of said will and being the same set apart to her in the 6th item of said will.

On the same day, to-wit, the 30th day of September, 1875, said William M. Maupin and Margaret A. Maupin, his wife, conveyed in fee simple to said Robert D. Maupin, Joseph C. Maupin and one William B. Miller, husband of said Perthana T. Miller, and father of defendants, William Y. Miller, J. Earl Miller and Annie Crews, 367.60 acres, of land in Howard County, Missouri. It may be presumed that he made his children equal in this division of land. None of the land in these last two deeds is involved in this suit. These, two deeds left the testator owning at the time of his death only the home place mentioned in the codicil to the will and containing 151.30 acres. Of this home place, 46.00 acres was sold by the executor by proper judicial proceedings for the payment of debts of the estate' of said William Maupin, and the balance of the home place, 105.30 acres, was duly assigned and set apart to the widow for and during her natural life as a homestead, she having duly renounced the provisions of the will.

Margaret A. Maupin, the widow of testator, died on the 15th day of December, 1881.

The land described in the petition, being 50.19 acres, is a part of this homestead tract of 105.30 acres, and is the subject of dispute in this case.

After the death of the widow, the shares of the four children of the testator were equalized by a voluntary settlement and partition among themselves, in pursuance of which the said Perthana T. Miller, and her husband, William B. Miller, on the 10th day of January, 1882, for a consideration of $900, conveyed by a general warranty deed with a clause of grant, bargain and sell, and purporting to convey a title in fee simple, all their undivided one-fourth interest in and to said homestead tract, to Joseph C. Maupin.

Likewise the said Robert D. Maupin, and Mattie Maupin, his wife, by their general warranty deed with like clauses and purporting to convey a title in fee simple, on the 23rd day of December, 1881, for a consideration of $1065, conveyed to said Mary E. Crews, all of his title and interest in said homestead tract.

Afterwards, on the 18th day of September, 1882, the said Joseph C. Maupin and the said Mary E. Crews, made a voluntary partition of said land by interchange of warranty deeds, with like clauses and of like import, whereby the said land described in the petition was assigned, set apart and conveyed in severalty to said Mary E. Crews, and the remaining 55.11 acres of said homestead tract and home place were allotted, set apart and conveyed to said Joseph C. Maupin.. Said division was fair and equal at the time it was made and the land allotted to each of said parties was of equal value.

On said 18th day of September, 1882, the said Mary E. Crews entered into the possession of the said land, being the same land described in the petition, and from that day said land has been in the open, notorious, exclusive possession of the said Mary E. Crews up to the date of her death, to which she claimed ownership, and thereafter the plaintiffs, her heirs at law, since her death. The said Mary E. Crews and the plaintiffs have paid all taxes lawfully due on said land since said date, and none of the defendants nor any one under whom they claim or might claim have paid any taxes on said land or begun any action for the recovery thereof prior to the filing of the separate answer of appellants in this cause.

The defendants and appellants, William Y. Miller, J. Earl Miller and Annie Crews received from the estate of their mother, the said Perthana T. Miller, money and property of equal or greater value than the value of the interest now asserted by them in said land. The defendants, Cleve T. Maupin, R. Lee Maupin, Mattie Joe Miller, Bettie Edwards, Rosa Ola Washburn Blanche Hackley and Aggie Besgrove, children and heirs at law of said Robert D. Maupin, likewise received from the estate of their said father, money and property of equal or greater value than the interest which the separate answer of appellants allege they own in the land described in the petition.

None of the defendants, except said William Y. Mil-. ler, J. Earl Miller and Annie Crews, children of said Perthana T. Miller, claim any interest in said land in dispute in this action or join in the appeal.

This suit was begun by the filing of the petition in the Circuit Court of Howard County, Missouri, on April 17, 1917. The separate answer of appellant was filed on the — day of May, 1917.

This was all the evidence.

The case was tried before the court without a jury and without instructions. No adverse rulings of the trial court are complained of, in regard to the admission or exclusion of evidence. On May 31, 1917, the trial court found the issues in favor of respondents, and' entered a decree accordingly, reciting the facts found by the court. Respondents were declared to be the owners in fee of said real estate, and appellants were held to have no title thereto, nor interest therein, except that defendant, Cleve T. Maupin, is given a lien for $72.05 and costs, on the interest of Harry Crews in said land. Said decree, likewise set out the respective interests of plaintiffs as tenants in common in said land, as found by the court.

Appellants, in due time, filed their motions for a new trial and in arrest of judgment, both of which were overruled, and the cause duly appealed by them to this court,

I. This is purely an action/at law, under Section 2535, Revised Statutes 1909, to quiet title to the 50.19 acres of Howard County land described in the petition.

The codicil to the will of William M. Maupin, deceased, was executed on August 4, 1873, and reads as follows: “Instead of my son Robert D. Maupin taking tbe farm on which, he lives mentioned in Item 6th I desire that my son Robert D. Maupin and my son Joseph Maupin take my home place jointly, to be valued to them as directed in my said will. ’ ’

If the above codicil be construed as vesting in Robert D. Maupin, and Joseph Maupin, the fee simple title, as tenants in common, to the land in controversy, it is clear that appellants can have no interest therein, for they are not the heirs at law of either Robert D. Maupin or Joseph Maupin.

II. If the deeds, made by the testator and his wife, after the execution of the will and codicil, and the operation of law after his death in appropriating 46 acres of the home place to pay his debts, and setting off the remainder as a homestead to his widow, exempted the whole estate from the operation of the will, and the residue of the home place, on the death of the widow, became intestate property, then these appellants would have no interest in said land on acount of the deeds made by testator’s children, mentioned in the agreed statement of facts. In other words, as Perthana T. Miller and her husband, on January 10, 1882, for the consideration of $900, conveyed by warranty deed, a fee simple title of all their undivided one-fourth interest in and to said homestead tract, to Joseph C. Maupin, it left appellants without any interest in said land, if it was intestate property.

III. Assuming for the purposes of the case, that the land in controversy did not become intestate property, as heretofore suggested, and assuming-that the fee simple title to said land, did not pass to Robert D. Maupin and Joseph Maupin as tenants in common, under the codicil aforesaid, then what estate was conveyed by the codicil in connection with the will, and to whom?

Taking the foregoing assumptions as true, we are of the opinion, that Robert D. Maupin, at the death of testator, became vested with a life interest in the undivided one-half of the 105.30 acres, left after the payment of debts, subject to the widow’s homestead rights. By virtue of said will and codicil, the children of said Robert D. Maupin, born of his body who were living at the time of testator’s death, became vested as remainder-men with the fee simple title to the undivided one-half interest in said land, subject to the life estate of their father. [Sec. 2872, R. S. 1909; Collins v. Whitman, 222 S. W. l. c. 842-3-4; Dunbar, v. Sims, 222 S. W. l. c. 839-40; King v. Theis, 272 Mo. 416.] If any children were born of the body of said Robert D. Maupin, after the death of testator, they were entitled to take and hold, as remaindermen, their proportionate part, of said undivided one-half interest, subject to the life estate of their father. [Barkhoefer v. Barkhoefer, 204 S. W. l. c. 909-10; Buckner v. Buckner, 255 Mo. 371; Carter v. Long, 181 Mo. l. c. 709; Cates v. Seibert, 157 Mo. 271; Tiedeman On Real Property, sec. 175, foot notes; 2 Underhill On Wills, sec. 558, pp. 731-2.]

The'same principles of law apply to, Joseph Maupin and his children.

We think it is perfectly clear from a consideration of all the provisions of the will, in connection with the codicil, that the testator contemplated, and intended, that Robert D. Maupin and his said children, should together take an undivided one-half interest in fee simple in said real estate; that said Joseph Maupin and his children should together take an undivided one-half interest in fee simple in said land; and that said life tenants, were to be considered as tenants in common. The foregoing conclusion, precludes the appellants from owning or holding any interest in said property, as they are not the heirs at law of either son.

Considering the will and codicil as a whole, we are of the opinion, that testator, in the execution of the codicil, did not intend that either of his other two children—-Mrs. Crews or Mrs. Miller—should take any interest in the homestead property, nor that the children of either should take any part of same. He was devising this property absolutely to Robert D. and Joseph Maupin, and their children as aforesaid, and expected these sons to make up to their sisters what would have been their proportionate part of same, if it had been conveyed to all four of the childern. We think, the will contemplated this, and the four children, after the death of the widow, equalized their shares in the homestead tract, by Perthana T. Miller and husband, on January 10, 1882, conveying’ their interest in said tract to Joseph C. Maupin for $900, while Robert D. Maupin exchanged positions with Mary E. Crews, and received from her, $1065, for his interest in said homestead tract.

It is likewise conceded in the statement of facts that these appellants received from the estate of their mother, Perthana T. Miller, money and property of equal or greater value than the value of the. interest now asserted by them in said land:

If this were considered a proceeding in equity, we are of the opinion, that appellants’ claim of interest in the land aforesaid, is without merit.

IV. Even if it be conceded (for the purpose of the case only), that Perthana T. Miller was entitled, to a life estate in an undivided one-fourth interest of the land in dispute, and that her children were .... . , ,, .. „ . -, .. entitled to the remainder of said undivided one-fourth interest, yet, when said Perthana T. Miller died on June 20, 1903, the ten-year Statute of Limitations began to run at once against these appellants, and their claim of interest in this land was barred thereby, when this suit was commenced on April 17, 1917. Where one tenant in common is in possession of land, it will be presumed, in the absence of evidence to the contrary, that he holds possession of same for the benefit of all. But, it is equally as well settled, that the tenant in possession may rebut such presumption, by showing that he has acquired a good title by open, notorious, exclusive and adverse possession, under a claim of absolute ownership, etc. [Sec. 1879, R. S. 1909; Huntington R. E. Co. v. Megaree, 280 Mo. 41, 217 S. W. l. c. 305; King v. Theis, 272 Mo. l. c. 422-3, 199 S. W. 183; Hart v. Eldred, 264 Mo. l. c. 151-2; Johnson v. Calvert, 260 Mo. l. c. 456-7, 169 S. W. 78.; Allen v. Morris, 244 Mo. l. c. 364; Hendricks v. Musgrove, 183 Mo. l. c. 309.]

V. Appellants, in their original brief, in speaking of Mary E. Crews, and discussing the Statute of Limitations say: “They do not admit, however, that her possession was hostile, or that she held adversely to them as remaindermen, or that they had notice, either actual or constructive, that her attitude was hostile or that she was claiming adversely to their title.”

In the agreed statement of facts, it is stated: “That on said 18th day of September, 1882, the said Mary E. Crews entered into the possession of the said land, being the same land described in the petition, and from that day .to the present time, said land has been in the open, notorious, exclusive possession of the said Mary E. Crews up to the date of her death, to which she claimed ownership, and thereafter the plaintiffs, her heirs at law, since her death. And that the said Mary E. Crews and the plaintiffs have paid all taxes lawfully due on said land since said date, and none of the defendants or any one under whom they claim or might claim have paid any taxes on said land, or begun any action for the recovery thereof prior to the filing of the separate answer of appellants in this cause.”

It likewise appears from the agreed statement of facts that Perthana T. Miller and husband (father and mother of appellants) executed a warranty deed to Joseph C. Maupin, on January 10, 1882, in which they undertook to convey to him a fee simple title to the undivided one-fourth interest in said 105.30 acres. On the same day, it is agreed, that Joseph C. Maupin and Mary E. Crews, made a voluntary partition of said land by interchange of warranty deeds, and that the 50.19 acres in controversy was thus conveyed to said Mary E. Crews. With the foregoing deeds on record, and Mary E. Crews being in possession of the land, it presented very strong evidence to appellants, upon the death of their mother in June, 1903, that Mrs. Crews was claiming the land in controversy as absolute- owner thereof.

In the foregoing contention of appellants’ counsel, they have apparently lost sight of the fact that this is an action at law, brought here without' instructions, without any adverse ruling of the trial court as to the admission or rejection of evidence, and with the affirmative finding of the trial court, that, “on the 18th day of September, 1882, the said Mary E. Crews entered into the possession of the said land so allotted to her and continuously from said date held the exclusive, open, notorious and adverse possession of said land, claiming the title( thereto absolutely in fee simple, and paying all taxes on the same to the date of her death, and that since said time the plaintiffs, as her heirs at law, have so held possession and paid taxes thereon, and that the plaintiffs are now the owners of said land in fee simple.” The finding-of the trial court, in respect to the above matter, is supported by substantial evidence and is conclusive, as to this court. [Mooneyham v. Mynatt, 222 S. W. (Mo.) 451; Cowan v. Young, 220 S. W. (Mo.) l. c. 872; Franke v. Franke, 213 S. W. (Mo.) l. c. 42; Bingham v. Edmonds, 210 S. W. (Mo.) 885, and cases cited.]

VI. Other questions are presented and argued by counsel for the respective parties, hut, in view of what has already been said, it would serve no good purpose to extend this discussion further. The decree of the trial court, m favor of plaintiffs, is fully sustained by substantial evidence, and we are well satisfied with tbe conclusions reached therein.

The judgment below is accordingly affirmed.

White and Mozely, CC., concur.

PER CURIAM:—The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All and Mozley, CC., concur.


source: Caselaw Access Project

author: WALKER J.

license: Public Domain

text:
    LAURA A. BRYANT Appellant and Respondent, v. ETTIE L. SHINNABARGER et al., Respondents and Appellants.
    Division Two,
    December 15, 1920.
    1. CONVEYANCE: Mental Capacity: Inconsistent Acts. The contemporaneous execution of a deed and of a power of attorney, by which the maker gave to the grantee complete dominion over the property, do not comport with that average intelligence which should be manifest in the making of solemn instruments.
    2. -:-:«-: Different Signatures. It is almost universal knowledge that aged persons sign their names in a uniform manner. It is a minor matter, but worthy of notice, in determining the grantor’s mental capacity, that she signed her name to a deed “Elizabeth L. Glebb” and within a half hour or so thereafter signed it to a power of attorney “Mrs. E. L. Glebb,” on both occasions before the same notary public.
    3. -: -: Execution Shortly Before Death. Ordinarily a difference of one day between the execution of a deed as shown by the notary’s certificate, and its execution as shown by the testimony, where no question of priority is involved, will constitute only a fragile reason for questioning its authenticity. But where the grantor may be said to have been in the throes of death it matters much, as determinative of her mental capacity, whether it '■ was executed 24 or 48 hours before her death.
    4. -; -: Contradictory Testimony: Deference to Chancellor. Where the witnesses who were present at the time of the execution of the deed by the aged grantor, who had for sometime been afflicted with severe kidney disease and was then an extreme sufferer, testified unequivocally to her mental soundness and her understanding of the transaction at that particular time, and a disinterested physician, called for the first time very shortly after-wards to treat her, testified that she did not know much about what she was saying or doing and did not have sufficient mental capacity to make a deed or to know the natural objects of her bounty or what property she owned, the appellate court will defer to the finding of the trial. chancellor, who had a superior opportunity of seeing and hearing the witnesses and weighing their testimony.
    5. -: -: Reformation. If the grantor was mentally able to make a deed it follows, in the absence of any convincing proof to the contrary, that she knew what property she was conveying, that it was correctly described in the deed and comprised what she intended to give to the grantee, and that therefore said deed cannot be reformed to include other lands.
    6. -—: Inequitable. In determining whether a conveyance by an aged woman to another by whom she, in her severe sickness, was being cared for, was inequitable, the nature of the property so conveyed should be compared with that which went by inheritance to the grantor’s natural heirs.
    7. EVIDENCE: On Appeal in Equity Suit. Error in the admission of testimony by the trial chancellor in an equity suit is immaterial on appeal, for if the testimony was incompetent it will be disregarded by the appellate court and such judgment rendered as in equity and good conscience the pleadings and relevant testimony authorize.
    Appeal from Platte Circuit Court.—Hon. Alonzo D. Burnes, Judge.
    Affirmed.

      A. D. Gresham and James H. Hull for plaintiff.
    (1) The court committed error in not finding for plaintiff on her first count in the petition, as the evidence is all to the effect that the parties to the deed made a mutual mistake in the description contained in the deed. Parker v. Vanhoozer, 142 Mo. 621; Dougherty v. Dougherty, 204 Mo. 237; Brinkerhoff v. Juden, 255 Mo. 715; Crouch v. Thompson, 254 Mo. 486; Robinson v. Korns, 250 Mo. 674. (2) It is true as contended, by counsel for defendants, that the law ordinarily requires a higher degree -of mentality to execute a deed than it does to make a will. The reason for the distinction is that in the ease of a deed ordinarily the contract evidenced thereby is of a dual character, but in this case that difference is of no practical importance for the reason that the deed was intended as a gift in consideration of love and affection, a meritorious consideration, a recognized obligation for favors and kindness rendered by plaintiff to her aunt, Mrs. Glebb. Jones v. Thomas, 218 Mo. 538; Chadwell v. Reed, 198 Mo. 359; Richardson v. Smart, 152 Mo. 623. (3) The burden is on the defendants in this case to prove the unsoundness of mind and incapacity of the grantor. Chadwell v. Reed, 198 Mo. 359; Jones v. Thomas, 218 Mo. 508; Cutler v. Zollinger, 117 Mo. 92; Richardson v. Smart, 152 Mo. 623. (4) It is urged by defendants that the record discloses that the execution of the deed was procured by fraud and undue influence exerted by plaintiff, Mrs. Koster, Dr. LaBonte and others, over the mind of Mrs. Glebb, and that these parties stood in confidential relations to the- grantor in said deed. The record seems to be entirely void of any evidence to support that claim. We fail to discover any evidence whatever tending to show that any of the parties named above was guilty of any fraud or undue influence in connection with the execution of this deed. And if a confidential relation existed, plaintiff has fully complied with the requirement by the burden of proof showing the absence of any undue influence. (5) And in equity cases, the Supreme Court will defer largely to the trial court on all issues of fact, and will not disturb the judgment of the trial court on the ground that the findings are against the weight of the evidence. Jones v. Thomas, 218 Mo. 540; Brecker v. Fillingham, 209 (Mo. 583; Tinker v. Kier, 195 Mo. 183; Huffman v. Huffman, 217 Mo. 182.

      Guy B. Park for defendants.
    (1) At the time of the execution of the‘deed, the grantor was laboring under mental weakness induced by old age, sickness-and disease. In such cases, courts of equity will investigate the consideration and determine its sufficiency, and pass upon the party’s mental state and condition; and if two facts concur, viz., inadequacy of consideration and mental imbecility, although the weakness of mind does not amount to idiocy or legal incapacity, the contract or deed will be annulled at the instance of the proper party. Cadwallader v. West, 48 Mo. 483; Kincer v. Kincer, 246 Mo. 419. (2) If the relation of confidence and trust between the parties to a deed, which is sought to be' set aside on the ground of undue influence; if the mind of the maker is weak and susceptible, and the transaction results beneficially to the grantee and detrimentally to thé maker, a presumption of undue influence is raised, and the burden is placed on the one claiming the benefit of the transaction to prove that the act was voluntary and no unfairness was used. Dingman v. Romine, 141 Mo. 466; Cornet v. Cornet, 248 Mo. 234; Ennis v. Burnham, 159 Mo. 518. (3) Where the confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the one so availing himself of the position will not be permitted to retain the advantage, although the transaction could not have been impeached if no confidential relation existed. Martin v. Baker, 135 Mo. 495; Ryan v. Ryan, 174 Mo. 279; McClure v. Lewis, 72 Mo. 314. (4) The relationship of patient and nurse is confidential. Dingman v. Romine, supra; Hall v. Knappenberger, 97 Mo. 511. (5) The plaintiff claims the deed was executed for a consideration and so pleads. . She will not be permitted to hold under the deed because, if anything, it was a gift. Cadwallader v. West, 48 Mo. 497; Hall v. Knappenberger, 97 Mo. 509. (5) Where, the conveyance is a gift, courts cannot reform it. Pitts v. Weakley, 155 Mo. 134; Ford v. Unity Church Society, 120 Mo. 508; Browmlee v. Fenwick, 103 Mo. 428; Shroyer v. Nickoll, 55 Mo. 264. (6) Under allegation of consideration, gift cannot be shown. Hall v. Knappenberger, 97 Mo. 511. In order to entitle plaintiff to a decree reforming the deed, it devolved upon her to show by a preponderance of the’ evidence a compliance with the terms and conditions of the deed as expressed therein—the payment of the sum of one dollar. Williams v. Husky, 192 Mo. 550. One seeking to have a written instrument reformed for mistake must show such mistake by evidence that is clear and convincing. Fanning v. Doan, 139 Mo. 392; Parker v. Van Hoozer, 142 Mo. 621; Clark v. Transfer Co., 127 Mo. 255; Bartlett v. Brown, 121 Mo. 353.
   WALKER J.

This suit was brought in the Circuit Court of Platte County in January, 1917. The petition was in two counts; the first sought the reformation of a deed to real property; and the second to quiet title under the statute. Upon a trial before the court a decree was rendered on the first count denying the relief sought and holding that the deed correctly expressed the mutual intention of the parties; on the second count it was found and adjudged that the plaintiff was the owner in fee of the property described in the deéd.

A cross-bill filed by defendants alleged the invalidity of the deed on the grounds of undue influence exerted by plaintiff and others on the grantor, Elizabeth L. Glebb, and that she was, at the time, of unsound mind and incapable of executing a valid transfer (if her property. The court denied the relief asked by defendants and dimissed the cross-bill at their costs. Both parties have appealed.

Plaintiff’s cause of action more specifically stated is that at the time of the execution of the deed the grantor was the owner of certain lots . of ground in Tracy, Platte County, described generally as lots 7 to 18, both inclusive. The deed designates only lots 7 to 12. Plaintiff contends that it was the intention of the grantor to include in the transfer lots 13 to 18, and the reformation is sought in this particular. Only the purport of the deed is preserved in the record. Tt is as follows:

“Warranty deed, consideration $1, dated November 8, 1916, from Elizabeth L. Glebb to Laura A. Bryant to Lots 7, 8, 9, 10, 11 and 12, Block 1, Tracy, Platte County, Missouri. Signed by Elizabeth L. ,Glebb, acknowledged before O. Q. Claflin, notary public, November 8, 1916, and witnessed by O. Q. Claflin, Jr., and Alice Koster. Recorded in the office of recorder ‘of deeds, at Platte City, Platte County, Missouri, November 10, 1916.”

On the same day the deed was executed, as stated in the body of same and in the notary’s acknowledgment, a power of attorney was given by the grantor to the plaintiff which is as follows.

“Know all men by these presents, that I, Mrs. E. L. Glebb of Platte City in the County of Platte, State of Missouri, have made, constituted and appointed, and by these presents do make, constitute and appoint Laura A. Bryant of Excelsior Springs in the County of Clay, State of Missouri, my true and lawful attorney in fact, for me and in my name and stead and to my use to grant, bargain and sell all or any real estate of which I may at the present time possess the title, or which I may hereafter acquire, to collect any and all rent due me, from any and all property which I,may own or in which I may have an interest; to sign cheeks for me and to deposit monies in my name, and to do any act which I might myself legally do, hereby giving unto my said attorney in fact full authority and power to do anything whatsoever requisite or necessary to be done in the premises as fully as I could or might do if personally present, with full power of substitution and revocation, hereby confirming and ratifying all that my said attorney in fact shall lawfully do or cause to be done.”

[Further provision is made which is noted but not set forth in haec verba in the record, that a power of attorney theretofore granted one G. M. Northrop is thereby revqked.]

“Witness mv hand this 8th day of November, 1916, at Kansas City in the County of Wyandotte, State of Kansas.

“Mrs. E. L. G-lebb.

“Filed for record Nov. 10, 1916, at 10 o’clock 2 minutes A. M.”

The plaintiff was hot akin to the grantor, who was a widow about 74 years of age. The defendant Mrs. Shinnabarger was the latter’s daughter and her only child; and the other defendants were her grandchildren. The grantor had for several years been afflicted with nephritis or acute inflammation of the kidneys, diagnosed by expert witnesses as Bright’s Disease, which finally resulted in her death. To obtain that care and treatment which the intelligent mind recognizes as necessary to relieve, if possible, one suffering from the malady with which she was afflicted, she went or was taken, on the 24th of September, 1916, to a hospital in Kansas City, Kansas. She remained there until the 27th day of October, 1916, when she was., under the direction of the plaintiff, taken by one Le Bonte and a Mrs. Koater to the latter’s home in Kansas City, Kansas, where she died on the 10th day of November, 1916. That her death was due to the malady from which she had long been a sufferer, there is no room for question. Her bloated and dropsical condition at the time of her removal from the hospital and her death a short time thereafter from the disease with which she had been afflicted, render the presumption conclusive that she was, at the time of her removal, in the last stages of the disease and rapidly approaching dissolution. Thus much for her physical condition, about which there is no material controversy, at or about the time of the execution of the deed. The relevancy of the facts in regard to that condition is apparent as affording an aid to reason based upon human experience, in determining the state of the grantor’s mind at the time she made the deed; and whether that state was such as to render the grantor easily susceptible to improper influences or incapable of intelligently caring for and disposing of her property on her own volition.

Marshalling the facts for the plaintiff in their least disputable array, they show that at the time of the execution of the deed the grantor had a clear- mind, with such an attendant comprehension of her affairs as to enable her to act intelligently, and that she did so act on her own volition, free from ulterior influence^.

The correlated facts adduced by defendants to rebut the conclusion which would otherwise flow from the testimony for the plaintiff, are that the grantor, before her admission to the hospital and while there, manifested marked signs of mental weakness and was frequently subject to delusions rendering her incapable of intelligent thought or action; that this unsettled state of mind, which the facts justify us in classifying, as a well-defined mania, was due to her physical ailment; that such had been the progress of her disease at the time of her removal from the hospital that her dropsical condition prevented her, although much disposed to sleep, from occupying a recumbent position for any length of time; that natural rest, necessary in health for recuperation and the renewal of vital forces, and more necessary in the enervating presence of disease, was thus denied her, with its consequent physical discomfort and a disturbance of her mental equilibrium; that her disturbed mental condition caused her to consent, if she did consent, to her removal from the hospital, where, it is reasonable to conclude, she had intelligent -attention, including such palliating, if it could not be remedial, treatment as her condition demanded; thus environed and anxious, as is the inclination of human nature generally, to secure as much creature comfort as possible, it is urged that she would not, in the wholesome exercise of a sane mind, have consented to a removal to a private house, possessing none of the facilities of a hospital, and where, whether she desired it or not, she was not given, as ordinary human kindness would have prompted, any intelligent medical attention other than for those who were in charge of her to call in two physicians the day before her death.

The contemporaneous, or, as the facts are, the execution of the power of attorney immediately preceding or following that of the deed, does not, when measured by the acts of those whose mental equipoise is not questioned, comport with that average intelligence which should be manifested in the making of instruments of the character here under consideration. If the making of the deed was a sentient act, the grantor knew full well that upon its delivery she gave the plaintiff complete dominion over the property. If she did not possess this knowledge, and she acted as it is contended she did, on her own. volition, what could have prompted her, after having deeded the property to the plaintiff, to formally attempt to confer power upon the latter to represent her in its management?

It is a minor matter, but one not unworthy of notice in passing, that the manner of signature of the grantor to these two instruments is entirely different. The deed is signed by “Elizabeth L. Grlebb; ’ ’ the power of attorney by “Mrs. E. L. Grlebb.” This last signature, according to the testimony, was made wdthin a short space of time after she had signed the deed, it appearing that the notary brought both instruments prepared for her signature. It is a subject of almost universal knowledge that there is a uniform manner in which each person, evidently from long continued habit, signs his or her name. For example, John Smith does not sign his name in full at one time and at another write it “Jno. Smith” or “J. Smith. ’ ’

Ordinarily the difference of one day between the execution of an instrument, as shown by the notary’s certificate and the testimony of witnesses in regard thereto, will, where no question of prit , ^ 4 - m * • . . ¶ . p onty is involved, constitute hut a fragile reason for questioning its authenticity. Where, as here, however, the grantor may be said to have been in extremis, whether the deed was executed at one time or the other, it matters much, as determinative of her mental capacity, whether it was executed 48 or 24 hours before her death. She died November 10th. The notary’s certificate gives November 8th as the date of the execution of the deed. While this is prima-faeie evidence of the verity of the date (Burk v. Pence, 206 Mo. 315), the notary who took the acknowledgment testified with little lack of equivocation, that the deed was actually executed the day before the grantor’s death and that the date stated in.the body of the deed and the certificate of acknowledgment was possibly erroneous, his language when examined by counsel for the plaintiff being: “That deed was signed on the day it was drawn—whether it was the 8th or 9th of November, I am not going to say. There is a possibility I made a mistake in dictation, but I think that is correct, and I am probably mistaken in a day having elapsed between the date of the drawing of the deed and of its signing.”

The notary further testified as follows: “Mrs. Bryant (plaintiff) came to my office between nine and ten o’clock one morning and asked me to go with her and talk to a Mrs. Glebb. I went with her to a Mrs. Koster’s where Mrs. Glebb then was, and talked to the latter. She said she wanted a power of attorney and a deed to her property in Tracy made to Mrs. Bryant. Mrs. Bryant furnished me with the description of the property which was afterwards embodied in the deed. T took the description and went back to my office, prepared the deed and power of attorney and then returned to Mrs. Glebb’s room. After reading them over to her she signed and acknowledged them and I returned to my office. I am quite positive the deed -was drawn on the day before Mrs. Ulebb died. I am sure there was not a day intervening. I was there on the following day about three o’clock p. m. Mrs. Glebb died a few minutes after I got into the room that day.” Asked as to the grantor’s mental condition at the time of the execution of the deed, the witness said: “Well I talked to her, I should judge thirty-five minutes the first time I was there, and satisfied myself she was all right mentally, and knew what she was doing and understood fully her acts.”

The same afternoon and certainly, so far as it is possible to determine from the testimony, not more than an hour or two after the execution of the deed, a Dr.. Pearson was called and made an examination of the grantor. In relation thereto, among other things, he says: “I called on Mrs. Glebb professionally shortly after noon on the day preceding her death. She was in a very weakened condition. She was sitting in a chair and her head dropped over onto the side of the back of the chair. She didn’t notice me when I went in. Mrs. Koster roused her up, and told her that the doctor had come, and I went to her and asked her how she felt, and she said she didn’t know. She asked, then, if I was a doctor; and I think she asked that two or three times —if I was a doctor; and she said, £I am glad you have come; I want you to cure me. ’ After that ghe dropped her head over again and seemed to be taking no notice of what went on. I made something of an examination. I found her feet swollen. I examined her eye-lids, and the puffy condition under her eyes. I questioned about the secretions of the body. She couldn’t answer. Mrs. Koster answered those questions. I think I was there pretty nearly half an hour. She was afflicted with nephritis was my diagnosis'—kidney trouble. A,s to her mental condition, I don’t think that she knew much about what she was saying or doing. That was my judgment. I base that opinion on her actions when I went in, and on the way she answered my questions, and the way she dropped over and lost all interest and seemed to fall into a kind of half slumber. I asked her whether she had any pain, whether she had any difficulty of urination. I asked her about her bowels. I got no satisfactory answers to any of them. I couldn’t tell how long: she had been in that condition of mind, and I could not tell the rapidity of the advancement of the disease; but it was nephritis in - the last stages, and it is usually a disease of slow advancement, comparatively slow. I do not think she had sufficient mental capacity to make a deed or engage in a business transaction involving the disposition of her real estate at the time I saw her or to know the natural objects of her bounty or what property she possessed. Judging from the condition, as I saw her I could not say whether she had sufficient .mentality on the day preceding the date of my visit to have made disposition of her property or engaged in a business transaction. My opinion is that she hadn’t been able to transact business for some time. ’ ’

It will be seen from the foregoing that in material particulars certain testimony introduced on behalf of the respective parties is contradictory. This contrariety exists as to the mental status of the grantor at the time of the making of the deed. "Witnesses for the plaintiff, who were the only ones present on that occasion, testify unequivocally to her mental soundness at that particular time. But for this direct testimony and the absence of any countervailing proof of persons present, we might, on account of the superior intelligence, interest or lack of interest of certain witnesses, be justified in reaching a different conclusion as to grantor’s capacity to make the deed. However, when, in addition to this direct testimony, we take into consideration the chancellor’s superior opportunity in having seen and heard the witnesses, to weigh their testimony, we feel authorized in deferring to his finding in this regard. [Masterson v. Sheahan, 186 S. W. (Mo.) 524; Wavrin v. Wavrin, 220 S. W. (Mo.) 931.]

If the grantor, as the chancellor found, was mentally able to make the deed, it follows, in the absence of any convincing proof to the contrary, that she knew- what property she was conveying and that it was correctly described in the deed and comprised what she intended to give to the plaintiff.

Taking into consideration, therefore, the nature of the property conveyed to plaintiff as compared with that which by the laws of descent and distribution will be left to the daughter of the grantor, the finding of the trial court is in no sense inequitable.

Plaintiff’s contention as to the error of the trial court in the admission of testimony may be disposed of under the general rule that where improper testimony bas been admitted in an equitable proceeding is which we are required to review the entire record, the judgment will not be reversed on that ground, but this court will disregard the incompetent testimony and render such a judgment as in equity and good conscience the pleadings and relevant testimony may authorize. [Woodard v. Stowell, 222 S. W. l. c. 821; Koger v. Black, 220 S. W. l. c. 905; Railroad v. Pub. Serv. Comm., 266 Mo. l. c. 341; Rinkel v. Lubke, 246 Mo. l. c. 392; Home Tel. Co. v. Carthage, 235 Mo. l. c. 658.]

Having found no error justifying a reversal, the judgment of the trial court is affirmed. All concur.


author: RAILEY, C.

text:
    ALBERT HUCKSHOLD v. UNITED RAILWAYS COMPANY, Appellant.
    Division Two,
    December 15, 1920.
    APPELLATE JURISDICTION: Juror: Qualifications: Constitutional Question. Improper questions propounded to jurors touching their qualifications, and answered by them, although objected to as failing to measure up to the constitutional standard, do not confer appellate jurisdiction upon the Supreme Court. A ruling by the trial court which amounts to no more than mere error,, and in no wise involving a construction of the Constitution, does not coufer jurisdiction upon the Supreme Court.
    Appeal from St. Louis City Circuit Court.—Hon. J. Hugo Grimm, Judge.
    Transferred to St. Louis Court of Appeals.

      Charles W. Bates, T. E. Francis and Albert D. Nortoni for appellant.
    The separate promise of the three jurors, Morton, Moser and Rohrkasse, made under oath to respondent’s counsel on the voir dire to stand out in the jury room for their individual opinion infringes appellant’s right assured in Section 28, Article 2 of the Constitution of Missouri, which vouchsafes a “right of trial hy jury as heretofore enjoyed.” (a) This right includes candid, deliberate consideration by the twelve jurors and unanimity of opinion of not less than nine under the present Constitution. Yaughn v. Scade, 30 Mo. 600; Henning v. Hannibal & St. Joe, 35 Mo. 408; State v. Harney, 168 Mo. 182; State ex rel. v. Withrow, 133 Mo. 519; American Pub. Co. v. Fisher, 166 U. S. 468. (b) This right assures also that “the jurors must be left free to act in accordance with the dictates of their own judgment.” State v. Harney, 168 Mo. 189. (c) Any thing which attemuts to take form a litigant a part or parcel of “the substance of that right” is violative of the Constitution. American Pub. Co. v. Fisher, 166 U. S. 468. (d) Nor is the matter waived by failure to challenge the jurors for cause because defendant s entitled under the law to a full panel of.jmrors, impartial, indifferent, untinctured and not committed in advance. Theobald v. St. Louis Transit Co., 191 Mo. 423; Billmeyer v. St. Louis Transit Co., 108 Mo. App. 6.

      A. Walz and Safford & Marsalek for respondent.
    The'questions put to the jurors, on the voir dire, did not violate defendant’s constitutional right of trial by jury. It certainly is not the duty of a juryman to concur in a verdict which he does not believe is right. “The law contemplates that they shall, by their discussions, harmonize their views if possible, but not that they shall compromise, divide and yield for the mere purpose of an agreement.” McPeak v. Ry. Co., 128 Mo. 646; Edens v. Railroad, 72 Mo. 212.
   RAILEY, C.

This action was commenced by plaintiff, in the Circuit Court of the City of St. Louis, Missouri, on January 17, 1918, to recover of defendant, as damages, the sum of $10,000, on account of personal injuries inflicted upon him, during the early morning of December 24, 1917, by reason of the alleged negligence of defendant in the operation of one of its cars on Vandeventer Avenue in said city,, which struck the wagon on which plaintiff was riding. The case was tried before a jury, and the latter returned a verdict in favor of plaintiff for $2,500. Defendant, in due time, filed its motion for a new trial, which was overruled, and the cause appealed by it to this court. Such other matters as may be deemed important, will be considered later.

It becomes necessary, at the outset, to determine whether this court has jurisdiction of the cause. It is intimated, in the record before us, that a constitutional question was mentioned during the progress of the trial below, and that, by reason thereof, this court has jurisdiction to pass upon the merits of the controversy. The alleged constitutional question was attempted to be injected into the case, by counsel for appellant, in the examination of the jurors as to their qualifications, etc. The following occurred at the trial, as shown by the record:

“Thereupon, a panel of eighteen jurors was called into the jury box to be examined as to their qualifications to act as jurors in said cause, and in the course of said examination the following proceeding® were-had, to-wit:
“Spencer W. Morten, being juror number 16, in said panel, having been duly sworn to make true answers to ‘-such questions as may be propounded to him touching his qualifications to act as juror in said cause, answered as follows:
“Me. Sanfoed: Will you sign any verdict that you do not think is right and in accordance with the evidence and instructions?
“Me. Nobtoni: I object to that because it'denies to the defendant the right of the benefit of the- judgment of all the jurors as provided by the Constitution.
“Me. Sanford : Every juror must use his own judgment. It is their duty to stand out for what they think is right as long as they think it is right.
“The Court overruled the objection.
“To which ruling of the court, defendant, by its counsel, then and there duly excepted and still continues-to except.
“The Juror: I think I-can do the right thing in the case.
“Me. Sanfoed: Q. Will you answer that question in the affirmative? A. Yes, sir; I -will take care of it in the right way. I will—
“Me. Sanford: Q. You will always do what you yourself think is right? A. I will in this case.
“Me. Sanfoed: Q. That is what I mean? A. Yes, sir.
“Ernest J. Moser, being juror number 17 in said panel, having been duly sworn to make true answers to such questions as may be propounded to him touching his qualifications to act as juror in said cause, answered as follows:
“Me. Sanford: Q. If you find in favor of the plaintiff, will you award him the full amount necessary to constitute what you find from the evidence in this case to be a fair and reasonable compensation to him for his injuries? A. Yes, sir.
“Me. Noetoni: I object to that for the reason that it commits the juror to stand for a verdict upon his own individual judgment without regard to the rights of the defendant to have the benefit of the opinion of the other jurors in accordance with the Constitution. ‘
“The Court: The answer may stand. Objection overruled.
“To which ruling of the court defendant, by its counsel, then and there duly excepted and still continues to except.
‘*Mr. Sanford: Q. What is your answer? A. Yes, sir.
“And such juror No. 17, Ernest J. Moser, sat upon the jury as one of the twelve which tried the case.
“Edward F. Rohrkasse, being juror number 18 in said panel, having been duly sworn to make true answers to such questions as may. be propounded to him touching his qualifications to act as juror in said cause, answered as follows:
“Me. Safford: Q: After hearing the evidence and the instructions and the argument of the other jurors, after you go into the jury room, will you, if you find in favor of plaintiff, when it comes to signing a verdict, or passing on it, award him such sum as you find from the evidence in this case and the instructions to be a fair and reasonable compensation to him for his injuries?
“Me. Nortoni: Object to that question because, while it contains the proposition that after talking the matter over and considering it with the other jurors, it, nevertheless, commits the juror to stand out, notwithstanding the concurrent judgment provided, for by the Constitution; to stand out for a judgment which is his own individual judgment. We say it is violative of the defendant’s constitutional right to have a trial by jury as provided by the Constitution.
“Mr. Saeeord: We contend that no juror ought to sign a verdict unless it meets with his own individual approval. Otherwise, whenever seven would concur the other five would be bound to sign the verdict, irrespective of whether they thought it was right or not.
“The Court: I think that the juror in forming his opinion and deciding whether to adhere to his opinion or to change his opinion has a perfect right to consider whether six or seven or eight of the other jurors are of a different opinion. He has a right to take that into consideration. But when he makes up his mind finally he ought to vote according to his own judgment. I think that is the proper view of the duty of a juror. He should be willing to listen to the counsel and the argument of the other jurors, and ought to be willing to consider the fact that a majority of the others think differently than he, but he should make up his. own opinion and should vote in accordance with his own judgment. I think that is his duty. I cannot make my views any clearer than that.
“To which ruling of the court defendant, by its counsel, then and there duly excepted and still continues to except.
“The Court: I think with the explanation of the-court the attitude of the court ought to be clear.
“Mr. Rohrkasse : Yes, sir; I will use my own judgment.
“And such juror No. 18, Edward F. Rohrkasse, sat upon the jury as one of the twelve which tried the case.
“Thereupon twelve jurors, including said Nos. 17 and 18, were selected and duly sworn,” etc.

The foregoing matters are also incorporated in^ the motion for a new trial.

Has this court acquired jurisdiction over the cause, oh the ground that some real constitutional right of defendant has been violated by the action of the trial court heretofore mentioned? If so, then practically every case tried in the lower court before a jury can be so manipulated as to inject into the case some alleged constitutional question in the examination of jurors as to their qualifications to serve, etc. If this kind of practice should be permitted to pass muster here, there would be but little work for the several courts of appeals, as this court would soon be overwhelmed with cases like the one at bar, in which there is not the slightest merit as to the alleged constitutional question presented. It is not claimed that any of the jurors.were not qualified to sit in the case, aside from what occurred in their examination aforesaid. If the questions propounded by counsel for plaintiff,"and answered by the jurors, were improper, the action of the court in permitting same could have been reviewed by the Court of Appeals, as well as this court. If the foregoing is sufficient to cast jurisdiction upon this court, then every adverse ruling against defendant, in the admission or rejection of testimony, and every adverse ruling against it, in the giving or refusal of instructions, might, with the same propriety, be claimed as an infringement of defendant’s constitutional right of trial by jury. The question of jurisdiction, on account of the alleged constitutional points presented, is without merit and cannot be sustained. [Bealmer v. Fire Ins. Co., 220 S. W. l. c. 957-8; McManus v. Burrows, 280 Mo. 327, 217 S. W. l. c. 514; State ex rel. v. Woodman, 193 S. W. 570; Garey v. Jackson, 184 S. W. l. c. 983; Carson v. M. K. & T. Ry. Co., 184 S. W. 1039; Kemper Mill. Co. v. Mo. P. Ry. Co., 178 S. W. 502; Stegall v. Pigment & Chem. Co., 263 Mo. 719; Canning & Packing Co. v. Evans, 238 Mo. 599; Sublette v. Railroad, 198 Mo. 190.]

The foregoing authorities, when applied to the facts heretofore set out, leave no room for cavil or doubt as to the plain duty of this court'to transfer the case to the St. Louis Court of Appeals, which is accordingly done.

White and Mozley, CC., concur.

PER CURIAM:—The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMSON, J.

text:
    BESSIE ADELMAN v. CLEM B. ALTMAN et al.; MARTIN J. CARROLL and KANSAS CITY, Appellants.
    Division Two,
    December 20, 1920.
    1. APPELLATE JURISDICTION: Constitutional Question: Eliminated by Instruction and Verdict. A building was in process of construction, and the contractor had piled a large quantity of material on the street in front of the building; an automobile driven by a drunken driver ran down the plaintiff as she was passing around the pile of material, and she sues the contractor and city for damages. The ordinance provided that “no person shall leave, place or deposit, or cause to be left, placed or deposited, in or upon any sidewalk, any article or thing whatever so as to obstruct or otherwise encumber the same.” The sidewalk had been excavated out to the curb line, so that there was no sidewalk in front of the building. Held, that an instruction telling the jury that “if the sidewalk had been excavated out to the curb line, so that there was no longer any sidewalk there, then the said ordinance relating to obstructions on sidewalks would have no application to the situation and would constitute no ground of recovery whatever in this action,” and a verdict for plaintiff against the contractor and city, entirely' eliminated the ordinance from the case, and with it eliminated the question of the constitutionality of said ordinance, and consequently the Supreme Court does not have jurisdiction on the ground that the validity of the ordinance is still a question in the case.
    2. -: -: --—: Presumption In Favor of Jury. Where the instruction told the jury that, if they found that there was no sidewalk in front- of the building, a certain ordinance relating to the obstruction of sidewalks had no application to the case and would constitute no ground for recovery, and the evidence is uncontradicted that there was no sidewalk, the court will presume that the jury so believed and so found, and thereby eliminated said ordinance from the case, although their verdict was for plaintiff.
    Appeal from Jackson Circuit Court.—Hon. Thomas J. Seehorn, Judge.
    Transferred to Kansas City Court of Appeals.

      E. M. Harber and Francis M. Hayward for appellant.
    A constitutional question is raised by the answers of appellant, Carroll, and respondent, Altman, alleging that Section 604 of the Revised Ordinances of Kansas City, relied upon by plaintiff in her petition, was unconstitutional because in conflict with Section 1 of Fourteenth amendment to Constitution of the United States and Sections 21 and 30, Article 2, of the Constitution of Missouri, and raided by respondent, Altman, and appellants, Kansas City and Carroll, when such ordinance was offered in evidence by the plaintiff, and admitted by the court over such objections, and further raised by the instructions to the effect that such ordinance was invalid, such instructions being refused by the court. Joplin Mining Co. v. City of Joplin, 48 Mo. App. 601; Barber Asphalt Pav. Co. v. Ridge, 169 Mo. 376.

      Park & Brown and Achtenberg & Rosenberg for respondent.
    (1) Contentions that Sec. 604, Revised Ordinances of Kansas City, is unconstitutional are frivolous. (2) Ordinance Section 604, forbade the leaving, placing or depositing in or on any sidewalk of any article or thing whatever so as to obstruct or encumber the same. Appellant Carroll in violating this ordinance became liable for all damages caused by his disobedience of this law. Jackson v. Railway, 157 Mo. 621; Miller v. Engle, 185 Mo. App. 558; Stone v. Leritz, 182 Mo. App. 315; Peperkorn v. Transfer Co., 171 Mo. App. 709. (3) Appellant Kansas City was negligent in permitting this condition. Ballentine v. Kansas City, 126 Mo. App. 130; Townsend v. Joplin, 139 Mo. App. 394; Barker v. City, 155 Mo. App. 390; Turner v. Railroad, 138 Mo. App. 143.
   WILLIAMSON, J.

Plaintiff, claiming to have been struck and injured by an automobile at the intersection of Troost Avenue and Fifteenth Street in Kansas City, Missouri, sued Henry Sieben, Ralph J. Smiley, Martin J. Carroll, Clem B. Altman, Frank G. Altman and Kansas City for damages. The suit as to Frank G. Altman was abated by his death. As to Clem B. Altman the plaintiff took an involuntary nonsuit. The jury returned a verdict in favor of Henry Sieben. Plaintiff recovered judgment against Smiley, Carroll and Kansas City in the sum of $1600.

The Altmans were the owners of a building in process of construction at the southeast corner of Troost Avenue and Fifteenth Street. Carroll was the contractor who was erecting the building. In so doing he had piled a large quantity of material on the south side of Fifteenth Street in front of the building. Sieben was the owner of the automobile in question, and Smiley was the drunken driver of the automobile who ran the plaintiff down while she was passing around the pile of material above mentioned in Fifteenth Street. Carroll and Kansas City have appealed.

Section 604 of the Ordinances of Kansas City was introduced in evidence by the plaintiff. Carroll and Kansas City assert error in this behalf for the reason, as they allege, that said ordinance is unconstitutional. In the view we take of this case, no further statement of the facts is necessary.

If we have jurisdiction of this appeal it is because, and only because, a question of constitutional law is involved.

This question relates to the constitutionality of Section '604 of the Ordinances of Kansas City. This section is as follows.

“Sec. 604.—Obstructions on SideivalJc.—No person shall leave, place or deposit,” or cause to be left, placed or deposited, in or upon any sidewalk, any article or thing whatever so as to obstruct- or otherwise encumber the same;’ provided, that this section shall not be so construed as to prevent merchants or manufacturers, while receiving or- shipping their goods, wares or merchandise, from occupying for such purpose one-half of the sidewalk with such goods, wares or merchandise; but the same shall, in no event, remain longer than two hours upon such sidewalk. ’

The supposed constitutional question was promptly and properly raised and was kept alive throughout the case by appropriate steps.

It will be noted that the ordinance in question relates solely to obstructions upon sidewalks. At the request of appellant Carroll the trial- court gave to the jury Instruction “D” which is as follows:

“If you believe and find from the evidence that the south sidewalk on Fifteenth Street in front of the Altman property had been excavated out to the curb line, so that there was no longer any sidewalk there, on and prior to January 9, 1916, then the court instructs you that Section 604 of the Revised Ordinances of Kansas City, relating to obstructions on sidewalks, would have no application to the situation then existing, and would constitute no ground.- of recovery whatever in this action. ’ ’

If under the evidence it appeared that the sidewalk had been excavated out to the curb line, so that there was no sidewalk in front of the Altman property at the time the plaintiff was injured, then, by this instruction, Section 604 was entirely eliminated from this case. It is undisputed in this record that this sidewalk had been so excavated. We must, therefore, presume that the jury so believed and found.

“We will not speculate on wliat the jury might do, or airily conjecture this or that. We stand on the proposition that the jury are presumed, absent anything to the contrary appearing, to obey their oaths and bring in a verdict according to the evidence. Being men of sense and acting under an oath, freshly taken, they are entitled to that presumption. ’ ’ Shinn v. United Railways Co., 248 Mo. 173, l. c. 182. [See also, Powell v. Railroad, 255 Mo. 420, l. c. 456.]

With Section 604 of the ordinances thus eliminated from this case, the constitutional question is also eliminated.

Absent a constitutional question, our jurisdiction is also absent.

It inevitably follows that this case should be transferred to the Kansas City Court of Appeals.

It is so ordered.

All concur.