author: ROY, C.

text:
    INTER-RIVER DRAINAGE DISTRICT, Appellant v. ELIJAH HAM et al.
    Division Two,
    July 16, 1918.
    1. SUEFACE WATEE: Protection: Damages: Condemnation. Overflow water from a stream is surface water, and the owner of land has the right by constructing embankments to shut off such surface water from his land without being liable in damages to the owner of another tract for the injury thus done. But that rule does not relieve a drainage district from responding in damages done to land between its levee and such stream by increasing the overflow of water on such land, for the drainage district does not own land or a right of way, but in seeking to condemn a right of way for its levee through the land of such owner must comply with the constitutional mandate declaring that “private property shall not be taken or damaged for public use without just compensation.”
    2. -: -: -: -: Levee Through Owner’s Land: Increased Overflow. The exceptors owned 118.95 acres of land bounded by a river. The drainage district took 8.1- acres of the tract for the right of way of its levee, and the levee was so constructed as to leave 30.95 acres of the tract outside of the levee and between it and the river. Held, that, as the drainage district did not leave all of exceptors’ land between the levee and the river, but appropriated a part of it for the levee right of way, it was liable in damages for the increased overflow of the river waters on the 30.95 acres, under that provision of the Constitution that says that “private property shall not be taken or damaged for public use without just compensation,” and cannot escape the payment of such damages on the theory that the owner of lands has the right to shut off surface water from his lands without being liable in damages to another owner for the injury thus caused, for the drainage district is not the owner of any land, but is seeking to condemn a right of way for the levee through, and not outside of, exceptors’ lands. [Distinguishing Jackson v. United States, 230 U. S. 1, and Hughes v. United States, 230 U. S. 24.]
    Appeal from Butler Circuit Court. — Hon. J. P. Foard, Judge,
    Affirmed.

      L. .R. Thomason and Oliver & Oliver for appellant.
    (1) The injury, if any, caused by the raising of the water between a levee to be constructed by the drainage district and the bank of a river which overflows its banks to such an extent as to render necessary the construction of the levee in order to protect the lands within the district is damnum absque injuria. Cubbins v. Commissioners, 241 U. S. 351; Jackson v. United States, 230 U. S. 1; Hughes v. United States, 230 U. S. 24; Rex. v. Commissioners, 23 Eng. Ruling Cases, 792, 8 Barn. 355; Eldridge v. Trezevant, 160 U. S. 452; McCoy v. Board of Directors, 95 Ark. 345; St. L. S. W. Ry. v. Board of Directors, 207 Fed. 338, 197 Fed. 815; Richardson v. Levee Com., 62 Miss. .8C7; Lamb v. Reclamation Dist., 73 Cal. 125; Tinicum Fishing Co. v. Coster, 36 Am. Rep. 632; Farnham on Waters, p. 1338. (2) The occasional raising of the water by the construction of the levee does not constitute a taking within the meaning of the, Constitution. It is but the incidental consequence of the lawful and proper exercise of a governmental power. Transportation Co. v. Chicago, 99 U. S. 635; Scranton v. Wheeler, 179 U. S. 141; Migault v. Springs, 199 U. S. 473; Gibson v. United States, 166 U. S 269. (3) It is the settled rule in this State that waters overflowing the banks of a stream are surface waters. McCormick v. Railroad, 57 Mo. 433; Abbott v. Railroad, 83 Mo. 280; Schneider v. Railroad, 29 Mo. App. 71; Jones v. Railroad, 18 Mo. App. 251; Benson v. Railroad, 78 Mo. 512; Edwards v. Railroad, 97 Mo. App. 109. (4) At common law surr face water is a common enemy. The common-law rule obtains in Missouri, and any individual or group of individuals may construct levees to protect their property from such waters. The drainage district being created for the purpose of protecting property has the same right. Thompson v. Railroad, 137 M!o. App. 69; Thaele v. Planing Mill Co., 165 Mo. App. 717; McCormick v. Railroad, 57 Mo. 437; Benson v. Railroad, 78 Mo. 504; Walther v. City of Cape Girardeau, 166 Mo. App. 476; Grant v. Railroad, 149 Mo. App. 310; Mehoilray v. Foster, 132 Mo. App. 231; Abbott v. Railroad, 83 Mo. 285. (5) All the lands in the Louisiana Purchase adjacent to streams when acquired by the United States were charged with a convenant authorizing the sovereign to use such portion of the land along the river banks as was necessary for the construction of roads, tow-paths, levees and other public improvements. That covenant still runs with the land and this appellant, an arm of the State, has the legal right to appropriate that right to its own benefit. Spanish Regulations for the Allotment of Lands; Laws Mo. (Digest) 1818, p. 438 et seq., p. 442, Arts. 3, 8, 14 and 26; Treaty between French Republic and Spain concluded Oct. 1, 1800, ceding Louisiana Territory to France, U. S. Senate Doc. 357, p. 506; Treaty between French Republic and United States, concluded April 30, 1803, ceding Louisiana Territory to United States, Laws Mo., 1818, p. 18; Code Napoleon, Articles 649 and 650; Sec. 16 of an Act of Congress entitled “An Act providing for the government of the Territory. of Missouri,” approved June 4, 1812; Laws of Mo. 1818, 1. c. p. 66; Third proposition, Sec. 6, Act of Admission of Territory o.f Missouri as a state, R. S. Mo. p. - 28; Cubbins v. Commissioners, 241 U. S. 351; Eldridge v. Trezevant, 160 U. S. 452. The further intention of the Congress of ■the United States is evidenced by the passage of. the Act of September 28, 1850, granting to the State of Arkansas and other states the swamp and overflowed lands lying within their borders, “'To enable the State of Arkansas • to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein,” etc. 9 U. S. Stat. 519. This appellant has been created to carry out the trust imposed by the Federal government on the several states having swamp lands, and should be permitted to avail itself of all rights incident to the cause for its creation.

      Sheppard é Sheppard and Leslie G. Green for respondent.
    The damages suffered by respondents on account of the erection of a levee by appellant through their land, causing the water from the St. Francois River to overflow the land between the levee and river bank to a greater depth, and at more frequent intervals, is. not damnum absque injuria. Constitution of Missouri, art. 2, sec. 21; Laws 1913, p. 239, sec. 14; State ex rel. v. Taylor, 224 Mo. 481; Tarkio Drainage District v. Richardson, 237 Mo. 77.
   ROY, C.

This is an appeal from the judgment of the circuit court of Butler County increasing the damages awarded by the commissioners appointed by that court to assess benefits and damages to the lands and property in the Inter-River Drainage District.

The exceptors (respondents), as cotenants, own 118.95 acres in a body bounded on the northeast by the St. Francis River, which river is the eastern boundary of the drainage district. The contemplated levee runs along the southwest side of the river so as to bisect the lands of exceptors. The right of way for that levee includes 8.1 acres of the tract, leaving 30.95 acres outside of the right of way and between it and the river, and including 79.90 acres of the tract within the protection of the levee.

Exceptions were filed by respondents to the report of the commissioners assessing benefits and damages. A jury increased the net damages from $490 to $605.

The- district in that trial asked the following instruction, which was refused:

“The court further instructs you that even though you may find that the lands of exceptors are not now under present conditions flooded except when the St. ' Francis River reaches exceptionally high stages, and may further find that, after the completion of the works and improvements of the Inter-River Drainage District and the building of the St. Francis River Levee through the lands of exceptor, his said lands lying between said levee and the hank of the St. Francis River will be overflowed by the flood waters of said river more frequently and to a greater depth and for longer periods of time than they are now overflowed, still such additional overflows on said part of exceptors’ lands do not entitle him to recover damages from the drainage district therefor, and you will not take such facts and conditions into consideration in assessing the damages in this case.”

The court instructed the jury that the district was liable for such damages. There was evidence tending to show such increase in the height of the water outside the levee. It is conceded that such question is the only one here involved.

Appellant contends that overflow water from a stream is surface water and that one proprietor of lands has the right to shut off such surface water from his land without being liable to another proprietor for ^Te damage thus caused. That rule must be conceded. [McCormick v. Railroad, 57 Mo. 433; Benson v. Railroad, 78 Mo. 504; Abbott v. Railroad, 83 Mo. 1. c. 280; Goll v. Railroad, 271 Mo. 655.]

But that rule does not help this appellant in the least. It is not the proprietor of one tract of land engaged in the act of shutting off the surface water from its tract, and thus keeping it back on the land of these respondents. This appellant does not own any land, nor any right of way for its levee. It is seeking to condemn such right of way over the land of respondents. In order to do that, it must comply with our State Constitution, Section 21 of Article 2, which says: “Private property shall not be taken or damaged for public use without just compensation.” 1 In State ex rel. v. Taylor, 224 Mo. 393 1. c. 482, it was said:

“In pursuance to that constitutional mandate, the Legislature duly enacted the drainage laws we now have under consideration. And whenever private property is about to be taken or damaged in consequence of said improvements, then in steps said Section 21 and says all damages done private property by means thereof shall be first paid.”

Appellant cites Jackson v. United States, 230 U. S. 1, and Hughes v. United States, 230 U. S. 24. In both those cases levees were constructed, but not on the lands of the complainants. Increased overflow of those lands was caused thereby. It was held that there could be no recovery. If the appellant were proceeding to build a levee leaving all of respondents’ land between the levee and the river, those cases would be in point. As it is, they do not apply.

Appellant is bold enough to cite Eldridge v. Trezevant, 160 U. S. 452, where is was held that in the State of Louisiana., in pursuance of the laws of that State, the land of an individual could be taken without compensation for the construction of a levee on the bank of the Mississippi. In that case it was said:

‘ ‘ The concession distinctly made by the complainant, in his bill, that the state courts refuse to recognize that owners of lands abutting on the Mississippi River and the bayous running to and from the same, where levees are necessary to confine the waters and to protect the inhabitants against inundation, are entitled, when a public levee is located upon such lands, to invoke the application of that provision of the state constitution which provides that ‘private property shall not be taken nor damaged for public use without just and adequate compensation first paid,’ and repeated in the brief filed on his behalf in this court, 'relieves us from an extended examination of the origin and history of the state enactments, constitutional and legislative, and of the decisions of the state courts on this subject.

“It is important, however, to observe the ground upon which the state legislative and'judicial authorities base their action. - That ground is found in the doctrine existing in the Territory of Louisiana before its purchase by the United States and continuing to this time, that lands abutting on the rivers and bayous are subject to a servitude in' favor of the public, whereby such portions thereof as are necessary for the purpose of making and repairing public levees may be taken, in pursuance of law, without compensation. This doctrine is said to have been derived from the Code Napoleon, whose 649th and 650th articles were as follows:

“ 'Servitudes established by law have for object the public or communal utility, or the utility of private persons. Those established for the public or communal utility have for object the two paths along the navigable or floatable rivers, the construction or repairing of roads and other public or communal works. All that concerns this kind' of servitude is determined by laws or particular regulations.’ ”

It is sufficient to say that we are proceeding under the law of Missouri, and not under that of the State of Louisiana. The difference in the laws of the two states is justified by the difference in the topography of their lands. We call attention to the fact that this appellant is not proceeding herein on the theory that it has a right to take without compensation therefor the lands of the respondents for the construction of a levee. If the law of Louisiana were in force in this State, as claimed by appellant, there would be no necessity for it to resort to this proceeding. It could take the right of way for the levee without payment therefor and without condemnation. The judgment is affirmed.

White, G., concurs.

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

All' of the judges concur.


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    THE STATE v. WILLIAM ALLEN et al.; CHRIS SCHAWACKER, Appellant.
    Division Two,
    July 16, 1918.
    1. SCIRE FACIAS: Forfeited Bond: Civil Action: Statutory Construction. A scire facias proceeding on a forfeited bond, in so far as the nature of the proceeding itself is concerned, is a civil action, the bond or recognizance being nothing more than a formal confession of debt. Therefore a literal compliance with the statute requiring a bond to be taken for a bailable offense is not necessary, but the statute will be so construed as to effectuate the purpose for which it was enacted.
    2. -: Bond to Appear at Same Term. A bond given by an accused for his appearance from day to day during the June term of court then in session and from day to day during the next September term, which was not a term designated by the statute, but a part of the June term, notwithstanding the statute says a recognizance shall be taken for his appearance “on the first day of the next term,” is enforcible against the surety upon default of the accused to appear at the September term; such statute, not being penal in so far as the scire facias proceeding is concerned, is not to be construed according to its strict letter, but in a manner to effectuate the purpose for which it was enacted, which was to secure the presence of the accused in court by authorizing him to substitute his voluntary contractual obligation for his physical custody.
    3. -: -: Statute of Jeofails. The Statute of Jeofails (Sec. 5019, R. S. 1909), declaring that no proceeding upon a recognizance shall be defeated on account of any defect in form, or omission of recital or condition of undertaking therein, or other irregularity, is a part of the statute authorizing the giving of bonds or recognizances and requires said latter statute to be liberally construed in a manner to effect its purpose to secure the appearance of the accused for trial at the time specified.
    Appeal from St. Louis Circuit Court. — Eon. Leo 8. 'Rassieur, Judge.
    Affirmed.

      Willis E. Clark for appellant.
    The provision of the bail bond requiring the appearance of the principal at the June term of the circuit court was not authorized by law, and was surplusage, and the forfeiture of said bond at said June term was without authority of law, and the judgment founded upon such forfeiture is contrary to law. Laws 1865-6, p. 78; Laws 1869, p. 95, secs. 7 and 17; Laws 1909, p. '399; R. S. 1909, sec. 5039; R, S. 1909, sec. 4150; State v. Bobb, 39 Mo. App. 543; State v. Lewis, 61 Mo. App. 633; State v. Cobb, 44 Mo. App. 375; Howlett v. Turner, 93 Mo. App. 20; R. S. 1909, sec. 5134.

      Frank W. McAllister, Attorney-General, and G\ P. Le Mire, Assistant Attorney-General, for respondent.
    (1) .“These bail bonds are allowed in the interest of the defendants that they may be free until they are tried and either convicted or acquitted. It is not the purpose to permit defendants to enter into them to escape trial and punishment and then allow the surety to defeat their solemn obligations after the defendants have escaped.” State v. Mudd, 232 Mo. 564; State v. Epstein, 186 Mo. 101; State v. Boehm, 184 Mo. 201; State v. Posten, 63 Mo. 521. (2) The scire facias sufficiently set forth the charge, entry of default, and all other facts necessary for the information of the surety, and the form has been approved by the decisions of this .court. Demurrer to said writ was properly overruled. Sees. 5019, 5134, R. S. 1909; State v. Abel, 170 Mo. 59; State v. Epstein, 186 Mo. 93.
   WALKER, P. J.

This is an appeal from a judgment rendered in the circuit court of the city of St. Louis in a scire facias proceeding on a forfeited bail bond.

William Allen was charged by information June 20, 1916, in the court of criminal correction of the city of St. Louis with carrying concealed weapons. He waived a preliminary examination and gave bond with Chris Schawacker, the appellant, as his surety, for his appearance before the circuit court of the city of St. Louis from day to day during the June term of the said circuit court, then in session, and also from day to day during the next September term, 1916, then. and there to answer any indictment that might .be preferred against him, and not depart said court without leave. The next September term, which was not-a term of court designated in the statute, but was á part of the June term, commenced on the first Monday in September, 1916. On the 18th of that month the said William Allen, upon being called to answer the charge preferred against him, made default, and his surety, upon being notified and demanded to bring him into court in conformity with the condition of said bond, failed to do so and a forfeiture was formally taken and entered thereon. A scire facias was thereupon sued out. Allen was not found, but his surety was served with 'a copy of the writ. He appeared and filed an answer, specifically denying each of the averments of the writ. Upon a hearing, the court rendered judgment against him in the sum of eight hundred dollars, the penalty in the bond.

Appellant seeks a reversal on the ground that the bond was on its face invalid, and hence the judgment rendered thereon was unauthorized.

The specific objection is that the bond required the principal, Allen, to appear and answer the charge at a term of the circuit court then in session and not to its next term.

The statute applicable to bonds of the character here under review provides that “if the offense with which the prisoner is charged be bailable, and the prisoner offer sufficient bail, a recognizance shall be taken for his appearance to answer the charge before the court in which the same is cognizable, on the first-day of the next term thereof, and not to depart such court without leave, and thereupon he shall be discharged.” [Sec. 5039, R. S. 1909.]

The determination of the matter at issue is dependent upon the construction of the above statute. Is it to be construed according to its letter, or in a manner to effectuate the purpose for which it was enac^ed-? If construed strictly, it must be held that it is penal in its nature and a literal compliance' with its terms is necessary. That we have held in a nnmher of cases that a scire facias proceeding on a forfeited bond was a part of the original case is beyond question, the last expression of the court dn regard thereto being found in State v. Wilson, 265 Mo. 1. These cases, however, are limited to the determination of the jurisdiction of this court for the purpose of review. The holding, so far as the nature of the proceeding itself is concerned, is th^t it is a civil action, the bond or recognizance on which it is based being nothing more than a formal confession of a debt, the maturity and collection of which is dependent upon the arising of the condition therein named. [State v. Mudd, 232 Mo. 1. c. 573; State v. Morgan, 124 Mo. 1. c. 475.] These cases further hold that the action thus authorized is to be governed by the civil procedure, from which, it follows, that the statute upon which it is based is to be construed as of a civil nature, authorizing, as we have indicated, an action for the violation of a contractual obligation. This being true, there remains no reason, under the canons of construction, for a strict interpretation of the statute. The parties stand before' the court on an equality in the assertion of their repective rights and, as applied to them, the law is to be construed so as to effectuate the purpose of its enactment.

The concrete facts necessarily existing in the execution of any bond or recognizance under this statute will, upon analysis, render more apparent the soundness of the' conclusion that such statute should be liberally construed.

The Constitution declaring the right to bail and the statutes giving operative force to same are in the nature of instruments of grace in favor of the freedom of the individual. ' As such they should not be construed otherwise, than in the spirit of their adoption and enactment. When, however, all the requirements of the law have been met and bail has been granted, its practical effect upon the adminstration of the criminal law is to prejudice the* State (Ewing v. U. S., 153 C. C. A. 167), in that it changes the relation of the latter to the accused from that of a custodian to one of a mere holder of a moneyed obligation maturing upon the violation of its conditions. Such an obligation is necessarily voluntary. Its most material requisite is the appearance of the accused at the time and place stated. To insure this the principal and sureties bind themselves. An obligation, therefore, of the character here under review, voluntary in its nature, definite in its terms and taken by the State to afford the priyilege of freedom to the prihcipal therein, should, upon default being'made by the latter, be held binding upon the sureties, although its terms may not conform to the letter of the statute authorizing its execution. To hold otherwise would add nothing to the rights of the accused; and, so far as the State is concerned, it would interfere with the speedy administration of the law. It not infrequently occurs that an accused is held to answer a criminal charge during the term of the court to which his case would be returnable. If, under a strict construction of the statute, he may only be recognized or bound “to appear at the next term of such court,” the determination of the case must of necessity be deferred until that time, although he may be informed against or indicted long prior thereto. It was, therefore, never within the contemplation of the framers of our criminal code that the statute should be construed, not solely in the interest of liberty, which was its prime purpose, but to afford an easy loop hole for delay. It is equally evident that it was not intended that a failure to comply with the literal terms of the statute in the framing of a bond thereunder, would not, on account of the nature of the obligation and the purpose of its execution, authorize the release of sureties thereon upon default being made by the principal. The sureties are in no wise injured by such failure. Their obligation is neither lessened nor increased in its requiring the principal to appear at another than the time designated in the statute. This being true, they should not be permitted, to escape liability on a mere technicality. Viewed from every vantage, therefore, this statute, so far as it requires a bond or recognizance to be made returnable to “the next term of the court” before which the offense charged is cognizable, should be held to be directory, and as a consequence liberally construed to effectuate the purpose of its enactment.

This conclusion has been reached by applying the well established rules of interpretation to this statute in the light- of its character and purpose.

A cogent reason for the correctness of this conclusion, as to the manner in which the statute should be construed, is to be found in the statute of amendments or Jeofails especially applicable to bonds and recognizances. It is, so far as applicable to the matter at issue, as follows: “No proceeding upon a recognizance shall be defeated, nor shall judgment thereon be prevented or' arrested, on account of any defect of form, omission of recital, condition of undertaking therein, . . . or of any other irregularity, so that it be made to appear from the whole record or proceeding that the defendant was legally in custody, charged with a criminal offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate at a term or time specified for trial.” [Sec. 5019, R. S. 1909.]

This statute is as much a part of that authorizing the giving of bonds or recognizances as if incorporated into the text of the latter. In fact, to accomplish its purpose, it should be read into that statute in construing same. Thus read, it eliminates • from consideration any contention as to a literal interpretation, and leaves, as essentials to determine the sufficiency of the obligation, the legal custody of the accused, to be ascertained from the entire record; .his discharge by reason of the giving of the obligation; and that he thereby agreed, and his sureties bound themselves, that he would appear before the court for trial at a time or term specified. These essentials affirmatively appear in the bond at bar; and it will be seen that those required by legislative declaration are the same as those which reason declares should exist in a liberal interpretation of the statute in the absence of such declaration.

From all of which it follows that the surety herein has asserted no. sufficient.reason for his discharge from the obligation he voluntarily entered into. His contention being devoid of substantial merit, the judgment of the trial court should be affirmed, and it is so ordered.

All of the judges concur.


author: WILLIAMS, J.

text:
    MARY BURKE and JOHN W. ENNIS v. THOMAS MURPHY and ELLEN DROMEY, Appellants.
    Division Two,
    July 16, 1918.
    1. CONVEYANCE: Deed to Husband and Wife: Title in Survivor. The owner of land and his wife conveyed his land to their daughter, and the daughter by another deed conveyed it to her father and mother. Held, that the last deed created an estate by the entirety in the father and mother, and upon the father’s death the entire legal fee simple estate remained in the mother.
    2. -: -: Intended as Mortgage: Presumption: Character of Proof. The presumption of law is that a warranty deed regular in form is not a mortgage, but was intended to be what it purports to be, and it will not be decreed to be a mortgage unless the presumption is overcome by clear and convincing proof.
    3. -: -: -: No Debt. A conveyance cannot be held to be a mortgage unless it is made for the purpose of securing the payment of a debt or the performance of an existing or future obligation.
    4. -: -: — : -: Bond for Support. A, deed from the owner of land to his daughter will not be decreed to be a mortgage, when construed in conjunction with a bond of even date executed by the daughter by which she obligated herself to support her father and mother during their lives and to permit them to remain upon and use the land as a home, and to pay $1500 in case she defaulted in the performance of the obligation. There was no debt or obligation from the grantor to the grantee.

      5. ESTATE BY ENTIRETY: Claim of Homestead: Waiver. A widow, who does not know-that she is the owner of an estate by the entirety in the land, does not waive her fee simple title to the entire estate by claiming a homestead interest after her husband’s death.
    6. --: Waiver. There can be no waiver without a knowledge of the rights waived and an intention to waive them.
    7. -: Estoppel: Prejudicial Misleading. If the surviving widow, to whom and her husband a conveyance of an estate by the entirety had been made, by claiming a homestead in the land did not cause her husband’s heirs to do or to refrain from doing anything which worked to their financial loss or prejudice, they cannot invoke the doctrine of equitable estoppel.
    8. -: Fraudulent Conveyance: Raised by Party Without Interest. The point that a deed was fraudulently procured by the grantees cannot be raised by persons who will in no wise be benefited if the deed is set aside. Where a valid warranty deed was made by a daughter to her father and mother, the children of the said father by a former marriage cannot raise the point that a deed by the surviving widow to her said daughter was fraudulently procured, since if it were set aside the title would not pass to them, but to the heirs of the grantor.
    Appeal from Knox Cirenit Court. — Hon. Charles D. Stewart, Judge.
    Affirmed.

      L. F. Cottey and J. C. Dorian for appellants.
    (1) The conveyance from James Murphy and wife to their daughter, dated November'5, 1874, was a mortgage, bec'ause it was made by the parents as security to their daughter for the performance hy her of the stipulations contained in the defeasance, of same date and filing, wherein the daughter agreed to maintain her father and mother as contractors, for the payment of said property, during their natural lives in decency and comfort, and that the cancellation of the defeasance (called a bond and agreement), two days after it was filed, operated to nullify and cancel the' mortgage. O’Neill v. Capelle, 62 Mo. 207; Book v. Beasly, 138 Mo. 463; Reilly v. Cullen, 159 Mo. 329. The recent case of* Brightwell v. McAfee, 249 Mo. 562, is clearly in point and decisive of our contentions in the instant case. (2) It is manifest that the conveyance from the father (the mother joining merely to convey her dower under the old form of acknowledgment), to the daughter, was the sole consideration for the contemporaneous agreement, or defeasance, between the father and daughter; and that the cancellation of the latter, ipso facto, nullified the former. That was the construction the parties put upon it at the time, and for thirty-five years thereafter. It is the business of a court to ascertain and determine the meaning and intention of the parties in making an agreement. The courts are not at liberty to disregard the construction which the parties to a deed, by their acts and conduct, have placed upon it for a long period of years. Patterson v. Camden, 25 Mo. 22; St. Louis Gas Co. v. St. Louis, 46 Mo. 130; Jones v. DeLassus, 84 Mo. 545; Depot Co. v. Railway Co., 131 Mo. 305; Williams v. Santa Fe Ry. Co., 153 Mo. 534. (3) If Mary Murphy, Sr., and her sole heir at law, Mary Burke, plaintiff, acquired any right under the conveyance of November 10, 1874, then such rights-have been waived by the acts and conduct of the parties. And by parties is meant both, nqother and daughter, because the daughter is the sole beneficiary of her mother, and, according to the record, the acts and conduct of the daughter, with respect to said lands, go hand in glove, with the acts and conduct of. her mother, with respect to said lands. The facts authorize the application of the doctrine of waiver in this case. Hayes v. Manning, 263 Mo. 1.

      John W. Ennis, pro se and for other respondents.
    (1) A deed made to a husband and wife creates an •estate by the entirety and the title passes to the survivor. Gibson v. Zimmerman, 12 Mo. 385; Gardner v. Jones, 52 Mo. 68; Frost v. Frost, 200 Mo. 480. (2) The law presumes that a deed, absolute on its face, is what it-purports to be and the burden is on the grantor to overcome the presumption by clear and convincing evidence. A conveyance cannot be construed to be a mortgage if there is no debt of the grantor due to the grantee. The infallible test is that there must be a debt due from the grantor to the grantee. Duell v. Leslie, 207 Mo. 658; Jones V; Hubbard, 193 Mo. 163; Bobb v. Wolff, 148 Mo. 335; Book v. Beasley, 138 Mo. 460; Whelen v. Tobner, 71 Mo. App. 371; Worley v. Dryden, 57 Mo. 226; Hargadine v, Henderson, 97 Mo. 375; Brightwell v. McAfee, 249 Mo. 562. (3) The question of waiver is mainly a question of intention which lies at the foundation of the doctrine. Waiver must be manifested M some unequivocal manner, and to operate as such it must in all cases be intentional. There can be no waiver unless it is so intended by one party and so understood by the other, or one party has so acted as to mislead-the other and is estopped thereby. Gillen v. Insurance Company, 178 Mo. App. 106; Fulkerson v. Linn, 64 Mo. App. 653; Francis & Hunter v. A. O. U. W., 150 Mo. App. 355; Reed v. Bankers’ Union, 121 Mo. App. 419. Mary Murphy, Sr, could not waive that of which she was ignorant, nor could she be estopped where her course of 'conduct had led no one to change his conditioii to his prejudice. Seek v.. Haynes, 68 Mo. 15; Hayes v. Manning, 263 Mo. 1; Fairbanks Morse Company v. Baskett, 98 Mo. App. 64; Belknap'v. Bender, 75 N. Y. 453. If no one has been misled to his hurt, if no injury has arisen from the conduct, declarations or silence of a party, he will not be estopped from contradicting them, even though they would be' conclusive against his right if not contradicted. Harrison v. McReynolds, 183 Mo. 548; Bramell-v. Adams, 146 Mo. 83; Acton v. Dooley, 74 Mo. 67; Blodget v. Perry, 97 Mo. 273; Mueller v. Kaeffmann, 84 Mo. 329. Where a homestead is set off to a widow who owns the fee simple title to the land set apart as homestead, neither the widow nor her heirs are estopped from claiming fee. Hendrix v. Musgrove, 183 Mo. 300; Case v. Metzenburg, 109 Mo. 311; Ketchum v. Christman, 128' Mo. 38; Payne v. Daviess County Savings Association, 126 Mo. App. 599; Seek v. Haynes, 68 Mo. 15.
   WILLIAMS, J.

This is a suit under Section 2535, Revised Statutes 1909, to determine the title to the north half of the southeast quarter and the south sixty-five acres of the northeast quarter of section eighteen,' township sixty-three, range twelve west. Knox County, Missouri.

A trial was had before the circuit court of Knox County, which resulted in a decree in favor of plaintiffs. Thereupon defendants duly appealed.

The petition is in the usual form. The answer contains six counts and alleges affirmative equitable defenses. No questions are raised as to the pleadings. If it becomes necessary we will refer to them in the. course of the opinion.

James Murphy may properly be considered as the common, source of title. He was twice married. His second wife was Mary Murphy, Sr. The defendants, Thomas Murphy and Ellen Dromey, were the only children by his first wife. Plaintiff Mary Burke (nee Murphy) was the only child by the second wife. Plaintiff John W. Ennis claims a one-third interest through mesne conveyances from the common source of title. Plaintiff Mary Burke claims a two-thirds interest in the same manner. Defendants contend that James Murphy did not succeed in disposing of this land by deed, but that he died seized of said land — hence the two defendants and plaintiff Mary Burke as the sole surviving heirs each have an undivided one-third interest in the land.

The legal title stands in the plaintiff, as will appear from the following conveyances of this land, to-wit:—

(1) Warranty deed dated November 5, 1874, from James Murphy (common source) and Mary Murphy, Sr., his wife, to Mary Murphy, Jr. (now Mary Burke, one of plaintiffs).

(2) Warranty deed dated November 10, 1874, from Mary Murphy, Jr., to James Murphy and his wife, Mary Murphy, Sr.

(3) (James Murphy died about 1877).

(4) Warranty deed dated June 14, 1913, from Mary Murphy, Sr., to John W. Ennis (plaintiff), conveying undivided one-third interest in the land.

(5) Warranty deed dated June 14, 1913, from Mary Murphy, Sr., to Mary Burke (plaintiff), conveying an undivided two-thirds interest in the land.

The evidence upon the part of the plaintiffs further tends to show that Mary Murphy, Sr., died about two months after the execution of the two deeds last above mentioned; that she was 96 years old at the time of her death; that from the death of James Murphy down to the date of her own demise she was in the possession of this land; she signed the deeds by mark and there was some evidence tending to .show that she could neither read nor write; the evidence further tends to show that her mind was normal on the date of the execution of the deeds above mentioned.

Defendants’ evidence tends to establish the following facts:

At the February term, 1878, of the Knox County Probate Court and upon the application of said Mary Murphy, Sr., as the widow of James Murphy, deceased, said court made an order appointing commissioners to set off and assign to said widow her homestead in said lands (and other lands). At the May term, 1878, said commissioners reported that they had set off as such homestead the land now in controversy. Said report was by the court approved and ordered filed.

At the June (1903) term of the Knox County Circuit Court Thomas Murphy and Ellen Dromey (defendants in the case at bar) instituted suit against said Mary Murphy, Sr., (now deceased), and Mary Burke (plaintiff in the case at bar) and her husband to enjoin said defendants from cutting timber therefrom and otherwise committing waste upon said land. The petition in that suit, among other things, alleged that James Murphy died seized of the fee simple title to said land and that said Thomás Murphy, Ellen Dromey and Mary Burke were the sole heirs of said deceased and each owned an undivided one-third interest therein subject to the homestead interest therein of the widow, Mary Murphy, Sr. The joint answer of Mary Burke and Mary Murphy/ Sr., admitted the title as alleged in the petition in that suit, but denied that they were committing waste on said land. A trial was had resulting in a judgment for the defendants therein.

On October 3, 1912, Mary Murphy, Sr., Mary Burke and husband and Ellen Dromey instituted, as plaintiffs, a partition suit involving the land now in dispute. Thomas Murphy and his wife were made defendants in that suit. The petition therein alleged the title to be in Mary Burke, Thomas Murphy and Ellen Dromey as the sole heirs at law of .James Murphy, deceased, subject to the homestead interest of the widow Mary Murphy, Sr. The petition alleged that the widow joined as plaintiff and consented and asked that the land be-partitioned. The petition prayed that the land be sold and the proceeds divided between the parties according to their respective interests as above defined. Trial was had resulting in an interlocutory decree finding the title as alleged, -fixing the value of the homestead interest and ordering that the land be sold and the proceeds be divided according to the respective interests of the parties. (This interlocutory decree in. partition was afterwards upon motion of Mary Murphy, Sr., set aside. The said motion will be hereinafter copied).

Defendants also offered in evidence the record of a certain bond between James Murphy and Mary Murphy, Jr., which was filed for record November 7, 1874, the same date that the deed from James Murphy and wife to Mary Murphy, Jr., was filed. Said bond as shown by the record was as follows :■—

“G-reensburg, November 5, 1874.

“This Bond made and entered into by and between James Murphy and Mary Murphy (Jun.), all of the county of Knox and State of Missouri, Namely Whereas James Murphy has this day made and executed his deed to Mary Murphy, (Jun.) for one hundred and five acres of land to-wit:—

“65 acres on the South side of the NE qr of Section 18 and 80 acres the N % of the SE quarter of Section 18 and 20 acres the East end of the South-half of SE quarter of Section 18, all in Township Sixty three (63) of Range Twelve (12) in Knox County, Mo.

“Also the following personal property I have sold and delivered to her own use and behalf forever, to-wit: Seven cows 4 two year old cattle 2 steers' and 2 heiffers' 3 yearling stears and one heifer. 8 head of calves 2 head of horses, one colt, one waggon & Harness 27 head of fat Hogs, 20 head of stock hogs more or less, 2 breaking plows 1 Shovel Plow 1 Cultivator. 1 Dimond Plow 1 mower 1 coipi Plauter one hundred Bushells of Wheat and all other personal property & produce on the farm and owned by the said James Murphy at his date, and of the above described personal property known as the property own by him at this date Subject however to the following conditions, the said Mary Murphy (Jun) Binding herself in the full amount of $1500 if default be made in this Bond and agreement To Wit She agrees and binds herself to maintain James Murphy & Mary Murphy (her Father and Mother) as contractors for the payment of said property during their natural lives in decency and comfort permitting them to remain on said Real Estate as their home and James Murphy to have the use of said lands and said personal property to use as he sees proper during his and his wifes lives.

“Given under our hands and seals on this the 5th day of November A. D. 1874.

his “James x Murphy (seal) mark her

“Mary x Murphy Jun. (seal).” mark

On the margin of the record of the above bond was the following entry: r

“We the undersigned acknowledge full satisfaction for the within Bond and hereby release the within named property given under our hands this Nov. 9th, 1874.

his “James x Murphy (seal) mark

her “Mary x Murphy Jun. (seal.) mark

“Attest Ed. M. Eandolph Clerk & Eeeorder, (seal)”

On March 6, 1893, Mary Burke, Jr., and husband, by warranty deed, conveyed to Thomas Murphy a one-third interest in the east half of the southeast quarter of the southeast quarter of Section 18, Township 63, Eange 12, Knox County, Missouri, containing twenty acres more or less. (This twenty acres is not involved in the present suit. It was included in the deed (heretofore mentioned) from James Murphy and wife to Mary Murphy, Jr., and was also included in the deed (heretofore mentioned) from said Mary Murphy, Jr., to James Murphy and wife).

Patrick Powell testified that in the fall of 1874 he had a conversation with James Murphy as follows: (Murphy): “I made all my property to Mary.” (Powell): “Jim, what did you do that for, to beat your creditors?” (Murphy): “No I done it to save myself from Tom; there is more of Tom’s money in that farm than mine, and if Tom sued me he could put me out of house and home.” (Powell): “Tom will never do that.” (Murphy): “Do you mean that?” (Powell): “Of course.” (Murphy) : “If that is the case I will believe you and I will go in tomorrow or the day after and put it back in my name.” Later Murphy told Powell “that he did put it back in his own name.” Upon cross-examination it appeared that this witness’s memory of dates was not very accurate. He was unable to say whether he left Missouri in the year 1839 or 1879, and when it was that he made visits back to the State.

Thomas Murphy (defendant) was offered as a witness to prove transactions occurring between himself and his deceased father, James Murphy, with reference to the land in dispute. This offer was, upon plaintiff’s objection, excluded, and defendants saved an exception.

On October 26, 1874, James Murphy and wife executed to said Thomas Murphy a warranty deed conveying forty acres of land other than that involved in the present suit.

In rebuttal the plaintiff offered the following evidence :

The motion, filed by Mary Murphy, Sr., in the partition suit asking that the interlocutory decree be set aside, was verified by her counsel and omitting verification and formal parts was as follows:

“ Comes now Mary Murphy, a plaintiff herein, by her attorney of record, John W. Ennis, and moves the court to reopen and review the interlocutory decree of partition heretofore rendered in this cause, and that said decree of partition be vacated and set aside by the court, for the following reasons to-wit:

“(1) Because the said decree of partition was rendered by this court under a mis-statement and mistake of fact as to the state of the record title to lands so partitioned.

“(2) Because the said plaintiff, Mary Murphy, is the sole owner of and is now in the possession of all the lands so partitioned, and the other parties to this suit have no interest of any kind or nature therein.

£<(3) Because the said plaintiff Mary Murphy, is an aged and illiterate widow unable to read or write and has acted and permitted her attorneys to act for her under a mistake of fact, as to the state of the record title to the lands sought to be partitioned, in this, that she was led to believe that she was only entitled to a homestead interest in the said lands sought to be partitioned, when in truth and in fact she is the sole owner, in fee simple, of all said lands; that ever since the death of her husband James Murphy, who owned said lands, during his lifetime, jointly as tenant by the entirety, with this' plaintiff, Mary Murphy, it has been represented to this plaintiff that she was only the owner of a homestead interest in said lands, and this plaintiff lias ever since the death of her said husband so believed until long after the rendition of the said decree of partition herein; that since the rendition of said decree this plaintiff has learned, and now avers the facts to he that she is the sole owner, in fee simple, of all the lands sought to he partitioned in this suit.

“Mary Murphy by John W. Ennis, her attorney.”

The above motion was sustained by the court, and the interlocutory decree in partition was set aside and the cause was ordered continued.

After the taking of testimony in the case at bar had been closed by both sides the defendants were permitted to call John "W. Ennis, one of the plaintiffs, as a witness, and to prove by him that he paid no money consideration for the deed whereby he received from Mrs. Murphy the undivided one-third interest in said land. Upon cross-examination he testified as follows:

“A. I visited Mrs. Murphy in the month of June after the adjourning of circuit court, and I had visited Mrs. Murphy before the convening of the circuit court, I had discovered that the title to the land was in her name, and I had examined the deed'and went to see her.and informed her of the effect of the deed. She didn’t know that a deed made to herself and husband vested the title in her and I informed her of that fact and told her the land was fixed under the partition proceedings, and if it Avas sold, her fee simple interest in the land would be destroyed, then she would lose her interest in the property. I proposed to her I would procure the setting aside of the decree of partition and would make all duo effort to establish her interest in the property as a fee simple interest in the property. The substance of the agreement was if I did get the decree set aside, I should have a one-third interest in the property. That was my contract with Mrs. Murphy.”

I. It appears from the evidence that the legal title to the land involved is in the plaintiffs. James Murphy (the common source of title) conveyed the land involved, together with twenty acres of other land not ^ere involved, to his daughter Mary Murphy, Jr. Thereafter the daughter, Mary, conveyed the land here in controversy (together Avith the twenty acres not in controversy) to James Mnrphy and his wife Mary Mnrphy, Sr. Under the law this created an estate by the entirety in James Murphy and Mary Mnrphy, his wife. Upon the death of James Mnrphy, occurring in 1877; the entire legal fee simple estate remained in Mary Mnrphy, the wife. [Frost v. Frost, 200 Mo. 474, 1. c. 483.] Thereafter on June 14, 1913, she conveyed one-third of the legal title to plaintiff Ennis, and two-thirds thereof to her only child, Mary Burke, one of the plaintiffs.

As we understand appellants’ contentions, they undertake to defeat the legal title as above set forth, on the following grounds, tó-wit: '

(1) That the deed from James Murphy and wife to Mary Murphy, Jr. (when construed in conjunction with the bond of even date therewith), should be decreed to be a mortgage; and that the equitable title remained in said James Murphy at the time of his death, and that his three children, as his sole heirs, are now each entitled to a one-third interest therein, th.e homestead interest of the widow having terminated upon her death.

(2) Even though the above deed is not decreed to be a mortgage, yet said Mary Murphy, Sr., having claimed only a homestead estate in the land from the time of her husband’s death in 1877 up until just before she made the deeds to the plaintiffs in 1913, waived her title in fee simple, and her grantees received no title. And further that said grantees are estopped from claiming said title.

The above propositions will be discussed in their order.

II. Should the deed dated November 5, 1874, from James Murphy and wife to Mary Murphy, Jr., be decreed a mortgage? We think not. The deed is a warranty deed in regular form. The law presumes that the instrument was so intended, Bobb v. Wolff, 148 Mo. 335, 1. C. 344.] The burden is upon the grantor or those claiming under him to overcome this presumption by clear and convincing proof. [Brightwell v. McAfee, 249 Mo. 562; Bobb v. Wolff, supra.]

The very purpose of a mortgage is to secure' the payment of a debt or the performance of an obligation. In the case of Duell v. Leslie, 207 Mo. 658, this subject is fully discussed and authorities reviewed. In that case the following quotation from Jones on Mortgages was quoted with approval, viz:

“There can be no mortgage without a debt. There may be agreements for the performance of obligations other than the payment of money; but leaving; these out of view it is essential that there be an agreement, either express or implied, on the part of the mortgagor or some one in whose behalf he executes the mortgage, to pay to the mortgagee a sum of money, either on account of a pre-existing debt or a present loan.”

Commenting on the above rule the court said: “This is the universally recognized doctrine applicable to the essential requisites of a mortgage.” [Ibid., 1. c. 668.]

In the ease of Sheppard v. Wagner, 240 Mo. 409,1. c. 433, the court quoted with approval the following statement of' the rule:

“It may be taken as universally true in law that no conveyance can be a mortgage unless it is made for the purpose of securing the payment of a debt, or the performance of a duty either existing at the time the conveyance is made or to be created or to arise in the future. ’ ’

The two above quoted excerpts supplement each other and when read together give a clear understanding of the rule. To the same effect are the following authorities: Book v. Beasley, 138 Mo. 455,1. c. 461; Bobb v. Wolff, 148 Mo. 335, 1. c. 344; Worley v. Dryden, 57 Mo. 226, 1. c. 232.

Measured by the above rule do the facts in the case show the deed to have been executed as a mortgage? We think not. The evidence shows that James Murphy and wife made a straight out conveyance of this land by warranty deed to their daughter. In consideration of this agreement the daughter executed the instrument, referred to in the evidence as a bond, whereby she obligated herself to support her father and mother during their natural lives and to permit them to remain upon and to use the land as a home. The bond provides that if she defaults in the performance of the foregoing obligation she shall pay the sum of $1500.

It therefore appears that the grantors fully performed their portion of the contract by conveying to the daughter the land, and there remained no outstanding .debt or obligation, or the 'provision for the future existence of a debt or obligation, from the grantors to the grantee. The outstanding debt or obligation was all the other way. It was one owed by the grantee to the grantors. Under such facts it cannot be said that the grantors in said deed occupied the status of mortgagors with reference to the property. Whether they possessed rights created by the bond which were similar to that of mortgagees (27 Cyc. 981) we need not here determine for two reasons, viz: (a) Appellants can only obtain relief by showing that the apparent grantors were mortgagors and not mortgagees; (b) The bond was afterwards by consent of all concerned, duly released of record.

III. Did Mary Murphy, Sr., waive her title as tenant by the entirety by claiming a homestead interest in the land? We think not.

We are not aware that it has ever been held that a legal fee simple title to land can be divested by the process of a waiver when the acts constituting a waiver (as that term is used in the law) are unaccompanied by other acts or facts sufficient to invoke. the rules of estoppel. Appellants rely upon the case of Hayes v. Manning, 263 Mo. 1, in support of their contention.’ That case applies the doctrine of waiver to the equitable rights to possession claimed by certain trustees of church property. That case was not dealing with a situation similar to the one here involved. It was not intended by that opinion and nothing therein stated can be properly construed as holding that the doctrine of waiver in and of- itself will ever operate to divest the legal title of land. But even though it he conceded ar'guendo that the doctrine of waiver .could work a divestiture of a legal fee simple title to land, the facts here involved would not call for the application of the rule. Waiver involves a full knowledge of the rights waived and an intention to waive the same. [Hayes v. Manning, supra, 1. c. 46.] There is no proof in this record that Mary Murphy, Sr., understood her rights under the deed to herself and husband, prior to 1913. In fact, the evidence conclusively shows we think that she did not know that she owned the fee simple title to the land until just a short time prior to the execution by her of the conveyances conveying the title to plaintiffs. The evidence shows that Mary Murphy, Sr., was an illiterate woman and that although, in fact, she owned the fee simple title to the land she thought she had only a homestead interest in the- land. She knew no better until advised by her attorney in 1913 and just prior to the execution by her of the deeds conveying the land to • the plaintiffs.

Neither can appellants sucessfully invoke the doctrine of estoppel. It does not appear from the evidence that this conduct on the part of Mary Murphy, Sr., in claiming a homestead in the land, caused ej£¿er 0£ the defendants to do or to refrain from doing anything’ which worked to their financial loss or prejudice. There is therefore absent from the case one of the essential prerequisites of the doctrine of equitable estoppel. [Seek v. Haynes, 68 Mo. 13, 1. c. 17; Thompson v. Lindsay, 242 Mo. 53, 1. c. 76.]

IV. Appellants further contend that the two deeds procured by plaintiffs on June -14, 1913, from Mary Murphy, Sr., were fraudulently procured and should be set aside.

The conclusion reached above renders a discussion of this point unnecessary. As found above the title to said land was in Mary Murphy, Sr., at the time said deeds were executed. Even if said deeds were get agjqe the title would then stand in the heirs of said grantor. The appellants are not heirs of said grantor and hence their interest is not sufficient to authorize them to maintain the point. The respondent Mary Burke is the sole heir at law of said grantor. She alone would receive the entire title if said deeds were set aside. But she makes no complaint. On the other hand she takes the position that the deeds were valid. It' follows that the question becomes a moot one, the determination of which is unnecessary to a decision of the case.

We find no error in the case. It therefore follows that the judgment should be affirmed. It is so ordered.

All of the judges concur.