author: LAMM, P. J.

text:
    LEE MERIWETHER v. PUBLISHERS: GEO. KNAPP & CO., Appellants.
    Division One,
    December 23, 1909.
    1. LIBEL: Malice: Matter for Jury. Where fair-minded men may take different views of the effect of the evidence on the issue of malice, it becomes a fact to he determined by the jury, and is not merely one of law to he determined by the court.
    2. -: -: -: Inadvertence: Disavowal. Defendant’s disavowal of malice, or its assertion of inadvertence in failing to publish the accessible antidote along with the poison, cannot be permitted to take the issue from the realm of fact and make it a question of law.
    3. -: -: How Determined. Malice, like fraud, or any other matter resting in intent, is not visible to the eye, nor can it be felt by the finger. It may be deduced from words, acts or conduct which among plain people, in the common affairs of life, spell ill-will, point to wrongful intent to wound the sensibilities, break the manly pride and self-respect of an individual, and put him in a pillory of shame.
    4. -: Demurrer: Omission. If the publication omit any matter which would have told in the plaintiff’s favor, it is a question for the jury whether the omission was material; and a demurrer, under such circumstances, should be overruled.
    5. -: Former Adjudication: Materiality of Reply Omitted from Publication. Plaintiff had brought a libel suit against defendant publishers of a newspaper, and had applied for a change of venue, and thereupon defendant published the petition, and its own answer pleading justification and mitigation, but omitted to publish plaintiff’s reply then on file, and this last publication is the basis of this libel suit. Held, that the ruling of this court on the former appeal in this case that the replication was material to a proper understanding of that judicial proceeding, and that the question of its materiality to a full and fair understanding of that proceeding was not one of law for the court, became on the second trial and on this second appeal the law of the case, and is now res adjudioata. But even if the point were open, it would be held that a failure to publish the replication, along with the voluminous answer pleading justification, was a material omission for the consideration of the jury.

      G. -: Evidence: Abandoned Answer. The pleadings of a party, although abandoned, are admissible ifi evidence, where they contain admissions or statements against him. .Where defendant in a libel suit pleaded, by way of justification, the truth of the charges, but afterwards abandoned that plea and stood alone on the question of privilege, it is not error to permit plaintiff to read to the jury defendant’s abandoned answer.
    -: -: -: Reiteration: Malice. Reiteration of libel is competent proof. It tends to overcome the idea of honest mistake, and to establish malice.
    S. -: —-: Deposition in Another Case: As Affecting Knowledge of Falsity of Charge. A deposition by a witness in another suit by the same plaintiff against the same defendant, given in behalf of defendant before defendant’s plea of justification was filed in this, and contradictory of one of the libelous charges in this, is competent evidence to bring home to defendant knowledge of facts and circumstances tending to establish plaintiff’s innocence of the charge. Reiterating the truthfulness of a charge known to be false, or in regard to which the defendant was in possession of facts tending to show it was false, is competent on the issue of enmity and malice.
    9. -: Instruction: Comment on Evidence. Where the only issue in the case was whether or not defendant was actuated by malice in omitting to publish plaintiff’s reply in a former libel suit denying its published answer of justification, an instruction, clearly setting forth the law of malice pertaining to such omission, is not objectionable as a comment on the evidence, or as singling out one item of evidence and laying undue stress upon it.
    Appeal from St. Louis County Circuit Court. — Hon. John W. McElhinney, Judge.
    AFFIRMED.

      B. L. Shackleford and Lehmann & Lehmann for appellant.
    (1) Tire evidence is conclusive that tire omission to include the replication in the report of the proceedings in court was not malicious hut by inadvertence. (2) The replication was in no sense material to a proper understanding of the judicial proceedings. Blondeau v. Sheridan, 81 Mo. 54'5; Sheehan v. Sims, 36 Mo. App. 224; Turner v. Butler, 126 Mo. 131; Howell y. Reynolds Co., 51 Mo. 154; Nelson v. Wallace, 48 Mo. App. 193; Crow v. Railroad, 57 Mo. App. 135, (3) Tire question of the materiality of the replication to a full and fair publication of the proceedings was one of law for the court. Heller v. Publishing Co., 153 Mo. 205; Ukman v. Daily Record Co., 189 Mo. 378. (4) The original answer of defendant and the testimony of the witness G-ebhardt given at the trial of the' first case were irrelevant to the issues herein. Snyder v. Railroad, 112 Mo. 527; Morris v. Lachmann, 68 Cal. 109; Gilmore v. Borders, 2 How. (Miss.) 824; Shirley v. Heathey, 44 Tenn. —. (5) The fourth instruction was a comment upon the testimony and singled out one item of evidence and laid undue stress upon it. Swink v. Anthony, 96 Mo. App. 420; Barr v. City of Kansas, 105 Mo. 550. (6) The seventh instruction was erroneous in telling the jury they might consider in determining the motive of defendant in making the publication complained of, “any information concerning or relating to the subject-matter of the libel which defendant received before the publication complained of and on which you may believe that it acted,” when there was no evidence as to any such matter in the case. Friedman v. Publishing Co., 102 Mo. App. 683; Smith v. Couch, 117 Mo. App. 267.

      A. E. L. Gardner for respondent; Lee Meriwether pro se.

    (1) The evidence being conclusive that defendant bore toward plaintiff a remorseless, vindictive, long-continuing hatred, it was for the jury to say whether the failure to publish plaintiff’s replication was due to inadvertence, or to malice. Meriwether v. Knapp, 211 Mo. 225. (2) The question of the materiality of the replication to a full and fair publication of the proceedings was one of fact for the jury. Meriwether v. Knapp, 211 Mo. 225; Odgers on L. & S. (4 Ed.), 298. (3) When a publisher is advised of his error and hesitates to correct it the ease arises to one of premeditated wrong, of settled and determined malignity towards the party injured. Bigney v. Yan Benthuysen, 36 La. Ann. 38; 18 Am. and Eng. Eney. Law (2 Ed.), 1013. Gebhardt’s testimony advised defendant in April, 1904, that the “Grebhardt” charge was untrue; defendant’s answer filed three months later, June 23, 1904, repeated the Gebhardt charge; both, therefore., were relevant to the issues herein because, taken together, they show that defendant not only “hesitated to correct ’ ’ its false accusation but actually repeated it, after it knew the accusation was false. Palmer v. Mahin, 120 Fed. 737; Kansas City Star v. Carlisle, 108 Fed. 356. Abandoned answers are admissible in evidence when they contain admissions o,r statements of facts against the interest of the party in whose pleadings they appear. Walser v. Wear, 141 Mo. 464; Donzelot v. Rawlings, 58 Mo. 77; Overton v. White, 117 Mo. App. 605. Evidence of utterance of other slanderous words is admissible whether made before or after the publication complained of, and the fact that they are contained in a pleading would not render them inadmissible. Callahan v. Ingram, 122 Mo. 355; Hall v. Jennings, 87 Mo. App. 627. The filing of an answer reiterating the Gebhardt charge three months after Gebhardt himself swore the charge was untrue showed malice; consequently, Gebhardt’s testimony and defendant’s original answer were admissible; anything that defendant ever said or did with reference- to plaintiff may be urged as evidence of malice. Hall v. Jen-nifigs, 87 Mo. App. 587. Evidence that defendant could have ascertained from his own witness that the matters published were false justifies an instruction on punitive damages, on the ground of gross carelessness. Lamms v. Druggist Co., 20 Mo. App. 12. (4) While it is not necessary for a plaintiff to prove the falsity of a libel when there is no plea of justification, yet it is' always competent for him to do so to enhance the damages. Palmer v. Mahin, 120 Fed. 737. (5) The fourth instruction is based upon the mandate of this court; when the case was here on first appeal the court said that an instruction should have been given to the jury on the question whether the omission of the replication was due to inadvertence, or was due to a desire to mislead the public, etc. The instruction here complained of by defendant uses almost verbatim the language of this court. Meriwether v. Knapp, 211 Mo. 225.
   LAMM, P. J.

— Libel. Once here on appeal from a $10,000 judgment and reversed and remanded for a new trial (Meriwether v. Knapp & Co,, 211 Mo. 199), the cause comes up again from a judgment for $6,000. There is no call to restate the facts, since the former opinion should he read with this, and they sufficiently appear there. When the case went down plaintiff stood on his old petition; hut defendant filed an amended answer eliminating matter of justification and mitigation. The gist of that answer was that it published a fair newspaper report of judicial action in a matter of public interest, viz., a change of venue in a former libel suit between the same parties. In that publication it printed, as for an item of news,, Mr. Meriwether’s petition, its own answer (containing new matter) and plaintiff’s affidavit for a change of venue, hut omitted to print plaintiff’s replication denying the new .matter. The present libel is predicated of matter contained in defendant’s answer, published as aforesaid, and the defence (as said) is that the publication was fair, impartial and made without malice, as the report of a judicial procedure, and, hence, privileged. -

Any new facts, material to an understanding of errors now assigned, will appear in the opinion.

I. When here before, it was ruled that a colorless publication of the pleadings and of the application for a change of venue, made at the time judicial action was taken upon said application, if made without malice, was privileged’ as an item of news in a case of public interest. It was there held that: “The report might well include matter descriptive of issues in the case, the parties thereto, the steps already taken and the application for a change of venue. What fairer way of describing the cause and the contention of litigants leading up to the application for a change of venue, than by a colorless publication of the pleadings and'application to change the venue as items of news? No average intelligent reader could fairly consider such publication an independent charge in a newspaper of the facts alleged in the pleadings. But, in this case, defendant did not publish the replication of plaintiff denying the averments of the answer. We cannot say as a matter of law this omission meant malice. If it was omitted for the purpose of misleading the public into' believing the averments of the answer were not contradicted by plaintiff, it would certainly bear a malicious interpretation. But if omitted by inadvertence, or because defendant believed the allegations of the petition and those of the answer taken together showed .a controversy in court on all material facts alleged, we cannot say as a matter of law such omission was malicious. That question should have been submitted to the jury under proper instructions.”

At the present trial, plaintiff filed a reply to defendant’s amended answer, charging as malicious the omission to publish plaintiff’s reply denying the alleged libelous charges in the answer of defendant in the former case; that the publication was not a fair and impartial newspaper report of judicial proceedings in the first suit but was partial, malicious and not privileged. To sustain such issue plaintiff introduced testimony of the character reviewed in the former case, though of less volume. It was shown that the reply was on file at the time defendant published said pleadings ; that the answer contained grave charges impugning his moral integrity and that the reply denied them; that such denial was accessible to defendant in the files of that case and was not published. Plaintiff also put in proof tending to show that the charges were false. Defendant contented itself with introducing testimony tending to show that the failure to publish the reply was an inadvertent oversight and without malice.

In this condition of things it is argued that the court should have taken the case from the jury on the theory there was no proof of the charge of malice. Defendant tendered a peremptory instruction in the nature of a demurrer to the evidence. It was refused and the point was saved. Is there soundness in the point? We think not. We ruled in effect, in the former case, that plaintiff made a case for the jury on the issue of malice; that two views could be taken of. the effect of the evidence by fair-minded men, and that the issue became one of fact to be determined by the triers of fact and not one of mere law to be settled by the court. The only new evidence at the present trial was defendant’s-testimony tending to show that its omission to publish the replication was a mere inadvertence, and that it intended to publish all the pleadings. But that testimony was for the jury with the rest of it. It would not do to let a defendant’s mere disavowal of malice or assertion of inadvertence or fair-mindedness take the issue from the realm of fact and make of it a question of law to be determined by the judge. Malice, like fraud, or any other matter resting in intent, is not visible to the eye nor can it be felt by the finger. It may be deduced from any words, acts or conduct which among plain people in the common affairs of life are taken to spell ill-will,’point to a wrongful intent to wound the sensibilities, break the manly pride and self-respect of an individual and put him in a pillory of shame. While defendant on this score puts itself in a better attitude than at the former trial, yet the question of libel or no libel was still one for the jury under our Constitution, when, as here, there could be put one or the other construction upon all the testimony in the case. Says Odgers (Odgers, Libel and Slander, 4 Eng. Ed., p. 298): “ ... but if it [the report] omit any fact which would have told in the plaintiff's favor, it will be a question for the jury whether the omission is material.” [See, also, American Pub. Co. v. Gamble, 115 Tenn. 663.] And so we ruled in the former case and rule now. It was not error to refuse the peremptory instruction.

II. Citing oases to the effect that, as a mere convenient rule of practice, a reply will be deemed in where the cause was tried out on the theory one was filed, or as if one was filed, and using that doctrine as a postulate to reason from, counsel insist the replication was not material to a proper understanding of the judicial proceedings. They argue, moreover, that the question of the materiality of the replication to a full and fair publication of the proceedings was one of law for the court.

Those questions were also in the former case and were ruled adversely to defendant. „ Therefore they stand foreclosed and no longer open. When sent down for retrial on such ruling it became the law of this case, res judicata (Gracey v. St. Louis, 221 Mo. 1, and cases cited).

But if open and to be presently determined, we would rule them as we did before. The situation presented is unusual and challenges a close eye. Here was a controversy between an individual and a newspaper of high standing and great influence — the individual asserting he had been libeled, for that he was falsely charged in divers specifications bristiing with details with having an itching palm, a vendible honor and other earmarks of gross moral tnrpitnde, and that such false charges were blazoned abroad in its news columns and read at the firesides of a hundred thousand homes. Accordingly he goes into a court of justice with his complaint. He is met with an answer admitting the publication but averring the charges are true. Not only so, but that answer pleaded new matter by way of mitigation which rubbed in the poison, or drove home the barb of the libel. If the things alleged to have been done and said by Meriwether were well laid at his door, then instead of being a public man of sincerity, he was a sort of Pecksniff — one of a class of canting hypocrites

“"Who stole the livery of the court of Heaven To serve the devil in,”

a mere whitened sepulchre full of dead men’s bones: But Meriwether quickly did what he could to set himself right and save his reputation by denying in writing the allegations of the answer and filing his denial in court. Assuming the action of the court on his subsequent application for a change of venue was such judicial procedure in a matter of public interest as would authorize the publication of the voluminous pleadings in the case, defendant, to enlighten the public, publishes the application for a chánge of venue and the pleadings, but in doing so omits a part favorable to plaintiff, to-wit, his denial of the new charges. Does it require reasoning to demonstrate that the trained mind of a jurist, reading that newspaper, might not be misled by the absence of plaintiff’s denial, while to the lay mind the matter took another color? The case allows a homely illustration by way of hypothesis: Time, the breakfast hour, December 15, 1903: Scene, the home of the Smiths in Portland, Westmoreland or Hortense Places: Dramatis Personae, Smith and wife. She (laying down the Republic, her favorite morning paper) to Smith opposite (coffee, bacon and hot cakes between): “I see, my dear, Mr. Meriwether sued our paper for libel. This morning’s paper says all it said at the start is true and a great deal more dreadful stuff is true and that he is afraid to try the ease in St. Louis. He says our paper has too much influence over us all. ’ ’ Then he: “What does Meriwether have to say about the new charges against him?” Then she: “Not a thing that I can find. They publish the whole story this morning. It looks quite bad for him, doesn’t it?” Now, if Smith was a lawyer, learned in the rules of practice in courts, he would tell his wife that the present silence of Mr. Meriwether in court on the new charges did not amount to a pinch of snuff or the snap of his fingers; that in due time and apt form Meri-. wether would traverse those allegations and put himself upon the country. But if not a lawyer, he might well agree with his spouse that Mr. Meriwether was in a bad way and had nothing to say.

It is evident that a rule adopted for convenience in the administration of justice and well understood by persons skilled in court technicalities is out of place when applied to the everyday affairs of life, and no court could be justified in ruling (as a matter of law) that the omission to publish plaintiff’s denial of the grave charges in the answer was immaterial on the issue of malice, where defendant seeks to shelter itself behind the bulwark of being privileged to make a fair and impartial report of a proceeding in court.

The point is ruled against defendant.

III. Over objection, plaintiff was permitted to read to the jury defendant’s abandoned answer, and over timely objection, the testimony of one Gebhardt given at the trial of a former libel suit based on the same charges was read (Meriwether v. Knapp & Co., 120 Mo. App. 354). Error is assigned in that behalf. In our opinion there is no soundness in either contention. This, because:

(a) Reiteration of libel is competent proof. The gange of exemplary damages as a deterrent to wrongdoers .rises precisely as different degrees of settled ill-will and a rooted purpose to injure may exist. Reiteration tends to overcome the idea of honest mistake, inadvertence, mere fugitive spasms, ebullitions, or effervescence of wrath and the whole brood of mitigating circumstances, and to establish malice and mark the case as one punishable with little or much smart money. It is the doctrine of Missouri courts that the pleadings of the party, although abandoned, are admitted in evidence where they contain admissions or statements against his interest. [Dowzelot v. Rawlings, 58 Mo. l. c. 77; Walser v. Wear, 141 Mo. l. c. 463-4; Hall v. Jennings, 87 Mo. App. 627.]

Since the motive lying behind the spoken or written word lies at the foundation of malice, a defendant is permitted to prove his motives were good. Conversely plaintiff may show them bad. In this case defendant at one time pleaded, by way of justification, the truth of the charges, but presently it abandoned its plea of justification and stood alone on the question of privilege. Undoubtedly such abandonment was defendant’s right. But if in the exercise of that right such abandonment tended to show lack of good faith in the charges or inability to prove they were true, then the abandonment becomes a fact to be considered on the issue of malice. From this viewpoint, it was proper to show the fact of abandonment, ergo, the former answer was competent proof.

(b) Was Gebhardt’s testimony relevant? Learned counsel for defendant argue it was not. One of the libelous charges was to the effect that Mr. Meriwether tried to procure the withdrawal of Gebhardt as a candidate for the office of Marshal of the city of St. Louis at an election shortly to be held (he being a candidate of plaintiff’s own party and an advocate of its principles) in order to consummate a pending deal in municipal politics and line Ms pockets with, an offered bribe. This charge was involved in tbe former libel suit between plaintiffs and defendant reported in tbe 120 Mo. App., supra. At a certain time during tbe pendency of that case defendant caused tbe deposition of Gebbardt to be taken. Gebbardt did not testify to tbe truth of that charge as made, but to tbe contrary. After that testimony was given by Gebbardt conveying notice to defendant that Gebbardt repudiated tbe charge as made, defendant filed its answer in tbe present cause containing its plea of justification on June 23, 1904. Tbe theory on which Gebbardt's testimony was offered and admitted was to bring knowledge home to defendant of facts and circumstances tending to establish plaintiff’s innocence of tbe Gebbardt charge. We think tbe testimony competent to bring home such knowledge or as tending that way. It bears on tbe issue of defendant’s bona fides. It must not be overlooked that tbe main proposition in the present case is malice or tbe lack of it in omitting to publish tbe replication. On such issue tbe state of mind of defendant at tbe time of tbe omission became of tbe essence of things. For instance: If A and B are friends and A accuses B of a given malicious act, tbe circumstance of a genuine existing friendship between A and B would weigh heavily in tbe scale in favor of B’s innocence. But, contra, if A and B are enemies that fact would tend tbe other way. So, if James shoot Peter with a pistol loaded with powder and a leaden bullet, and (being indicted) pleads a defense of accident or misadventure, would any court exclude testimony tending to show that James at tbe time bad a mind fatally bent on mischief and devoid of social duty towards Peter? It must be held that reiterating tbe truthfulness of a charge known to be false, or in regard to which tbe party was in possession of facts tending to show it was false, is competent on tbe issue of enmity and malice. [Wagner v. Scott, 164 Mo. 289.] We are referred to two well-reasoned cases elsewhere, sustaining that view of the law: Palmer v. Mahin, 120 Fed. 737, and Kansas City Star v. Carlisle, 108 Fed. 244. The assignment of error is disallowed.

IY. Two of plaintiff’s instructions are complained of, viz.:

“4. The jury are instructed that in determining whether the report of the proceedings in court, as mentioned in these instructions was a complete and accurate report, you may consider the evidence, if any, tending to show that prior to defendant’s publication of said proceedings there was on file in the circuit court of the city of St. Louis, and accessible to defendant, plaintiff’s reply denying defendant’s charges in its answer contained.
“If, after considering this point, you. believe defendant omitted to publish plaintiff’s reply, not from mere inadvertence, or from a sincere belief that the publication of said reply was not of importance, but that it was omitted for the purpose of misleading the public into believing that the charges against plaintiff made in defendant’s answer were not contradicted by plaintiff, then you will be warranted, if you see fit, in concluding that the omission to publish said reply was due to malice on defendant’s part.
“Should you so conclude, and if you believe from the evidence that plaintiff’s reply was necessary to a fair and impartial understanding of the proceedings purporting to be reported by defendant, then a report which omitted said reply was not a fair and impartial report, and your verdict should be against defendant’s claim that the article complained of was published as a substantially fair and impartial report of the pleadings and proceedings in the cause then pending in court.
“7. The court instructs the jury, if your verdict is for plaintiff in addition to compensatory damages you may, if you think proper, under ail the facts and circumstances shown in the evidence, assess in plaintiff’s favor such further sum as exemplary or punitive damages, or smart money, as in your judgment, considering all the facts and circumstances in the case in evidence, you believe should be assessed against defendant by way of punishment for the act complained of, and to serve as a warning to prevent defendant and others from being guilty of a like a.ct.
“And in determining such damages you may take into consideration the motive or purpose of defendant in making the publication as you may find it from the evidence; and in determining the motive or purpose you may consider any information concerning or relating to the subject-matter of the libel which defendant received before the publication complained of and on which you may believe that it acted, and any other publication of defendant as shown in the evidence, whether published before or after the publication of December 15th, 1903.
“And, weighing all these matters, you may award plaintiff such exemplary or punitive damages, if any, as you may deem proper.”

It is argued that instruction numbered 4 is bad for that it was a comment upon the testimony and singled out one item of evidence and laid undue stress upon it. We do not entertain that view. In the case at bar, the distinguished counsel representing defendant in this and the former ease labored diligently to convince us then that their client was invulnerable to libel under the facts because armed from head to foot in a panoply of privilege. They labored to have us rule, and we did .-rule, that defendant, if not actuated by an evil purpose, could seize the opportunity of a hearing on an application for a change of venue to publish a fair judicial report of that proceeding, pleadings and application inclusive. But it appears that a part of those pleadings favorable to plaintiff was omitted, and we sent the case down to be tried to ascertain whether that omission meant malice. Under such circumstances, the instruction followed the directions of our mandate. We cannot very well hold that it was erroneous to do the very thing we told the trial court it should do.

It is argued that the seventh instruction is erroneous for that it tells the jury they might consider in determining the motive of defendant in making the publication “any information concerning or relating to the subject-matter of the libel which defendant received before the publication complained of and on which you may believe it acted. ’ ’ The vice in this instruction is said to he that there was no evidence as to any such matter in the case. We are unable to agree with counsel. There certainly was testimony, some of it favorable to defendant and some not, relating to information received prior to publication.

The case was well pleaded and well tried. Three juries have found for plaintiff, and that is some evidence of merit. Let the judgment he affirmed.

All concur

Woodson, J., in result. Valliant, J., not sitting.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    LEWIS MYHER, Appellant, v. JOHN H. MYHER et al.
    Division One,
    December 23, 1909.
    1. EVIDENCE: Location of Land in County: Will. Oral evidence is competent to show that land described in the will by Government numbers only, lies in the county.
    2. -: -: Judicial Notice. The court will take judicial notice that lands described by section, township and range lie in a certain county and in this State. It takes judicial cognizance both of land descriptions in the Government surveys and of the political subdivisions of the State, such as counties.

      3. WILL: Surface to One Devisee: Coal to Another: Complete Disposition. Where the will gives “the surface” of certain lands to certain children and “the coal under the lands” so devised to another child, together with “the opal shaft and not to exceed one acre surrounding the same and the road to the shaft,” it disposed of all the estate therein, and testator did not die intestate as to any of it.
    Appeal from Adair Circuit Court. — Hon. Nat. M. Shelton, Judge.
    AeEIRMED-.
    • Campbell & ElHson and A. Honeghy for appellant.
    (1) Every will shall be in writing. R. S. 1899, sec. 4604. We gather from a reading of the above-section that the will, the whole of it, must he in writing. Had the lawmakers intended that a will should rest part in writing and part in parol, or extrinsic matters, it is fair to presume that they would have said so; having said that it should he in writing, then, parol evidence cannot he admitted to add to. In re Lynch’s Estate, 142 Cal. 373; William Exrs., Am. Notes, p. 299; 30 Am. Eng. Ency. Law, p. 673; Fitzpatrick v. Fitzpatrick, 36 Iowa 674. It is not disputed hut that under certain circumstances words may he supplied, hut only when the context of the will clearly shows what words were' omitted. In all such eases the court acts upon the assumption that the contingency or state of circumstances which was present in the testator’s mind was imperfectly described, and hence, when the testator himself has overlooked a particular event, which, had it occurred to him, he would have probably guarded against, the omission cannot he supplied by inserting the' necessary clause; to do so would he too much like making a will for him, rather than constructing one already made. . 30 Am. and Eng. Ency. Law, p; 69-1; Bradley v. Bradley, 24 Mo. 315; Fitzpatrick v. Fitzpatrick, supra. From the context-of the Myher will none can say what word's, if any, were omitted, that is, what state? which county? whose land he intended? That can only he determined,- if at all, by the introduction of extrinsic matter, and extrinsic evidence is only admitted to remove an uncertainty in any instrument of writing when the uncertainty is created hy extrinsic matter, and never when the ambiguity appears on the face of the instrument, and may just as well refer to or mean one of many things. 1 Greenleaf Ev. (Re-dfield’s Ed.), sec. 297; Starkie Ev. (8 Ed.), sec. 652; Davis v. Davis, 8 Mo. 58, 24 Mo. 315; Fitzpatrick v. Fitzpatrick, supra; Teague v. Sowder, 114 S. W. 488. There is not even a reference in the will to the land as “my land” or anything to indicate that Myher intended to will land that belonged to him, and while it has been said that a man is not presumed1 to go through that idle ceremony of devising that which did not belong to him, yet this presumption is' no part of a ‘will, and the court cannot write it into one. In re Lynch’s Estate, supra; Fitzpatrick v. Fitzpatrick, supra; Martin v. Kitchen, 195 Mo. 489; Mudd v. Dillon, 166 Mo. 120; Hardy v. Mathews, 38 Mo. 124; Campbell v. Johnson, 44 Mo. 250; Johnson v. Fisher, 56 Mo. App. '555; Carter v. Holman, 601 Mo. 304; Ford v. Society, 120 Mo. 506; Bradley v. Bradley, 24 Mo. 315; Fitzpatrick v. Fitzpatrick, supra. (2) Again, the will attempts to dispose of the surface to one person and the coal thereunder to another, and makes no disposition of the balance of the land, and other minerals, stone, etc. Now it is an elementary principle that one who has the title in fee simple owns the land as far down as you can go. Did the testator die intestate as to all except the surface and the coal?

      E. F. Millcm for respondents.
    Failure to state what county and state the land is located in, does not render the description void. Beach, on Wills, p. 462, sec. 266; Blade v. Richards, 95 Ind. 182; 1 Jones on Real Prop., sec. 321; Long v. Waggoner, 47 Mo. 178 ; McMahan v. Hubbard, 217 Mo. 624. There is a presumption in the absence of anything in the instrument to the contrary that the land is in the county and state where the instrument is executed and the parties reside. 1 Jones on Real Prop., sec. 321; Dutch v. Boyd, 81 Indi. 146; Homan v. Stewart, 16 So. (Ala.) 35. Where land is described according to Government Survey it is sufficient though the county and state he omitted. The law presumes that the testator intended to dispose of his whole estate. Simmons v. Cabanne, 177 Mo. 336; Farish v. Cook, 78 Mo. 212. A devise or conveyance of the surface to one and the coal to another carries the fee complete. In order to properly construe a will, it is perfectly legitimate to hear extrinsic evidence of all the facts and circumstances surrounding the testator at the making of the will, that the court may he placed in the same position that the testator was in at the time. The will says, “I, Edward W. Myher, of Adair county, Missouri.” It appoints Wm. Young, of Adair county, Mo., executor. It is admitted to probate in Adair county, Missouri. These facts sufficiently indicate that the land is in Adair county, Missouri, and especially is this true, when it is shown that he owned no other land. Where two or more things would answer the same description it is a latent ambiguity. Wheaton v. Pope, 97 N. W. (Minn.) 1046; Willard v. Darrah, 168 Mo. 660.
   VALLIANT, J.

Plaintiff, claiming to he the owner in fee of an undivided one-fifth of certain lands in Adair county, brought this suit under section 650, Revised Statutes 1899', to have the title adjudged and determined. The land in question belonged to Edward W. Myher, the father of the plaintiff, and of the defendants. He is the common source under which all the parties claim, the plaintiff hy inheritance and the defendants nnder their father’s will. Edward W.Myher died leaving a will hy which he gave to the plaintiff a small money legacy only, and devised his land to the defendants, giving to each a certain part or division of the land in severalty; the will disposed of all his estate, unless the plaintiff is right in his interpretation of the will, that is, that the devises of the land axe so obscure in description that effect cannot he given them. By the language of the will “the surface” only of the land is given to his sons John and Clarence and his daughter Bertha, while the coal under their lands is given to his son Frank, together with a coal shaft, an acre around it and a road to it.. The land willed) to Frank is “without such exception as to coal.

The will is as follows:

“Knowing the certainty of death and the uncertainty of life and being now sound of mind and memory, I, Edward W. Myher, of the county of Adair and State of Missouri, do make and publish this my last will and. testament.
“1st. It is my will and desire that I hereby direct that my executors hereinafter named, pay all my just debts if any as soon as possible after my death.
“2nd. I give and bequeath to my son, John H. Myher, the surface of the east half of the northwest fourth of the southwest quarter of section thirteen, township sixty-two, of range sixteen, containing twenty acres more or less.
“3rd. I give and bequeath to my daughter Bertha Herring now intermarried with Chas. Herring and to her descendants the surface of the west half of the northwest fourth of the southwest quarter of section thirteen, township sixty-two, range sixteen, containing twenty acres more or less.
“4th. I give and bequeath to my son Clarence E. Myher the surface of the east half of the northeast fourth of the southeast quarter of section fourteen, township sixty-two of range sixteen, containing thirty acres more or less reserving the coal shaft if it is sunk on the east above described land and enough of the surface not exceeding one acre for the proper handling of coal also reserving the road to the shaft.
“5th. I give and bequeath to my son Frank S. Myher the southwest one-fourth of the northeast fourth of the southeast quarter of section fourteen, township sixty-two, range sixteen, containing ten acres more or less and all coal under the lands bequeath to my son John H. Myher and Clarence E. Myher and my daughter Bertha Herring also the coal shaft and not to exceed one acre surrounding the same and the road to the shaft.
‘ ‘ 6th. I give and bequeath to my son Lewis Myher being my third child now living, the sum of ten dollars to be paid out of my personal estate.
“7th. I give and bequeath to my four following named children, Clarence E. Myher, Bertha Herring, John II. Myher and Frank S. Myher all my personal property of whatsoever nature remaining after my first debts and the ten dollars legacy to my son Lewis are paid.
“8th. I hereby appoint Wm.' Young of Adair county, Missouri, executor of this my last will and testament.”

The will was duly admitted to probate and there was no contest. At the trial the testimony of the plaintiff was to the effect that Edward W. Myher was the owner in fee of the land at the time of his death, that plaintiff and defendants were his children and that neither of them had parted with his interest. The defendants introduced the will and oral testimony to show that their father lived in Adair county on the land described in the plaintiff’s petition, had lived there for many years and was living there at the time of his death. The trial resulted in a judgment for the defendants and the plaintiff appealed.

I. The land is described1 in the plaintiff’s petition as east half, northwest quarter of southwest quarter and west half northwest quarter of southwest quarter section 13, and east half northeast quarter of southeast quarter and southwest quarter northeast quarter of southeast quarter section 14, all in township 62, range 16, in Adair county, Missouri. The description of the land in the will is identical with that in the petition except that in the ‘will it is not said “in Adair county, Missouri.”

When the oral evidence was offered on the part of the defendants to the effect that their father lived many years and died in Adair county, Missouri, on the land described in the petition, the plaintiff objected on the ground that oral testimony could not he received to supply the omission in the will, that is, to prove that the land lay in Adair county to identify the land described in the will with the land described in the petition; the objection was overruled and exception taken. Since the trial of this cause in the circuit court that point has been decided contrary to plaintiff’s contention by this court in McMahan v. Hubbard, 217 Mo. 624. After full discussion of the subject the court held that such evidence in such case is entirely competent. It is unnecessary to say more on that subject than is said in that case.

But even without that oral testimony we think the description contained in the will is sufficient to show that the land lies in Adair county, Missouri. This court takes judicial cognizance of land descriptions in the Government surveys, and we also take judicial cognizance of the political subdivisions of the State. We know that sections 13 and 14, township 62, range 16, are in Adair county. It is argued that those numbers of sections, township and range may .be found in other counties in other states; that may be, but we have no judicial cognizance of such matters in other states and even if the fact were proven we would not go abroad to hunt for such a fact for the purpose of rendering uncertain a description winch is certain enough when applied to land within our purview. This point was practically so decided in Long v. Wagoner, 47 Mo. 178.

There is nothing in any of the cases cited in support of appellant’s position on this point that meets, the facts of this case. In Martin v. Kitchen, 195 Mo. 489, the description was “the northwest quarter of section 7 north of Castor river” in Stoddard county, without mention of township or range; it was shown that there were several sections 7 north of Castor river in that county. In Mudd v. Dillon, 166 Mo. 110, the deed purported to convey “eighty acres the east half of the northeast quarter and sixty acres off of the east side of the west half of the northeast quarter of section 12, and eighty acres of the east half of the northeast quarter of section 13 containing two hundred and forty acres according to the United States survey in the county of Montgomery in the State of Missouri.” But it did not state the township. and range. There were several -sections 12 and 13 in that) county and the description would apply to either. The other cases cited are no more in point than those.

II. The will gives the land to the devisee with the qualification that it is the surface of the land given, but the coal under the surface is given to the son Frank.

That description and that qualification mean that all the land is given in fee to the devisee named except the coal beneath the surface and the right of mining the coal, which includes the necessary roadway and the use of the .surface necessary to the operation of the mine.

The will limits the quantity of surface use Frank may make of the land given to John, Bertha and Clarence.

That mode of disposing of land is well recognized in the law of this State. [Wardell v. Watson, 93 Mo. 107.]

The learned trial judge took the correct view of this case. The judgment is affirmed.

All concur.


author:
GRAVES, J.
      Valliant, J.,

text:
    WILLIAM R. BROWN v. H. S. PATTERSON, Appellant.
    Division One,
    December 23, 1909.
    1. WITNESS: Competency: Deceased Party: Privy. Third parties are competent to testify on behalf of defendant to the admissions of a deceased former owner of the land made while he was in possession of land adjoining that in dispute and which defendant claims under an oral executed agreement with such deceased owner, hut defendant himself, or a privy to such contract, or the beneficiary of such contract or admission, cannot testify.
    2. RESTRICTING DEFENSE: Limitations: Estoppel Pleaded. Where defendant pleaded estoppel, and the facts showed that there was an agreement or understanding about a dividing line and as to the ownership of the strip, and that defendant built a fence and reduced the land to cultivation, with the knowledge of the adjoining owner, who stood by and misled defendant to do acts to his detriment, the court cannot restrict defendant’s defenses to the defense of the Statute of Limitations. The defense of estoppel is clearly in the ease, and the instructions should not tell the jury that the only question they are to decide is the one of limitations.
    3. WITNESS: Competency: Wife of Deceased Husband. The widow may testify facts she knows of her own knowledge in a suit between the grantee of her deceased husband and a stranger. She may not only testify to matters of her own knowledge, but to all matters in regard to transactions affecting her husband's interests in which she herself is not interested, unless it involve a disclosure of confidences between the deceased husband and herself.

      4. -:-: -: Confidential Relation: Contract in Her Presence. The widow is competent to testify to an agreement concerning land made in her presence between her husband and another party, both deceased, in a subsequent ejectment suit between the respective grantees of each, in which she has no interest. A conversation between her husband and a . third party in her presence is not a confidential communication.
    5. -: -: ———: Statute. The proviso in section 4656, Revised Statutes 1899, “that nothing in this section shall be construed to authorize or permit any married woman, while the relation exists, or subsequently, to testify to any admission or conversation of her husband, whether made to herself or third parties,” does not disqualify the wife from testifying as to any matters to which at common law she was competent to testify. It restricts her from testifying to conversations or admissions of her husband, in her presence, only in the three classes of cases in which by the preceding part of the section she is given an additional qualification she did not have at common law. Both at common law and under the statute the widow may testify to an agreement concerning land made in her presence between her husband and a third party, both now deceased, in an ejectment suit between their respective grantees, in which she has no interest.
    6. -: -: -: -: Proviso: Purpose. The purpose of a proviso is not to create new rights, or make new law, or take away old rights existing under the law, or repeal a part of an existing substantive law, but to restrict the preceding portion of the statute of which it forms a part. It is a narrowing of the power or right first given by the same statute. Section 4656, Revised Statutes 1899, was an enabling act, qualifying a wife to testify in the three classes of cases therein mentioned, and the proviso therein, disqualifying her from testifying concerning conversations or admissions of her husband, was a restriction upon her competency to testify as to his admissions or conversations relating to a case belonging to one of those classes, and was not meant to take from her her common law competency.
    7. CONTRACT TO SELL LAND: Oral. A verbal contract to sell land is not always void, but specific performance thereof may be enforced upon conditions well established.
    Appeal from Pettis Circuit Court. — Hon. Louis Hoffman, Judge.
    REVERSED AND REMANDED,

      Sangree & Bohling and Wm. D. Steele for appellant.
    (1) The court erred in excluding legal evidence offered by the defendant. 1st. The declarations of Harryman, while still in the possession of the plaintiff’s forty, to the defendant, as to the boundary line between the two tracts were admissible. Declarations of those in possession of land, in respect to the boundary lines or the extent of their occupation are admissible in evidence as part of the res gestae. Brewer v. Brewer, 19 Ala. 481; Norton v. Pettibone, 7 Conn. 319; Davis v. Campbell, 1 Ired. (N. 0.) 428; Abeel v. Van Gelder, 36 N. T. 513; Wynn v. Corey, 48 Mo. 346; Babb v. Ellis, 76 Mo. 459;. Long v. McDow, 87 Mo. 197; Bank v. Ragsdale, 171 Mo. 168; Whitaker v. Whitaker, 157 Mo. 342. Our statute concerning witnesses has no application to admission of the deceased person against interest, made to witnesses who are strangers to the contract and otherwise competent to testify. Klofer v. Levi, 33 Mo. App. 322; Martin v. Jones, 59 Mo. 181; Looker v. Davis, 47 Mo. 140; Eyermann v. Pirón, 151 Mo. 107. 2nd. The court erred in'excluding the deposition of Mrs. Hocker. Smith v. Potter, 27 Yt. 304; Hough v. Blythe, 20 Ind. 24; Elswick v. Com., 13 Bush (Ky.) 155; Ryan v. Eollansbee, 47 N. H. 100; Connell v. Vanartsdalen, 4 Pa. St. 364; Powell v. Powell, 114 Ill. 329; Spalding v. Albin, 66' Yt. 148; Scroggin v. Holland, 16 Mo. 422; Funk v. Dillon, 21 Mo. 294; Lynn v. Hock-aday, 162 Mo. Ill; Shanklin v. McCracken, 140 Mo. 348; Stober v. McCarter, 4 Ohio St. 513; White v. Perry, 14 W. Va. 66; Spivey v. Platon, 29 Ark. 603; Litch-field v. Merritt, 102 Mass. 520; Pratt y. Delavan, 17 Iowa, 307; Stuhmuller v. Ewing, 39 Miss. 447; Griffin v. Smith, 45 Lad. 366; Floyd v. Miller, 61 Ind. 224; French v. Ware, 65 Yt. 338. (2) The court erred in giving erroneous instructions on behalf of the plaintiff. 1st. The first instruction eliminated the defense of an agreed line, and estoppel raised in the answer, from the consideration of the jury. Barnes v. Allison, 166 Mo. 103; Seibexling v. Tipton, 113 Mo. 381; Bartlett v. Brown,-121 Mo. 353; Blair v. Smith, 16 Mo. 273; G-ol-terman v. Shiermeyer, 111 Mo. 404; Turner v. Baker, 64 Mo. 218-; Lindell v. McLaughlin, 30' Mo. 28; Dolde v. Yodicka, 49' Mo. 98; Rutherford v. Tracy, 48 Mo. 325; Shaffer v. Detie, 191 Mo. 392. 2nd. The court erred in refusing the defendant’s two last instructions.

      Bapnett & Barnett for respondent.
    (1) The court did not err in excluding the conversations between Harryman and the defendant Patterson, as to an alleged agreement fixing the boundary line between said parties, being the boundary line in dispute. It is attempted to bind the plaintiff by some verbal agreement made with Harryman, he being the plaintiff’s grantor and the party under whom the plaintiff claims. The defendant is not a competent witness to prove such an agreement for the reason that Harry-man, the other party to the transaction is dead, and the living party therefore is incompetent to testify as to such transaction. It is not a question, as appellant’s attorneys seem to think, as to whether the declarations of Harryman are admissible, but the question is, is the defendant, being the opposite party to said contract, permitted to testify as to these declarations when Harryman is dead? The statute clearly excludes him. Sec. 4652, R. S. 1899. The provisions of this section extend to every occasion in which such contract or cause of action may be involved. Baker v. Reed, 162 Mo. 341; Warfield v. Hume, 91 Mo. App. 541; Hughes v. Israel, 73 Mo. 538; Chapman v. Dougherty, 87 Mo. 617; Rice v. Shipley, 159 Mo. 399; In re Imboden’s Estate, 111 Mo. App. 220-; Creen Real Estate Co. v. St. Louis Mutual House Building Co., 196 Mo. 358; Miller v. Slupsky, 158 Mo. 643; Johnson v. Johnson, 173 Mo. 91. (a) The authorities cited by appellant do not support or tend to support his contention; such! authorities only establish the general doctrine that Harryman’s declarations are admissible and are not mere hearsay, but do not tend to support the proposition that defendant Patterson is a competent witness to prove such declarations. On the contrary, such authorities hold, that such declarations may be proved by strangers to the contract, but not by the party to the contract or by a party to the suit who claims under such contract. (2) The court did not err in excluding the deposition of Mrs. Hocker who was the wife of Louis Brummett, one of the parties to the alleged contract about which Mrs. Hocker testifies in her deposition and the party under whom the defendant Patterson claims. This witness is in the same position as though Mr. Brummett was defendant instead of Mr. Patterson, his grantee, and his wife is not a competent witness. The proviso to 'See. 4656, R. S. 1899', was intended to apply to admissions and conversations in all cases, whether the husband was a party or not, and clearly excludes Mrs. Hocker, who was the wife of Brummett. The conversation to which she testifies related to the alleged contract between her husband and Harryman, in which she claims to have been present with her husband. Moore v. Wingate, 53 Mo. 398; Holman v. Bachus, 73 Mo. 49; Waddle v. McWilliams, 21 Mo. App. 298; Johnson v. Quarles, 46 Mo. 423; Johnson v. Burkes, 103 Mo. App. 227. (3) The court did not err in giving instruction 1 on behalf of the plaintiff. There was not one particle of evidence in the case supporting the defense pleaded to the effect that the said boundary line had been established by an agreement. If such evidence had been admitted, still the instruction would have been proper because there is no question of a disputed boundary in this case. It is admitted that plaintiff has the paper title to the strip in question and that the boundary line is where we claim it to be, independent of any agreement. Reynolds v. Hood, 209 Mo. 619; Turner v. Baker, 64 Mo. 240 ; Acton y. Dooley, 74 Mo. 68; Barnes v. Allison, 166 Mo. 105.
   GRAVES, J.

Action in ejectment for two and one-balf acres of land in Pettis county. Petition in usual form, placing ouster as of April 1st, 1903, and alleging damages in the sum of $100. The answer pleaded (1) general denial, (2) estoppel and (3) the ten-year Statute of Limitations. Reply was general denial. A trial before a jury resulted- in a verdict for plaintiff for possession together with damages in the sum of one dollar. '

“Whereupon it is ordered, adjudged and decreed by the court that the plaintiff have and recover of the defendant the possession of the real estate described in the petition as follows, to-wit: two and one-half acres off of the north side of the northwest quarter of the southwest quarter of section 19, township 48, range 20, being a strip of land of uniform width, and its length east and west being the distance across said quarter of said quarter section in Pettis county, Missouri. And that plaintiff have and recover of the defendant the sum of one dollar for his damages, together with the costs of this suit.

“It is ordered and adjudged that the plaintiff have a writ of possession commanding the sheriff to deliver to plaintiff the possession of said premises and commanding him to levy ¿nd collect the said damages and costs from defendant.”

From such judgment the defendant, after unsuccessful motion for new trial, in due form appealed to this court.

George Harryman was the admitted common source of title. The strip in dispute is fully shown by the following plat introduced in evidence:

In other words, the land in dispute is about two and one-half acres off of the north side of the northwest quarter of the southwest quarter of section 19, township 48, range 20, in Pettis county, Missouri.

In 1884, George S. Harryman was the owner of both tracts of land. That is to say, he owned the tract marked on the plat as belonging to the plaintiff, as well as the tract marked on the plat as belonging to the defendant, both in said section 19, aforesaid. It will be noticed from the plat there is a jog in the lines of the land lying respectively east and west of the range line. This jog is seventy-six feet. In 1884, one Lewis Brum-mett owned the land indicated as being in his name on the plat above. On May 2, 1884, Brummett bought from Harryman the land now claimed by P'atterson. Brummett’s land was in the one range and the land to be bought in the other was the jog of seventy-six feet. It is alleged and attempted to be proven that, when Brummett bought the land now claimed by Patterson, it was agreed that the south line thereof should be an extension toward the east of the south line of the land owned by Brummett in range 21, which of course was seventy-six feet south of the real line of the land in range 20. However, the deed from Harryman and wife described the southwest quarter of the northwest quarter of section nineteen, township 48, range 20. Brum-mett immediately took possession, not only of,the part described in the deed, but the strip in dispute as well. It also appears that under this oral agreement Brum-mett was to give fifteen feet off of the south side of the strip for a road, and Harryman, his grantor, was to give a like strip off of the remaining portion of his land to the south thereof. This agreement seems to have been executed, for it appears that at least partial fences were erected for this road and the same was used as a road.

Brummett’s title passed to defendant Patterson, and Harryman’s title through mesne conveyances passed to the plaintiff Brown in 1901. It also appears that none of the mesne conveyancers actually claimed the strip in dispute, although by deed they conveyed it. The questions now urged involve the admissibility of certain excluded evidence and the giving and refusing of certain instructions, which can he better noticed in the course of the opinion.

I. ' Whilst Harryman was yet in the possession of the forty acres now owned by Brown, it is alleged he had a conversation with Patterson, the defendant, in which he stated to Patterson where the south boundary line .of the forty now owned by Patterson was, and this declaration of the party in possession was excluded by the court, in so far as the witness Patterson is concerned. Admissions made by Harryman to other witnesses and also a letter from Harryman, indicating the line was where defendant now claims it to be and that such line had' been previously agreed upon and the strip of two and one-half acres sold to Brummett, at the date of the deed, was admitted. It is not disputed by the learned counsel for plaintiff that the admissions of a party in possession can be proved in so far as such admissions tend to show his claims or disclaims, or in other words, in so far as they go to the extent and character of the title under which he holds possession. Neither do they deny that such admissions, if made to third persons, may be used as against the subsequent purchasers of the property claimed under the person making such admissions. The defendant by proper questions tried to prove these admissions by the defendant himself, over and above certain admissions proved by third parties. This proof the court excluded.

We are of opinion that the court was correct in excluding the testimony of Patterson upon this point, it being shown that Harryman was dead at date of trial. This construction given to section 4652, Revised Statutes 1899, by the court, bears out the judgment of the court below. Patterson was a subsequent grantee from Brummett. Brummett and Harryman were the contract-makers. Patterson was a party to the suit and was holding under the alleged agreement previously had with Harryman and Brummett. Section 4652, supra, closed his lips upon the death of Harryman. Patterson was not a stranger to the alleged contract with Brummett. He was Brummett’s subsequent grantee and assignee of Brummett’s claims against Harryman, which claim of Brummett was the question at issue and on trial, although then held by Patterson.

The statute mentioned disqualified Patterson, and as the trial court admitted other admissions of Harry-man, whilst he was in possession, from witnesses who were third persons, in this regard the court could not have been expected to go further. In other words, whilst the third parties were competent to testify to the admissions of Harryman, whilst in possession of the land south of that now owned by defendant, it does not follow that a privy to such contract, or the beneficiary of such contract or admission can testify when it is shown that the opposing party is dead. The cases cited by defendant are easily distinguished upon principle. The statute itself is too familiar to the bar of the State to require reproduction here. This contention of the defendant will be ruled against him.

II. Defendant claims that there is flagrant error in the first instruction given in behalf of the plaintiff. The instruction reads:

“The court instructs the jury that under the undisputed evidence in this case, the plaintiff is the owner of the strip of land in controversy, unless the defendant has acquired the right to the same by virtue of the Statute of Limitations as defined in the other instructions, therefore your verdict must be for the plaintiff unless you believe from the evidence that the defendant has established his defense, that he is entitled to hold said land by virtue of the Statute of Limitations as hereinafter defined.”

It will he noticed that this instruction limits the defendant to the one defense of the Statute of Limitations. It undertakes to and does fix the issue to he tried before the jury. One paragraph of the answer pleads estoppel. It pleads valuable improvements had been made upon the land with the knowledge and consent of plaintiff’s grantor, and for that reason the plaintiff was estopped now to claim the land. The evidence upon this point tends to show that immediately after Brummett got the land from Harryman, he began clearing the land and fencing it. That this was done with the knowledge of Harryman. The evidence as to the acts of the parties strongly tends to show some agreement - or understanding about this line. That Patterson completed the fence and as we take it from the evidence reduced the land to cultivation. All this was done with the knowledge of Harryman, or his immediate grantees of the Brown tract. The evidence shows that Harryman started to build a fence on the south of Brummett’s fence some thirty feet and that Brummett cut out the fence row and a part of the intended road. It would seem that the land was rough land.

The answer as said contained a plea of estoppel. Hnder this evidence the question of estoppel was in this case, and the court erred in giving this instruction one for plaintiff, which limited the defense of defendant to that of the Statute of Limitations alone.

Going a step further upon the question of estop-pel, the plaintiff’s counsel claimed that there was no disputed boundary line, because both Brummett and Harryman knew the true line, and therefore there was no occasion for an agreed boundary line, and no proof in the record of such an agreement. Grant this to be true and the evidence tends to show that Harryman did know the true line, but there is evidence in the record showing that Harryman said that this strip had been sold to Brummett. There is proof that Harryman lived there for several years after Patterson purchased, and that he must have known and did know of these improvements. Harryman therefore stood by and misled Brummett and Patterson to do acts to their detriment, i. e., to fence and reduce to cultivation this land. Had both Brummett and Harryman been ignorant of the true line, but acting upon what they supposed to be the true line, these acts of Brummett and Patterson would not constitute estoppel, but where Harry-man is shown to have said that he sold the land to Brummett and evidently knew the true line and then stood by and permitted valuable improvements to be made, and he himself participated therein by building his own fence thirty feet south of the one being built by Brummett, the question of estoppel. comes in the case. In such case there would be the wilful misleading of one party by the- other to the detriment of such party doing the acts of improvement.

In discussing a very similar case, wherein we held that there was no estoppel by reason of the land being reduced to cultivation and fenced under the facts of that case, Foard v. McAnnelly, 215 Mo. 371, we took occasion to further say: “It must be borne in mind that we are dealing now with the question of estoppel, and that too in the absence of an agreed line. If the evidence had disclosed a division line agreed upon by the parties, and in addition, the doing of some act by one of the parties, in pursuance of such agreement and understanding, which act was induced by the conduct as expressed in the agreement, and which act was detrimental to the party, then we can see elements of estoppel in pais; but, on the other hand, if the building of the fence, the plowing and cultivation of the ground, and the continuous use and possession thereof, which are the acts involved here, were superinduced by the mistaken view, entertained by both parties, that the supposed line was the true line—and we repeat withont it being an agreed line—then, nnder onr holdings, we see no elements of estoppel in pais. In snch case there is no wilful misleading of one party by the other to his detriment. If the plaintiff had, as a matter of fact, known the true line, and by either acts or words so conducted himself as to have misled Meador, to his detriment, then a different question would be here.” The case at bar comes within the latter clause of the quotation above made.

The trial court refused an instruction upon estop-pel asked by the defendant, and whilst the form of the instruction may not fully measure up to the law, yet he had already cut out the entire question by this instruction numbered 1 for plaintiff, and defendant’s instruction is at least sufficient to show that he was pressing that defense. For the error in giving instruction numbered 1 for plaintiff the case must be reversed and remanded, and in view of these facts, another question as to the admissibility of evidence should be passed upon, which we will do in the next paragraph.

III. A deposition of the wife of Brummett was offered in evidence by the defendant. Brummett had been dead for some years and his wife had remarried to a Mr. Hocker, and lived at the date of the trial in California. In this deposition, she testifies to many things, some important and some unimportant, which were of her own individual knowledge. In the deposition she testifies to an agreement between Harryman and her husband as to where the south line of the present Patterson tract should be, as well as to an agreement as to a road that was to be made between Harry-man and her husband, who was then purchasing the Patterson land. She testifies to the character of the land at that time. She testifies as to what her husband did in the way of improving the land by fencing and clearing ont a fence row.

This question necessarily divides itself into two parts, (1) as to things which the wife knew of her own knowledge and without talk with her husband, and (2) the conversation heard by her and had by her husband and Harryman.

(a). At the common law, the wife was not disqualified from testifying in a suit between strangers. [1 Greenleaf Ev. (16 Ed.), secs. 341-2.] As to facts which she knew of her own knowledge, and there a.re some such facts in this deposition, there can be no question as to her right to testify. In case of Shanklin v. McCracken, 140 Mo. l. c. 358, this court, in banc, said: “The evidence offered in this case clearly does not come within the rule of exclusion laid down in any of these cases. The evidence offered was simply an act of the husband unconnected with any ‘admission or conversation’ with him, a knowledge of which the witness derived not from her husband, but from the exercise of her own sense of sight, and we think the court committed error in rejecting it.” The evidence referred to was the proffered testimony of the widow as to the .act of the delivery of a deed to her deceased husband. Other cases are to the effect that the widow can testify to matters of her own knowledge. [1 Greenleaf on Ev. (16 Ed.), sec. 254; Cornell v. Vanartsdalen, 4 Pa. St. 1. c. 374; Ryan v. Follansbee, 47 N. H. l. c. 101; Elswick v. Commonwealth, 76 Ky. l. c. 157; Smith v. Potter, 27 Vt. l. c. 308; White v. Perry, 14 W. Va. l. c. 80.] Many cases could be cited, but these suffice.

In Smith v. Potter, cited above, Chief Justice Redfield of the Vermont court said: “But where the husband has deceased, it has long been settled that the widow may testify to matters of her own knowledge, and indeed to all matters in regard to any transaction affecting her husband’s interest, unless it involve the disclosure of matters of confidence between the husband and wife, or to transactions affecting the character of the husband, unless she is herself interested in favor of the testimony given. This was expressly decided in Edgell v. Bennett, 7 Vt. 534. And this was before the rule of the English courts, and has long been practiced upon, in this State, at the jury trials. The statute having removed all objections, on account oí interest, it becomes an inquiry merely, whether the testimony is objectionable as containing matters of confidence, or tending to discredit the husband. The deposition in question does not seem to be of this character, and, if relevant to the issue, was, we think admissible.”

There was evident error in excluding the deposition of Mb’s. Hocker as a whole, and for this error the cause should be remanded for a new trial.

(b). But going to the more vital question and the one which should be passed upon in order to enlighten the court in the new trial, i. e., should Mrs. Hocker be permitted to testify as to any contract or agreement made between Harryman and her deceased husband, Brummett, in her presence?

Death has sealed the lips of both actors. Brum-mett ’s interest in this agreement long since passed to Patterson, at least in a way. Harryman’s views of the contract or agreement and his interest therein, have in a way passed to Brown. Now can Brummett’s widow declare to the world this contract? The present action, so far as the widow is concerned, is between strangers. In such case, she was at common law entitled to testify. The common-law rule has well been stated by Greenleaf. [1 Greenleaf Ev. (16 Ed.), secs. 333c, 334 and 335.] In section 333c, supra, it is said: “Testimony by a husband or wife may involve any one or more of three distinct and independent principles, not always kept separate by authors and judges: (1) One spouse may not testify for the other, (2) One spouse may not testify against the other; (3) One spouse may not testify to confidential communications t>y the other. The first rests on the notion of interest, i. e. the untrustworthiness of one sponse as likely to favor the other by testifying falsely on the other’s behalf. The second rests on a notion of policy or sentiment, that it is a hardship to the one to he condemned by the testimony of the other, and that the allowance of snch a practice would tend to disturb marital harmony. The third rests on a public policy similar to that which protects confidential communications between attorney and client, government and informer, and certain other classes of persons; the thought being that the full activity and benefit of the relation cannot he attained unless the persons in it have full security in advance that their confidences cannot he disclosed.”

The evidence offered in this deposition as to the contract falls under the ban of neither of the three principles announced by the author, nor under the reasons for the three principles. For in the case at bar the surviving spouse is neither testifying for or against her husband, nor is she testifying to confidential communications between husband and wife. Confidential communications between husband and wife usually fall under the ban of secrecy, notwithstanding the relationship has ceased either by divorce or death. But the evidence here is not in the nature of confidential communications between husband and wife. There can be no such character of conversation in the presence of a third party. But further, this is not a conversation between husband and wife, but a conversation between the husband and a third party in the presence of the wife. Leaving out for the present the consideration of our statute which we will consider in another paragraph, we are of opinion that the testimony of this woman was competent on the matter of the agreement.

In addition to the authorities cited and discussed supra, the following additional cases lend support to these views: McGuire v. Maloney, 1 B. Mon. 224; Spivey v. Platon, 29 Ark. l. c. 608; Litchfield v. Merritt, 102 Mass. l. c. 524; Pratt v. Delavan, 17 Iowa l. c. 309; Stuhlmuller v. Ewing, 39 Miss. 447; French v. Ware, 65 Vt. 338.

IY. Bnt in arguing that this testimony of the widow is incompetent the plaintiff plants himself behind a proviso, at the end of section 4656, Eevised Statutes 1899.

The section in full reads: “Ho married woman shall he disqualified as a witness in any civil suit ox proceeding prosecuted in the name of or against her husband, whether joined or not with her husband as a party, in the following cases, to-wit: First, in actions upon policies of insurance of property, so far as relates to the amount and value of the property alleged to be injured or destroyed; second, in actions against carriers, so far as relates to the loss of property and the amount and value thereof; third, in all matters of business transactions when the transaction was had and conducted by such married woman as the agent of her husband; and no married man shall be disqualified as a witness in any such civil suit or proceeding prosecuted in the name of or against his wife, whether he be joined with her or not as a party, when such suit ox proceeding is based upon, grows out of, or is connected with any matter of business or business transaction where the transaction or business was had with or was conducted by such married man as the agent of his wife: Provided, that nothing in this section shall be construed to authorize or permit any married woman, while the relation exists, or subsequently, to testify to any admission ox conversations of her husband, whether made to herself or to third parties.”

As said by Henry, J., in Holman v. Bachus, 73 Mo. l. c. 50: “The proviso is clumsily constructed.” Plaintiff relies upon this Holman case, the case of Moore v. Wingate, 53 Mo. 398, and Johnson v. Quarles, 46 Mo. 423, as supporting his contention that this proviso excludes the testimony of Mrs. Iiocker as to the conversation had in her presence. He also relies upon several cases from the Courts of Appeals, which cases cite the cases from this court, supra.

The broad language of the Holman and Moore cases was thus commented upon hy this court in the more recent case of Lynn v. Hockaday, 162 Mo. 1. c. 123:

“In Moore v. Wingate, 53 Mo. 398, l. c. 409, concerning the proviso now under discussion, it was said: ‘ This provision of the statute was. intended to apply to all cases, whether the husband was a party to the action or not.’ The language is broader there than necessary; it would have been sufficient if it said that the provision applied to the facts of that case. And perhaps all that was there intended was that it applied as well to a case in which her husband or his estate was interested as it did to a case in which he was a party. That it was not intended to construe the statute as imposing a new disqualification on a wife is shown by the words immediately following: ‘It was intended to leave the disabilities of a married woman, in .reférence to these matters, just as they were at common law.’
“In Holman v. Bachus, 73 Mo. 49, a similar broad expression is found, but the same idea prevails through the opinion, that the statute only dealt with existing common-law disabilities. In that ease the estate of deceased husband, though not sued, was interested. There is nothing in "Willis v. Gammill, 67 Mo. 730; McFadin v. Catron, 120 Mo. 253, or Shanklin v. McCracken, 140 Mo. 356, to which we are referred, contrary to this view.”

In the same case in discussing the force and effect of this proviso, this court further said: “But there was no objection made to her competency as a witness on the ground that she was a party in interest to the contract alleged to have been made by the deceased, but it was only on the ground that she was the wife of deceased, and the argument in the brief of counsel is that she was disqualified by the terms of the proviso in section 8922, Revised Statutes 1889, now section 4656, Revised Statutes 1899. The section declares that no married woman shall be disqualified as a witness in a civil suit prosecuted in the name of or against her husband in certain cases, and specifies the cases, but this is not one of them. Then it adds: ‘Provided, that nothing in this section shall be construed to authorize or prevent any married woman, while the relation exists, or subsequently, to testify to any admission or conversations of her husband, whether made to herself or to third parties/ That proviso by its very terms is only a restriction of the right in that section conferred. The section enables a married woman to testify in certain hinds of cases in which by the common law she was disqualified, but having qualified her as a witness in those cases, it adds in effect, that in exercising the right there conferred she is not to speak of what her husband may have said to her or to any one élse. It is, on the whole, an enabling and not a disabling statute. [Bates v. Forcht, 89 Mo. 121.] The restriction in the proviso is not on a capacity she had before, but only on the privilege there conferred. At common law, in a suit between strangers, in which neither the interest of herself nor that of her husband was affected, she was a competent witness to testify to a conversation between her husband and a third person. [1 Greenleaf Ev. (16 Ed.), secs. 341-2.] Such a case would not come within the purview of that statute. ’ ’

It thus appears that we have held that the purpose of this proviso was to restrict in the way mentioned in the proviso, the grants* contained in the previous provisions of the statute; that its purpose was not to take from the body of the common law, rights there given, hut simply restrict the terms of the preceding portions of the statute. We are firmly of the opinion that the views in the Lynn case are correct. The purpose of a proviso is not to create new rights or make new law or to take away old rights existing under the law or to repeal a part of existing substantive law, hut to restrict or restrain the preceding portion of the statute of which it forms a part. As has been often said this statute is an enabling statute and not a disabling statute. If plaintiff’s contention is true, it is both, for the first part gives rights not possessed under the common law, and the proviso takes away rights previously possessed under the common law.

In addition to what Valliant, J., said in the Lynn case it might not be amiss to look elsewhere.

In the case of People ex rel. v. Kelly, 5 Abbott’s New Cases, l. c. 405, the New York Court of Appeals adopts this definition of proviso, as taken from 66 N. Y. 395: “A proviso in a grant or enactment is something taken back from the power first declared. The grant or enactment is to read, not as if the larger power was ever given, but as if no more was ever given than' is contained within the terms or bonds of the proviso.”

As applied to an enactment or law, 6 Words and Phrases, p. 5755, thus speaks of the office of a proviso: “The office of a ‘proviso’ is to limit or restrict the general language preceding it, and not to enlarge the enacting clause. [Commonwealth v. Charity Hospital, 48 Atl. 906, 199 Pa. St. 119; Patterson v. Winn, 24 U. S. (11 Wheat.) 380, 387, 6 L. Ed. 500; Van Reipen v. Jersey City, 33 Atl. 740; 742, 58 N. J. L. 262;' State ex rel. v. Browne, 57 N. W. 659, 660, 56 Minn. 269.]”

So too, says Black on Interpretation of Laws, page 271: ‘ ‘ The office of a proviso is not to enlarge or extend the act or the section of which it is a part, but rather to put a limitation or a restraint upon the language which the legislature has employed.”

In 32 Cyc., p. 743, the following outline of the purposes of a proviso to a law is given: “A clause which generally contains a condition that a certain thing shall or shall not he done in order that something in another clause shall take effect; something engrafted upon a preceding enactment, generally introduced by the word ‘provided;’ something.grafted upon a preceding enactment, and is legitimately used for the purpose of taking special cases out of the general enactments, and providing specially for them; something taken back from the power first declared.”

To a like effect is 2 Lewis’s Sutherland’s Statutory Construction, p. 674, whereat it is said: “The proper function of a proviso being to limit the language of the legislature, it will not be deemed intended from doubtful words to enlarge or extend the act or the provision on which it is engrafted.” And on the preceding' page, the same author says: ‘ ‘ The natural and appropriate office of the proviso being to restrain or qualify some preceding matter, it should be confined to what precedes it, unless it clearly appears to have been intended to apply to some other matter. It is to be construed in connection with the section of which it forms a part, and it is substantially an exception. If it be a proviso to a particular section, it does not apply to others unless plainly intended. It should be construed with reference to the immediately preceding. parts of the clause to which it is attached. In other words, the proviso will be so.restricted in the absence of anything in its terms, or the subject it deals with, evincing an intention to give it a broader effect. It is not an arbitrary rule to be enforced at all events, but is based on the presumption that the meaning of the lawmaker is thereby reached. ’ ’

As stated by Judge HeNey, this proviso is not as clear as it might be, but there is nothing in it to indicate a purpose upon the part of the legislature to branch out into the field of changing the prior existing substantive law. A fair and reasonable construction was given to it by ValliaNt, J., in the Lynn case, supra. The act itself, which in present form appeared first in 1874, grants to the wife the privilege of testifying for her husband in three classes of cases. And to the husband the right to testify for his wife in one class of cases. Prior to 1874, the husband was not included. The act itself then grants rights which were not enjoyed under the common law. It enables the husband and wife to testify where they couldn’t testify before under the law.

It is more reasonable to say that the Legislature meant by this proviso to say to the wives, “We have given you the right to testify in certain cases, but in so doing you must not do the things mentioned in the proviso,” than it would be to say to them that, “Whilst by the body of the act we have given you rights not possessed under the common law, yet by the proviso we have made some new substantive law, by taking from you other rights which you did possess at common law. ’ ’ The Lynn case properly defines the scope and meaning of the proviso involved in this suit. It is not the purpose of a mere proviso to add to the body of the substantive law, nor to take anything therefrom. Its purpose is to restrict, limit or explain the general terms of the act of which it forms a part. See 6 Words and -Phrases, title,.“Proviso.”

So construing this proviso, and it appearing that at common law Mrs. Hocker Was a competent witness in an action between strangers, it follows that her whole deposition was competent.

Y. Appellant insists in the assignment of errors that the trial court erred in giving instruction numbered 2 for the plaintiff. This instruction declares that an oral agreement to sell the disputed property by Harryman to Brummett is void. And further that no contract for the sale of real estate is valid unless in writing. The instruction is a little emphatic in its wording, but was perhaps well enough under the pleadings. A verbal contract.to convey lands is not always void, hut specific performance thereof may he enforced under conditions well known to the profession.

Upon the whole, this cause should be and is reversed and remanded.

Valliant, J.,

concurs; Woodson, J., concurs in result and in the opinion, except he expresses no opinion on the Holman and Wingate cases discussed in this opinion;

Lamm, P. J., does not sit.


text:
    NELLIE J. KENNEDY v. ROBERT C. DUNCAN et al., Appellants.
    Division One,
    December 23, 1909.
    DOWER: Appeal: Jurisdiction: Monetary Judgment. In a suit to admeasure dower in land and praying for and resulting in a monetary judgment in tlie widow’s favor, and made a special lien on the land, title to real estate is not so involved as to give the Supreme Court jurisdiction over the appeal by defendants, although the question of whether or not she was entitled to dower was an issue in the case. Although title to real estate is put in issue by the pleadings and is incidentally involved yet as the trial resulted in a monetary judgment, and was the only judgment prayed for and appealed from, it can he satisfied by the payment of money, and title is not so involved as to vest the Supreme Court with jurisdiction.
    Appeal from Lincoln Circuit Court. — Ron. James D. Barnett, Judge.
    TRANSFERRED TO St. LOUIS COURT OK APPEALS.

      Chas. Martin for appellants.

      Wm. A. Dudley for respondent.
   VALLIANT, J.

This appeal came to this conrtl on the idea that title to real estate is involved, but in looking into the record we find that that is not the case. The suit was- begun in the circuit court of Lincoln county by the plaintiff, as widow of Armstrong L. Kennedy, deceased, claiming to be entitled to dower in certain land1 alleged to have belonged to her husband! in his lifetime, and which had been sold under execution against him and the title derived by the purchaser, at the sheriff’s sale had come down to and was then held by the defendants. The petition also stated that in lieu of the land! to be set apart to her as dower she was willing to take the money value of her dower interest. The prayer of the petition was that she have judgment for $100, as damages for de-forcement, and $10 a month for rents and profits, and for value of her dower in money to be estimated at its present worth under life tables. The answer of defendants, besides a general denial, set up affirmatively certain facts which they claimed precluded the plaintiff’s right to dower. The court found all the issues in the widow’s favor and assessed the value of her dower at $304.60 and her damages at $22.24, and the judgment was that the plaintiff have and recover of defendants the sum of $326.84 and costs. The plaintiff was seemingly satisfied with the judgment, at all events she took no appeal, but the cause came here on the defendants’ appeal.

In Robinson v. Ware, 94 Mo. 678, it was held that a widow’s suit for the admeasurement and allotment of her dower was a real action and therefore barred by the ten-year Statute of Limitations. That suit arose before the enactment of section 4558, Revised Statutes 1889, now section 2979, Revised Statutes 1899, which specially limits such, actions to ten years, and therefore that decision was not based on that section of the statute, but on the ground that it was a suit to recover possession of real estate and came within the general ten-year limitation. The correctness of that decision has not been questioned. Therefore we may assume that if this were a suit under section 2955, Revised Statutes 1899 and following, which prescribe the procedure to be taken by a widow to recover her dower and damages for her deforcement, and if the defendants by their answer had denied her right to d.ower and if the judgment had assigned dower to her and the defendants were here appealing from such judgment, or if the judgment had denied her dower and she were here appealing from such judgment, title to real estate would be involved. But such is not this ease. In her petition, so far as the abstract shoves, she does not ask for land nor does the judgment give her land, but, after stating in her petition facts showing that she is entitled to dower, and that she has been deforced thereof by the defendants, she prays that the value of her dower be computed and that she have judgment for the value so to be found together with damages and costs.

Section 2955, Revised Statutes 1899, Ann. Stat. 1906, p. 1703, gives the widow who is entitled to dower and who has been deforced thereof the right to sue and recover the same with damages for the detention. Sections 2957, 2958 and 2959 prescribe who may be made defendants and the course of the procedure. If on the trial the findings should be in the widow’s favor the judgment to follow, as prescribed by section 2960, would be that she be seized of her dower and recover the damages assessed for the deforcement and that commissioners be appointed to assign and admeasure the dower. Sections 2961 and! 2963 prescribe the course to be pursued by the commissioners, and 2963 how the damages are to be assessed when the report' of the commissioners is approved and that a writ of possession for laud and execution for the damages issue. If the report of the commissioners shows that the land is not susceptible of division, sections 2964 and 2965 prescribe that a jury shall be impaneled to inquire of the yearly value of the dower andl a judgment that such value be paid to her yearly. But nowhere in that statutory proceeding is there any provision for the widow to recover the value of her dower in a gross, sum. Therefore this suit is not the suit authorized and prescribed by the statute for the admeasurement of dower. Her right to recover the value of her dower in gross, if such right she 'have, will be found in the law elsewhere than in the statute above mentioned.

Defendants in their answer in this case state facts tending to show that the widow was not entitled to dower in the land mentioned in her petition. Of course, if she was not entitled to dower she was not entitled to recover thé value thereof or damages for its detention in any form of action.

On the trial the court found that the plaintiff was entitled to dower, and as the petition prayed, computed its value and gave her judgment for that value and damages and costs. Thus we see that the question of whether or not she was entitled to dower was an issue in the case and the finding that she was so entitled was made the basis of the money judgment which followed, but the judgment did not give her dower and did not impair the defendant’s title to land further than to impose the judgment as a lien on the land.

We have frequently decided that under that clause of the Constitution, section 12, article 6, which gives this court jurisdiction of “cases involving title to real estate,” it is essential to our jurisdiction that title to real estate be directly affected by the judgment rendered ; that although title to real estate be incidentally affected, yet if the result of the trial be a judgment that appellant can satisfy by the payment of money, title to real estate is not involved in the sense in which that term is used in this connection in the Constitution. [McGregor v. Pollard, 130 Mo. 332; Fischer v. Johnson, 139 Mo. 433; Heman v. Wade, 141 Mo. 598; Price v. Blankenship, 144 Mo. 203; Edwards v. Railroad, 148 Mo. 513.]

And it has also been held that although title to real estate he put in issue in the pleadings, yet if the trial results in a money judgment, for the satisfaction of which a lien is given on the land, hut the title is not otherwise affected by the decree, title to real estate is not so involved as to give this court jurisdiction under the clause of the Constitution mentioned. [Jones v. Hogan, 211 Mo. 45; Brannock v. Magoon, 216 Mo. 722; Klingelhoefer v. Smith, 171 Mo. 455.]

In the case at bar the widow’s right to dower in the land specified is asserted in the petition and denied in the answer and the appellants are here insisting that respondent is not entitled to the judgment for $326.84 which she recovered, because they say it is the estimated value of' what she claimed as her dower but to which she was not entitled. Therefore the court trying the appeal must review the proceedings of the trial court in which were tried the question on which the alleged right of dower depends.

A justice of the peace has jurisdiction in actions for tort where the damages claimed do not exceed a certain amount. But section 3837, Revised Statutes 1899, Ann. Stat. 1906, p. 2126, declares that a justice of the peace shall not have jurisdiction “of any action where the title to any lands or tenements shall come in question and be in issue.”

Therefore if a plaintiff should sue in a justice court to recover $250 for alleged trespass committed: by defendant in cutting timber on land which the plaintiff alleged belonged to him and carrying it away, and the defense should admit the acts of cutting and carrying away the timber, but aver that the land belonged not to plaintiff but to defendant, in such case title to the land would “come in question and be in issue” and therefore the justice would not have jurisdiction.

Let us notice the difference in the language of the statute'just quoted' and that of the Constitution; in the one it is “where the title to lands shall come in question and be in issue,” in the other it is “involving title to real estate.” As was said in Brannoek v. Ma-goon, above cited, the appeal is not from the petition, but from the judgment; therefore it is only where title to real estate is involved, in the judgment that this court has jurisdiction. The judgment, of course, to be valid must be responsive to the pleadings, but whether responsive to the pleadings or not this court cannot entertain the cause on the idea that title to real estate is involved unless it so appears on the face of the judgment. The converse of the proposition is also true; if the judgment on its face should purport to dispose of the title to real estate although the pleadings did not call for it, the appeal would have to come here for review, because the judgment on its face would affect the title and this court only could reverse it on the ground that it was beyond the issues presented by the pleadings.

In the supposed case above mentioned' if the suit for $250 for -trespass should be brought in the circuit court the title to the land mentioned would be “in question and in issue,” but the judgment would be either that the plaintiff have and recover so much money or else that the defendant go hence and recover his costs, in either of which events, the appeal would go to the Court of Appeals, which court for the purpose of that case would1 have jurisdiction to review the action of the trial court on the question of title to the land, and the judgment of the Court of Appeals would incidentally reflect that court’s opinion on the question of title, but would, not judicially determine the cl aim of title of either party and would not hinder either party in another suit directly involving the title.

We have not intended herein to give or intimate any opinion on the merits of this case; what we have said is only intended1 to show that title to real estate is not involved and therefore we have no jurisdiction of the cause.

Transferred to St. Louis Court of Appeals.

Lamm, P. J., and Graves, J., concur; Woodson, J., dissents.