author: RAILEY, C. PER CURIAM.

text:
    ROSA SMELSER et al., Appellants, v. DIEDRICH MEIER et al.
    Division One,
    June 1, 1917.

      Í. LAND CONVEYED TO MARRIED WOMAN: Consideration: Presumption of Payment. The presumption of the law is that the husband furnished the -purchase money which paid for land conveyed to his wife after the marriage and before the year 1889.
    2. DEED FROM WIFE TO HUSBAND: Nominal Consideration: Inference of Fraud or Duress: No Evidence. Where there is no evidence of actual fraud, duress or undue influence by the husband towards the wife, and none as to her mental or physical condition, the court will not, in the face of the prevailing presumption of law in favor of the husband that land conveyed to his wife prior to 1889 was paid for with his money, declare a deed from the wife to the husband, in ordinary form, executed in 1S97 when the Married Woman’s Act of 1889 was in force, and conveying the same land, was invalid, or draw the inference that it was obtained through fraud, duress or undue influence, on the sole ground that it recites a nominal consideration of ten dollars and is a conveyance directly from her to him.
    3. -: Legal Estate. Since the passage of the Married Woman’s Act of 1889 a wife may convey her legal estate in land directly to her husband, and her deed made since such date and naming him as grantee vests the legal title in him.

      4. -: Supplemented by Deed of Heirs. If the legal title was vested in the wife and she conveyed it to her husband, a subsequent quit-claim deed from his heirs to him will not be set aside as having been obtained through false representations and threats, because they had no interest to convey.
    Appeal from Jefferson Circuit Court. — Row. E. M. Bearing, Judge.
    Aeeiemed.

      E. J. Bean and Clyde Williams for appellant.
    (1) A married woman cannot convey her real estate without her husband joining in the deed, and the deed from Rosina Meier to Diedrich Meier her husband is null and void. R. S. 1909, sec. 2788; Brown v. Dressier, 125 Mo. 589; Huff v. Price, 50 Mo. 229; Wannall v. Kern, 51 Mo. 150; Shroyer v. Niekell, 55 Mo. 264; Bartlet v. O’Donoghue, 72 Mo. 563; Hord v. Taubman, 79 Mo. 101; Marshall v. Anderson, 78 Mo. 85; Shaffer v. Kugler, 107 Mo. 58; Peter v. Byrne, 175 Mo. 241; Richardson v. De-Giverville, 107 Mo. 429; DePue v. Miller, 25 L. R. A. (N. S.) 775; MeReynolds v. Grubb, 150 Mo. 363; Clay v. Mayer, 183 Mo. 157; O ’Reilly v. Kluender, 193 Mo. 585; Egger v. Egger, 225 Mo. 140; 21 Cyc. 1291; Bearden v. Miller, 54 Mo. App. 201. (2) The Married Woman’s Law of 1889 acts prospectively and does not -in any way affect this case because Diedrich Meier and Rosina Meier were married at the time it was passed and the title to the real estate, except one piece, was held by Rosina Meier at the time said law was passed. Leete v. Bank, 115 Mo. 185; Yanata v. Johnson, 170 Mo. 273; Graham v. Ketehum, 192 Mo. 29. (3) The Statute of Limitation has no application in this case. (4) A fiduciary relation existing between Diedrich Meier and Rosina Meier, being husband and wife, and he having full charge and control of her oroperty, the burden of proof was on him to show that the transfer from her to him was the result of full and free' deliberation on her part and not the result of undue influence. 21 Cyc. 1293; Lewis v. McGrath, 61 N. E. 138; Egger v. Egger, 225 Mo. 144; Byrne v. Byrne, 250 Mo. 646; Smith v. Moore, 7 L. R. A. (N. S.) 692.

      Wm. 8. Campbell, Jones H. Parker and John Peppy for respondents.
    (1) The disability under which a married woman labored at common law has been removed by statute, and a man and his wife may contract with each other, sue and be sued by each other, and convey title to property from one to the other, the same as other parties, and Rosina Meier was legally competent to convey the realty held in her name by the deed she made direct to Diedrich Meier. Rice, Stix & Co. v. Sally, 176 Mo. 129; O’Day v. Meadows, 194 Mo. 614; Grimes v. Reynolds, 184 Mo. 692; 94 Mo. App. 576; Montgomery v. Montgomery, 142 Mo. App. 486; Glascock v. Glascock, 217 Mo. 378; Harvey v. Long, 260 Mo. 391; Rodgers v. Rodgers, 265 Mo. 207; Abbott v. Trust Co., 149 Mo. App. 514; Bower v. Daniel, 198 Mo. 320; Evans v. Morris, 234 Mo. 186. Any contract entered into by a married woman after the passage of the Act of 1889 was valid without regard to the time when the title to the real estate was taken by her or when the marriage contract was entered into. Clay v. Mayer, 183 Mo. 158; Evans v. Morris, 234 Mo. 186; Bank v. Hageluken, 165 Mo. 449. (2) A cause of action to set aside the deed of February 10, 1897, accrued to Rosina Meier, and at her death the Statute of Limitations began to run against her heirs, whether they were under legal disability or not, and their suit to set aside the said deed for fraud not having been commenced within ten years after the right of action accrued to Rosina Meier, they are barred by the statute. De Hatre v. Edmonds, 200 Mo. 270; Robinson v. Allison, 192 Mo. 372; Rutter v. Carothers, 223 Mo. 646; Reed v. Painter, 145 Mo. 341; Star v. Bartz, 219 Mo. 47; McKee v. Downing, 224 Mo. 115. Where a cause of action accrues to one who is at the time under a disability, when that disability is removed another disability cannot be tacked on to it. De Hatre v. Edmonds, 200 Mo. 271; Robinson v. Alli'son, 192 Mo. 376; Burdett v. May, 100 Mo. 19; Campbell v. Gas Co.,-84 Mo. 376; Billon v. Larimore, 37 Mo. 387. (3) The introduction of the deed made by Rosina Meier to Diedrich Meier, showing on its face a con-' sideration, and the acknowledgment of a notary public to her signature, was not sufficient alone to cast the burden upon Diedrieh Meier to disprove the allegations of plaintiff’s petition.' Jenkins v. Pye, 37 U. S. 253; Townson v. Moore, 173 U. S. 17; Taylor v. Taylor, 49 U. S. 183; Deroux v. Girard’s Ex’s, 112 Fed. 89.
   RAILEY, C.

On April 9,1913, plaintiffs, as heirs at law of Rosina Meier, deceased, brought suit in the Jefferson County Circuit Court, against defendants, Diedrieh Meier et al., to set aside and cancel a deed for 514 acres of land in Jefferson County, executed by said Rosina Meier, on February 10, 1897, to her husband, Diedrieh Meier; and also to set aside and cancel a deed from the heirs of said Rosina Meier to said Diedrieh Meier, dated March 1, 1898, covering the same land. It is alleged in the petition that the deed from Rosina Meier to Diedrieh Meier was obtained through undue influence and duress, exercised by said grantee over his said wife; that the deed from said heirs to Diedrieh Meier was obtained through false and fraudulent representations and threats. The petition prays the court to set aside and cancel both of the foregoing deeds.

On June 5,1913, defendants, Catherine Meier, Kate Wolf and George Wolf, filed a general denial. Diedrieh Meier answered with a general denial, and pleaded that said real estate conveyed to his wife was paid for with his own earnings; that the title was taken in the name of his wife as a matter of convenience; that said land was not conveyed to her as an advancement, or by wáy of settlement, but as trustee for himself; that on February 10, 1897, she conveyed said land to him in carrying out said trust. He likewise pleads the ten-year Statute of Limitations as a bar to the present action. The reply was a general denial.

On January 25,1892, Henry F. Meier and Lina Meier, for the expressed consideration of one dollar, conveyed by warranty deed, to said Rosina Meier, the east half of the north half of section 17, township 42, range 4, containing 160 acres, situate in Jefferson County, Missouri. On February 3,1879, A. Gr. Medley and wife conveyed to Eosina Meier, by warranty deed, for the expressed consideration of $425, the southwest quarter of the northwest quarter of section 9, township 42, range 4 east, containing 40 acres more or less. On March 6,1879, Frank Williams and wife et al. conveyed to Eosina Meier, by quit-claim deed, for the expressed consideration of $1200, the whole of their undivided interests as the heirs of Benjamin Williams, deceased, in the southeast quarter of the northwest quarter of section 9, and 40 acres off the north end of the west half of the northwest quarter of section 9, all in township 42, range 4 east. On February 10,1885, James W. Fitzmorris and wife conveyed by quit-claim deed- to Eosina Meier, for the expressed consideration of $363, the south part of the east half of section 8, township 42, range 4 east, more fully described in the record, and containing 174 acres more or less. On February 10,1897, Eosina Meier, conveyed to Diedrich Meier, by warranty deed, for the expressed consideration of $10, the 514 acres mentioned in the petition. The foregoing deed was filed for record, February 18,1897. On May 22,1897, Diedrich Meier, conveyed to Henry Hess, for the expressed consideration of $4600, by warranty deed, the same land described in above deed from Eosina Meier to Diedrich Meier, dated February 10, 1897. (514 acres). On February 7, 1897, Henry Hess, by quit-claim deed, for the expressed consideration of $4600, re-conveyed the above 514 acres of land to Diedrich Meier. This deed was filed for record, February 16, 1898. On March 1, 1898, Kate Wolf and husband, Frederika Dausch and husband, Dora Wolf and husband, Maggie Scott and husband, Eosey Eush and husband, Emma Loney and husband, and Mellia Meier, by quit-claim deed, for the expressed consideration of one dollar to each, conveyed 454 acres, being the same 514 acres, except the northeast quarter of the northwest quarter and the north half of the northwest quarter of the northeast quarter of section 9, township 42, range 4 east (60 acres). This deed was filed for record, July 1, 1898. On February 19, 1913, Diedrich Meier and Catherine Meier, his wife, conveyed to Helen Surkamp, by warranty deed, for the expressed consideration of one dollar, the 514 acres above mentioned. This deed was filed for record, March 3, 1913. On February 19, 1913, Helen Surkamp, by quit-claim deed, for the ‘ expressed consideration of one dollar conveyed the above 514 acres to Diedrich Meier and Catherine Meier his wife. This deed was filed for record, March 3, 1913. On November 27,1886, R. ‘W. McMullin and wife, conveyed to Diedrich Meier the northeast quarter of the northwest quarter and the north half of the northwest quarter of the northeast •quarter of section 9, township 42, range 4 east (60 acres).

Several of the plaintiffs were sworn and said they signed the deed to their father, but thought it was to Hess. They testified that their father promised to give them the same interest in the land which he was proposing to buy, as they had in the 454 acres supra; that their father gave them to understand they would be disinherited if they failed or refused to sign said deed, and threatened to club them if they refused to sign the same. Plaintiffs introduced some other testimony of the same character. The appellants who were witnesses also testified in substance that they did not know the deed which they executed conveyed said land to their father; and that they first learned the deed was to him less than seven years before the commencement of this suit.

The foregoing was substantially all the evidence in the case. The defendants introduced no testimony aside from the cross-examination of plaintiffs ’ witnesses.

On September 10, 1913, the trial court found the issues in favor of defendants; held that plaintiffs have no right, title or interest in the real estate in controversy, and entered judgment for defendants. Plaintiffs, in due time, filed their motion for a new trial, which was overruled and the cause duly appealed by them to this court.

, Since the appeal to this court, defendant Diedrich Meier died on March 16,1914. His death was suggested, and the action revived in the names of his heirs, to-wit: The appellants herein and respondents, Kate Wolf and George Wolf, her husband, Maggie Scott and Minnie Scott. Defendant Catherine Meier died on March 4,1915.. Her death was suggested and the action revived in the names of her heirs, to-wit: Lisetta Davidson and Lisetta Kleisner, nieces, and John Jacobs, her nephew.

I. The petition alleges that after the marriage of Diedrich Meier and Rosina Meier, and prior to the year 1889, said Rosina acquired title to 514 acres of land in Jefferson County, Missouri; that on February 10, 1897, said Diedrich Meier induced his wife to sign a deed, which purported to convey to him the title to said ProPerty* The land is not described in the petition as abstracted but assuming, as alleged, that it was conveyed to her after the marriage and before the year 1889, the presumption of law obtains, in the absence of evidence to the contrary, that said Diedrich Meier furnished the purchase money which paid for said land. [Weil v. Simmons, 66 Mo. l. c. 619-20; Sloan v. Torry, 78 Mo. l. c. 625; Crook v. Tull, 111 Mo. l. c. 290; Patton v. Bragg, 113 Mo. l. c. 600-11; Hoffman v. Nolte, 127 Mo. 120-134; Lins v. Lenhardt, 127 Mo. 289; Gruner v. Scholz, 154 Mo. l. c. 424; Halstead v. Mustion, 166 Mo. l. c. 494-5; Crump v. Walkup, 246 Mo. l. c. 280-2; Lemp Brewing Co. v. Correnti, 177 S. W. (Mo.) 612; McFerran v. Kinney, 22 Mo. App. 554; Bucks v. Moore, 36 Mo. App. l. c. 536-7; Seitz v. Mitchell, 94 U. S. 580; Gault v. Saffin, 44 Pa. St. 307; Baringer v. Stiver, 49 Pa. St. l. c. 131; Hydrick v. Burke, 30 Ark. 124; Pope v. Cantwell, 206 Fed. l. c. 916; Owens v. Daniel, 230 Fed. 101.]

There is no testimony in the record relating to the physical or mental condition of Rosina Meier, at the time of the execution of said deed to her husband, or at any other period; there is nothing to indicate that her husband was capable of exerting any influence over her at any time. It does not appear that the husband was insolvent, or that he was incapable of furnishing the con-, sideration paid for the land aforesaid, nor does it appear from the record that Mrs. Meier owned any property by inheritance or otherwise, aside fr- m the land aforesaid, which she conveyed to her husband. There is absolutely no proof in the case as to any actual fraud, duress, or undue influence, resorted to by Diedricli Meier to induce Ms wife to execute said deed.

"With the Married Woman’s Act of 1889 in force at the time of the execution of said instrument in February, 1897; with the presumption of law,in the husband’s favor, to the effect that he furnished the purchase money which paid for said land; without any evidence as to the mental or physical condition of the wife when said deed was executed; without even a suggestion as to anything that was said or done between the husband and wife, we are asked, solely upon the language of said deed, which is in ordinary form and which recites a consideration of ten dollars, to declare said instrument invalid. Looking to the deed alone, and assuming that she had the legal right to convey said land to her husband in this manner, we do not feel justified in drawing the inference that it was obtained through fraud, duress or undue influence. This conclusion is supported in principle by the following authorities: Bonsal v. Randall, 192 Mo. l. c. 532; Youtsey v. Hollingsworth, 178 S. W. l. c. (Mo.) 107; Towson v. Moore, 173 U. S. 17; Taylor v. Taylor, 49 U. S. 183; Jenkins v. Pye, 37 U. S. l. c. 253; De Roux v. Girard’s Exr., 112 Fed. 89; Meyer v. Jacobs, 123 Fed. 900; McElroy v. Masterson, 156 Fed. 36. We do not understand, nor do we hold, that the Married Woman’s Act of 1889 has absolutely destroyed the fiduciary relation which formerly existed between husband and wife, but since the adoption of said act, before the court would be justified in setting aside a contract or deed between husband and wife, there must be some facts or circumstances shown, from which the court might draw the inference that the wife had not been fairly dealt with in the transaction between them.

Assuming that the wife could execute and deliver the deed aforesaid to her husband, we find no valid grounds in the record before us for setting the same aside.

II. It is contended by appellants that, as Rosina Meier acquired the title to said 514 acres before the adoption of the Married Woman’s Act of 1889, she could not, on February 10, 1897, execute and deliver a deed direct to her husband which would be effectual to pass the title to said land. Leaving out of consideration the questions discussed in the preceding proposition,- and assuming for the purposes of the case that Mrs. Meier was the owner of said land as her legal estate, it is clear that, under the broad powers conferred by section 8304, Revised Statutes 1909, she had the legal right to sell and convey said land to a stranger, and to convey to him the legal title thereto, subject to the marital rights of the husband therein. [First Nat. Bank of Stronghurst v. Kirby, 190 S. W. (Mo.) 597; First Nat. Bank v. Kirby, 175 S. W. (Mo.) 931; Rogers v. Rogers, 265 Mo. l. c. 207; Harvey v. Long, 260 Mo. l. c. 391; Evans v. Morris, 234 Mo. l. c. 186; Glascock v. Glascock, 217 Mo. l. c. 378-9; Bower v. Daniel, 198 Mo. l. c. 320; O’Day v. Meadows, 194 Mo. l. c. 614; Grimes v. Reynolds, 184 Mo. l. c. 692; Rice, Stix & Co. v. Sally, 176 Mo. l. c. 129; Abbott v. Trust Company, 149 Mo. App. l. c. 514; Montgomery v. Montgomery, 142 Mo. App. l. c. 486.] Section 8304, supra, makes no distinction between the husband and a stranger, so far as her right to contract is concerned. Hence, we have held that, since the passage of the Married Woman’s Act aforesaid, the wife can sell and convey that which was her legal estate before the passage of said law, without the husband joining in said conveyance. [Rice, Stix & Co. v. Sally, 176 Mo. 107; Clay v. Mayer, 183 Mo. 150; O’Reilly v. Kluender, 193 Mo. l. c. 56; Glascock v. Glascock, 217 Mo. l. c. 378-9; Evans v. Morris, 234 Mo. l. c. 186.] We have likewise held that since the adoption of the Married Woman’s Act of 1889, the wife may sell and convey, directly to the husband, that which was her legal estate prior to 1889. [Evans v. Morris, 234 Mo. l. c. 186; Glascock v. Glascock, 217 Mo. l. c. 378-9; O’Day v. Meadows, 194 Mo. l. c. 614; Farmers Exchange Bank v. Hageluken, 165 Mo. 449.]

We are therefore of the opinion that Mrs. Meier had the legal right to convey the property in controversy directly to her husband, and that the deed^which she executed on February 10, 1897, vested in Diedrich Meier the legal title to said 514 acres of land.

III. The ten-year Statute of Limitations is likewise interposed as a defense against appellants’ right to maintain this action. The petition charges that Diedrich Meier obtained the deed to said 514 acres, without consideration, through undue influence over his wife and through duress, constraint and fraud. Mrs. Meier lived about six weeks after the execution of said deed to her husband. If the above charges are true, she had the legal right, in her lifetime, to institute a suit, under the provisions of 6767, Revised Statutes 1889, to set aside said deed, and to have the same cancelled. If she had a right of action it accrued to her immediately after the execution and recording of the deed to her husband in February, 1897. She did not die until March 31 of the same year. This suit was not brought until April 9, 1913, and more than fifteen years after the death of Rosina Meier. Under the statute of 1889, which was the same as sections 1879, 1881 and 1883, Revised Statutes 1909, appellants are barred by the ten-year Statute of Limitations. [Gray v. Yates, 67 Mo. 601; Reed v. Painter, 145 Mo. 341; Robinson v. Allison, 192 Mo. 366-7; DeHatre v. Edmonds, 200 Mo. 246; Rutter v. Carothers, 223 Mo. 631; McKee v. Downing, 224 Mo. 115; Smith v. Settle, 128 Mo. App. 379.]

The fact that appellants were married at the death of their mother on March 31, 1897, did not prevent the ten-year statute from being a bar to their recovery in this action. The rule is well settled in this jurisdiction, that disabilities cannot be cumulated, one upon another. [DeHatre v. Edmonds, 200 Mo. l. c. 271; Robinson v. Allison, 192 Mo. 366; Burdett v. May, 100 Mo. l. c. 19; Campbell v. Laclede Gas Co., 84 Mo. 352; Billon v. Larimore, 37 Mo. 375; Dessaunier v. Murphy, 33 Mo. 184.]

The plaintiffs were barred by the Statute of Limitations aforesaid before the commencement of this suit, and are not entitled to maintain this action for the purpose of setting aside and cancelling the deed aforesaid from Rosina Meier to Diedrich Meier.

IY. We are asked in the petition to set a.side and cancel the quitclaim deed from Kate Wolf et al. to Died-rich Meier, dated March 1,1898, for the expressed consideration of one dollar, paid to each of said grantors, wherein they conveyed their interest in 454 acres of the land in controversy. Having held that the deed from Rosina Meier, of date February 10, 189 7j to Diedrich Meier, vested in the latter the title to the land in controversy; and having also held that the right of plaintiffs to maintain this action was barred by the Statute of Limitations when the same was commenced, we do not deem it necessary to consider the validity of said quitclaim deed, as the grantors therein had no interest in the real estate theréin conveyed.

Y. On the pleadings as abstracted, we have fully considered the law and facts of the case, and have reached the conclusion that plaintiffs are not entitled to recover herein.

The judgment of the trial court is accordingly affirmed.

Brown, C., concurs.

PER CURIAM.

The foregoing opinion of Railey,

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

All the judges concur; Bond, J., in paragraph two only and in the result.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    MARY J. KELLOGG et al. v. LOUISE C. MOORE, Appellant.
    Division One,
    June 1, 1917.
    1. TAX SUIT: Brought After Defendant’s Death.' If the defendant in a tax suit was dead at the time of attempted service of process, whether by publication or otherwise, proof of such fact renders the judgment void; and such proof can be made in a collateral proceeding, such as a suit to quiet title, wherein the defendant relies on a sheriff’s deed made in pursuance to a sale under said judgment.
    2. -: -: Void and Voidable Judgments. Jurisdiction of both the subject-matter and of the person is required in order to remove a judgment entered against a deceased defendant' from the category of void judgments to the category of voidable judgments.
    3. LACHES: Defense Only to Equitable Claim. Laches is peculiarly a defense to an equitable claim. If plaintiff stands on a legal title, as distinguished from an equitable claim, the doctrine of laches has no place in the case. The defense in such case is the Statute of Limitations.
    4. -: Estoppel in Pais: Paying Taxes. There is a difference between laches and estoppel in pais. Laches is not a defense to an action based on a legal title. Estoppel in pais may be, if the facts are sufficient to defeat the legal title because defendant and his grantors were caused to act to their injury by reason of the conduct of the plaintiff or his ancestor. Knowingly permitting a claimant, in good faith and under a belief of ownership, to make valuable improvements upon land, might amount to estoppel in pais, but the mere voluntary payment of taxes by such claimant will not estop the rightful owner.
    Appeal from Reynolds Circuit Court. — Now. E. M. Bearing, Judge.
    Appirmed.

      Leslie C. Green and Ernest A. Green for appellant.
    (1) The sheriff’s deed for delinquent taxes was effectual to convey the interest of Charles W. Tindall to the defendant’s grantor. There being no showing that the suit against Tindall was not instituted during his lifetime. the deed was effectual to pass title notwithstanding the judgment was rendered after his death. State ex rel. v. Riley, 219 Mo. 687. (2) Even though the court may find that the record title to the premises in controversy is in the plaintiffs, still they should have been precluded and barred from recovering herein by reason of their laches. Moreman v. Talbott, 55 Mo. 397; Rutter v. Carothers, 223 Mo. 640; Shelton v. Horrell, 232 Mo. 376; Toler v. Edwards, 249 Mo. 152.

      Arthur T. Brewster, Sam M. Brewster and W. A. Welker for respondents.
    (1)' The trial court passed on a square issue of fact and his conclusion is final. Chilton v. Nickey, 261 Mo. 243. (2) The tax title under which defendant claims is absolutely void for the reason that the owner of the land, Charles W. Tindall, died July 11, 1882, and the tax-suit petition was not filed till September 15, 1882. (3) Defendant at the trial made no claim of title under either the ten-year or thirty-year Statute of Limitations. (4) Laches can be relied upon only in bar of the claim for some equitable relief. Plaintiffs stood upon their legal title, hence the, doctrine of laches does not apply. Chilton v. Nickey, 261 Mo. 243; Haarstick v. Gabriel, 200 Mo. 243; Hays v. Schall, 229 Mo. 124; Bush v. Stanley, 122 111. 406; 1 Am; & Eng. Ency. PI. & Pr., p. 880.
   GRAVES, J.

Action to quiet title to a half section of land in Reynolds County. Petition in usual form under Section 2535, Revised Statutes 1909. The answer is, (1) general denial, (2) the ten-year Statute of Limitations, and (3) an allegation which seems to be double -in purpose, in that in a portion thereof it would appear that the thirty-year Statute of Limitations was invoked by the allegations made, but in the other portion an invocation of the doctrine of laches. Reply a general denial.

The plaintiffs are the widow and heirs at. law of Charles W. Tindall. The said Charles W. Tindall acquired title to this land in July, 1876. He died July 11, 1882.. Defendant claims title through a sheriff’s deed following a. sale under a tax judgment rendered against Charles "W. Tindall and others on November 25, 1882. The supplemental abstract furnished by defendant, and unchallenged here, shows that this tax suit was not instituted until September 15,1882, or more than two months after Tindall’s death. It is conceded that appellant has whatever title may have passed by the sheriff’s sale, but it is urged that no title of Tindall passed by that sale. It is likewise conceded that plaintiffs have Tindall’s title, unless such title has been divested by reason of the sheriff’s deed aforesaid, or by reason of the other matters pleaded in the answer. This sufficiently outlines the case.

I. The -first proposition is the validity of the judgment against Tindall in the tax proceeding. The record shows that Tindall (the then record owner of the land) died July 11, 1882, and that judgment was not rendered until the November term of "the court for the year 1882. The supplemental abstract of the record (undenied here) shows the order of publication in that tax proceeding. This order of publication is thus headed:

“Order of Publication.”
“Reynolds County Circuit Court, to November Term, A. D. 1882. In Vacation September 15, 1882.”
“In the Circuit Court of Reynolds County, November term, 1882. September, 1882.”

This shows a vacation order made on September 15, 1882, or more than two months after Tindall’s death. But this is not all. In the body of the order we find this recital :

“At this day comes the plaintiff herein, by his attorney, before the clerk of the circuit court in vacation, and files his petition and affidavit, alleging, among other things, that defendants are not residents of the State of Missouri, and, further, that plaintiff verily believes there are persons interested in the lands herein described, whose names and interest of such parties can not be inserted because the same are unknown, and that such interest is derived from the United States of America, and that none of the aforesaid can be summoned in this action by the ordinary process of law. ’ ’

This recital evidences the fact that the petition in this tax proceeding was, in fact, filed on September 15, 1882, which was more than two months after the death of. Tindall.

We take it to be the rule of law in this State that, if the court has jurisdiction of the subject-matter, and then acquires jurisdiction of the1 person by service of process on such person, then the death of such person, after the service of process and before judgment, does not render such judgment void, but makes it only voidable. But on the other hand if the party is dead prior to attempted service of process, proof of such fact renders the judgment void, and such proof can be made in a collateral proceeding. This is the Missouri rule. We had occasion to review the whole field in the case of State ex rel. v. Riley, 219 Mo. l. c. 684. After a review of our case law, 219 Mo. l. c. 687, we then said:

“From all we conclude the right rule to be, that if the party dies during the pendency of a suit wherein the court by legal process has acquired jurisdiction over both the person and the subject-matter, but before judgment, and a judgment is rendered against such party so dying, without there being anything of record showing such death, then such judgment is voidable only and not void. But on the other hand if the party was dead at the institution of the suit, and the court for that reason acquired no jurisdiction over the person or subject-matter, then such a judgment is void.”

Prior to the foregoing we had reviewed the cases in this State, and from them we reached the conclusion that the. court would have to have both jurisdiction of the subject-matter and the person prior to death in order to put its judgment against a dead person in the category of voidable judgments, rather than void judgments. Jurisdiction of the person is only obtained by service of process. The mere filing of a petition may stay the Statute of Limitations per force of the wording of the statute, but this act alone does not confer jurisdiction of the person. Both jurisdiction of the subject-matter and of the person is required before the judgment entered against a party then dead will make such judgment voidable, rather than void.

II. Nor do we think there is substance in the plea of laches. Plaintiffs relied in their petition upon a legal title. They made no claim in equity. Laches is peculiar- ^ a ^e^ense a11 equitable claim. We do not always stop to distinguish between laches and estoppel in pais. In Chilton v. Nickey, 261 Mo. l. c. 243, it is said:

“Appellant insists that the plaintiff is barred by laches. The doctrine of laches is only applied to defeat a claim for some equitable relief. It is no bar to a claim made under a legal title. It was expressly so held in Hayes v. Schall, 229 Mo. l. c. 124. In no case in this State has it been held that laches is a bar to a claim made under a legal right as distinguished from an equitable claim or title.’’

It is doubtful whether the case cited in the quotation, supra, goes to the length that Roy, C., says, yet we are convinced that the rule he announces is the proper one. That is to say that laches is purely a creation of equity, and is only to be invoked by the defendant in a case where the plaintiff appeals to equity, and seeks the enforcement of an equitable right. Laches in equity is a doctrine which partakes of the nature of the legal statutory limitation, but is not governed, as to time, by such statute. It may be inequitable to permit the establishment of an equitable right within a time less than the legal defense of the statutory limitations. Whether one has been guilty of laches in the prosecution of an equitable right, is solely upon the facts presented, and the inequitable result which might follow the establishment of a stale claim. Lapse of time is not the only thing for consideration. That the doctrine of laches can only be invoked as against a so-called equitable claim is to some extent established by the fact that some courts do not even require a plea of laches by the defendant but will dismiss the bill for want of equity because of the laches. By appellant we are cited to the ease of Shelton v. Horrell, 232 Mo. l. c. 376. What we said of laches in that case was on the theory that the petition was sufficient in form to constitute a bill ,in equity. As best we read the books, laches is a defense to be interposed in opposition to a claim in equity and not to a legal claim. In fact the doctrine of laches is founded upon equity maxims. In 10 R. C. L. 395, sec. 142, it is said:

“It is a familiar doctrine that, apart from any question of\ statutory limitation, courts of equity will discourage laches and delay in the enforcement of rights. The general principié is that nothing can call forth the court of chancery into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing. • The doctrine is founded principally on the equity maxims, £he who seeks equity must do equity,’ ‘he who comes into equity must come with clean hands,’ and ‘the laws serve the vigilant, and not those who sleep over their rights, ’ and is based on considerations of public policy. Its object is in general to exact of the complainant fair dealings with his adversary, and the rule was adopted largely because after great lapse of time, from death of parties, loss of papers, death of witnesses, change of title, intervention of equities, or other- causes thére is danger of doing injustice, and there can be no longer a safe determination of the controversy.” [See also 10 R. C. L. 396-408, secs. 143 to 157, inclusive.]

If the bill in-equity discloses laches upon its face it is demurrable in some jurisdictions. In others, disclosure of laches by the evidence, will authorize the dismissal of the plaintiff’s bill, although there is no formal plea of laches. -The better doctrine is to plead laches. ' In this case the plaintiff stood on a legal, as distinguished from an equitable claim of title. In such case the doctrine of pure.laches has no place. The defense in such cases is the' Statute of Limitations, and that was abandoned here by open announcement in the course of the trial.

All concur; Bond, P. J., in paragraph 2 and in the. result.

III. But if the pleadings in this case could be taken to be a plea of estoppel in pais, the facts do not support it. There is no proof sufficient to show that-the defendant or her grantor was caused to act to their injury by reason of the conduct of the plaintiffs or their ancestors. If one knowingly sits by and permits another to make valuable improvements on land, such person, under given circumstances, might be estopped from claiming title as against the person, who in good faith, and under the belief of ownership, made such improvements. In this record it is not shown that defendant .or her grantors made any such improvéments on this wild land, nor is knowledge of such, if made, brought home to plaintiffs. The mere voluntary payment of taxes will not estop the rightful owner from recovering the land. • This evidence shows but little more. The case was well tried and the judgment is affirmed.


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    CLARA DAVIDSON FISHER, Appellant, v. AUGUSTA DAVIDSON, Administratrix.
    Division One,
    June 1, 1917.
    1. CHILD: Adoption: Parol Contract With. Grandparents. Where a husband and wife, who had no children of their own, agreed with the grandparents of a little girl four years old, whose mother had died and whose father had turned her over to said grandparents and abandoned her, to take and rear the child as their own, that the grandparents were to have no further control oyer her and that she was to assume their name; and said agreement was fully carried out, and she was taken into their home, given their name, and treated as their own child, and continued to be considered and was known in the community as their own or adopted child until her marriage and the death of the husband, she was, if all these things had occurred in Missouri, his adopted child, and upon his death intestate entitled to inherit his property subject to the statutory interests of the widow.
    2. -:-:-: Kansas Statute. And where the parol agreement was made in Kansas and the adopting father afterwards moved to Missouri with his wife and child and. died here, and no property is sought by the suit to be reached in Kansas, the Kansas statute, providing for adoption by petition and order of the x.robate court, which was not complied with, does not, aftir the death of the adopting father, preclude the child from maintaining an equitable suit in Missouri to have enforced the parol contract, which has been specifically performed, and to have her status decreed to be that of an adopted child, with the inheritable rights of a natural-born child.
    3. PRACTICE: Suit in Equity: No Instructions: Effect of Finding for Defendant. , A court of equity alone has jurisdiction to enforce a parol agreement to adopt an infant child; and where the petition set out the , facts which entitled her to a decree that she is decedent’s adopted child and ashed the court to decree accordingly, and the case was tried throughout as an equity suit, the case will not on appeal be treated as an action at law.
    Appeal from Jackson Circuit Court. — Hon. Allen G.Southern, Judge.
    Reversed and remanded (with directions.)

      E. G. Hall and George G. Hill for appellant.
    (1) The oral contract by which Dr. Davidson agreed to take, adopt and care for plaintiff as his own child, though not in conformity to the requirements of the law, was fully performed and fully executed, and by which Dr. Davidson and his wife received from plaintiff full consideration, will be enforced against the estate and heirs of the adoptive parents in equity on the principle that equity treats that which should have been done to make the adoption regular in law as having, in fact, been done, in order to avoid great injustice and hardship on the innocent, helpless child. Lynn v. Hockaday, 162 Mo. 111-148; Hockaday v. Lynn, 200 Mo. 456; Healey v. Simpson, 113 Mo. 340; Thomas v. Maloney, 142 Mo. App. 193; Sharkey v. .McDermott, 91 Mo. 647; 1 Story’s Eq. Jur. (12 Ed.) 648; Martin v. Martin, 250 Mo. 539. (2) When, and after, a child is adopted, it becomes and is, for all the purposes of inheriting from the foster-parents, the lawful child of such adoptive parents. R. S. 1909, sec. 1673; Moran v. Stewart, 122 Mo. 295; Moran v. Stewart, 132 ,Mo. 73; Hockaday v. Lynn, 200 Mo. 464-7; Thomas v. Maloney, 142 Mo. App. 198; Fosburgh v. Rogers, 114 Mo. 133; Westerman v. Schmidt, 80 Mo.'App. 348. (3) This is a proceeding in equity, and it will be presumed that the equity doctrine in the State of Kansas, where a part of the contract was performed, is the same as in this State. Johnson v. Gawtry, 83 Mo. 339; Monroe v. Douglass, 5 N. Y. 452; Chapin v. Dobson, 78 N. V. 79; Anderson v. Anderson, 75 Kan. 129. And a contract good according to the law, either of the place of contract or of performance, will be presumed to have been made in view of the law of the place where it would be good. . 9 Ency. Law & Proe. 674; Minor on Conflict of Laws, sec. 151. (4) The implied covenant arising from a contract to adopt not legally executed, when the child has fulfilled its part of the contract, is that the infant should receive a child’s share of the estate of the foster-parents. 1 Ency. Law & Proc. 936; Fosburgh v. Rogers, 114 Mo. 133; Moran v. Stewart, 122 Mo. 299. (5) Equity will decree an adoption and its resultant rights in cases where no statutory adoption exists, when to do otherwise would result in palpable injustice. Thomas v. Maloney, 142 Mo. App. 193; Lynn v. Hockaday, 162 Mo. Ill; Horton v. Troll, 183 Mo. App. 677; Healey v. Simpson, 113 Mo. 340; Martin v. Martin, 250 Mo. 539.

      Cook <& Gossett and George N. Elliott for .respondents.
    (1) The findings of the trial court in favor of defendants will not be disturbed, except upon strong proof that they are against the clear weight of the evidence. Roberts v. Roberts, 223 Fed. 777; United States v. Marshall, 210 Fed. 595; Vaughn v. Vaughn, 251 Mo. 441; Phillips v. Trust Co., 214 Mo. 669; Creamer v. Bivert, 214 Mo. 473; Nevius v. Moore, 21 Mo. 330; Barnard v. Keithley, 230 Mo. 209. (2) If there was any oral agreement at all to adopt, it was a Kansas contract of which the Kansas statute law and the decisions of the Kansas Supreme Court on the subject of adoption of children were of the terms of the alleged contract. Tremain v. Dyott, 161 Mo. App. 221. The Kansas procedure for adoption of children then was, and ever since has been, by petition, and order in probate court. Parents must consent. If dead, proof of death must be made and consent of guardian given. Sec. 5065, R. S. Kan. 1909 ;.G. S. Kan.; 1868, ch. 67, sees. 5 and 6, as amended by Laws 1903, ch. 361, sec. 1; G. S. Kan., secs. 4186, 4187, 4188; Oubitt v. Oubitt, 74 Kan. 353; Renz v. Drury, 57 Kan. 89. (3) The status of Clara in the family of Thomas Davidson was fixed at the time they moved to Missouri, when Clara was twelve years of age. She was not then an adopted child under the laws of Kansas. There is no allegation of renewal of adoption agreement under Missouri law. This action is based solely upon the alleged original agreement. The status of Clara in the family at the time of the death of Thomas Davidson was the same as if they had continued to live in Kansas until the death of Thomas Davidson, without coinplying with the Kansas laws of adoption. Steele v. Steele, 161 Mo. 574; Kinney v. Murray, 170 Mo. 691. (4) Comity between the States of this Union gives credit only to status acquired under laws of a sister State. Finley v. Brown, 122 Tenn. 338; Ross v. Ross, 129 Mass. 246. Comity does not enlarge rights in State of domicile except when status is complete. Finley v. Brown, 122 Tenn. 31; In re Sander-son’s Est., 60 Iowa, 732; Calhoun v. Bryant, 28 S. D. 275; Boaz v. Boaz, 79 Kan. 332■; In re Bewley, 134'Pac. (Cal.) 69Ó; In re Wells, 60 Wash. 520. (5) If the alleged contract was ever made, there is no evidence that it was made with the view to its performance in Missouri or Arkansas. Thomas Davidson had no intention then to move with his family to Missouri or Arkansas. He owned no real estate or other property at that time in Missouri or Arkansas. There is no fact or circumstance to show that the Missouri or Arkansas law of adoption of children ever became a part of any agreement between the parties on the subject. Kinney v. Murray, 170 Mo- 691. In all the authorities cited by appellant, of which Buck v. Meyer, 190 S. W. 997, and Lindsley v. Patterson, 177 S. W. 826, are examples, where the alleged contract was entered into outside of Missouri, it was made directly with the view to performance in Missouri. (6) The specific term of such oral contract when established by probative force equivalent to being set out in writing must show intention to adopt by use of the term itself, or of words equivalent thereto beyond a reasonable doubt. The words, “I agree to take her and care for her as my own child,” without the use of the term ' ‘ adopt, ’ ’ or without the additional agreement ‘£ and make her my heir,” do not constitute a contract to adopt. Lynn v. Hockaday, 162 Mo. 116; Hockaday v. Lynn, 200. Mo. 471; Healy v. Simpson, 113 Mo. 340; Thomas v. Maloney, 142 Mo. App. 198; Sharkey v. McDermott, 91 Mo. 654; Martin v. Martin, 250 Mo. 551; Sec. Í671, R. S. 1909; Fosbnrgh v. Rogers, 114 Mo. 131; Moran v. Stewart, 122 Mo. 299. (7) On this appeal the first count of plaintiff’s amended petition must be disposed .of as an ordinary action át law to quiet title to real estate, as provided by Sec. 2535, R. S. 1909. No equitable relief is prayed for. Laclede Land & Improvement Co. v. Groodno, 181 S. W. 412. The ease was tried by the court without a jury and without instructions. The decision of the trial court is conclusive against appellant on first count of the petition. Buford v. Moore, 177 S. W. 872.
   RAILEY, C.

This suit was commenced by plaintiff in the circuit court of Jackson County, Missouri, on May 8, 1913, in two counts. The first alleges that plaintiff, whose name was originally Wilson, was born in Minnesota, on April 16, 1882; that her mother died in 1883, ■ and left plaintiff in charge of her maternal grandparents, Truman Finch and wife; that on the-• day of April, 1886, Thomas Davidson and wife, who were childless, adopted plaintiff as their child, although no formal deed of adoption was executed; that said Davidson and wife took charge of plaintiff, changed her name from Wilson to Davidson, and that she was thereafter treated as the child and adopted daughter of said Davidson; that the said Thomas Davidson died intestate, as a resident of Kansas City, Missouri, while the owner of certain real and personal property, located in Missouri and Arkansas; that defendant, Augusta Davidson, is his widow, was appointed administratrix of his estate at Kansas City, Missouri, and duly qualified as such; that the other defendants are the collateral kin of said decedent; that plaintiff is the only heir and child of said decedent; that she is the owner of all the real and personal property owned by decedent, subject to the statutory interests of said Augusta Davidson, in Missouri and Arkansas. A decree is prayed for declaring that plaintiff is the adopted child of said decedent, Thomas Davidson, and that she is the absolute owner of all the real and personal property owned by decedent at the time of his death, subject to the statutory interests of said widow, etc.

The second count of said petition practically covers the same matters contained in the first count and seeks to compel defendants to .specifically perform said contract of adoption, etc.

Both counts allege that plaintiff married Charles Fisher in 1904.

The separate answer of Augusta Davidson, individually and as administratrix, admits that she is the widow of Thomas Davidson, deceased, and administratrix of his estate; that she is entitled to the personal property of decedent and to all her marital interests and estates therein, as well as in his realty. She denies every other allegation in the petition. She likewise pleads the statute of Kansas and two decisions of said State, in bar of plaintiff’s right to maintain this action, on account of the alleged adoption not being in conformity to the laws of said State. The remaining defendants joined in a separate answer; admitted that Thomas Davidson died January 16, 1913, leaving as his widow, the defendant; Augusta Davidson; that she was appointed administratrix by the probate court of Jackson County, Missouri, and duly qualified as such; that decedent, at the time of his death/was seized of the real estate and personal property described in the petition; that they are the collateral heirs of said decedent and claim therein an inheritable interest in the property aforesaid, as his only heirs, subject to the rights of said widow. The answer denied all the other allegations of plaintiff’s petition and set up the Kansas statute and decisions as a bar to plaintiff’s right of recovery.

The reply alleges that plaintiff’s father abandoned and turned her over to her grandparents, Truman Finch and wife, who had authority to make the contract of adoption set out in the petition; that decedent had full knowledge of said facts at the time of said adoption; that said agreement was made in the State of Kansas.

Admitted Facts. The following facts were admitted by counsel during the trial: That Dr. Davidson died ♦in Arkansas, January 16, 1913; that he left no descendants ; that Augusta Davidson was appointed administratrix of his estate by the probate court of Jackson County, Missouri, and qualified as such, in respect to the Missouri property; that the other defendants are the brother and sisters, nephew and niece of decedent; that plaintiff, Clara Fisher, married on November 24,1904.

It appears from the evidence that plaintiff, who was the daughter of Arthur Wilson and wife, was born in Minnesota, about 1882, and that her mother died some time in 1883. Plaintiff was the youngest of five children. After the mother’s death, the plaintiff’s father took her to her maternal grandparents. The latter came with plaintiff and a brother, or sister, to the home of John Hallock and wife in Phillips County, Kansas. Plaintiff was about three years of age at that time. Her grandparents were poor and they tried to find a home or place for her to live. There were eleven in the Hallock family after plaintiff’s arrival, and all were occupying a single room, when the grandparents went to see Thomas Davidson about taking plaintiff. This brings us to the main issue in the case, as to what occurred between the grandparents — Truman Finch and wife — and the Davidsons, when plaintiff was taken by the latter.

Mrs. Hallock in her deposition read in evidence by plaintiff, testified among other things, as follows:

‘ ‘ Q. Did you hear Dr. Davidson or his wife say anything about how they were going to take the child? A. The understanding was that they should take her as their own child and that they would adopt her. . . .
“Q. Was anything said by Dr. Davidson indicating that he simply wanted to take Clara to raise, or was he to take her as his own child? Why, he was to take her as his own child.
“Q. Were yon there when they took her away? A. Yes, sir, I was there. My mother went part of the way with her, because she did not care to go with strangers. The Davidsons lived two miles away. Clara remained with them after that. They changed her name as soon as they took her. We visited back and forth with the David-sons.
“Q. Do you know whether or not the Davidsons spoke of Clara as their own child and told other people that she was their own child? A. ' Yes, they always did that. ’ ’

On cross-examination, this witness testified as follows :

“Q. When you speak of Mr. and Mrs. Davidson adopting Clara, or taking her to live with them, you mean one of them in particular or both of them?- A. Both of them.
“Q. Mrs. Hallock, you have always merely supposed and understood only that the ■ Davidsons had adopted Clara. That is, it’s been your understanding? A. Yes, sir.
“Q. You stated that Clara had told you that she always supposed that she was adopted until after her marriage? A. Yes; she told me that. She said it to me in a letter.
“Q. How did Clara happen to tell you that? A. She wrote to me to find out what I knew about it, and she said that in that letter.
“Q. That was just after her marriage? A. No. That was this spring, after Mr. Davidson died.”

John T. Hallock was asked to state what Dr. Davidson said, in reference to taking plaintiff to raise or adopting her, and he said:

“I don’t remember there was anything said about adopting her. I don’t think there was.”

He further testified on cross-examination:

“Q. Was anything said hy those parties as to whether he took Clara as his own child? A. Yes, I don’t remember anything about the adoption.
“Q. Your recollection is that they were to take Clara and treat her and provide for her, as their own child? A. Yes. And that she should be called after their own name and be treated as their own child. They would not take her unless they could call her and take her as their own child. That import anyway.
“Q. What did Dr. Davidson say about taking Clara and wanting to give her his name and having it understood that he was to keep her always as his own child and that her kinfolks should not interfere and try to take her away from them? A. That’s it, as near as I can state it.
“Q. This all occurred at your house in Phillips County, Kansas, did it not? A. At my house or my dugout.”

He further testified on cross-examination:

“I think Clara was about four years old at that time. My father-in-law and mother-in-law, Truman Finch and wife, brought her to my house. They are both dead now.”

The above is substantially all the testimony as to what occurred in the State of Kansas at the time of the alleged adoption. When plaintiff was about twelve years old, the Davidsons moved with her to Kansas City, Missouri, and she continued to live with them up to the time of her marriage in 1904. During all the time she lived with them, after they took her in Kansas, she went by the name of Clara Davidson. She was introduced to their friends, acquaintances and those with whom they did business, as their daughter. They always spoke of her as their daughter or adopted daughter, and never mentioned her in any other manner. She went to school while at Kansas City, and performed such services around the house as any child would perform in behalf of her parents. They were kind and affectionate to her and she was always a kind and dutiful child toward her adopting parents. In fact, the community where they lived at the time of her marriage universally understood that she was the natural or adopted child' of the Davidsons. The plaintiff understood, up to the time of her marriage, that she was their adopted child.

These facts were so strongly proven hy the numerous witnesses that defendant’s counsel, during the examination of Dr. Frank S. Arnold, who was pastor of the Presbyterian church, said:

“There is no question hut that she had Doctor Davidson’s name and he consented to the use of the name and treated her ordinarily as a member of the household.”

Thereupon the following occurred:

“Mr. Hill: We offer it (church bulletin) to show that she was generally known as the daughter of Doctor Davidson.
“Mr. Gossett: There is no question but what he treated her familiarly as a member of his household, and she took his name and he may have referred to her as his daughter and may have wanted people to think she was his daughter.”

During the progress of the trial, Mr. Gossett said:

“It seems to me we are wasting time. Pie treated her with affection and called her daughter. There is no question about that. ”

Without'pursuing this inquiry further, it is manifest that on the facts disclosed in the record, the Davidsons agreed, without doubt, to take the plaintiff and raise her as their own child, with the understanding that they should have the privilege of changing her name; that the grandparents were to have no further control over her. Her name was changed hy the Davidsons in 1886, when they first'received her, and she thereafter went by the name of Olara Davidson. It is likewise true, that neither the grandparents nor any of plaintiff’s kin ever attempted to exercise any further control over her.

Upon the foregoing facts, the trial court found the issues for defendants. Plaintiff filed her motion for a new trial, which was overruled and the cause appealed to this court.

I. We are thoroughly satisfied from the evidence that Thomas Davidson and his wife, who lived in Phillips County, Kansas, in 1886, had no children of their own; that they agreed with Truman Pinch and wife — grandparents of plaintiff — to take and raise the latter, as their own child; that the grandparents were to have no further control over plaintiff and she was to assume the name of Clara Davidson. The evidence is undisputed that the Davidsons took plaintiff to their home, changed her name from Wilson to Clara Davidson; that neither the grandparents, nor any of plaintiff’s relatives, ever thereafter attempted to exercise any control over her; that she went into the family of the Davidsons when about four years of age, and thereafter was treated by them as their own child, to the date of her marriage in 1904; that she continued thereafter, to the death of both Davidsons, to be considered ás their own child or adopted child. She was kind and affectionate toward the David-sons, and treated them as a dutiful child would her natural parents. The entire community, which knew the Davidsons, understood that plaintiff was their child or adopted child. The Davidsons never spoke of her in any other manner, and frequently stated to their friends and acquaintances that she was their adopted daughter.

The grandparents performed their part of the Kansas agreement by delivering plaintiff to the Davidsons, and exercising no control over her thereafter. The David-sons performed a part of their agreement, at least, by changing plaintiff’s name to that of Davidson, and by introducing her to all their acquaintances as their daughter or adopted daughter, and treating her accordingly. The plaintiff carried out her part of the agreement made in her behalf, by living with the Davidsons as their child until her marriage in 1904, and performing such services as a natural child would have performed under the circumstances. She continued to treat them as her father and mother until their respective deaths. Had the David-sons and plaintiff been residents of Missouri, when the former took possession of plaintiff as their child, a court of equity, on the facts before us, would undoubtedly have decreed that she was an adopted child and inherited the property in controversy, subject to the statutory interests of defendant, Augusta Davidson. [Ralph Signaigo v. Mary Signaigo, Adm’x (Mo.)Lindsley v. Patterson, 177 S. W. (Mo.) 826; Martin v. Martin, 250 Mo. l. c. 547 et seq.; McElvain v. McElvain, 171 Mo. l. c. 254; Lynn v. Hockaday, 162 Mo. 111; Buck v. Meyer, 190 S. W. (Mo. App.) l. c. 997.]

The law is so well settled in this State by the foregoing authorities, that we do not deem it necessary to refer to others.

II. Does the Kansas statute (Sec. 5065, G. S. 1909), providing for adoption by petition and order of the probate court, preclude the maintenance of an equitable proceeding in Missouri, on the facts before us, where no property is sought to be reached in Kansas, and where the Kansas statute is not relied upon by plaintiff as the basis for her action! We think this inquiry should be answered in the negative. We are not concerned with proceedings under the Kansas statute cited, but with the question as to whether said statute was intended to preclude the maintenance of an equitable proceeding like this, even in that State.

In Anderson v. Anderson, 75 Kan. l. c. 129-30, it is said :

“We do not regard Renz v. Drury, 57 Kan. 84, as laying down the hard-and-fast rule that a court of equity should never compel the specific performance of a parol contract of this character, but rather as an illustration of the doctrine, recognized almost universally, that each case depends upon its own particular facts and circumstances, and the .^anting of denying of the remedy rests in judicial discretion.”

The recent case of Malaney v. Cameron, 159 Pac. (Kan.) l. c. 20-21, clearly recognizes the doctrine, that a written contract to adopt might be enforced in equity, in that State, if the facts warranted it, although the Kansas .statute was not followed. In other words, both Kansas and Missouri have specific statutes providing for the adoption of children, yet in neither State is it provided by law that a court of cha/ncery cannot enforce a contract like the one at bar, where it has been specifically performed, by the child and grandparents. The plaintiff is not relying upon any Kansas statute, nor is she seeking to reach any property in that State. On the contrary, she seeks to enforce here an agreement, in equity, which has already been performed by herself and grandparents; and which has been performed by the adopting parents, except as to the statutory formality required by law in the execution of deeds of adoption. The authorities heretofore cited, as well as those referred to therein, clearly sustain the right to maintain such an action. A distinction is made by many of the authorities between a case where the decedent has made a valid contract to provide in his will a specific sum for a child — where strict proof is required as to the facts — and one where he simply agrees to adopt the child as his own. In the latter case, the minor occupies .the same position ás a natural-bom child, and may, like the latter, be cut off with a nominal sum, but in the former case, the heirs of decedent must carry out his agreement, notwithstanding the will may contain provisions to the contrary.

In the case before us, there are no natural descendants of Thomas Davidson, and plaintiff is seeking to have her status established as his adopted child. We have before us all the parties interested in the estate of Thomas Davidson, deceased, and rale that plaintiff is entitled to recover herein.

III. It is insisted that the first count of plaintiff’s petition should be treated as an action at law, and as the case was tried without instructions, the finding of the trial court is conclusive against plaintiff. This contention is not well founded for two reasons: First, because ^he case was tried in the court below as an equity case throughout, and, second, because a court of equity alone has jurisdiction to enforce this class of agreements. The plaintiff in the first count set out the facts which entitle her to have a court of equity decree that she is an adopted child. The court must find that the facts exist which entitle her to the equitable relief prayed for, and if this is done it follows that she is entitled to a decree accordingly. After setting out the facts, she asks the court to declare upon a consideration of same, in connection with the evidence, that she is the adopted child of decedent, and is entitled to his property, subject to the widow’s interest therein. She thus calls for equitable relief and the first count should accordingly be considered as a proceeding in equity.

IY. We have given careful consideration to all the questions raised and discussed by counsel in their respective briefs, and without prolonging this opinion, have reached the conclusion that plaintiff is entitled to a decree on the facts before us, declaring that she is ^ ac[0pte(j child of Thomas Davidson, deceased, and as such, is the legal owner of the property in controversy, subject to the statutory interests therein of the defendant, Augusta Davidson, as the widow of decedent.

The causéis accordingly reversed and remanded with directions to the trial court to set aside its judgment; to enter a decree in favor of plaintiff and to otherwise1 dispose of the case in conformity to the views herein expressed.

PER CURIAM.

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

All the judges concur.


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    FREDA VAN LOON, Appellant, v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY.
    Division One,
    June 1, 1917.
    1. APPELLATE PRACTICE: Transfer from Court of Appeals. Whether or not a decision rendered by a Court of Appeals conflicts with other appellate rulings, as one of the judges of that court deems it to do, the case when it reaches the Supreme Court upon certification is for disposition de novo, just as if it had been appealed to this court directly from the circuit court.
    2. VERDICT: Against Weight of Evidence: Second New Trial. If a verdict has once been set aside on the ground that it was against the weight of the evidence a second verdict in the same law case cannot be set aside on that ground.
    3. -:-: Other Suspicious Circumstances. 'The trial court in passing upon the motion for a new. trial and in giving his reasons for sustaining the same, in writing, said that “the verdict is against the weight of the evidence, both as to the injuries and as-to the facts creating a liability; however, a verdict in this case has been set aside once before on the ground that it was against the weight of the evidence, and the court would not disturb the verdict on that ground except for the fact that a party, on behalf of plaintiff, made an attempt to influence one of the jurors, and the circumstances are so suspicious with reference to this party, that in view of the fact that this verdict is against the weight of the evidente and in view of these suspicious circumstances the court sets the verdict aside.” The order further recited that said party “did not reach the juror he attempted to influence” and that said juror “did not sign the verdict.” Held, that the court set the verdict aside on the ground that it was against the weight of the evidence, and in doing so abused his discretion.
    4. -: Attempt to Influence Juror. A statement by a volunteer to the landlord with whom the juror was boarding that he and plaintiff’s counsel were anxious to obtain a verdict for plaintiff and a request that the landlord talk with the juror about the case, there being no evidence connecting plaintiff or her counsel with such conduct, and the landlord having said nothing whatever to the juror and the juror having refused to sign the verdict, do not constitute such suspicious circumstances as authorize the court to set aside a verdict for plaintiff.
    5. -: -: Taking Juror to Saloon. The mere fact that a juror and a road overseer who previously lived in adjoining rural communities, upon the juror’s invitation, went to a public saloon, drank some beer and ate lunch.'’, and afterwards went to a picture show together, is no ground for setting aside a verdict, the plaintiff or her counsel having nothing to do with the incident and there being no discussion of the case.
    6. -: Setting Aside: Discretion. A trial judge cannot arbitrarily set aside a verdict, but that can be done only as a result of the ’exercise of a wise judicial discretion.
    Appeal from Buchanan Circuit Court. — Hon. W. K. Amich, Judge.
    Reversed and remanded (urith directions).

    Brewster, Ferrell & Mayer and B. E. Culver for appellant.
    (1) The court had no right to set the verdict aside on the ground that it was against the weight of the evidence. Sec. 2023, R. S. 1909; Vermillion v. Jarsons, 98 Mo. App. 72; McFarland v. Accident Assn., 124 Mo. 222; Nicol & Co. v. Hyre & Co., 58 Mo. App. 134; Troll v. Pro-. tected Home Circle, 161 Mo. App. 722. (2) The fa'et that the court was suspicious of the conduct of J. Elliston, who had no interest in the result of the trial, who acted for the plaintiff in no way, and who, neither himself nor through another, ever spoke to any juror in the cause, did not justify the court in setting aside the verdict on the ground that it was against the weight of the evidence. There is no testimony nor circumstance, except the statement of Highsmith, that Mr. Elliston ever spoke to any person about this case, and, according to Highsmith’s own statement, the desire that the plaintiff should win and that the juror Kendall should vote for the plaintiff expressed by Ellistfon, never reached the juror Kendall. The juror Kendall did not sign this verdict; according to all of the testimony the desire expressed by the interloper Elliston was never communicated to the juror Kendall; it had no influence one way or the other in the trial of this cause, and ought not to deprive plaintiff of a verdict honestly secured. (3) In order to raise the question on misconduct of the jury the motion for a new trial must be supported by affidavits showing affirmatively that neither the complaining party nor his counsel had any knowledge of such misconduct before the jury retired. State v. Barrington, 198 Mo. 93. (4) The conduct of Robert Georgp was not such as to even justify a suspicion. Peary v. St. Ry. Co., 162 Mo. 107.

      Robert A. Brown for respondent.
    (1) One reason assigned by the trial court for setting the verdict of the jury aside was that the verdict was tainted with ‘ ‘ suspicious circumstances; ’ ’ that evil influences had been at work, and that the verdict of the jury was so at variance with the great weight of the evidence as to raise the strong presumption that such influences had found their mark. Under such circumstances not only did the court have the right to set the verdict aside, but it was the court’s duty to do so. Yan Loon v. Railroad, 174 Mo. App. 372; In re Ellison, 256 Mo. 382; Morgan v. Ross, 78 Mo. 318; State v. Howard, 118 Mo. 136; Railroad v. Real Estate Co., 204 Mo. 565; Hamburger v. Runkel,'164 Mo. 398 ; Spohn v. Railroad, 87 Mo. 74; Price v. Evans, 49 Mo. 396; State v. Primm, 98 Mo. 368; Whitset v. Ransom, 79 Mo. 258; Baker v. Stonebraker, 36 Mo. 338; Garrett v. Greenwell, 92 Mo. 120; State v. McNamara, 100 Mo. 100; Chitty v. Railroad, 148 Mo. 64; Chouquette v. Railroad, 152 Mo. 257; Leahnick v. Railroad, 118 Mo. App. 611; Woodard v. Cooney, 111 Mo. App. 152; Friedman v. Pulitzer Pub. Co., 102 Mo. App. 683; Rigby v. Transit Co., 153 Mo. App. 330; Kennedy v. Holladay, 105 Mo. 24; Kreis v. Railroad, 131 Mo. 444; McGraw v„ O’Neil, 123 Mo. App. 691. (2) As a second reason for setting the verdict of the jury asióle the court said that it was against the weight of the evidence “as to the injuries” sustained by appellant, which means that the court found that the verdict of the jury was excessive. The new trial which had been granted by Judge Ramey was not granted because the verdict was excessive, but because the verdict of the jury was against the weight of the evidence. The granting of a new trial because the verdict of the jury is against the weight of the evidence does not bar the court’s right to grant another new trial because the verdict of the jury is excessive, and the courts say that excessive verdicts should be set aside. Clarkson v. Garvey, 179 Mo. App. 9; McGraw v. O’Neil, 123 Mo. App. 691; Longan v. "Weltmer, 180 Mo. 322; Chlanda v. Transit Co., 213 Mo. 244; Partello v. Railroad, 217 Mo. 645; Gibney v. Transit Co., 204 Mo. 704. (3) The action of the trial court in setting the verdict aside and granting respondent a new trial will be sustained, if this can be done upon any of the grounds set out in the motion for new trial. Hewitt v. Steele, 118 Mo. 473; Lovell v. Davis, 52 Mo. App. 342; Bank v. Armstrong, 92 Mo. 265; Milling Co. v. Transit Co., 122 Mo. 258; Parker v. Britton, 133 Mo. App. 270. Respondent’s demurrer should have been sustained, and the court should have granted a new trial on account of error committed in overruling the demurrer. Nugent v. Milling Co., 131 Mo. 241; Gurley v. Railroad Co., 104 Mo. 211; Warnke v. Rope Co., 171 S. W. 646; Daniels v. Railroad, 164 S. W. 154; Scroggins v. Met. St. Ry. Co., 138 Mo. App. 217. (4) There was an abundance of evidence introduced which would have sustained a verdict in behalf of respondent, and under such circumstances the discretion exercised by the trial court in granting a new trial may not now be questioned. Clarkson v. Garvey, 179 Mo. App. 9; Rigby v. Transit Co., 153 Mo. App. 330; Canterbury v. Kansas City, 130 Mo. App. 1; Karnes v. Winn, 126 Mo. App. 712. (5) The court, to the great prejudice of respondent, admitted hearsay evidence on the part of appellant, and for that reason the verdict of the jury should have been set aside. Langston v. Railroad, 147 Mo. 457; Carlin v. Bank, 86 Mo. App. 592; Smith v. Sedalia, 182 Mo. 1; Gutridge v. Railroad, 94 Mo. 473. ■
   GRAVES, J.

This case has been duly certified to this court by the Kansas City Court of Appeals. The majórity opinion sustained the action of the trial court. The dissenting judge takes a contrary view. The question involved is single, and pointedly made. Plaintiff had a verdict below, and this verdict was set aside by the trial judge. The opinion of the Court of Appeals thus states the necessary facts (clearly, bnt somewhat strongly stated) for a determination of the question involved:

“Appellant sued for damages alleged to have been caused by a fall received while attempting to alight from defendant’s street car. The charge is that the fall was brought about by the careless jerking or sudden starting of the car while appellant was in the act of stepping off. The answer was a general denial, and a plea that her 'injury, if any, resulted from her own negligence in stepping from the car before it came to a stop.
“At the September term, 1908, the case was tried before Judge Ramey and a jury, and a verdict was returned against respondent for $5700. This verdict was set aside by the trial court “for the reasons that the verdict is against the weight of the evidence, and for misconduct of the jury in arriving at said verdict. ’.’
“Thereafter the case was twice tried, oliee at the May term, 1909, and again at the January term, Í910, each time resulting in a hung jury.
“At the May term, 1911, the ease was tried for the fourth time, and a verdict was returned for appellant in the sum of $4000.
“A motion for a new trial was in due time filed, the grounds of which, among others, were that the verdict was against the weight of the evidence; that it was so grossly against the overwhelming weight of the evidence as to shock the conscience and indicate that the jury was influenced by passion and prejudice and did not consider the evidence in the case or the instructions of the court; that the verdict was out of all proportion to the injuries proved and was so excessive as to shock the.conscience and indicate that the jury disregarded both the evidence and instructions and returned a verdict based on passion and prejudice rather than on the law and the evidence; that improper and unlawful methods were employed to induce members of the jury to find a verdict for the plaintiff; that one J. Elliston made certain efforts to see and influence the jrfry in favor of plaintiff during the trial; that he had a list of the jurors and was endeavoring to reach them and improperly influence them in plaintiff’s favor, but that lie failed to reach the juror be was attempting to reach when discovered; that, during the trial of the case, a certain .man named in said motion, and who was friendly to and apparently deeply interested in plaintiff’s side of the case, was frequently in the.court room observing the conduct and progress of the trial, consulting with persons interested in plaintiff’s case, and frequently talked with one of the jurymen, and that said actions and conversations so aroused the suspicions of defendant’s officers that one of them went to the man and told him his actions had been observed and commented upon, and that they were not consistent with disinterested motives, and requested him to let the jury alone and not attempt to interfere further in the case, but that said person did not comply with the request but continued to visit saloons and theatres with said juror at night during the trial andbefore the rendition of the verdict; and that such facts were reported to the trial judge during the trial.
“Various affidavits were filed in support of and also in opposition to the motion for new trial. Two of respondent’s affidavits, stating that neither respondent nor its atorneys learned of the attempt of said. Elliston to reach or influence the jury until after the verdict was returned, were not filed within the time allowed by the court for filing affidavits. And objection is made by appellant to said two affidavits for that reason. These two were filed before the motion was passed on, and by permission of the court. It being within the discretion of the court whether he should allow them to be filed and considered, and he having done so, his action in that regard cannot be reviewed by us. .
“After having said motion for new trial under advisement for some- time, the trial judge sustained the same, and had his reasons therefor entered of record as follows:
“ ‘All the points presented by the defendant in this , motion for a new trial are overruled, except that the court says as follows;
“ ‘That the verdict in this case is against the weight of the evidence, both as to injuries and as to the facts creating a liability. However, a verdict in this case has been set aside once before on the ground that it was against the weight of the evidence, and the court would not disturb the verdict on that ground except for the fact that a party by the name of Jay Elliston, on behalf of the plaintiff, made an attempt to influence one of the jurors; that he did not reach the juror that he attempted to influence, but that he had with him a card to which' he referred, upon which he apparently had the names of several persons, presumably jurors; that he was making an effort to influence this juror on behalf of the plaintiff, and that the circumstances are so suspicious with reference to this party, Mr. Elliston, that in view of the fact that this verdict is against the weight of the evidence and in view of these suspicious circumstances with reference to the jury, the court sets this verdict aside. The juror attempted to be influenced was juror Kendall, who did not sign the verdict.5
“From the order granting defendant a new trial, plaintiff appealed. ’ ’

Under the law the ease as it comes from the circuit court is here for disposition de novo, whether the dissentr ing judge in pointing out that the majority opinion conflicts with other appellate rulings, is right or wrong. The law leaves the case here for determination, just as if it had been regularly appealed to this court in the first instance. However, in this case the whole fight here, as well as in the Court of Appeals, seems to be centered.around the one question, as to whether or not the trial court had the right to set aside this second verdict for plaintiff under the facts before it, for the reason assigned by such court.

I. A determination of the question involved here calls for an interpretation of the reason assigned by the trial court for its action in setting aside the verdict of the jury. A verdict had once been set aside in this case on the ground that such verdict was against the weight of the evidence, and under our statute (Sec. 2023, R. S. 1909) a second verdict could not he set aside upon that ground. The learned writer of the majority opinion in the Court of Appeals recognized this fact in the opinion, but places his opinion upon the ground that the reason assigned by the trial court is noito the effect that he set aside the verdict on the ground that it was against the weight of the evidence. For this-reason we say the reason given by the trial court must be interpreted from the language used. To have the language before us we requote it, thus:

“All the points presented by the defendant in this motion for a new trial are overruled, except that the court says as follows:
“That the verdict in this case is against the weight of the evidence, both as to injuries and as to the facts creating a liability. However, a verdict in this case has been set aside once before on the ground that it was against the weight of the evidence, and the court would not disturb the verdict on that ground except for the fact that a party by the name of Jay Elliston, on behalf of the plaintiff, made an attempt to influence one of the jurors; that he did not reach the juror that he attempted to influence, but that he had with him a card to which he referred, upon which he apparently had the names of several persons, presumably jurors; that he was making an effort to influence this juror on behalf of the plaintiff, and the circumstances are so suspicious with reference to this party, Mr. Elliston, that in view of the fact that this verdict is against the weight of the evidence and in view of these suspicious circumstances with reference to the jury, the court sets this verdict aside. The juror attempted to be influenced was juror Kendall, who did not sign the verdict. ’ ’

We do not agree with our learned brothers, when they hold that this language does not mean that the trial judge set aside this verdict because it was against the weight of the evidence. Let us take the language of the circuit judge. He says:

“That the verdict in this case is against the weight of the evidence, both as to injuries and as to the facts creating a liability. However, a verdict in this case has been set aside once before on the ground that it was against the weight of the evidence, and the court would not disturb the verdict on that ground except for the fact that a party by the name of Jay Elliston, on behalf of the plaintiff, made an attempt to influence one of the jurors. ’ ’

The judge here openly announces that this verdict is against the evidence. He then admits that one verdict in the case has been set aside for that reason, and then adds, “and the court would not disturb the verdict on that ground [as being against the weight of the evidence] except for the fact,” etc. The use of the word “except” is significant. In the connection in which it is used, it makes it clear that the court was setting aside this verdict on the ground that it was against the weight of the evi-' dence. He says that he would not use this ground to set aside the verdict, but for the appearance of the other thing mentioned, yet the whole language taken together means that he did set it aside on the ground that he thought it against the weight of the evidence. The court says in effect that ,he would not use such ground to set aside the verdict, but for the other incident. This can only mean that he did set aside the verdict on the ground that it was against the weight of the evidence, and that he was induced to so act and to use such ground because of the incident mentioned.

This construction of the order is borne out by the full order, including the incident named. We say this, because of the clear and plain recitals of the order. The order, so far as this incident is recited therein, shows that the incident was not the moving cause of the order. What we are now saying is based upon the order itself- and otherwise. The incident therein described is that one Elliston made an attempt to influence a juror. The order recites that Elliston did not reach the juror, and further that the juror in fact voted ¿gainst the plaintiff. We can only say, that if this trial judge did not mean that he was setting aside this verdict because it was, in his judgment, against the weight of the evidence, he was extremely unfortunate in the selection of his language.

"We can only judge of the order by the language used. We hold that such order did set aside the verdict on the ground that it was against the weight of the .evidence, and that under the statute, supra, the trial court had no authority to thus set aside this second verdict for such ground. That this was the ground upon which the order was entered, is made clear by the other recitals therein. The order recites no other fact upon which, in the exercise of a judicial discretion, the verdict could have been set aside. This question we more fully discuss later.

II. Whilst we are. firmly fixed in the view that the trial court (by the terms of its order made herein) set aside this second verdict because the judge was. impressed with the notion that such verdict was against the weight of the evidence, yet we shall review the other circumstances in the case: As stated before, the whole case, as it comes from the circuit, is before us, just as it was before the Court of Appeals. That the foregoing may not be misunderstood or misapplied, \ye will add that we have the same questions before us that the Court of Appeals had, by'reason of the appeal.

We do not agree with our learned brothers of the Court of Appeals, when they hold that the record discloses another ground for the action of the trial court iu setting aside this verdict. In this discussion we leave out of consideration the question of the verdict being'against the weight of the evidence. The ease was one evidently hotly contested. Plaintiff was making a vigorous fight for a second verdict, and defendant had its agents on guard to watch the conduct of counsel and jurors.

With all the effort made in the case, but two incidents appear in the record. Defendant claims, and has some evidence to support the claim, that one Elliston tried to influence a juror by name -of Kendall. His effort was this, according to defendant’s showing: Kendall was stopping with one Highsmith. Elliston went to Highsmith and in a talk with him, asked if Kendall was not a juror in the case, stating that he (Elliston) and Mr. Mayer, counsel for plaintiff, were anxious to get a verdict for plaintiff. Highsmith told him that he had better not talk with Kendall, that Kendall had a head of his own. That then Ellis-ton asked Highsmith to talk with Kendall. By the same source it is shown that Highsmith did not talk to Kendall, and further that Kendall, as a matter of fact, refused to sign the verdict for plaintiff. Plaintiff’s showing controverted the showing above, except as to Kendall, being one of the jurors who did not sign the verdict.

The only other incident in the entire record is to the effect that one Robert L. George, supervisor of road overseers for Buchanan County, was seen talking with the juror W. J. Pritchett, who signed the verdict. It also appears that George and Pritchett at Pritchett’s invitation went into a public saloon and drank some beer and ate a lunch together, and afterward went to a picture show together. Some of defendant’s agents were in the saloon when this lunch was eaten, and according to plaintiff’s showing sat at an adjoining table. Pritchett was from the country, as was also George prior to the time he entered upon the duties of the office. They had lived some seven or eight miles apart in the country, but their actual acquaintance was a limited one, growing out of a visit by George to Pritchett’s farm. From that time they had met a few times, and met several times during the time this case was on trial, the urged occasion being this lunch and visit to a picture show. For the plaintiff it was shown that the case was never mentioned between George and Pritchett, except when Pritchett first met George, during the trial, at which time George asked Pritchett what brought him to the city, and Pritchett informed him that he was bn the jury. These are the two incidents upon which is grounded the doctrine of “suspicious circumstances” — George says he had no interest in the case, and only aimed to treat Pritchett as he would any other man from the country.

It is nowhere shown that either plaintiff or her counsel had anything to do with these acts of George or Elliston. Our learned brothers of the Kansas City Court of Appeals exonerated counsel, and of course there is not a scintilla of evidence to connect the plaintiff with these two-parties.

If Elliston in fact attempted to influence a juror, he should have been punished, and from the briefs it appears that he has been. It will not do to say that his act in this case would authorize a trial court, in the exercise of a wise judicial discretion, to set aside pain tiff’s verdict. Plaintiff or her counsel should, at least, have been shown to have had some connection therewith.

If this Kendall incident, unconnected as it is, would authorize the destruction of plaintiff’s verdict, no verdict in a circuit court would be safe. A designing defendant might arrange for just such an attempt, and upon proof of the unconnected attempt to influence a juror, have any and all verdicts set aside. We do not intimate that any such practice was resorted to in this case, but make the suggestion to show the danger that would come from permitting such unconnected circumstances to destroy verdicts.

So, too, with the George-Pritchett incidents. Those of us who have been in the country practice know that the lonesome juror from the country kills his idle time in conversation with such acquaintances as he may have in the county seat. He is of course charged not to discuss the case during its pendency, but he does not understand that to mean that he can’t talk with his acquaintances, or even eat lunch, drink some beer, or go to the picture show with such acquaintances. Such juror understands, as we all understand, that he' is still a man, and can do the ordinary things - done by men, so long as he refrains from talking about the 'case on trial, and refuses to permit others to talk about it in his presence.

The George-Pritchett incidents, in view of the full explanation made by the two men, fails of substance. A trial court can, not arbitrarily exercise his discretion dn setting aside verdicts. His discretion must be a wise judicial discretion, and not one without foundation in fact. We shall not review all the eases. The opinion of Gantt, J., in Railroad v. Real Estate Co., 204 Mo. l. c. 576, will suffice. Judge Gantt thus outlines the facts:

“Prom the large part it occupies in the motion for new trial and the argument both in brief and orally, it appears that counsel attach especial importance to the charge of misconduct on the part of three of the jurors in drinking with and being treated by one Essen, an agent of the plaintiff, during the trial of the cause, whilst the court was adjourned or in recess.
“On this point affidavits were filed both in support and in opposition to the new trial. The affidavits for the defendants are to the effect that Essen was seen sitting at a table drinking a glass of beer with one of the jurors on one occasion, and on another all three of the jurors and Essen and others were seen taking a glass of beer in a saloon in the town of Union during the recess of the court while this cause was on trial, and one of the affidavits says that the juror and Essen were holding a serious private conversation. On the other hand, the affidavits for plaintiff tend to prove that Essen was not in the employ of the plaintiff; that at its request he. had gone over the land in question and examined it with the view to testify his opinion as to the amount of damage; that owing to the fact that other witnesses had testified as he would have done and not to prolong the trial he was excused, but that he was in Union as a witness; that he was sworn with some twenty other witnesses and each of the jurors swears that he did not know or remember that Essen was sworn as a witness; but they each, as well as Essen, swear that while they took a glass or two of beer together the cause or trial was not mentioned between them; the jurors testifying that neither of them had violated the direction of the court as to conversing about the case. In addition to this the affidavits of other persons tend to show that'the jurors are all men of good character and occupy responsible positions as business men. Essen admitted his friendliness to plaintiff, but denied that he had been or was to receive compensation for favoring the enterprise. The jurors testified they did not know Essen was an agent or in the employ of plaintiff. This is a sufficient statement to indicate the issue. ’ ’

At page 578 of that opinion Judge Gantt says :

“Of course we all agree that the courts cannot he too careful to see that juries are not only free from outside or improper influences hut even from a suspicion of such a thing, hut when it appears that the conduct of the jurors when explained was wholly free of any reference to the cause and in no manner affected their verdict, it would be unjust to punish an offending litigant for such a breach of propriety, and this has been the course of decision in this court. [State v. Upton, 20 Mo. 397; Morgan v. Ross, 74 Mo. 318; Kennedy v. Holladay, 105 Mo. 24; Borland v. Barrett, 76 Va. 128; Hamburger v. Rinkel, 164 Mo. 398.] ” The italics are ours.

So in the case at bar it would he unjust to the plaintiff to have her verdict set aside for things with which she had no connection, and things which when fully explained, had no connection with or effect upon the case.

•We do not believe that the discretion exercised by the learned trial judge in setting aside this verdict, was that wise judicial discretion which is recognized in the law. The order granting the new trial should he reversed and set aside, and the cause remanded, with directions to the circuit court to reinstate the verdict and enter judgment thereon.

It is so ordered.

All concur, Bond, P. J., in paragraph one and in result.