author: WOODSON, J.

text:
    DRAKE et al., Trustees, Appellants, v. BOARD OF EDUCATION OF ST. LOUIS.
    Division One,
    December 24, 1907.
    1. LEASE: Renewal: Perpetuity. A renewal.of a lease for all time to come is a perpetuity, which is against the policy of the law. Unless it appears from the covenant in the lease, by express terms or clearly by implication, that the lessees are entitled to have the lease renewed for all time to come, a court of equity will not decree specific performance of the covenant for that purpose.
    2. -: -: -: General Covenant. A general covenant for the renewal of a lease will not be considered to imply a perpetual renewal, but the most the lessor is bound to give on such a covenant is a renewal for one term only.
    3. -: -: -: -- — : Compelling Second Renewal. The lease was for a term of twenty-five years, and contained this covenant: “It is covenanted and agreed, by and between the parties, that at the end of the term hereby demised, this lease shall be renewable at the option of the lessees, their executors, administrators or assigns; the said lessees, their executors, administrators or assigns, giving to the party of the first part, in every instance, a notice in writing of their wish to renew the same, at least three months before the end of the term, and in case of failure to give such notice, the said lessees shall be entitled to no further renewal of this lease or of the terms thereby created. And every renewal lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with these exceptions only, that the covenants of renewal shall be in conformity with the foregoing provisions.” Held, to be a general covenant for a renewal, and not to expressly give the lessees the right to compel more than one renewal, and they cannot compel the lessor to execute a renewal lease containing a covenant for further renewals.

      Appeal from St. Louis City Circuit Court. — Ho». Moses N. Sale, Judge.
    Aeeibmed.

      Jos. G. Holliday and Geo. L. Neuhoff for appellants.
    (1) A stipulation in a renewable lease, calling merely, in general terms, for the insertion in the new lease of “all the covenants” contained in the old, without specific enumeration of the particular covenants, is insufficient to compel the insertion of a covenant for renewal in the new lease, there being a presumption (arising from failure to refer specifically to that covenant), that it was not included in the mere general stipulation to insert “all the covenants of ' the old lease.” Carr v. Ellison, 20 Wend. 178; Diffenderfer v. Board of Education, 120 Mo. 447. (2) But a clear reference to, or, a fortiori, an actual mention of the covenant of renewal by name, in describing the covenants to be inserted in the new lease, will leave no room for the presumption that this covenant was not in the minds of the parties when using the general words “all the covenants in the old lease contained,” or their equivalent. In such a case the court cannot ignore the. express call for covenants of renewal to go into the new lease, and the only question remaining is whether, taken together, the general and the specific words of the old lease are sufficient to compel the insertion in the new lease of a covenant for repeated or perpetual renewals, on the one hand, or a bald covenant of mere renewability, that is, for one further term, on the other. Moore v. Foley, 6 Ves. Jr. 231; Hare v. Burgess, 4 E & J. 45; Syms v. Mayor, 105 N. Y. 153. (3) In fact, it has long been a common practice among conveyancers, instead of providing directly in the original lease how long these renewals should go on, to determine the matter by describing the sort of covenant for renewal to be inserted in the new lease. In view of snch a custom, recognized by judicial decisions, words expressly naming or describing the covenant of renewal among those to go into the new lease, cannot be left with impunity in a renewal lease, any more than the words “grant, bargain and sell” can be left with impunity in a deed conveying real estate, for they are words to which the law has given a certain function, in the one case by statute, in the other by long usage. Moore v. Foley, supra; 4 Jarman on Conveyances (3 Ed.), form on p. 567, line 8; on p. 568, line 14. (4) It being well established that a bald covenant “to renew” a lease means for one more term of lite duration, it would seem to follow that a bald stipulation to insert covenants of renewal in the new lease must mean that there shall be inserted in the new lease merely a covenant for one further renewal. Rutgers v. Hunter, 6 Johns. Ch. (N. Y.) 218 ; Whit-lock v. Duffield, 1 Hoffman Ch. 110; Abeel v. Radcliff, 13 Johns. 297; Curry v. Railroad, 58 Kan. 6; Fullmer v. Poust, 155 Pa. St. 275; Stephens v. Ins. Co., 61 Mo. App. 194; Trabue v. Ins. Co., 121 Mo. 75.

      Judson $ Green for respondent.
    (1) The covenant in the lease of 1878 provided for one renewal only, to-wit, that contained in the lease tendered. Diffenderfer v. Board of Public Schools, 120 Mo. 447; Winslow v. Railroad, 188 U. S. 646; Taylor’s Landlord & Tenant (8 Ed.), secs. 333, 334, 343; Jones on Landlord & Tenant, sec. 343; 18 Am. and Eng. Ency. Law (2 Ed.), 687; Richards v. Hunter, 6 Johns. Ch. 215; Piggot v. Mason, 1 Paige 412; Carr v. Ellison, 20 Wend. 178 ; Ryder v. Jenny, 25 N. Y. Supp. 55; Muhlenbrinck v. Pooler, 40 Hun 526. (2) The lease containing a covenant to renew at its expirations with similar covenants, terms and conditions contained in the original lease is fully carried out by one renewal without the insertion of another covenant to renew. Otherwise a perpetuity is provided for. Cases supra. (3) There are no specific words in the lease giving the right to two successive renewals, and none can be inferred from the terms of the printed form applicable to renewals when granted. Leake on Contracts (5 Ed.), p. 145; Clark v. Woodruff, 83 N. Y. 518.
   WOODSON, J.

The facts of this case are agreed to, and, as they are substantially and tersely stated in brief of counsel for respondent, we will adopt their statement as the statement of the facts in the case, which is as follows:

“The controversy in this case was submitted under section 793, Revised Statutes 1899, without formal pleadings as an agreed case without action, and involved the single question as to the construction of the right of renewal under a certain lease made by the respondent, the Board of Education of the City of St. Louis, of certain property in City Block 88, of the city of St. Louis, on November 13,1878, for a term of twenty-five years, to the late Cerard B. Allen, under whose will the appellants are the testamentary trustees. The original term of twenty-five years having expired, and the right to a renewal reserved in the original lease having been perfected by proper notice by appellants, the respondent tendered a renewal lease for a further term of twenty-five years without any covenant of further renetoal. Appellants refused to accept this renewal lease as a performance of the renewal covenant' in the original lease, and therefore this proceeding is in effect for a specific performance of the covenant of renewal reserved in the original lease of November, 1878, and involves the construction of that covenant.

“The lease in question was drawn on one of the printed forms used by the respondent which was made to suit the particular case by cancellation of various parts and writing in the blank spaces of the printed form. The covenant of renewal as set forth in the agreed statement of facts is as follows:

“ ‘And it is covenanted and agreed, by and between the said parties, that at the end of the term hereby demised, this lease shall be renewable at the option of said parties of the second part, their executors, administrators or assigns; the said party of the second part, their executors, administrators or assigns, giving to the party of the first part, in every instance, a notice in writing of their wish to renew the same, at least three months before the end of the term, and in case of failure to give such notice, the said parties of the second part shall be entitled to no further renewal of this lease or of the terms thereby created. And every renewal lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with these exceptions only, that the covenants for renewal shall be in conformity with the foregoing provisions, and that the annual rents reserved on every renewal shall be six per centum upon the value of the demised premises, exclusive only of improvements placed thereon by said lessee or their legal representatives, if any, which value shall be estimated by two disinterested freeholders,’ etc.

“Respondent conceded that under this covenant appellants were entitled to a renewal lease for twenty-five years, commencing November 7, 1903, but denied the right of appellants to have inserted in said renewal lease any clause whatever relating to a further renewal of the lease. Respondent, therefore, tendered to- appellants a lease, being ‘Exhibit C,’ as filed with the agreed statement, and claims that the same was a full compliance with the covenant of renewal. Appellants refused to accept this, and demanded- a lease with a covenenat for one further renewal, and this proceeding was' brought for the adjustment of this difference. The circuit court held that the appellants were only entitled to the lease tendered, that is, to a renewal lease for them of twenty-five years with no covenant for further renewal, and entered judgment accordingly. Appeal was duly perfected.”

Appellants present the following assignment of errors, to-wit:

‘ ‘ 1. The lower court erred in holding that appellants are entitled only to a new lease for twenty-five years commencing November 7, 1903, without further renewal. Said new lease should itself be renewable for at least one more like term, in accordance with the express provisions of the original lease.

“2. The lower court erred in giving no effect whatever to the following express words occurring right in the covenant for renewal of the original lease here sued upon, specifying what sort of covenant of renewal (actually naming that covenant) shall go into the new lease, to-wit: ‘The covenant for renewal shall be in conformity with the foregoing provisions.’ (The said ‘foregoing provisions’ here referred to being provisions relating to the sort of notice to be given in case of renewal.) ”

I. In the consideration of this case it should be constantly borne in mind, as stated by this court in the case of Diffenderfer v. Board of Public Schools, 120 Mo. 454 and 455, that a renewal of the lease for all time to come is to create a perpetuity, which is against the policy of the law and which it does not favor; and it is further stated that “unless it appears from the covenant in the lease, by express terms or clearly by implication, that plaintiffs are entitled to have the lease renewed for all time to come, a court of equity will not decree specific performance of the covenant for that purpose.”

The respondent does not deny the right of the appellants to have one renewal of the lease, but does contend that they are not entitled to have inserted in that renewal a covenant for any additional renewal. This contention of the respondent is denied by appellants, and they insist that nnder the express provisions of the lease they are entitled to at least two, if not perpetual renewals, that is to say, they are entitled to the renewal conceded by respondents, and have the right to have inserted in the new lease-a covenant for at least one other renewal.

Appellants base their claim to that right upon the following provisions contained in the original lease, to-wit: “And it is covenanted and agreed by and between the said parties that at the end of the term hereby demised this lease shall be renewable at the option of said parties of the second part, their .executors, etc. The said party of the second part, their executors, etc., giving to the party of the first part, in every instance, a notice in writing of their wish to renew the same, etc,, and in case of failure to give such notice, the said parties of the second part shall be entitled to no further renewal of this lease or of the terms hereby created. And every renewed lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with these exceptions only, that the covenants for renewal shall be in conformity with the foregoing provisions,” etc. Prom this it is argued by appellants that they would be .entitled to one renewal by the use of the general words, “this lease shall be renewable,” found in the first clause of the paragraph of the lease above quoted, even though no other language regarding renewals. had been found therein.

And they further contend that by the insertion of the following additional covenant or agreement in the lease, to-wit: “in every instance a notice, -etc., and every renewed lease shall contain all the covenants, agreements, clauses aud stipulations herein contained, with these exceptions only, that the covenants for renewal shall be in conformity with the foregoing provisions,” etc., just after the general covenant above mentioned, shows that it was in the minds of the parties and that it was their intention and understanding that more than one renewal was provided for.

This contention of appellants is presented with much force and plausibility and the following authorities are cited in support thereof.

In the ease of Syms v. Mayor, 105 N. Y. 156, the city of New York, on April 10, 1810, executed to Peter Lorillard a lease demising to him certain premises for a term of thirty years ending on the last day of May, 1840. The lease was executed by both parties, and in it the city agreed that at the expiration of the term it would demise the premises to him, his assigns, etc., “for and during the term of twenty-one years, thereafter, with a like covenant for future renewals of the lease as is contained in this present indenture.” In 1839 Lorillard assigned the lease to John Syms, who thus became substituted in his place. In April, 1840, the city executed a lease of the same premises to John Syms for another term of twenty-one years, in which it covenanted that at the expiration of the lease, to-wit, May 1st, 1861, it would again demise the premises “in pursuance of this present lease . . . for and during the term of twenty-one years thereafter, upon such rents as shall be agreed upon.” On April 20, 1861, the city executed a third lease to John Syms for twenty-one years from May 1, 1861; that lease contained no covenant for renewal, and in it Syms covenanted that at the end of that term he would peaceably and quietly leave, surrender and yield up to the city or its successors or assigns all of the demised premises. Syms died in 1868, having some years before erected a valuable building upon the premises. In 1880, the city sold the premises to John B. Haskin. Thereafter, in October, 1880, the plaintiffs, as executors of Syms, commenced a suit, alleging in their complaint, among other things, the facts before stated, and prayed that the city be adjudged to reform the leases dated April, 1840, and April, 1861, by inserting therein a covenant for a future renewal of twenty-one years from May 1, 1882, and that the sale to Haskin be set aside, and the plaintiffs be given a renewal lease for twenty-one years from May 1, 1882. The verdict was for defendant. Upon those facts, Earl, J., speaking for the court, said: “We are of the opinion that the verdict was properly directed. The lease executed in 1810 should not be so construed as to create a perpetuity. Its language is satisfied by holding that it gave the lessee the right to two renewals, and those renewals were subsequently given; and it must be assumed that the parties so understood the first lease. The two renewals signed by both parties gave that lease a practical construction which should have great weight with any court called upon to ascertain its meaning and effect. ’ ’

In the case of Carr v. Ellison, 20’ Wend. 178, Ellison leased the premises to one Corwin for a term of twenty-one years from May 1,1793, at a certain yearly rent. By the lease Corwin covenanted that on or before the first day of November, 1793, he would, at his own expense, erect on the premises a two-story frame house, and at the end of the term would surrender same to Ellison. It was agreed that the buildings to be erected by Corwin should at the end of the term be appraised, and Ellison covenanted that he would pay Corwin the appraised value, “or he, the said Thomas Ellison, his heirs or assigns, shall renew the lease unto the said William Corwin, his executors, administrators or assigns, for the term of twenty-one years more1, for and under the same yearly rents, and under the same covenants as is hereinbefore granted.” Corwin, and afterwards the defendants under him, entered and held the premises under the lease, and paid the stipulated rent down to the first of May, 1835, the end of the second term of twenty-one years, but it did not appear that the lease was in fact renewed at the end of the first term, in 1814. The defendants insisted that the lease had in effect been renewed in 1814 by the act of the parties, with the same covenants as those contained in the original lease; and in April, 1835', they called on the plaintiff to appoint an appraiser and to pay the value of the buildings which the lessee had erected on the lot, or to renew the lease for another term of twenty-one years with the like covenants as those contained in the original lease. The plaintiff refused to do either and after the expiration of the second term of twenty-one years, in May, 1835, brought suit for the possession of the premises. The judgment was for the plaintiff, and defendants sued out a writ of error. The Supreme Court, in passing upon the case, speaking through Bronson, J., said: “On the construction for which the plaintiffs in error contend, the lessor covenanted in case the value of the buildings was not paid for a perpetual renewal of the lease; in other words, he agreed to renew the covenant for a renewal, as well as the other covenants contained in the lease. The courts lean against such a construction of the contract as will lead to a perpetuity, and will not infer an agreement for a second renewal from a general provision for a renewal of the lease with similar covenants. The parties did not, I think, contemplate more than two terms of twenty-one years. . . . The good sense of the contract seems to be this: the lessee agreed to erect a frame house on the premises, and the lessor stipulated to pay him the value of the building at the end of the term, or to compensate him by a renewal of the lease ‘for the term of twenty-one years more.’ ”

To the same effect are the following cases: Moore v. Foley, 6 Ves. Jr. 231; Hare v. Burges, 4 K. & J. 45.

The respondent, however; contends that the rule announced in the foregoing cases is not applicable to the facts of this case, and is not the law of this State, and that under the authorities in this State the covenant of renewal in the lease in question is in legal effect the same as that contained in the lease construed in the case of Diffenderfer v. Board of Public Schools, 120 Mo. 447. In order that the covenants of the two leases may be easily and conveniently compared, we will place them in parallel columns and inclose with brackets the provisions found in the Allen lease, the one involved in the case at bar, and which are not contained in the Diffenderfer lease, which are as follows:

Diffenderf er Lease.

“And it is covenanted and agreed, by and between said parties, that at the end of the term hereby demised, this lease shall be renewable, at the option of the party of the second part, his executors, administrators or assigns, he or they giving to the party of the first part, in every instance, a notice in wilting’ of his or their wish to renew the same, three months, at least, before the end of the term. And every renewed lease shall contain all the covenants, agreements, clauses and stipulations, with this exception 'only, that the annual rents to be reserved on every renewal shall be six per centum upon the value of the demised premises, exclusive of any improvements thereon placed, which value shall be estimated by the public assessor of the city of St. ’Louis, for the time being, at the commencement of the renewed term, and ,to be paid quarterly.”

The Allen Lease of 1878.

“And it is covenanted and agreed by and between said parties, that at the end of the term hereby demised this lease shall be renewable, at the option of said parties of the second part, their executors, administrators or assigns, said parties of the second part, their .executors, administrators or assigns, giving the party ' of the first part, in every instance, notice in writing of their wish to renew the same, at least three-months before the end of the term; [In case of failure to give such notice, the said parties of the second part shall be entitled to no further renewal of this lease or of the terms thereby created]. . And every renewed lease shall contain all the covenants, agreements, clauses, and stipulatioms herein contained, with these exception^ only [that the covenants for renewal shall be in conformity with the foregoing provisions], and that the annual rents reserved on every renewal shall be six per cent, upon the value of the demised premises, exclusive only of improvements,” etc. [Then follow provisions for ascertainment of the value by the selection of freeholders, one by each party and they to select a third, if not agreeing’]

It will be observed by reading the Diffenderfer lease that the covenant of renewal provides that “this lease shall be renewable,” and that “in every instance” a notice shall be given, “and that every renewed lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with this exception only.” The Allen lease contains all the covenants just quoted from the Diffenderfer lease, and in addition contains the following provisions which are not found in that lease, to-wit: “in case of failure to give such notice, the said parties of the second part shall be entitled to no further renewal of this lease or of the terms thereby created, ’ ’ and ‘ ‘ that the covenants for renewal shall be in conformity with the foregoing provisiones.’’

We have here pointed out the distinctions between the two leases, and we will now state the ruling of this court upon the latter, and then see if the same reasoning will apply to the covenant of renewal found in the Allen lease.

In disposing of the Diffenderfer case, this court, speaking through Burgess, J., used this language: ‘ ‘ All that is said in the covenant for a renewal of the lease for more than one term of fifty years, either by implication or otherwise, is as follows: ‘And every renewed lease shall contain all the covenants, agreements, clauses' and stipulations herein contained, with this .exception only, that the annual rents to be reserved on every renewal shall be six per centum on the value of the demised premises, ’ etc. Do tire words ‘ and every renewal ’ as used and when used in the lease clearly show that the lessors intended to covenant for a renewal of it for more than one term 1 In Piggot v. Mason, 1 Paige Ch. 412, it was held, that the holder of an original lease was not entitled to a covenant for renewal in the new lease, as that would create a perpetuity. And a lease should not be so construed. [Syms v. Mayor, 105 N. Y. 153; Carr v. Ellison, 20 Wend. 178; Banker v. Braker, 9 Abb. N. C. (N. Y.) 414; Rutgers v. Hunter, 6 Johns. Ch. 215; Whitlock v. Duffield, Hoffman’s Ch. (N. Y.) 110.] So it has been said that a covenant which does not plainly imply or express a perpetual renewal, will not be construed to give this right. [1 Taylor on Landlord and Tenant, sec. 334.] In Carr v. Ellison, 20 Wend. 178, it is held that a covenant to renew a lease under the same covenants contained in the original lease, is satisfied by a renewal of the lease, omitting the covenant of renewal. There being no clear words in the covenant for renewal in this case, nor any words relative to a perpetual renewal, we are constrained to hold that the words, ‘ and every new lease shall contain all the covenants, agreements, claims, and stipulations,’ as used in the first clause, in the absence of more positive stitpulation than the covenant of renewal, means only a second lease and not a perpetuity of leases. [Moore v. Foley, 6 Ves. Jr. 231.] Had it been otherwise intended, and the lease had been one of perpetuity at the pleasure of the lessees,- it is not unreasonable to presume that some such provision would have been made in the lease.”

And the Supreme Court of the United States, in the case of Winslow v. Railroad, 188 U. S. 654, in; discussing this same question, uses this language: “It is quite plain that a lease containing a covenant to renew at its expiration with similar covenants, terms and conditions contained in the original lease is fully carried out by one renewal without the insertion of another covenant to renew. Otherwise a perpetuity is provided for.”

Mr. Taylor, in his valuable work on Landlord' and Tenant, states the rule as follows: “Nor will a general covenant for renewal be considered to imply a perpetual renewal; the most a lessor is bound to give on such a covenant is a renewal for one term only. A covenant to renew a lease ‘under the same covenants' contained in the original lease’ is satisfied by a renewal of the lease for another term, omitting the covenant to renew; for if the continued grant of successive leases and not a single renewal only had been intended, words, it was said, would naturally have been made use of indicating such intention. A different construction would virtually lead to a grant in perpetuity; and where no consideration appears for a grant of so extensive a nature, such cannot be a reasonable construction. ... A eov'enant which does not plainly imply or express a perpetual renewal will not, as we have said, be construed to give this right.” [1 Taylor on Landlord and Tenant (8 Ed.), secs. 333, 334.]

The same rule is announced in Jones on Landlord and Tenant, sec. 343, and in 18 Am. and Eng. Ency. Law (2 Ed.), 687, and cases cited.

This is unquestionably the rule in this country, and it seems to ns to be supported by the better reason and by the greater weight of authority; and we are, therefore, clearly of the opinion that the conclusions reached by this court in the Diffenderfer case were correct. And if there are no covenants to be found in the Allen lease materially different from those contained in the former, then the same results should be reached in this case; but counsel for appellants insists that such covenants do exist in the Allen lease, and point out the two following clauses (which will hereafter be referred to as first and second) which he says are not to be found in the Diffenderfer lease, to-wit:

1. “In case of failure to give such notice the said parties of the second part shall be entitled to no further renewal of this lease or of the terms hereby created. ’ ’

2. “The covenants of renewal shall be in conformity with the foregoing provisions. ’ ’

By reading the provisions in the Diffenderfer lease we find this language: “This lease shall be renewable at the option of the party of the second part, his executors, administrators or assigns, he or they giving to the party of the first part, in every instance, a notice in writing of his or their wish to renew the same, three months, at least, before the end of the term. ’ ’ While there is no express statement in the Diffenderfer lease to the effect that the failure to give the notice of renewal would bar all rights of renewal, as is stated in the Allen lease, yet the clause just quoted from the former, namely: “this lease shall be renewable, at the option of the party of the second part ... he or they giving to the party of the first part ... a notice in writing of his or their wish to renew the same three months at least before the end of the term,” have exactly the same meaning as the language contained in the first clause above quoted from the Allen case. While the wording of the two clauses is not the same, yet their meaning is clearly identical. The meaning of each is that if the notice is not given, as required, then the right of renewal is forever forfeited. The only difference in the two clauses is, the Allen lease in express terms provides for the forfeiture, while the other makes the same provision by clear and necessary implication. The legal effect of each is the same.

It is next contended by counsel for appellants that the language used in the second clause above quoted from the Allen lease is wholly different from any provision found in the Diffenderfer lease, and that it in express and specific words provides for covenants of renewal to go into the new leases. Those words are as follows:

Second. “The covenants for renewal shall be in conformity with the foregoing provisions.”

The clause immediately preceding the words just quoted is in the following words: “And every renewal lease shall contain all the covenants, agreements, clauses and stipulations herein contained.” These words clearly refer back to the previous general covenant of renewal, which is in the following language: “And is it covenanted and agreed by and between said parties that at the end of the term herein demised this lease shall be renewable at the option of said parties of the second part. Now, by reading the second clause before mentioned, in light of the above quotations, it seems clear that it refers back to the general covenant of renewal last above quoted, because there is not to be found in the entire lease any other covenant of renewal, and for that reason the words “herein contained,” above italicized, must of necessity refer to that general covenant; and this is made still clearer by reading in this connection the 2nd clause before mentioned, which is as -follows: ‘ ‘ that the covenants for renewal shall be in conformity with the foregoing provisions. ’ ’ To what do the words “the foregoing provisions” refer? Clearly to the general covenant of renewal before mentioned, because, as before staled, there is no other covenant of renewal contained in the Allen lease. The same general covenant of renewal is contained in the Diffenderfer lease, and is in the following words: “And it is covenanted and agreed by and between said parties that at the end of the term hereby demised, this lease shall be renewable, at the option of the party of the second part, ’ ’ etc.

So it is thus seen that the covenants of renewal contained in the two leases mentioned are identically 'the same in meaning. That being true, and we think there can be no doubt as to the correctness of that conclusion, then the construction placed upon the Diifenderfer lease by this court is equally applicable to the lease in question.. Tn that case this court held that the lessee was entitled to but one renewal, and we think the same is true of the lessee in the case at bar, and we will not infer an agreement for a second renewal from a general provision for a renewal of the lease with similar covenants.

We are, therefore, of the opinion that the trial court correctly construed the lease, and for that reason the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    CABLE et al. v. DUKE et al., Appellants.
    Division One,
    December 24, 1907.
    1. APPELLATE JURISDICTION: By Whom Raised. Where neither party raises the question of jurisdiction, the court itself may do so.
    2. -: Replevin: Agister’s Lien: Amount in Dispute. Where the suit was for 208 head of cattle, alleged to be of the value of $6,500, claimed by plaintiffs under chattel mortgage, and put in their possession by the sheriff, in a replevin, and defendants make separate answers, all denying a partnership to exist among them, the mortgagor averring that he is not in- possession of the cattle, and the others, to whom he had sold a lease, admitting possession, and the only question for determination, if any, is whether or not defendants are entitled to an agister’s lien for the pasturage of the cattle, which they did not by their answer assert by way of damages, the amount in dispute is not sufficient to give the Supreme Court jurisdiction of the appeal.
    3. -: -: -: -: Value of Cattle Not Issue. If defendants desired to make an issue of the value of the cattle or their damages, they should have by answer claimed the cattle, and demanded a return thereof and pleaded their damages under section 4473, Revised Statutes 1899.
    4. -: -: -: -: $1,100 or $1,200. Where, even admitting that under the pleadings the right of defendants to an agister’s lien for the cattle recovered by plaintiffs in replevin is an issue in the case, and that is the only issue for determination, and, even if allowed, that claim, under the evidence, cannot exceed $1,100, or $1,200, although the cattle themselves are alleged to be worth $6,500, the Supreme Court has no jurisdiction of the appeal.
    Appeal from Vernon Circuit Court. — Row. E. G. Timmonds, Judge.
    Transferred to Kansas City Court of Appeals.

      TJios J. Smith for appellants.

      0. A. Lucas and T. W. Silvers for respondents.
   LAMM, J.

Plaintiffs brought replevin for 208 head of cattle, alleged to be of the value of $6,500, praying damages for their unlawful and wrongful detention in the sum of $1,000; and, recovering below (without damages), defendants appeal to this court.

No question of jurisdiction is put into the case by either party litigant; but it is axiomatic that a question of jurisdiction may be raised here or below; and it may be brought in by a litigant, or may obtrude itself on the notice of the court and be considered sua spo-nte. [May v. Jarvis-Conkling Mortgage Trust Co., 138 Mo. 447; City of Tarkio v. Clark, 186 Mo. l. c. 294.]

In the absence of a constitutional or Federal question there is only one allowable theory upon which to base our jurisdiction of this appeal, to-wit, ‘ ‘ the amount in dispute.” [Vanderberg v. Gas Co., 199 Mo. l. c. 458.] The question, then, is what is the amount in dispute in the case at bar? Attending to that, there were three defendants — two of them answering jointly, thus:

“Now come the defendants, W. H. H. Duke and F. M. Woods, and for their separate answer to the plaintiffs’ petition herein admit that at the time of the institution of this suit they were in the possession of the cattle sued for.

“But they deny each and every other allegation in said petition contained, and especially deny that they, or either of them, were at the bringing of this suit, or prior thereto, partners of their codefendant, W. C. Woods.

“And having fully answered, they ask that plaintiffs’ petition be dismissed and that they have judgment for their costs.”

The foregoing answer was verified by affidavit.

The other defendant filed the following answer, also verified by 'affidavit:

“Now comes the defendant, W. C. Woods, and for his separate answer to the petition of the plaintiffs denies that at the time of the institution of this suit, or at any other time, he was a partner of his co-defendants as alleged in the plaintiffs’ petition, or otherwise. And further denies that at the time of the institution of this suit he was in possession of the cattle sued for, or any part of them.

“Wherefore he asks judgment against the plaintiff for his costs in this behalf.”

The cause was tried on the foregoing paper issues. It is disclosed in the evidence that plaintiffs claim possession on a defaulted chattel mortgage, executed on the cattle in controversy by defendant W. C. Woods to them to secure money advanced. The petition averred that W. C. Woods and his co-defendants were partners. The answers, as seen, put in issue the allegation of partnership and otherwise were general denials, barring an admission of the allegation of possession in Duke and F. M. Woods. The hone of contention uncovered at the trial is an alleged agister’s lien asserted by defendants. Defendants’ case proceeds on the theory the mortgagor, a few months after executing the mortgage, and while the cattle were pasturing on lands demised by lease to all three defendants jointly, transferred his interest in the leasehold estate and the cattle-pasturing business to his co-defendant, F. M. Woods, his father (possibly as collateral security); and that at the time the replevin suit was brought he had no interest in the pasturage hill or in the claimed agister’s lien, but that said bill and lien belonged to his co-defendants.

In a nutshell, plaintiffs’ theory was that the agister’s lien had no existence in law or fact.

There are other questions in the case, not related to the question of jurisdiction needing no present attention.

The court gave for plaintiffs the following instruction :

“The court instructs the jury that under the pleadings and evidence in this case the defendants have no legal lien on the cattle in controversy for pasturage. Therefore, if you shall belive from the evidence that the said cattle are described in and covered by the chattel mortgage introduced in evidence, you should return a verdict in favor of plaintiff.”

And refused mandatory instructions to find for defendants: first, on plaintiffs’ own evidence; second, on all the evidence of the case; and then refused eleven other instructions drafted on various theories of defendants’ learned counsel not germane to the present discussion.

The jury returned the following general verdict for plaintiffs: “We, the jury, find the issues in favor of the plaintiffs.” Upon that verdict, the material part of the judgment follows:

“And plaintiffs, having heretofore voluntarily dismissed their suit as to all cattle sued for except the 193 head taken by the sheriff under the writ of replevin and by him delivered to them, and it appearing that-plaintiffs are still in possession of said 193 head of cattle, it is therefore, by the court, considered and adjudged that plaintiffs retain the possession of said 193 head of cattle, and that they have and recover of and from the defendants their costs in this behalf laid out and expended and that execution issue therefor.” It appears, then, that the property was taken under the writ of replevin from defendants and put into plaintiffs’ possession, and remained in their possession for the purposes of the case. That being so, section 4473, Revised Statutes 1899, is material in ascertaining “the amount in dispute.” It reads:

“If the plaintiff fail to prosecute his action with effect and without delay, and shall have the property in his possession, and the defendant in his answer claims the same and demands a return thereof, the court or a jury may assess the value of the property taken, and the damages for taking and detaining the same for the time such property was taken or detained from defendant until the day of the trial of the cause. ’ ’

Referring again to defendants’ answers, it will be seen at once that neither of those pleadings complies with, or was drafted under, the foregoing statute — neither claims the property or demands return thereof. If defendants, jointly or severally, desired to make an issue of the value of the cattle, or the damages for taking and detaining the same (which issues . alone would produce an amount in dispute sufficient to give us jurisdiction), they should have claimed the cattle and demanded a return thereof and pleaded their damages, Failing to do that, defendants were not entitled to an assessment of their value in the pending suit, nor of the damages for detention, unless the statute is meaningless. Is it meaningless? Certainly not. The most favorable judgment defendants (if successful) could have, in the state of these pleadings, would be a general finding in their behalf, which would carry costs and leave the question of value of the cattle to be determined in other litigation, if at all. [See authorities, infra.]

In Young v. Glascock, 79 Mo. 574, it was held (quoting from the syllabi): “In. an action of replevin, if the plaintiff has obtained possession of the goods, the defendant must, in his answer, claim them and demand a return thereof; otherwise the court cannot, upon a finding in his favor, give judgment against the plaintiff for their value.” The precise question has not been here since, but that case has been followed by a line of live decisions in the courts of appeals, illuminating the matter in all its phases. [St. Louis Drug Co. v. Dart, 7 Mo. App. 590; Puller v. Thomas, 36 Mo. App. 105; Fowler v. Carr, 55 Mo. App. 145; Merrill Chemical Co. v. Nickells, 66 Mo. App. 678; Pallen v. Bogy, 78 Mo. App. l. c. 98, et seq.; Cartmell Mach. Co. v. Sikes, 83 Mo. App. 565; Anthony v. Carp, 90 Mo. App. l. c. 394; Walker v. Robertson, 107 Mo. App. l. c. 575.]

There was evidence tending to prove that the pasturage bill for the replevined cattle, for which the agister’s lien was claimed, amounted to' between $1,100 and $1,200. So that, if we should even go so far as to hold that the amount of said bill was in dispute as the value of the lien, under a general denial (see Anthony v. Carp, supra), yet such holding would not give us jurisdiction; nor does any other amount in dispute disclosed by this record give it.

Hence, it must be held this court has no jurisdiction. So holding, the cause is transferred to the Kansas City Court of Appeals for its determination.

All concur.


author: GRAVES, J.

text:
    KATE MILLER et al., Appellants, v. ARA E. McCALEB et al.
    Division One,
    December 24, 1907.
    1. FINDING OF FACTS: Equity Case. A refusal of the trial court In an equity case to make a separate finding of facts, upon proper request, is not reversible error. Even if the statute (Revised Statutes 1899, sec. 695) applies to equity cases, the chancellor’s finding of facts is in no sense binding on the appellate court, and for that reason no harm can come to appellant by reason of a refusal to make such finding.
    2. DEED: Delivery: Acceptance: Record. There can be no delivery of a deed to an adult grantee without an acceptance thereof by the grantee. Nor does the recording of a deed to such grantee, unauthorized by the grantee, constitute a delivery without such acceptance.
    3. -: -: -: To Wife and Husband’s Heirs. The grantees named in the deed were "Ara E. McCaleb (wife of Ethelbert A. McCaleb) and the lawful heirs of the said Ethelbert A. McCaleb.” That deed was recorded, and that is the deed sued on. On the same day there was another deed from the same grantors conveying the same land to “Ara E. McCaleb and Ethelbert A. McCaleb, her husband.” This deed was in the handwriting of the justice of the peace, who took the acknowledgment to both. It remained in the house of the said Ethelbert and Ara, and was never recorded. She testified that she knew nothing of the existence of the other deed until after Ethelbert’s death, and knew nothing of the recording of either, and the clear evidence is that the first intention of herself and her husband was to make her the sole grantee, and after the first deed was drawn it was concluded to make both grantees, and the second deed was drawn in accordance with that purpose. The names of the grantees in the first deed were written in by Ethelbert. Held, that, the evidence clearly showing that Ara never accepted the first deed, and that as it was recorded without her consent or knowledge, it was never delivered, and the children of Ethelbert by a former wife are not entitled to claim title thereunder.
    Appeal from Dade Circuit Court. — No». L. W. Shafer, Judge.
    Affirmed.

      Edwin Frieze for appellants; Sherwood & Young of counsel.
    (1) Upon request made by plaintiffs that the lower court should state in writing the conclusions of fact found separately from the conclusions of law, such request should have been granted. On this subject the statute is-entirely plain and it is mandatory; it applies by its express terms to eases in equity as well as to cases at law. Cochran v. Thomas, 131 Mo. 268; Lawyers’ Co-op. Pub. Co. v. Cordon, 173 Mo. 152; Blount v. Spratt, 113 Mo1. 53. The lower court therefore erred in denying plaintiffs’ request. (2) UndeT the deed the words “and the lawful heirs of the said Ethelbert A. McCaleb,” therein contained, conveyed an equity at least, to the then four living children of said Ethelbert A. McCaleb; and they took as tenants in common with their step-mother, Ara E. McCaleb, and she took the legal title to the land for hex* own benefit, and as trustee for the then living children of Ethelbert-A. McCaleb. Bailey v. Willis, 56 Tex. 212; Jackson v. Sisson, 2 Johns. 321; Arthur v. Weston, 22 Mo. 382; Beoman v. Whitney, 20 Me. 420; Reinhard v. Ya. Lead Min. Co., 107 Mo. 624; Beuev. Soc. v. Murray, 145 Mo-. 628; Huss v. Stephens, 51 Pa. St. 282; Tharp v. Yarbrough, 79 Mo. 382; Ennis v. Brown, 1 N. Y. App. Div. 22; Pfeiffer v. Rheinfrank, 2 N. Y. App. Div. 574; Waddell v. Waddell, 90 Mo. 338; Hamilton v. Pitcher, 5-3 Mo. 334. “Heirs” is used in the sense of “children” when the deed is to one and her minor heirs. Seymour v. Bowles, 172 111. 521 ; Heath v. Hewitt, 27 N. E. 961. (3) At the time the deed was executed, to-wit, in 1872, all of the personal property, etc., of a married woman at and during marriage became the property of her husband. Leete v. Bank, 115 Mo. 184. Aside from statutory provisions, presumptively the personal property of the wife is that of the husband. And upon marriage, prior to the Married Woman’s Act of 1889’ the husband became possessed of the wife’s realty and entitled to its usufruct. (4) During the life of the husband the statute would not run against plaintiffs. Dyer v. Witter, 89' Mo. 81. (5) Under the law as it existed when the deed- was executed, the exclusive possession of the farm was in the husband, and consequently his declarations about the title were evidence as part of the res gestae. 1 Glfi Evid. (14 Ed.), sec. 100. No other person being in possession, the declarations of such persons were without probative force. Meegan v. Gunsollis, 19 Mo-. 417; Hunt v. Thompson, 61 Mo. 154; Meier v. Meier, 105 Mo. 431.

      G. F. Newman, Mason Talbutt and Edgar P. Mann for respondents.
    (1) No one can be an heir of the living, and the grant in this case to “the lawful heirs of Ethelbert A. McCaleb,” he being living, is void for uncertainty as to them, and respondent Ara E. McCaleb, specifically named in the deed as grantee, took the title. Hall v. Leonard, 1 Pick. 27; Winslow v. Wins-low, 2 Ind. 8; Outland v. Bowen, 115 Ind. 150; Fountain, v. Beckelheimer, 102 Ind. 76; Boone v. Moore, 14 Mo. 420; Brewster on Conveyances, art. 40, p. 50; Pleath v. Hewitt (N. Y.), 13 L. R. A. 46. (2) The word “children” in its primary and natural sense is a word of purchase, but the word “heirs” is in its primary and natural sense a word of limitation and not of purchase. Schoolmaker v. Sheely, 3 Denio 490; 4 Kent Com., 222; Broom’s Legal Maxims, 521. (3) The evidence shows that there was never a delivery of the recorded deed, purporting to convey this property to Ara E. McCaleb, wife of Ethelbert A. McCaleb, and the lawful heirs of Ethelbert A. McCaleb. Neither of the grantees knew of its existence, or assented to its terms or execution, or to its registry. All were ignorant of its very existence in the shape in which it was recorded. If it be contended that since it was beneficial to the minor heirs of Ethelbert A. McCaleb, they are presumed to have assented to the delivery, the fact still remains that knowledge of its existence and assent to its terms and delivery on the part of Ara E. McCaleb, was necessary to make the delivery valid and the deed operate as a conveyance of the property. And that she had no such knowledge and gave no such assent. Appleman v. Appleman, 140 Mo. 3091; Powell v. Banks, 146 Mo. 620; Hall v. Hall, 107 Mo. 101; 3 Wash. Real Prop. (4 Ed.), 292.
   GRAVES, J.

Action in partition, by petition in the usual form, with prayer for the partition ox sixty acres of land in Dade county, and for account of rents and profits alleged to have been had and received by one of the defendants. The plaintiffs, Kate Miller and Lidia A. Forrest, and the defendants S. A. McCaleb and C. A. McCaleb, are children of Ethelbert A. McCaleb, who died in the year 1901, and the only answering defendant is Ara E. McCaleb', the second wife and widow of the said Ethelbert A. McCaleb. The four children of the said Ethelbert, made parties to this action, are children by his first wife. The deceased, Ethelbert A. McCaleb, and the defendant Ara E. McC'aleb were married in 1871. At the institution and trial of this suit there were two children of the second marriage alive, but they were not made parties. They testify as witnesses, however. The answer of Ara E. McCaleb, the only answering defendant, was a general denial.

Plaintiffs base their claim on the following deed:

“Know all men by these presents, That William F. Dry and Emily J. Dry, of the county of Dade in the State of Missouri, hath this day, for and in consideration of the sum of six hundred and thirty dollars, to the said William F. Dry and his wife Emily J. Dry in hand paid by Ara E. McCaleb (wife of Ethelbert A. McCaleb) and the lawful heirs of the said Ethelbert A. McCaleb, of the county of Lawrence in the State of Missouri, granted, bargained and sold, and by these presents do grant, bargain, sell and convey unto the said Ara E. McCaleb and the lawful heirs of the said Ethelbert A. McCaleb, the following tracts or parcels of land situated in the county of Dade, in the State of Missouri, that is to say: The north half of the east half of the southwest quarter and the north half of the southeast quarter of the southwest quarter of section 26, township 30, range 28; also the east half of the north half of the northeast quarter of the southeast quarter of section 33, township 30', range 27, containing in all seventy acres more or less.

“To have and to hold,thepremisesherebyconveyed, with all the rights, privileges and appurtenances thereto belonging or in any wise appertaining nato the said parties of the second part, their heirs and assigns forever, and the said William P. Dry and Emily J. Dry, his wife, hereby covenanting to and with the parties of the second part, their heirs and assigns, for themselves, their heirs, executors and" administrators, to warrant and defend the title of the premises hereby conveyed against the claim of any person whatsoever.

“In testimony whereof, we have hereunto subscribed our name and affixed our seals this 22nd day of April, in the Year of our Lord, one thousand, eight hundred and seventy-two.

“William F1. Dry, (seal)

Emily J. Dry, (seal.)”

This deed was acknowledged before Wm. Yan Horn, justice of the peace, on the date thereof. It was filed for record April 24, 1872, and duly recorded in book 16 at page 519 thereof of the deed records of said county. On the back of the original of this deed appears this endorsement:

“Warranty deed from William F. Dry and Emily J. Dry to Ara E. McCaleb.

“State of Missouri, County of Dade... ,ss. This deed was filed for record in my office on the 24th day of April, 1872, at the hour of......o’clock... .M, and duly recorded in Book 16, page 519. No. Due. Paid fee $1.00.

“Arch M. Long.’-

The plaintiffs introduced the record of this deed and the answering defendant produced the original. There is no difference between the record of the deed and the original, nor of the certificates of acknowledgment and other endorsements thereon, except on the original appears a cancelled United States revenue stamp.

Defendant placed in evidence another deed identical in form except as hereinafter noted, of the same date, acknowledged on the same date by the same justice of tbe peace, having the same grantors and conveying the same land. The only difference is in the names of the grantees. In this last-mentioned deed the grantees are “Are E. McCaleb' and Ethelbert A. McCaleb, her husband,” instead of “Ara E. McCaleb and the lawful heirs of the said Ethelbert A. McCaleb,” as in the deed first fully set out hereinabove. This deed has endorsed on the back thereof, the following:

“Warranty Deed from William P. Dry and Emily J. Dry to Ara E. McCaleb and Ethelbert A. McCaleb. ’ ’

This deed has no revenue stamp and had not been recorded.

Defendant also offered in evidence a mortgage dated April 22, 1872, to secure two notes of $215 each; in this mortgage the grantee is William P. Dry, and he is also the payee in the two notes described therein, and the land conveyed is the same involved in this suit. The notes are signed by Ethelbert A. McCaleb, and he signs the mortgage with his wife, but the first part of the mortgage reads: “This indenture, made and entered into this twenty-second day of April, A. D: 1872, by and between Are E. McCaleb, wife of Ethelbert A. McCaleb, in the county of Lawrence and State of Missouri of the first part, and William P. Dry of the county of Dade, State of Missouri, of the second part, witnesseth:” This mortgage was likewise acknowledged before Van Horn, justice of the peace.

Such is the documentary evidence in the case.

By oral proof it appears that about the time the land was purchased from Dry, Mrs. McCaleb received quite a sum of money from an estate, and there is testimony tending to show that a part of this money went into this land; that the four McCaleb children by the first wife paid nothing on the land; that McCaleb and wife, with these four children, then all minors, moved and lived upon this land; that the children would leave upon attaining their majority; that McCaleb lived there until his death in 1901; that after his death, his widow either occupied it in person or by her tenant up to the trial, and was occupying it by tenant at the trial; that one of the sons rented the land of the father and paid him rent.

Mrs. McCaleb testified about the making of the two deeds, but upon some points she is somewhat mixed and confused. As best we gather her testimony, it is to the effect that she understood that the deed which we first herein set out in full was made to her alone; that it was concluded to make one to both of them, and the second deed mentioned above was made; that she understood that this second deed was the conveyance and it was taken home and kept there, but not recorded; that she always claimed under this unrecorded deed; that she had no knowledge that McCaleb’s heirs were parties to the first deed until told by Wheeler, , the administrator of her husband’s estate, and did not even know that it was yet in existence, until that time. On this last point she is corroborated by testimony tending to show that the words, “Ara E. McCaleb and .the lawful heirs of the said Ethelbert A. McCaleb,” whenever they appear in the first deed, were in the handwriting of Ethelbert A. McCaleb, whilst other portions were not.

The evidence is conflicting as might be expected upon what the father said about the title to the place, but the preponderance thereof is to the effect that he said the place belonged to defendant Ara E. McCaleb. At one time when making a mortgage in an attorney’s office, he refused to put in the land in' dispute. The scrivener was getting the land numbers from some abstract books, and when he called off the numbers of the land in dispute here, the deceased asked, ‘ ‘ That the Dry land?” and being informed that it was he then said, “I don’t want to put that in; that belongs to the old woman.”

It should also be stated that Mrs. McCaleb testified in cross-examination that the deed having her name endorsed on the back was the deed which she thought she claimed under, and this is the first deed we have hereinabove set out. On this point she was evidently confused.

Upon the conclusion of the evidence we find this in the record:

“At the close of the evidence plaintiff’s counsel requested the court to state in writing the conclusions of fact found separately from the conclusions of law. Which request the court refused, stating that in equity cases the court was not required to so state its findings. To which ruling of the court, plaintiff then and there excepted.”

And thereupon judgment was entered in this language:

“Kate Miller and Lydia A. Forrest, Plaintiffs, vs. Ara E.. McCaleb, Samuel A. McCaleb and Clarence

A. McCaleb, Defendants.

“Judgment vs. Plaintiff for costs and dismissing petition and finding that land is owned by Ara E. McCaleb.

“Now at this day comes the plaintiffs, Kate Miller and Lydia A. Forrest, by their attorneys, and also come the defendants, Ara E. McCaleb, Samuel A. McCaleb in person, and by their attorneys, and the defendant, Clarence A. McCaleb, although duly and legally notified of the commencement, object, general nature and pendency of this action by an order of publication duly published in the 'Lockwood Missourian,’ a weekly newspaper regularly printed and published in Dade county, Missouri, for four weeks successively, the last insertion being more than thirty days before the first day of the present term of court, now comes not but makes default; and this cause coming on to be beard and all and singular the matters herein being seen, heard and fully understood, the court finds:

“That this is an action for partition, and that it is stated in the plaintiff’s petition that the plaintiffs and defendants are the owners of and seized as tenants in common of the following described real estate in I)ade county, Missouri, to-wit: The northeast quarter of the southwest quarter and the north half of the southeast quarter of the southwest quarter of section 26 in township 30 of range 28, and the northeast quarter of the northeast quarter of the southeast quarter of section 33 in township 30 of range'27, and that the five persons named as parties to this action are each entitled to an undivided one-fifth of said-land; and it is also alleged in the petition that the defendant Ara E. McCaleb since the......day of........, 1872, has enjoyed exclusively the rents and profits of said premises.

“The court from the evidence further finds that the defendant Ara E. McCaleb is the owner in fee of the above-described real estate, and that plaintiff's Kate Miller and Lydia A. Forrest and the defendants Samuel A. McCaleb and Clarence A. McCaleb have no right, title or interest in said land, or the rents and profits thereof, and that the plaintiff’s petition ought to be dismissed at their cost.

“It is therefore considered, adjudged and decreed by the court that the defendant Ara E. McCaleb' is the owner in fee simple of the said above-described real estate, and that the said Kate Miller, Lydia A. Forrest, Samuel A. McCaleb and Clarence A. McCaleb, the other parties to this action, have no right, title or interest therein, and that the plaintiff’s petition he dismissed, and that the plaintiffs pay the costs of this action, and that execution issue therefor.”

We quote these matters fully for the reason that great stress is placed upon them in the briefs of plaintiff.

The foregoing sufficiently states the case, except that the evidence may be noticed more in detail later.

I. The first proposition urged for a reversal of this case is the refusal of the trial court to make and file findings of fact separate from the conclusions of law. This question is vehemently pressed. The statuté upon the subject is Revised Statutes ISM1, section 695, and reads: “Upon the trial of a question of fact by the court, it shall not be necessary for the court to state its finding, except generally, unless one of the parties thereto request.it with the view of excepting to the decision of the court upon the questions of law or equity arising in the case, in which case, the court shall state in writing the conclusions of facts found separately from the conclusions of law.”

This statute was borrowed from Kansas, and Maceaklane, J., in Blount v. Spratt, 113 Mo. l. c. 53, thus describes its origin, history and effect upon our practice:

“This section was first incorporated into our code in the revision of 1889;, and has never been the subject of consideration by this court. It was borrowed almost literally from' section 2135 of the code of procedure of Kansas (Revised Statutes, 1889') and the practice authorized has often been approved by the Supreme Court of that State, and has been applied in the trial of cases, both at law and in equity, though the section of the Kansas law makes no provision in express terms for taking exceptions to the decisions of the court upon questions of equity arising in. the case, as is provided by the section of our code in question. The Supreme Court of Kansas, as we understand its decisions, not only applies the provisions of the section to the practice in equity cases, ‘but will not disturb the finding-if there is sufficient evidence to justify it; and this is the case, though the finding of the court is contrary to the judgment of the appellate court.’ [Beaubien v. Hindman, 37 Kan. 228; Weil & Co. v. Eckard, 37 Kan. 696.]

“Under the practice in this State equity cases have been practically triable de novo in the appellate court. This court, while deferring somewhat to the conclusions of fact reached by the trial courts, has not been bound by its findings of fact nor its conclusions of law thereon, but has exercised a supervisory control over both. In order that the evidence in cases of eqiutable jurisdiction may be reviewed upon appeal, the rules of this court require that the whole of the evidence shall be embodied in the bill of exceptions. [McElroy v. Maxwell, 101 Mo. 294; Benne v. Schnecko, 100 Mo. 250; Rule 7 of practice in this court.]

“It is now insisted by respondent that as defendant, who is appellant here, has failed to embody all the evidence in the bill of exceptions, in compliance with the rules of court, his appeal should be dismissed or the judgment affirmed.

“We do not think it was the intention of the Leg-islature, by adding this section to the code of procedure, to abrogate the practice of this court so long followed of supervising the findings of the trial courts in equity cases. If the evidence was before us on proper exceptions, we could review it and determine for ourselves the correctness of the findings.”

And in discussing this statute, in case of Gaines & Co. v. Whyte Grocery Co., 107 Mo. App. l. c. 532, Smith, P. J., aptly said:

“The defendant’s final contention is, that the trial court erred in its refusal to make special finding of the facts and conclusions of law thereon. The statute (section 695) doubtless applies to both legal and equitable actions, but while this is so, we do not think the failure to make a special finding in an action of the latter kind constitutes a reversible error, because tbe supervisory courts are authorized on appeal to try and determine such actions upon tbe pleadings and evidence de novo. Tbe -findings of tbe trial court, if any, may be entirely disregarded by tbe former tribunal and such findings and decree entered therein as seem to it to be meet and proper. Tbe Legislature did not, by tbe enactment of the statute already referred to, intend to abrogate tbe well and long established practice of tbe appellate courts in supervising tbe findings of trial courts in equity cases, or to deprive tbe former of tbe jurisdiction to determine for themselves tbe correctness of tbe findings of tbe latter. [Blount v. Spratt, 113 Mo. 48; McElroy v. Maxwell, 101 Mo. 294; Benne v. Schnecko, 100 Mo. 250.] If tbe supervisory courts are not bound by tbe findings of tbe trial courts, or their conclusions of law in equity cases, but may review tbe whole evidence and determine for themselves what tbe findings of facts and conclusions of law should be, it is difficult to see bow a party could be prejudiced by tbe failure of tbe trial court to make special findings of fact in such cases.

‘ ‘ The failure, therefore, of tbe court in- the present case to make special finding of facts was not such an error as requires a reversal of tbe decree; and especially so, since it was, as we think, clearly for tbe right party, and tbe only one that could have been given in tbe cause. ’ ’

This statute has been subsequently discussed in very recent equity cases. In Fitzpatrick v. Weber, 168 Mo. l. c. 572, Marshal, J., speaking for tbe court, said:

“And if tbe circuit court bad found any fact that would give support to such conclusion, this court would not have been bound by that finding, and would review tbe evidence and render tbe proper judgment in tbe case notwithstanding tbe judgment or tbe finding of facts by the trial court, because this is a proceeding in equity, and section 695, Revised Statutes 1899, requiring the trial court to make a separate finding' of facts, was not intended to have and did not have any effect upon the power or duty of this court in equity cases.” Approving and to the same effect is the language of Lamm, J., in Shaffer v. Detie, 191 Mo. l. c. 387.

In the more recent case of Patterson v. Patterson, 200 Mo. 335, all of the cases above cited are approved and the force of the rule of this court in equity cases, minutely and fully discussed by Judge Valliant. In the Patterson case there was a finding of facts, which finding the clerk had copied into the judgment. Upon the finding of facts it was contended, with much force, that the judgment was erroneous. This court held, however, that we would not disturb the judgment, although we might determine that the facts found by the chancellor below did not. support the judgment. We then held and now hold, that, in equity cases, it is not only the privilege but the duty of this court to examine the evidence and draw our own conclusion of fact as well as of law. Hence the rule that requires all the evidence in such cases to be laid before us.

Now with these conditions existing in our practice, what harm has resulted to the plaintiffs by reason of the court’s failure and refusal to make a special finding of facts, separate from the conclusions of law ? The trial court, under the statute, giving the statute its fullest sweep, should have made the findings as requested, but in equity cases no prejudicial error results. We are in no way bound by such findings. The judgment we enter here in equity cases is a judgment emanating from the conscience of this court and not one from the conscience of the court nisi. To satisfy that conscience we must and do examine and find the facts for ourselves. Seeing no reversible error in the point made, it is accordingly ruled against the plaintiffs.

II. Plaintiffs claim their interest in this property through the deed which we have set out in full. Defendant says that such a deed was never delivered to her or any of the parties named therein.

The natural order would he to take up the question of delivery first, and if there was, delivery, then, we can consider the effect of the deed. This question will require a little closer review of the facts. This first deed was practically all in the handwriting of the deceased husband. The second deed was in the handwriting of the justice of the peace. Both were written on the same day. It clearly appears that the first intention of the parties was to deed the land to Mrs. McCaleb. The endorsement on the back of the first deed was that way, but the name of the grantees, written in by McCaleb, were “Ara E. McCaleb and legal heirs of Ethelbert A. McCaleb.” The justice says that his impression is that the deed was practically written when the parties arrived. Mrs. McCaleb' says •that they afterwards concluded to change it and make the deed to both of them. Such a deed was made and appears in the handwriting of the justice. This last deed remains there with the family until this lawsuit. Mrs. McCaleb says that she knew of no other, nor did she know of the record of another. Evidently, so far as this evidence shows, there was no delivery to her of this first deed and no consent by her as to its record. Nor is there evidence of a delivery to any heirs of Ethelbert McCaleb, except the presumption raised by the record of the deed. There is evidence from the plaintiffs that the McC'alebs were constantly quarreling over the money received by the wife from her father’s and mother’s estate. The evidence does not clearly disclose from what source the original of this first deed came, except that Mrs. Mo-Caleb was told of it by tbe administrator of her bus-band’s estate. Sbe says tbat this is ber first knowledge of its existence in tbe form it now stands. Her attorneys put it in evidence. Nor does the record show just bow tbe last deed was kept at tbe home for these thirty-two years, but sbe says tbat it was there and tbat sbe thought it was their title to tbe land and sbe produces the deed at tbe trial. It must further be borne in mind tbat tbe express consideration in tbe deeds was six hundred and thirty dollars, and on the same day tbe grantor, Dry, took back a mortgage for $430, so tbat evidently be was paid only $200 on tbe deal. Now this mortgage is signed by both McCaleb and wife, but tbe grantor therein is named thus: “Ara E. McCaleb, wife of Ethelbert A. McCaleb ... of tbe first part.” This would indicate that Dry thought tbat tbe title was in Mrs. McCaleb and yet it would further indicate tbat be knew nothing of tbe heirs of Ethelbert McCaleb' having any interest. He would hardly be taking a mortgage back for more than two-thirds of tbe purchase money, knowing that Mrs. McCaleb bad only a one-fifth interest at most. On tbe other band if the mortgage was made after tbe second deed, it would seem tbat both of tbe McCalebs would have been made grantors. This circumstance lends little light as to what deed Dry intended to deliver, but it does lend much, light upon the question as to bow be understood the first deed to read. If it be said tbat be took tbe mortgage in response to the first deed, thus it clearly shows tbat be bad no idea of having granted any land to these plaintiffs or to any heirs of Ethelbert McCaleb. On tbe other band be might have thought tbat, inasmuch as tbe name of Mrs. McCaleb appeared first in tbe second deed and both of them signed tbe mortgage, bis security was good. The only clear fact tbat we can draw from the circumstance is that Dry, .the grantor,. evidently did not intend to deed and did not think he had deeded •property to the heirs of McCaleb.

There would be more in the circumstance that McCaleb said the land belonged to his wife. But this is weakened by the fact that McCaleb' had placed of record a deed giving her but little interest therein, if the deed is valid as to his heirs. He might have made a mistake and recorded the wrong deed, and when making this statement might have thought that the second deed was the one of record. So this fragment of testimony, whilst valuable upon other aspects of the case, is of but little value upon the question of which deed was actually delivered and accepted by the grantee Ara E. McCaleb.

So that, after all, we can only take these circumstances in connection with the testimony of Mrs. McCaleb to determine this matter.

There can be no delivery of a deed, when the grantee is an adult, without an acceptance ' by the grantee. In 13 Cyc. 570, the doctrine is thus tersely stated: “It is essential to the validity of a deed that there should be an acceptance of the instrument by the grantee. But delivery of a deed implies its acceptance by the grantee, in the absence of fraud, artifice or imposition.”

Nor does the recording of a deed, to such a person constitute a delivery without such acceptance. The law on this proposition is summarized in 13 Cyc. 571, in this way: “The recording of a deed will not of itself. constitute a delivery to the grantee in the absence of an acceptance by him of the instrument; but if subsequently accepted the deed will be valid. The same rule applies to the delivery of a deed for record.”

In the case of Stallings, Trustee v. Newton, 110 Ga. 875; the syllabus, which summarizes the context of the opinion, reads:

“1. Delivery of a deed conveying real property is essential to its validity, and is only complete when the deed is accepted.

“2. A proper and legal registry of an instrument raises a presumption of delivery, sufficient to establish the fact, unless rebutted. An unauthorized registry raises no such presumption, and in that case the validity of the instrument is not established until delivery is affirmatively shown.”

In Meigs v. Dexter, 172 Mass. l. c. 218, Knowlton, J., said: “We are of the opinion that the instruction was erroneous in omitting to embody the requirement that there should be an acceptance of the deed by some one representing the grantee. It is well settled in this Commonwealth that the delivery of a deed is not complete and effectual without an acceptance by the grantee, or by some one authorized to represent him, or who assumes to represent him, and whose act of acceptance is afterwards ratified. [Hawkes v. Pike, 105 Mass. 560; Commonwealth v. Cutler, 153 Mass. 252; Barnes v. Barnes, 161 Mass. 381.]”

In Moore v. Flynn, 135 Ill. l. c. 79, that court speaks as follows: “To render a deed operative to pass title there must be not only a delivery of the deed by the grantor, but also an acceptance thereof by the grantee. The acceptance of the conveyance by the grantee is as essential as the delivery by the grantor, and where the acceptance is not proven, and the facts do not .justify the presumption of law that the grantee has accepted, the title does not pass. [5 Am. and Eng. Ency. Law, 446, and cases cited; Wiggins v. Lusk, 12 Ill. 132; Kingsbury v. Burnside, 58 Id. 310; Dale v. Lincoln, 62 Id. 22.] In respect to a grantee who is not under legal disability, the rule is, that when such grantee is aware of the conveyance, and does not dissent, and the conveyance is positively beneficial to him or her, acceptances will be presumed, but that no presumption will arise so long as the grantee is ignorant of the conveyance. [5 Am. and Eng. Ency. Law, 444, and authorities there cited.] ”

And again, the Indiana Supreme Court, through Elliott, J., in Bremmerman v. Jennings, 101 Ind. l. c. 256, says: “The act of Sturdevant in placing the deed to Joseph L. Jennings on record worked no estoppel in favor of the appellants. That act did, it is true, make a prima-facie case in their favor upon the question of delivery, but it did no more, and this primarfacie case was explained by the evidence. It is essential to the delivery of a deed that there should be an acceptance by the grantee; a delivery does, indeed, import an acceptance, and the evidence here shows no acceptance. It cannot be presumed that Joseph L. Jennings accepted the deed and thus divested the prior rights of his wife, and we know of no rule that will permit his creditors to insist that he shall treat the delivery as valid, to her prejudice and their gain.”

Our own court, in Hall v. Hall, 107 Mo. l. c. 107, has announced the doctrine thus: “To operate as a complete and effectual conveyance of land, a delivery of the deed, actual or constructive, by the grantor and an acceptance by the grantee, or by some one for him, are essential requisites. These are the final and crowning acts in the conveyance, without which all other formalities are ineffectual. The grantor must part with the deed and all right of dominion over it, intending that it shall operate as a conveyance, and the grantee must accept it.” This case has been since followed in several cases.

From the positive evidence in this record it is clear that Mrs. MeCaleb never accepted the deed placed of record; that she never authorized its record, and knew nothing about it being placed of record; that during all this time she was relying, as she had a right to '-rely, upon the deed, the possession of which she had, and which created an estate in her much more valuable than the other deed if it is to be given the construction contended for by plaintiffs. We are not advised upon what theory the chancellor below found for her, but in our judgment there was no acceptance by her of the deed which was of record, and if not, it is no deed for want of delivery. She would1 therefore hold under the second deed. This obviates further discussion of points made. The judgment below is right and will be affirmed.

All concur.