author: WALKER, P. J.

text:
    CHARLES SCHNEIDER et al., Appellants, v. FERDINAND KLOEPPLE et al.
    Division Two,
    March 16, 1917.
    1. EVIDENCE: Objection: Raised First on Appeal. An objection that a will, the common source of title, was not shown to have been admitted to probate, comes too late if made for the first time in appellant’s brief.
    2. WILL: Reasons for Devise. It was reasonable and natural that a devout Catholic, dying without descendants, should devise his real estate to his wife, to use as she pleased during her life, the remainder at her death to go to a benevolent association of the church of his faith.
    3. -: Heirs and Assigns Not Used: Intention. Although the words “heirs and assigns” are not used, a devise, in the absence of words of limitation, conveys the fee, unless the language employed shows a lesser estate was intended. In the latter case, the lesser estate is created.
    4. -: Life Estate With Power of Disposal: Remainder: Intention. The language of a will was: “The real estate I bequeath to my wife Anna Maria Brink to use as 'she pleases, and at her death what remains is to go to the St. Joseph Catholic Orphan Asylum in St. Louis.” Held, that an absolute estate in fee was not devised to Anna Maria, but the intention was, by language as clear and unambiguous as the words of creation, to create a remainder; that is, a life estate in her, with power of disposal, the remainder to vest in the Orphan Asylum.
    5. -: Indefinite Devisee: Erroneous Name. A will devised a life estate to. testator’s _ wife and the remainder to “the St. Jospeh Catholic Orphan Asylum in St. Louis, Missouri.” At the date of his death there was no legal entity so named, but there was a corporation entitled “The Managers of the Roman Catholic Orphan Asylum of St. Louis,” and there was then and has continued to exist since a voluntary unincorporated charitable institution known as “The St. Joseph Catholic Asylum,” to the support of which the churches of the diocese, including that in which testator worshipped, contributed, but whether the contributions was made directly or indirectly does not appear. Upon the incorporation of “The Managers of the Roman Catholic Orphan Asylums of St. Louis,” the property owned by the St. Joseph Catholic Orphan Asylum and other incorporated orphan asylums in St. Louis was turned over to the archbishop of the diocese as president of “The Managers of the Roman Catholic Orphan Asylums of St. Louis,” for the benefit of said orphan asylums, and the property subsequently acquired was so held and used. Held, that, in spite of the mistake in naming the devisee, the corporation is entitled to take the devise.
    6. -: -: Unincorporated Charitable Institution. A charitable devise or bequest will be upheld and enforced if made to a voluntary unincorporated association. The corporate character of the devisee is not a prerequisite to the validity of such a devise.
    7. -: -: Erroneous Name. Where a beneficiary is designated in a will by an "erroneous name the bequest will not be avoided, if, by means of the name or by extrinsic evidence, the beneficiary may be identified.
    Appeal from Maries Circuit Court. — Hon. J. G. Slate, Judge.

      Affirmed.

      Holmes & Holmes and Lorts & Breuer for appellants.
    (1) The purported will of William Brink was improperly admitted in evidence. It had not been admitted to probate and had not been proven, recorded, certified and attested as required by statute. R. S. 1909, sec. 564, 549; 565; Charlton v. Brown, 49 Mo. 353; Smith v. Estes, 72 Mo. 310; Parris v. Burchard, 242 Mo. 1; Barnard v. Bateman, 76 Mo. 414; Snuffer v. Howerton, 124 Mo. 637. (2) The real estate belonging to William Brink, and in the petition described, descended to Anna Maria Brink, his wife. R. S. 1909, sec. 332; 2 Cyc. 87, par. A; Celis v. Oriol, 6 La. 403; 14 Cyc. 99, note 43, citing Hollingsworth v. Barbour, 4 Pet. (U. S.) 466. (3) The devise of an estate, with power of disposal, will pass the fee. Hazel v. Hagan, 47 Mo. 276; Turner v. Timber-lake, 58 Mo. 371; Small v. Field, 102 Mo. 104; Green v. Sutton, 50 Mo. 186; Evans v. Folks, 135 Mo. 403; Jackson v. Little, 213 Mo. 589; Cook v. Crouch, 100 Mo. 29; Gannon v. Albright, 183 Mo. 238; State ex reí. v. Toisón, 73 Mo. 320; Roth v. Rauschenbusch, 173 Mo. 582; Yocum v. Siler, 160 Mo. 181; Wead v. Gray, 78 Mo. 59.. (4) The bequest over is void because of indefiniteness of beneficiary, the beneficiary is a private and not a public charity, and no trustee is appointed and no provisions made for its administration. Heiss v. Murphy, 40 Wis. 290; Hnderhill on Wills, secs. 811, 818, 826, 906 and 908; 5 Am. & Eng. Ency. Law (2 Ed.), p. 895; 2 Perry on Trusts, sec. 719; Schmucker’s Estate v. Reel, 61 Mo. 592; 5 Am. & Eng. Ency. Law (2 Ed.), pp. 937, 989. (5) When the words of a will at the outset clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be cut down to a less estate by subsequent or ambiguous words, inferential in their intent. Yocum v. Siler, 160 Mo. 281; Small v. Field, 102 Mo. 123; Jarman on Wills, sec. 1135; Gannon v. Albright, 183 Mo. 238; Gannon v. Pauk, 183 Mo. 265; Gannon v. Pauk, 200 Mo. 75; Grace v. Perry, 197. Mo. 559; Cornet v. Cornet, 248 Mo. 224; Killmer v. Wuchner et al., 37 N. W. (Iowa) 778.

      Pope & Terrill and C. C. Bland for respondents.
    Appellants say the devise of an estate, with power of disposal, passed the fee to Mrs. Brink. This would be true if such power had been granted, without restrictions or limitations to its exercise. But unlimited and unrestricted power of disposal was -not granted to Mrs. Brink by her husband’s will. The power conferred was to use the real estate as she pleases, and at her death what remains to go to the “St. Joseph Catholic Orphan Asylum at St. Louis.” The plain intent and purpose of testator was to bequeath his real estate to his wife, not absolutely, but with power to use it as she saw proper, and possibly to convey it at any time during her life. If she did not convey it then it should go to the “St. Joseph Catholic Orphan Asylum of St. Louis.” Therefore, under the most liberal construction in his favor the bequest to Mrs. Brink was for her life, with power of disposal at any time during her life, remainder of what was not disposed of by her to the “St. Joseph Catholic Orphan Asylum of St. Louis.” Conceding she had this power of disposal, she could only exercise it during her lifetime, and what of the real estate she did not dispose of went to the remainderman. Mooy v. Gallagher, 36 R. I. 405; Kemp v. Kemp, 111 N. E. (Mass.) 673. But, granting for the argument that Mrs. Brink had a fee simple estate under her husband’s will in all of his real estate, she by the second clause of her will adopted that portion of her husband’s will, providing that any part of his real estate remaining undisposed of by his wife should go to the “St. Joseph Catholic Orphan Asylum,” so that if Mrs. Brink took a fee to the lands of her husband under his will, she by her will passed the fee to the Asylum, or rather to the managing trustees, the corporation designated as the “Managers of, the Roman Catholic Orphan Asylum of St. Louis.” If the corporation is sufficiently designated in William Brink’s will as to be identified as tbe object of Ms bounty, tbe gift was to a public charity. Baskley v. Douley, 112 Mo. 561; Hadley v. Porsee, 203 Mo. 427; Russell v. Allen, 107 H. S. 167; Festorazzi v. St. Joseph Catholic Church, 104 Ala. 327; Schmidt v. Hess, 60 Mo. 591; County Court v. Griswold, 58 Mo. 175; Missouri Historical Society v. Academy of Science, 94 Mo. 459; Hoeffner v. Clogan, 171 111. 462; Libby v. Tobbein, 103 Mo. 477; 2 Perry on Trusts (3 Ed.), sec. 734; Schmidt v. Hess, 60 Mo. 591.
   WALKER, P. J.

— This is a suit to determine the interest of the parties hereto and quiet the title to certain land described in the petition in Maries County, Missouri. A trial resulted in a judgment for the defendants, from which plaintiffs appeal.

The land described was a part of that of which William Brink died seized in October, 1883. He died testate leaving no children or their descendants. The language of his will in regard to his real property is as follows: “The real estate I bequeath to my wife Anna Maria Brink to use as she pleases, and at her death what remains is to go to the St. Joseph Catholic Orphan Asylum in St. Louis, Missouri.”

William Brink died seized of 310 acres of land. His wife conveyed 160 acres of same to one Ben Smith to be held in trust for a boy named Hoffman, whom she was rearing but had not adopted. At her death there remained undisposed of 150 acres of the land, the same being that now ■ in controversy. In October, 1912, the wife died testate leaving no children or their descendants. In her will appears the following: “I wish that my husband’s will should be executed according to his intention. ”

The parties to this suit entered into a stipulation for the purposes of thé trial embodying the following facts: “That the fee to the land described in the petition was at the time of his death in William Brink; that he died in October, 1883, and left no children or their descendants surviving him; that Anna Maria Brink was his wife, who survived him and died in October, 1912, and left no children or their descendants surviving her; that Charles Schneider and Rosa Koerber, plaintiffs, and Anna Winkel are respectively her nephew and nieces, children of her .deceased brother Henry Schneider, and that she left no other heirs; that William Brink and his wife were members of the Catholic Church and died in that faith; that at the time of William Brink’s death he was seized and possessed of other real estate than that described in the petition and that said other real estate was conveyed by his widow to one Ben Smith. ’ ’

The plaintiffs claim title by descent as the heirs at law of Anna Maria Brink. The defendants claim title by purchase from the Managers of the Roman Catholic Orphan Asylums of St. Louis, as the owner of the property of the St. Joseph Catholic Orphan Asylum of St. Louis.

I. It is contended that the will of William Brink was improperly admitted in evidence on the alleged ground it had not been shown that it was admitted to probate. This objection appears for the first time in appellants’ brief. The only objections made to the will at the trial were (1) that it did not bequeath any property to the Managers of the Roman Catholic Orphan Asylums of St. Louis, and (2) that it shows on its face that it is a bequest in fee simple. No objection having been made and preserved as now contended, it cannot be effectively interposed at this time.

II. Appellants contend that by the terms of the will the fee passed to Anna Maria Brink and hence the lands remaining undispo'sed of descended at her death to her heirs.

A question determinative of this case, so far as the terms of the will are concerned, is: what was the intention of the testator? said by Chief Justice Marshall (Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322), “to be the pole star in ascertaining the construetion of wills.” This maxim has been emphasized by our statute (Sec. 583, R. S. 1909), which provides that “all courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.” The testator had no children or other heirs. He and his wife had lived together many years. They were devout Catholics. The terms of his will indicate that the disposition of his property was prompted by marital affection and benevolence. It was not only natural but reasonable, measuring his conduct by that of other right-minded men under like circumstances, after having lived harmoniously and with mutual helpfulness with his wife for a long term of years, he should desire that after his • death she should use the property as she pleased during her life and at her death what remained undisposed of should be devoted to the assistance of a charitable institution conducted under the auspices of the church in the faith, of which he had lived and comforted by the promises of which he had died. The words of this devise are plain and direct. If reasons be required to define the testator’s purpose, these we have given are ample.

This having been the testator’s intention, what estate is created by the terms employed? Supplementary to the recognized rules of construction we are aided by the statute (See. 579, R. S. 1909), which provides in effect that although the words “heirs and assigns” are not used, .the devise of lands and other estates will, in the absence of words of limitation, convey the fee or absolute title; but if the language employed' shows that a lesser estate was intended, then the latter will be held to have been created.

The words employed by the testator here do not create an absolute estate such as is contemplated by the statute. On the contrary, there is an express limitation indicative of a purpose to create a remainder. After providing that the wife is to have the real estate ‘ ‘ to use as she pleases” there follows the proviso that at her death what remains is to go to the orphan asylum named. This language is more direct in declaring the limitation upon the estate created than that found in Gibson v. Gibson, 239 Mo. 490, in which we held, after an exhaustive review of the cases on this subject, that the widow took a life estate by clear implication with power of disposal. As in that case, it must not be understood from our ruling that the estate created is limited or cut down. The words of limitation here are as clear and unambiguous as the words of creation; and the one not only coexists but is a part of the other. In other words, there is created a life estate with power of disposal, remainder to vest as designated. There is nothing in Middleton v. Dudding, 183 S. W. 443, contravening the conclusion here reached. There the terms of the devise were such as to create an absolute estate; here they are not.

That the wife recognized and sought to effectuate her husband’s purpose in the testamentary disposition of his real estate is evident from the desire expressed in her will that her husband’s will should be executed according to his intention. The terms of the husband’s will being, in our opinion, clear and definite, no question is left as to the nature of the estate created, and it is not necessary to determine whether the relative words used in the wife’s will are dispositive or precatory. Whether one or the other is not material; they at least constitute a persuasive argument in favor of the correctness of the construction given to the husband’s will.

III. It is contended that the will of William Brink did not name a residuary legatee; that there was at the time of his death and when this case was trie¿ n0 legal entity named the St. Joseph Oatholie Orphan Asylum of St. Louis, but there was at said time a corporation entitled “The Managers of the Roman Catholic Orphan Asylums of St. Louis.”

There was parol proof that for many years- before William Brink made his will, and continuously since that time, there has existed in the city of St. Louis a voluntary charitable institution known as the St. Joseph Catholic Orphan Asylum. Its purpose was to provide a home for orphan boys of Catholic parentage. The churches in the diocese of St. Louis, including that in which the testator worshipped, contributed to the support of this asylum. Whether this was done directly or through the medium of the incorporated board of managers does not appear; but it was shown that the asylum was widely known among Catholics, and it is apparent from the testator’s will that he knew of its existence and its character. It is true that the institution to which the devise was made was not a corporation, but a bequest of the character here under consideration will not be permitted to fail on that account.

In Schmidt v. Hess, 60 Mo. 591, land was devised to a church for a burial ground. The church was not incorporated. This court, in discussing the non-incorporation of the church for whose benefit the grant was made, said that while there “was no one in esse, at the time of making donation, capable of being the recipient of the trust, yet the use being a charitable one, a court of equity, having ascertained the intent of the grantor, will not allow the grant on that account to fail.”

In Missouri Historical Society v. Academy of Science, 94 Mo. 459, it was held that a charitable gift would not be permitted to fail because of the non-incorporation of the society to which and for whose benefit the conveyance was made.

In Lilly v. Tobbein, 103 Mo. 477, the testator devised all of his real estate and personal property to his wife for her natural life and at her death one-half to go to her heirs and the other half to the Catholic Church at Lexington. The Catholic Church named was at the death of the testator an unincorporated association. The court, in discussing the character of the devise, said: “Ordinarily there must be a devisee in existence capable of taking, otherwise the devise is of no validity. But it is well settled law that a charitable devise or bequest will be upheld and enforced if it is made to a voluntary unincorporated association. ’ ’

From these cases it will be seen that the corporate character of the devisee is not a prerequisite to the validity of a devise.

While contending that the beneficiary named cannot take the residuary estate, it is also contended that the testator erroneously designated the devisee, intending the devise to be to the incorporated association, “The Managers of the Roman Catholic Orphan Asylums of St. Louis,” and hence no estate was created. If it be admitted that the devisee was erroneously named, this will not avoid the devise. Under the circumstances here in evidence this general rule is applicable; where a beneficiary is designated by an erroneous name the bequest will not be avoided if it is possible by means' of the name, or by extrinsic evidence, to identify the beneficiary intended.

To illustrate:' In Moore v. Moore, 25 Atl. (N. J.) 403, the testator, in making bequests to several religious corporations, did not designate them under their correct corporate names. Extrinsic evidence was admitted to show the corporations meant,' the 'court holding that this was sufficient to identify the legatees with entire certainty, and therefore the gifts were upheld.

In Bristol v. Ontario Orphan Asylum, 22 Atl. (Conn.) 848, the testator gave a legacy to the Canandaiqua Orphan Asylum. There was no asylum of that name, but there was at Canandaiqua an asylum named the Ontario Orphan Asylum. Evidence was admitted to show that the testator intended the bequest for the Ontario Asylum and the legacy was upheld.

In Minot v. Boston Asylum, 7 Metc. (Mass.) 416, there was a gift to the Boys Asylum and Farm School. There was no association of that name except under the name of the Boston Asylum and Farm School for Indigent Boys. It was held that this association took the legacy.

In Smith v. First Presbyterian Church, 26 N. J. Eq. 132, there was a gift to Blair’s Academy of Blairstown. There was no institution of this name, but there was one under the corporate name of Blair’s Presbyterian Academy. It was held that it took the legacy.

In Van Nostrand v. Board of Domestic Missions, 59 N. J. Eq. 19, a bequest was made to the Domestic Missionary Society. This was claimed by the Board of Domestic Missions of the Reformed Church. Parol, evidence was admitted to show that this was the institution meant by the testator, and it was held to be the legatee.

In Cook v. Universalist General Convention, 101 N. W. (Mich.) 217, a testatrix bequeathed a portion of her estate to the Universalist Japan Mission Fund. It appeared that the Universalist General Convention was the only organized, society of the denomination having a mission in Japan. Proof was made of this fact and that the testatrix had contributed funds to that end and the Universalist Convention was held entitled to the fund.

In Mason v. Massachusetts General Hospital, 93 N. E. (Mass.) 637, it is said generally that in determining a-testator’s intention in designating a beneficiary the circumstances at the. time of the execution of the will may be considered, and where, in the light of same, it is plain what institution was intended, that institution must be taken to be the proper beneficiary.

In Peckham v. Newton, 4 Atl. (R. I.) 758, a testator directed, after the expiration of a life estate provided for in the will, that the remainder of his estate be given to theUoipe of the Aged in Newport. There was no association of that name, but there was a corporation called the Association for the Aid of the Aged. It was held that it was entitled to the bequest.

Without further burdening the.opinion with excerpts from other cases, it will suffice to say that Reilly v. Union Protestant Infirmary of the City of Baltimore, 40 Atl. (Md.) 894; Ross v. Kiger, 26 S. E. (W. Va.) 193, and McDonald v. Shaw, 98 S. W. (Ark.) 952, announce a like doctrine.

In the case at bar evidence was introduced showing that upon the incorporation of “The Managers of the Roman Catholic Orphan Asylums of St. Louis ’ ’ the property theretofore owned by the St. Joseph Catholic Orphan Asylum and other unincorporated orphan asylums in St. Louis was turned over to the archbishop of the diocese as president of said Managers of the Roman Catholic Orphan Asylums of St. Louis to be held for the benefit of said orphan asylums, and that the property subsequently acquired was so held and used.

Prom all of which the conclusion is authorized that despite the fact a mistake may have been made by the testator in naming the beneficiary, the proof is sufficient to show that the corporation is. entitled to take the devise. Especially is this true where it is shown that the corporation is but a legal medium through which the property devised is applied to the benefit of the association named. The judgment of the trial court is therefore affirmed and it is so ordered.

All concur.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM:

license: Public Domain

text:
    BEULAH WILSON et al. v. J. A. REED, Appellant.
    Division Two,
    March 16, 1917.
    1. APPEAL: No Motion or Bill. If the abstract of the record proper fails to show that a motion for a new trial and a bill of exceptions were filed in the trial court, only such assigned errors as may appear in the record proper can be reviewed on appeal — although the abstract contains what purports to be a bill of exceptions in which the filing of the motion and bill is recited.
    2. JUDGMENT: Responsive to Petition: Ejectment. If a judgment is in all respects complete as a judgment in ejectment, it will not be held to be a decree in equity, and therefore irresponsive to the petition in ejectment, for that, in addition to those necessary recitals, it also recites that plaintiff is entitled to possession “for the purpose of applying the rents and profits on the debt and note” and further orders plaintiff “when said debt has been fully extinguished to turn over said premises” to defendant. These unnecessary recitals are mere surplusage.

      3. DEED OF TRUST: After Condition Broken: Ejectment. The mortgagee, after condition broken, may recover possession of the mortgaged premises by an action in ejectment, and retain such possession for the purpose of applying the rents and profits upon the principal and interest of the debt; and this applies to a trustee in a deed of trust, in whom, upon condition broken, the legal title is vested.
    4. -: -: Interest Alone Due: Foreclosure. Where a note stipulates that it is to bear interest from date and if the interest be not paid annually to become as principal and bear the same rate of interest, the interest cannot be collected by suit until the maturity of the note; nor can a deed of trust securing such a note be foreclosed for condition broken where it is conditioned only upon the payment of the note according to its tenor. But a deed of trust conditioned for the payment of interest annually may be foreclosed for a breach of that condition, although the note itself has not matured.
    5. -: -: -: --: One Contract: Independent Conditions. A note and deed of trust given to secure its payment, both executed at the same time, are one contract and must be construed together, so that effect may be given to all the terms of both in-’ struments where possible to do so; and so a deed of trust may be foreclosed before the maturity of the note which it secures if it has provisions or conditions upon which a forfeiture will take place independently of the terms of the note.
    Appeal from Polk Circuit Court. — Hon. G. H. Skinker. Judge.
    Affirmed.

      Johnson & Sea for appellant.
    (1) The note being conditioned that if the interest' be not paid annually to become as principal and bear the same rate of interest until paid, thus leaving it optional with the maker whether it should be paid or be compounded by the terms of the note, no forfeiture could be taken until note was fully matured, and the trustee had no right to recover possession until such forfeiture. Koehring v. Muemminghoff, 61 Mo. 403; Frye v. Shepherd, 173 Mo. App. 200. (2) The terms of the note are not controlled by the conditions in the deed of trust, the deed of trust being a mere incident following the debt wherever it goes. Owings v. McKinzie, 133 Mo. 336; Bank v. Com. Co., 93 Mo. App. 136. (3) A trustee, in a deed of trust, has no right to the possession of the premises, and having no right to possession, cannot maintain an action in ejectment. Siemers v. Schrader* 88 Mo. 20.; Bailey v. Winn, 101 Mo. 656.

      Rechow & Pufahl for respondent.
    (1) Where the deed of trust provided that the interest should be paid annually, and if not paid it was to be compounded, and that if the maker should refuse to pay the debt, or the interest, or any part thereof, when due, then the whole should become due and payable, the agreement for compounding interest is no waiver of the right to enforce its payment when due, and the trustee might properly sell, if the interest is not paid annually. Waples v. Jones, 62 Mo. 440. Where a guardian and curator loans the money of his wards, the interest is payable whether so expressed in the note or not. R. S. 1.909, £ec. 444; Payne v. King, 38 Mo. 502. The defendant was bound to know that this was the law and must be governed thereby; and the fact that he did not insert that clause in the note cannot benefit him. He, certainly of all men, is not in a position to take advantage of his own wrong or neglect. Sturgeon v. Hampton, 88 Mo. 213; Montgomery County v. Auchley, 103 Mo. 507. Where the deed of trust provides that the debtor shall pay the taxes on the property, or shall keep the property insured, or shall make certain repairs and in case of default in that regard the debt, principal and interest shall mature and the property be sold to pay the same, a sale for non-compliance with any of these conditions could be made. Phillips v. Bailey, 82 Mo. 639. (2) After condition broken a mortgagee in a mortgage is entitled to possession and may maintain ejectment for the purpose of paying the debt. The legal title in a deed of trust is in the trustee, and after condition broken, he may maintain ejectment. Johnson v. Plouston, 47 Mo. 227; Siemers v. Schrader, 88 Mr. 23; Bailey v. Winn, 101 Mo. 656; Sntton v. Mason, 38 Mo. 120.
   WHITE, C.

— The appeal is from a judgment in favor of the plaintiffs in an ejectment suit.

The abstract of the record proper filed in this court fails to show that a motion for new trial was filed or was overruled, and fails to show that a hill of exceptions was filed. Appellant prints what purports to he a bill of exceptions in which the filing of the motion and the hill of exceptions and the ruling-on the motion are recited, hut that is insufficient to permit a review of alleged errors except such as may appear in the record proper. [Case v. Carland, 264 Mo. 463; Hogan v. Hinchey, 195 Mo. l. c. 533.]

It is claimed, however, by the appellant that sufficient errors appear on the face of the judgment to warrant a reversal. Two objections to the judgment are urged. First, that it is not responsive to the pleading's; and, second, that it is contradicted and vitiated by the recitals in the judgment itself.

The suit was filed March 10, 1912. The judgment recites that the plaintiffs Beulah A. 'Wilson, Charles R. Wilson, Jessie Gr. Wilson and Mildred E. Wilson are all minors, and that the plaintiff D. W. Covington is duly appointed, qualified and acting guardian and curator of their persons and estate. That the defendant, J. A. Reed, on August 24, 1910, executed and delivered to the then guardian of these minors his promissory note for nine hundred dollars, due five years after date, “with interest from date at the rate of six per cent per annum and if the interest be not paid annually to become as principal and bear the same rate of interest until paid.” That to secure the payment of said note the said J. A. Reed at the time executed a deed of trust conveying- the land sued for to F. W. Adams as trustee; that no part of said note or interest has been paid and by the terms of said deed of trust said interest should he paid annually. The judgment then proceeds as follows:

‘1 The court further finds that there has been a forfeiture, and that the conditions of the said deed of trust have been broken, and that the plaintiff, P. W. Adams, as trustee, is entitled to the possession of said premises hereinbefore «described, for the purpose of applying the proceeds and the rents and profits therefrom on the debt and note held' by the said D. W. Covington, as guardian and curator of the said Beulah A. Wilson, Charles R. Wilson, Jessie GK Wilson and Mildred E. Wilson, minors.
“The court further finds- that possession was demanded from the defendant, and that he has been unlawfully holding possession of said premises since the 28th day of February, 1913, and that the damages sustained by reason of his withholding such possession amounts to thirty dollars.
“The court further finds that the -value of the monthly rents and profits from said premises is eight dollars per month. .
“It is therefore ordered, adjudged and decreed by the court that the said P. W. Adams, trustee, have and recover of and from the defendant, J. A. Reed, the possession of the premises herein described for the purpose of applying the proceeds, rents and profits on the debt and note executed by the defendant, J. A. Reed; and that when said debt has been fully extinguished, then he turn over possession of said premises to the said J. A. Reed.”

It was further ordered that the said plaintiff have and recover of and from the said defendant, J. A. Reed, thirty dollars damages and the sum of eight dollars per month until possession should be delivered to the said plaintiff, and all costs, for all of which execution and writ of restitution might issue.

The first objection is directed at the paragraph finding the plaintiff Adams entitled to possession “for the purpose of applying the rents and profits therefrom on the debt and note,” etc., and ordering that plaintiff have and recover possession for such purposes, “and that when said debt has been fully ex- tmguished, he turn over possession of said premises to said J. A. Reed.”

Appellant claims it is a decree in equity and therefore not responsive to the petition in ejectment, a straight action at law. The judgment, without that finding, is full and complete as a judgment in ejectment; it recites the issues found for plaintiff, the amount of damages, rents and' profits, and awards possession' to the plaintiff and judgment for the amount of such damagés, rents and profits. The recitals, which attempt to state the reason and the purpose for which possession is awarded and the conditions on which it will terminate, are mere surplusage and do not in any way invalidate or impair the force of the judgment. The judgment, therefore, is not open to the objection that it is not responsive to the pleadings.

A mortgagee, after conditions broken, may recover possession of the mortgaged premises in an action of ejectment, and retain such possession for the purpose of applying the rents and profits upon the interest and principal of the mortgage, and this applies to the trustee in a deed of trust in whom, upon condition broken, the legal title is vested. [Johnson v. Houston, 47 Mo. 227; Bassett v. O’Brien, 149 Mo. 381, l. c. 390; Schanewerk v. Hoberecht, 117 Mo. l. c. 31; Siemers v. Schrader, 88 Mo. l. c. 23; Bailey v. Winn, 101 Mo. l. c. 656.] No complaint is made by the appellant of any defect or misjoinder of parties plaintiff, nor is any objection presented to the form of the petition nor to any want of harmony with the judgment, so far as the parties are concerned,

The second point is that the findings contradict the judgment in this: the court finds that the note secured by the deed of trust was to be due long after the suit was filed, that it does not provide for the annual payment of interest, but only provides that if it is not paid annually it will become as principal and bear the same rate of interest, and therefore the condition of the mortgage was not broken and there conld be neither foreclosure nor possession taken.

The findings of the court are in the nature of a special verdict and the judgment must be in accord with them. [Patterson v. Patterson, 200 Mo. l. c. 344; Blount v. Spratt, 113 Mo. l. c. 54-5; Lecompte v. Wash, 9 Mo. 551.]

It has been held that where a note contains a stipulation like the one here regarding the payment of interest, the interest cannot be collected by suit until the maturity of the note. [Frye v. Shepherd, 173 Mo. App. 200; Koehring v. Muemminghoff, 61 Mo. 403.] These cases are cited by appellant in support of the proposition that the action here was not maintainable for the reason that the note described was not yet due at the time suit was brought. It is true that a mortgage securing such a note cannot be foreclosed for condition broken where it is conditioned only upon the payment of the note according to its tenor. In the Frye case an injunction was sought to restrain a foreclosure; and the Koehring case was an ejectment suit, the plaintiff claiming under a foreclosure sale. In each of them the condition in the deed of trust, on breach of which it might be foreclosed, was the payment of the note secured and interest according to “the tenor and effect thereof, ’ ’ and in each case it was held the condition was not broken so as to authorize a foreclosure, although the interest was not paid annually, because the interest was not collectable until the note should become due.

A note and mortgage, or deed of trust, given to secure-it, both-executed at one time, are one contract and must be construed together so that effect may be given to all the terms of both instruments where possible to do so; and so it has been held that a mortgage or deed of trust may be foreclosed before the maturity of the note which it secures if it has provisions or conditions upon which a forfeiture will take place independent of the terms of the note. [Rumsey v. Peoples Railway Co., 154 Mo. 215, l. c. 246; Truchon v. Mackey, 171 Mo. App. 42, l. c. 47; Phillips v. Bailey, 82 Mo. 639.]

Those cases recognize the validity of a condition in a deed of trust, a violation of which would create a forfeiture before the maturity of the note, and even make the note due for the purpose of foreclosure, though not due for the purpose of a personal suit.

It is quite usual in mortgages and deeds of trust to provide that the mortgagor shall pay the taxes assessed against- the property as such taxes mature, or shall keep the property insured, or shall prevent waste, and that upon a failure to comply with any such conditions the note may become payable for the purpose of foreclosure and the mortgagee may foreclose or enter for condition broken. In all such cases the stipulation is valid and binding under the authorities cited above although the “debt secured by the mortgage is not yet due.

The judgment in this case does not recite that if the note or interest is not paid according to the “tenor and effect” of said note the -trustee might foreclose, but recites “that there has been a forfeiture and that the conditions of the said deed of trust have been broken and that the plaintiff F. W. Adams as trustee is entitled to the possession of said premises.”

This finding, therefore, is conclusive that there were conditions in the deed of trust which had been broken and would authorize a judgment for possession, although neither the note nor interest could be collected by personal suit.

The judgment is affirmed.

Roy, C., concurs.

PER CURIAM:

— The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMS, J.

text:
    LILLIE A. JONES, Appellant, v. JAMES A. KIRK et al.
    Division Two,
    March 16, 1917.
    1. LOST DEED: Quantum of Proof: Remote Transaction. There is no hard-and-fast rule concerning the quantum of parol proof necessary to establish a lost deed. Accuracy and detail are expected in establishing a recent transaction, and absence of them would be ground of suspicion; but remoteness necessarily affects the character of the proof, and definiteness and accuracy of detail in such case would arouse suspicion. The rule that the proof must be “clear, cogent and convincing” does not mean that the proof of the same amount of definite detail should be required in every case, without regard to remoteness or lapse of time, but depends upon the circumstances of the case, the nature of the claim, possession, assertion of ownership, etc.
    2. -: Long Possession: Presumption. Where there are uncontradicted facts and circumstances from which it is inferable that in 1860 the owner of a one-ninth interest in land and her husband conveyed it to another cotenant, the purchase price was paid, and the deed executed and acknowledged, and was destroyed by fire in the burning of the grantee’s house during the Civil War; that said grantee conveyed two-ninths interest in 1867 to a grantee who had acquired the other seven-ninths, and since said date said last grantee and those who claim under him have been in possession, claiming to be the owners, and have paid the taxes, and no assertion of title was made until long after both the original grantor and grantee were dead, it will be presumed that a deed was made in 1860 sufficient in form to convey said one-ninth interest.
    3. -: -. — : -: Legal Formalities. The presumption from all the circumstances that a deed sufficient to convey the land was executed and delivered implies that the deed was executed according to then existing formalities.
    Appeal from Jasper Circuit Court. — Hon. David E. Blair> Judge.
    Affirmed.

      Thomas Hackney and A. L. Thomas for appellant.
    (1) When parol proof of the existence and contents of a lost deed is offered as the only evidence thereof, the witness must have seen and read it and be able to speak pointedly and clearly as to its tenor and contents and to state whether it conveyed a fee simple, a life estate or a term for years, and whether it in fact was executed by the supposed grantor. Dagley v. Black, 64 N. E. 277; Rankin v. Crow, 19 111. 626. (2) In order to pass title to real estate by parol proof of the contents of a lost instrument, the testimony must be clear, cogent and convincing. Peters v. Worth, 164 Mo. 431; Ebersole v. Rankin, 102 Mo. 488; Shouler v. Bonander, 80 Mich. 531'; Napton v. Leaton, 71 Mo. 364; Rivard v. Railroad, 257 Mo. 164. (3) There is no evidence showing that a privy examination was had of Juliette K. Davis, neither is there a particle of testimony showing or tending to show that the certificate was endorsed on the written instrument. There is no evidence showing that Juliette K. Davis’s name was anywhere in the body of the instrument as one of the grantors. The person in whom the title to land is vested must use appropriate words to convey the estate. Signing, sealing and • acknowledging . a deed by the wife, in which her husband purports to be the only grantor, will not convey her interest. Bradley v. Mo. Pac. Ry. Co., 91 Mo. 493. Although a deed may be signed and acknowledged by a grantor, yet if his name does not appear in the body ■ of the deed it does not convey the title. Golden v. Tyer, 180 Mo. 196. The requisites or essentials of a deed are: Competent proper parties; proper subject matter; a good and sufficient consideration; a written or printed form; sufficient legal words; reading if desired before the execution; and execution, signing, sealing and attestation. 13 Cyc. 526. At common law a seal is essential to the validity and operative effect of a deed of conveyance. 13 Cyc. 555¡'Harris v. Sconce, 66 Mo. App. 345. At common law the seal alone was' the test of the existence of a deed. Jerome v. Ortman, 66 Mich. 668; Walker v. Niele, 8 Mo. 301; Andrews v. Cos’tigan, 30 Mo. App. 29; Potter v. Everett, 40 Mo. App. 152.

      Spencer & Grayston for respondent.
    (1) A party claiming title through, a grantee in a lost and unrecorded deed will not be required, after the parties of the transaction are dead, or cannot be found, and after the lapse of several years without the grantor, or any one for or through him, claiming any interest in the property, to furnish the high degree of proof of the due execution and delivery of the lost deed that is generally required. (2) The declarations of the grantors that they had deeded the land are clearly admissible. Wynn v. Cory, 48 Mo. 346; Dickerson v. v. Chrisman, 28 Mo. 134; McLaughlin v. McLaughlin, 16 Mo. 250; Johnson v. Quarles, 46 Mo. 423; Wells v. Burt, 3 Tex. Civ. App. 432; Townsend v. Downer, 32 Yt. 183. (3) After a lapse of many years, and where there is no copy of the deed in existence, the secondary testimony cannot be as specific as in some cases, and the witnesses need only testify to the substance of the deed. Parks v. Caudle, 58 Tex. 216; Perry v. Burton, 111 111. 138.
   WILLIAMS, J.

— This is an appeal from the circuit court of Jasper County. The petition is in two counts, one in ejectment and one seeking partition. The land involved in the ejectment count is an undivided one-ninth interest' in the southeast quarter of the northeast quarter of section 33, township 28, range 32, Jasper County, Missouri. The answer is a general denial, a plea of the Statute of Limitations, and a separate count seeking, by wav of affirmative relief, to establish a lost deed alleged to have been executed in 1860 by Juliette K. Davis and husband (plaintiff claims under said Juliette 'K: Davis as heir) to Benjamin C. Webb, conveying an undivided one-ninth interest of the land in dispute. Trial was -had before the court, without a jury, resulting in a judgment in favor of the defendant establishing said lost deed. Plaintiff has duly appealed.

Upon the trial the following admissions were made to-wit: Elijah C. Webb.was the common source of title and died intestate in Jasper County in 1859. He left surviving liim nine heirs at law, including Juliette K. Davis and Benjamin C. Webb. It was also admitted at the trial that defendant Kirk, by proper conveyances, had acquired the title of all of the Elijah C. Webb heirs except that of said Juliette K. Davis.

On March 8, 1867, Benjamin C. Webb .and wife (the alleged grantees in said lost deed and one of the nine heirs as aforesaid), executed a quit-claim deed to one John S. McBride, whereby they undertook to convey an undivided two-ninths interest of this land. About the same date, by other conveyances, said John S. McBride acquired the record title to the remaining seven-ninths interest in said land from the other seven heirs at law of the said Elijah C. Webb, deceased, and from that time on said John S. McBride and his successors in title have executed conveyances purporting to pass the entire title and interest in this land. It was further admitted that defendant Kirk and those under whom he claims have been in the actual, peaceable, open and notorious possession of the land in question since 1867, claiming to own the entire interest therein and to have paid all taxes on said land since that date.

Plaintiff introduced evidence tending to show that she is the daughter of Juliette K. Davis and that her mother died in August, 1864, and left' surviving her her husband, William P. Davis, the plaintiff and two other children. The two other children died in the years 1877 and 1879 respectively. Plaintiff was married in 1874 to Thomas H. Jones who died on December 21, 1908. Plaintiff’s father, William P Davis, remarried twice after the death of plaintiff’s mother. There were no children born of the second marriage. There was one child born of the third marriage, William Clyde Davis, born in 1886, who is still living. Plaintiff’s father died on June 3, 1906.- This suit was .instituted October 28, 1909.

The evidence upon the part of the defendants was substantially as follows:

Eliza J. Chinn, by deposition, testified that she was eighty-one years old and that in 1850 she married Ben C. Webb (the alleged grantee in the lost deed), and that her said (first) hnsband died in the year 1888. The witness was acquainted with Juliette Catherine Davis, daughter of Elijah C. Webb, and remembered a “transaction of Mrs. Davis and her husband disposing of their interest in the Elijah C. Webb estate.” “It was in ’60, the spring of ’60.” That “Mr. Davis and his wife and a justice of the peace came to our house to sign it.” The justice “lived in this county, somewhere, I suppose. I don’t remember just where he lived; Wm. Davis and his wife had him come down there.” That Mr. Webb wrote the deed first and Wm. Davis and his wife signed the instrument; that Ben C. Webb was buying the land. “I can’t give you the numbers or describe the land to you at all, but it was the land, I don’t know who owns it now, McBride’s old place it used to be” . . “No, sir, I don’t know, I could not tell you the number of acres in it;” that Mr. and Mrs. Davis signed the deed that her husband had written; “the deed was burned in time of the war. and they say it was never recorded. I suppose it was. They say it don’t show, but our deeds were all burned in time of the war;” “Mr. Webb had the deed there the day after Mr. and Mrs. Davis signed the deed, and the justice signed the acknowledgment.” That it was kept in the house until the war broke out, when it was hidden in the field under a pile of rocks “in a tin box and a wooden box over that.” . . . “Some boys found them and brought them to us. I was away from home when the house burnt. They had been brought to the house, but had never been put away any more. I was sick and they moved me to my mother’s; I wasn’t there when the house was burned, but everything was burned the time they were through burning houses there, the time old man Hatcher and Jessie Ferry was killed.” The house was burned in 1863. The witness further testified that her husband paid for this land with stock, “two yoke of work cattle, some milk cows, some young heifers and a couple of young mares;” that James Johnson, the boy who worked for Mr. Davis at that time, came and took the stock to Mr. Davis’s home the next morning; that the land that day purchased by witness’s husband was included in the land that she and her husband after-wards sold to John S. McBride; that shortly after this transaction Mr. and Mrs. Davis bought land “over west of here, somewhere west of town.” After this time the witness’s husband claimed to own the land, and Juliette K. Davis “never claimed it after she sold it, of course.”

J. M. Johnson, by deposition, testified that he was’ sixty-seven years old and was born and raised in Jasper County; that he was acquainted with William P. Davis and his wife; that he lived about three and one-half miles.from the Webb homestead and was acquainted with Elijah C. Webb and Benjamin C. Webb; that he worked for William P. Davis in 1859 and ’60; that he remembered “a transaction concerning the sale of the interest in the Elijah C. Webb estate between Webb and Davis” and “was working there when the trade was made;” that the witness and Mr. and Mrs. Davis went to Ben Webb’s place one evening and stayed over night and in the morning they wrote the instrument (the witness used the word deed, but the court struck out the character of the instrument); that Mr. Webb wrote the instrument ‘ ‘ on his own table ’ ’ and ‘ after he got it written he read it over and called me as a witness; then he handed it to Mr. Davis and he read it over. ” “ Mr. Davis was making the deed to Mr. Webb.” That “after the instrument was read over, we went out into the lot and took out the cattle and drove them home;” “Mr. and Mrs. Davis drove them down to Mr. Davis’s home.” On cross-examination this ' witness testified that there was no one else in the house to witness the deed except the witness, Benjamin C. Webb and William P. Davis, and that William P. Davis did not sign the deed that morning; the witness further stated that he was not there the next day “when him and his wife signed it up.” The witness was not there when the deed was signed, but stated that he took care of the stock until they came back, and they said that they had signed it; the witness did not read the paper the morning that he was there, stating, “I aint got much education, and they read it over to me.” “Yes, they called on me to witness the deed. They took the cattle over that morning, two yoke of cattle, two cows and two yearling heifers to William P. Davis’s house.” This witness further testified that after Mr. Davis read the- instrument, “he folded it up and left it with Mr.. Webb.” The further question was asked and answer made, as follows: “Q. You said something about driving this cattle to Mr. Davis’s and then Mrs. Davis and her husband came over there and you had some conversation with- them about the deed and about signing it.” A. “I asked them if they got their business fixed up. Théy said they did.” “They stayed all night down there to Mr. Webb’s their two selves.” “This was the next evening. We went like it was today, stayed all night, brought the cattle tomorrow and then the next day they went down and fixed up the papers.” Both of them said, “we got our business all fixed up;” that “when Mrs. Davis, Mrs. Juliette K. Davis, went back the second evening over: to Webb’s with her husband, she said she was going over to fix up the papers about this land.”

Further evidence, introduced by defendants in support of their theory of a lost deed was, upon motion of plaintiff, stricken out,' but no exceptions were saved tp the court’s action in striking out.

After a very careful, consideration of all the testimony stated in the foregoing statement of facts we have reached the conclusion that the evidence is sufficient to sustain the decree entered-by the trial court.

A review of the many authorities on the subject will disclose the absence of a hard-and-fast rule concerning the exact quantum of parol proof necessary to establish a lost deed. The remoteness of the alleged transaction must necessarily affect the character of the proof required. While accuracy and detail are to be expected in establishing a recent transaction and the absence of the same would give ground for suspicion, yet as to remote, transactions (as in the instant ease where the transaction occurred fifty-three years before the trial), the presence of the same definiteness and accuracy which would strengthen the case of a recent transaction would, in most instances, but tend to arouse suspicion concerning the occurrence of the remote transaction.

The rule, therefore, that the proof must be “clear, cogent and convincing,” as announced in the cases cited by appellant, does not mean that proof of the same amount of definite detail should be required • in every case, without regard to remoteness or lapse of time, but as stated in 4 Ency. Evidence, at page 215:

“The sufficiency of the proof .necessary to establish an alleged lost deed depends largely upon the circumstances of the ease and the nature of the claim which it is relied upon to support. While mere difficulty will not relax the stringency of the rule requiring definite and certain proof, yet the evidence in many cases must be of a circumstantial nature and while perhaps equally convincing, it must derive support from the lapse of time and accompanying facts and circumstances.”

At page 219 (4 Ency. Evidence), it is further said: “Except in cases falling within the Statute of Limitations, a deed will not be presumed as a matter of law. But where all the circumstances are inconsistent with any other hypothesis, the existence of a sufficient deed is often presumed as a matter of fact in support of a> long-continued and undisputed possession under a claim of ownership, even though there is no direct evidence that one was ever executed.” (Italics ours).

In the early case of Dessaunier v. Murphy, 22 Mo. 95, l. c. 103, the court, speaking through Leonard, J., after discussing the English rule, said:

“The American cases however, have, no doubt, gone beyond this and advised juries to presume conveyances in cases, where, from long acquiescence on the part of the or-iginal owners in the adverse enjoyment of the property by others, connected with other corroborating circumstances, it is fair to presume, in point of fact, that their possession had a legal commencement.”

In the same case, 1. c. 104-5, it was further stated:

“Mere possession unaccompanied by other circumstances, cannot afford a conclusive presumption of title unless continued for the length of time and under the circumstances prescribed by the Statute of Limitations (when it has that effect by mere force of the statute, as a conclusive presumption, declared by the Legislature) although when connected with other circumstances, it may justify a jury in presuming a conveyance, or the court in deducing a legal presumption of the transfer of the right, according to the character and weight of these circumstances. In the present case the material fact beside ‘the long continued possession;’ is the alleged sale made or completed by the guardian of the ancestor about 1782 and the payment at that time of the purchase móney, evidenced by the receipt recited in the deed of 1811; and if this fact were established, it might then be proper to advise a jury to presume a conveyance of the title from any proper party, pursuant to and in confirmation of the sale, even against married women;- or the court, it may be, would be warranted in deducing a legal presumption of some transaction, sufficient to pass the formal title.”

In the case at bar defendant and those under whom he claims have, since the year 1867, been in the peaceable possession of this land, claiming to own the same, and since said date have paid all taxes thereon. From the uncontradicted facts and circumstances detailed in evidence, we think, it is also clearly inferable that in 1860 Benjamin C. We,bb (defendant’s predecessor in title) bought this land from Juliette K. Davis (the person under whom plaintiff claims), and paid the purchase price therefor, and in connection with said transaction received a written instrument signed by the then owners of said land and acknowledged by them before a justice of the peace; that said instrument was afterwards destroyed by fire and that after said sale the vendors made no further claim to said land. Applying the rule announced in the Dessaunier case, supra, we find no difficulty in saying that the long continued possession here shown is surrounded and accompanied by “corroborating circumstances” sufficient in character to justify the allowance of a presumption of fact that a deed was then made to said Webb sufficient in form to convey the land in controversy. The facts of this case are even stronger than the facts in the Dessaunier case. In this case there is evidence of a written instrument having been executed and delivered at the time of the transaction. In the Dessaunier case there was no such evidence.

The foregoing rule of presumption was, in the case of Glasgow v. Mo. Car & Foundry Co., 229 Mo. 585, l. c. 600, applied to a state of facts even less cogent and convincing than those now in hand, the court -speaking' through Gantt, P. J., saying:

“That courts and juries may find and indulge the presumption of the due execution and delivery of deeds from a state of facts such as we have here is no longer doubted in this State.”

Many Missouri cases, including the Dessaunier case, supra, are cited in support of that doctrine.

It is contended by appellant, however, that the.re is no evidence that the lost deed was executed according to the then existing legal formalities. Concerning this point, we call attention to the language employed in the quotation from Glasgow v. Mo. Car and Foundry Co., supra, wherein it is said that the “due execution and delivery of deeds” is to be presumed under conditions there present. (Italics ours.) It is quite apparent that it would be futile to presume the existence of an invalid instrument. The deed which is to be presumed is one executed in conformity “with all the formalities required by law.” [4 Ency. of Evidence, page 210 (h), and cases therein cited.]

The judgment is affirmed.

All concur.


author: FARIS, J.

text:
    ELIZABETH JOHNSON, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.
    Division Two,
    March 16, 1917.
    1. DAMAGES: Sec. 5425: Suing for Only $2000. The language used in Sec. 5425, R. S. 1909, namely, that defendant “shall forfeit and pay as a penalty the sum of not less than two thousand dollars, and not exceeding ten thousand dollars, in the discretion of the jury,” means that the $2000 is penalty alone, and the amount which plaintiff may recover above that sum is not penalty, but compensation for loss, which is to be established by evidence; and that being true, plaintiff may sue for $2000 as a penalty, and for that alone, and may forego her right to compensation, if any 'such right she has. [Following Boyd v. Mo. Pac. Ry. Co., 249 Mo. 1. c. 126.]
    2. -: -: -: Constitutionality. Since the statute it-.. self fixes the penalty plaintiff may recover at $2000, it is not therefore to render the statute unconstitutional, to permit her to sue for $2000 as a penalty alone and to forego any demand for compensation.
    Appeal from Jackson Circuit Court. — Hon. James E. Goodrich, Judge.
    Reversed and remanded (with directions).

      J. Harold Olson and T. J. Madden for appellant.

      Frank Hagerman, E. E. Ball and Clyde Taylor for respondent.
   FARIS, J.

— This case comes to us by transfer from tbe Kansas City Court of Appeals, because it was strenuously urged by respondent that the interpretation of section 5425, Revised Statutes 1909, for which appellant contended to sustain her verdict nisi, rendered that section unconstitutional.

Upon an examination of the whole case the Kansas City Court of Appeals felt constrained, in a learned and ably reasoned opinion by Judge Trimble, in which all of that court concurred, to put upon said section the identical construction which was banned by the anathema of respondent. Therefore, in order that this court might determine whether the construction placed on said section does render it unconstitutional, the Court of Appeals sent the case to us.

The facts in the case, the view taken of the law and the precise nature of the constitutional question urged as arising from the view taken, are all carefully set forth and discussed in the opinion of the Kansas City Court of Appeals (Johnson v. Railroad, 174 Mo. App. 16), in which we concur. This opinion, so far as it is pertinent, is as follows:

“Plaintiff brought this suit under section 5425, Eevised Statutes 1909, to recover a penalty of $2000 for the death 'of her husband caused by the alleged negligence of defendant’s servants whilst running one of its trains.
“The husband, while lying drunk upon the railroad track, was run over and killed by defendant’s train, as it was being backed out of the Union Depot in Kansas City, where it had just delivered its passengers. A pilot, who had charge of the train, and who controlled it the same as an engineer, was stationed on the rear end. In substance, the petition claimed that the track where deceased was killed was in a busy part of the city and was used as a pathway by pedestrians at all times of the day and night, which fact was known to defendant, and it was thereby the duty of defendant’s servants, and especially the duty of this pilot, to keep a vigilant lookout for persons on the track to avoid injuring them; that the pilot, after he saw deceased on the track could have avoided killing him, but negligently failed to do so. The petition closed with the following: ‘That by reason of the premises plaintiff has been damaged and defendant should be made to forfeit and pay as a penalty the sum of two thousand dollars, for which amount, with the costs of this action, she demands judgment. ’
“The answer was a general denial and a plea of contributory negligence, to which a reply was filed, and the trial began. Defendant objected to the introduction of any evidence for the reason that the petition did not state a cause of action. The sole ground of this objection was, that the statute on which the suit is based provides a certain penalty, but that penalty is not declared upon nor demanded in the petition, and, therefore, plaintiff has not brought her petition and case within the terms of the statute; in other words, since the petition did not declare upon the penalty provided in the statute, it stated no cause of action. This objection was overruled, and the case proceeded to verdict and judgment in plaintiff’s favor for $2000. On motion for a new trial, however, the above point was again raised, and the trial court sustained defendant’s contention _ in regard thereto, and granted a new trial for the reason that, the suit being on section 5425, it does not lie within the power of the plaintiff to bring suit for a sum or penalty less than that provided by the section, and, therefore, a suit for the sum of two thousand dollars is not maintainable. Plaintiff appealed from the order granting a new trial. And the sole question presented is, can a plaintiff, under the section in question, as it now stands, sue for less than the maximum provided by that section? Or, to state it a little more accurately, can the plaintiff under said section limit her demand to $2000, or must she sue for whatever amount may be assessed by the jury in its discretion within the limits provided by the statutes, namely, a minimum of $2000 and a maximum of $10,000?
“Prior to the amendment of 1905, the amount recoverable for a death coming within the terms of this statute was placed at the fixed and immovable sum of $5000. Plaintiff could then recover neither less nor more. The words of the statute as to the penalty were ‘shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars.’ Under the section as it thus stood, prior to 1905, it was held that, as the amount specified in the statute was absolutely fixed at $5000, no more and no less, a suit could not be maintained- which sought to recover less than that sum; that under such a statute, a plaintiff must declare for and seek to recover the precise or full measure of the penalty therein provided. [Casey v. St. Louis Transit Company, 116 Mo. App. 235, l. c. 260; Same Case, 205 Mo. 721, l. c. 723.] Since those decisions were rendered, however, the statute has been amended. [Laws 1905, p. 135.] That part of the section fixing the amount recoverable now reads, shall forfeit and pay as a penalty, for every such person, employee or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury. The question now is, has this change in the statute rendered it permissible for the plaintiff to do in this case what she could not have done under the statute as it formerly stood? . Unless this amendment has so changed the law that the reasons underlying the above named cases have ceased to exist, then said cases require with absolute certainty that the judgment of the lower court be affirmed. Have these reasons ceased to exist by virtue of the amendment? To answer this question we must first examine these reasons and then see whether or not the amendment has obviated or destroyed them.
“As the Supreme Court adopted the opinion of the St. Louis Court of Appeals in the Casey case, the reasons underlying both of the above named decisions are to be found in an examination of that opinion.
“Thé fundamental reason appearing therein why the plaintiff could not-sue for less than the fixed and precise sum named by the statute was that the statute gave said sum as a penalty; and as the statute was thus penal, it must be strictly construed, and ‘the suing party must bring himself strictly within its provisions and, among other things, demand and recover the precise amount of the penal sum therein provided[Casey v. Transit Co., 116 Mo. App. l. c. 252.]
“Now, it must be borne in mind that, as the statute then stood, this penal feature mhered in and existed throughout the whole of the $5000 allowed.• It necessarily must have done so since tbe amount was fixed at that precise sum, no more and no less, and if penal at all was penal througbout. It is true the statute was held to be both remedial and penal, but its remediality, if any, and it's' penalty existed in and pervaded the> whole sum named, thus making tbe whole sum a penalty. In other words, as tbe amount named by tbe statute was one fixed and certain sum there was no room for saying that a part of it would be considered penal and tbe remainder remedial. Both tbe penal and remedial features inhered in tbe amount tbrougbout. Consequently whatever sum a plaintiff might seek to, recover would, have in it tbis penal feature. And if a plaintiff would seek to recover a penalty provided by the.statute, be must ask for that penalty and no other. As said in Casey v. Transit Co., 116 Mo. App. 252, l. c. 254, speaking of tbe rule of strict construction, as applied to tbe penal and not tbe remedial feature of the statute, ‘it is manifest from tbe use of tbe word “forfeiture” by the Legislature, together with tbe consideration that no evidence is to be beard and no day in court to be bad on tbe amount of plaintiffs’ damages and tbe measure of their recovery, that tbe amount named in the statute should be a penalty inflicted as a punishment upon tbe person guilty of tbe wrongs therein sought to be prevented. Applying then tbe rule of strict construction to tbe penal feature of tbe statute, tbe conclusion is that tbe penal sum therein fixed at $5000 means $5000. It does not mean $4500"no (any) more than it means $450 or forty-five dollars. Indeed it seems that the ■ Legislature intended that tbe perpetrator of'tbe mischief sought to be prevented should pay the full penalty levied and did not intend that tbe private citizen, might fritter away that penalty provided by virtue of tbe police power of the State for tbe purpose of preventing wrongs, so that conditions might arise where one offender would pay $5000 and another be permitted to pay $4500 and another a much less sum as might shit the convenience of the party putting the statute into operation by his suit.’ All of which means that as the whole of the $5000 is penal, that is, the penalty inheres in all of it, as shown by the language of the statute and the fact that no evidence is admissible on either side as to the amount of damages. then a plaintiff must seek to recover the penalty provided, and will not be allowed to whittle down the State’s penalties to suit his or her convenience, thereby making different penalties in different suits for the same character of acts.
“But in the statute, as now amended, does the penal feature inhere throughout the entire sum from the minimum limit of $2000 to the maximum limit of $10,-000 ? In answer to this question whether or not the entire amount from one limit to the other is penalty, or has in it the elements of penalty, it would seem that, if the language of the statute is accepted as it reads, then the element of penalty extends throughout the whole of the amount specified by those limits. It says, ‘shall forfeit and pay as a penalty the sum of not less than two thousand dollars, and not exceeding ten thous- and dollars, in the discretion of the jury.’ The word ‘forfeit’ implies a penalty and the words ‘as a penalty’ expressly say it is such. So that on the mere face of the statute it would seem that the entire amount allowable was intended as a' penalty. And in Young v. Railroad, 227 Mo. 307, the Supreme Court held that the whole amount allowed by the statute between the two limits was penal in character; and in Boyd v. Railroad, 236 Mo. 54, the holding is that it is both penal and remedial or compensatory, that is, that the penal feature exists along with the compensatory feature throughout the range fixed by the statute between the two limits. But in Boyd v. Railroad, decided March 28, 1913, and reported in 249 Mo. 110, 155 S. W. 13, l. c. 17, the Supreme Court expressly overrules the Young case in so far as it holds that the statute is penal throughout, and also expressly overrules the former decision in the Boyd case in the 236 Mo. 54, in so far as it holds that there is anything penal existing in' the range permitted above $2000. And, in lien of the doctrine announced by either the Young or the first Boyd case on this point, the Supreme Court announced the rule that said section, as it now stands, is penal so far as it fixes the amount of recovery at not less than $2000, but is remedial and compensatory as to any recovery in excess of that amount. Of course this decision, in holding that the statute, by fixing the minimum at $2000, is purely penal, does not say, in express terms, that the excess is purely compensatory; in other words it does not expressly say that the penal feature does not extend above the $2000 and inhere therein throughout the range given along with the compensatory feature. But evidently that is the holding, else why expressly overrule the Boyd decision in 236 Mo. 54, which held that the whole range was both penal and compensatory?
“It is also apparent that, in this last Boyd case, there is a distinction between a case in which only the penalty is demanded and one in which both penalty and compensation are sought. On page 16 of the 155 S. W. Reporter, the court say:
“ ‘Upon a full consideration of this case In Banc, we are convinced that it was the intention of the General Assembly by the amendment of 1905 to leave the provisions of section 5425, supra, penal in their nature, so far as said section fixes the amount of recovery at not less than $2000, hut where a plaintiff, as in this case, seeks to recover under said section a larger sum than $2000; the jury or court in preparing itself to exercise a wise and just discretion should receive evidence of the age, condition of health, and earning capacity of the party killed, and the consequent loss to the plaintiff thereby, together with the facts and circumstances attending the killing, for which damages are sought to be recovered. In other words, a recovery under section 5425, Revised Statutes 1909, is penal up to the sum of $2000, but the extent to which a plaintiff may recover, if at all. in excess of $2000, under that section, is remedial and compensatory.’ That is to say, if a plaintiff sues for penalty only, no evidence as to age, health and capacity of the deceased is admissible, since-it would not help in any way, as the penalty must be applied regardless of these considerations, if the jury believe the deceased’s death was within the terms of the Statute; but, if the plaintiff ‘seeks to recover a larger sum than $2000’ such evidence is admissible and should be given. Evidently, therefore, there is a distinction between a suit for the bare penalty and one for the penalty with compensation. Because if every plaintiff suing under the statute must demand the maximum amount in the petition, what is the necessity of saying that the statute is penal as to the $2000? But where a plaintiff ‘seeks to recover a larger sum than $2000,’ evidence as to the loss plaintiff has sustained must be given. If all petitions must demand the full amount there was no necessity for using such language, but the court could merely have said that in all such suits evidence showing plaintiff’s damage was admissible. It would seem, therefore, that the last Boyd case holds that the statute is penal only as to the $2000 and compensatory as to any thing in excess of that sum. If so, then the State has given to plaintiffs in such cases, not merely one right, but one of two rights, namely, the right to sue either for the penalty alone or for both penalty and compensation. And if this is true, who is to say to plaintiff, ‘You cannot sue merely for the penalty, but must sue for both penalty and compensation?’ Grant it that a plaintiff is not allowed to vary or change the penalty prescribed, by the State for the commission of a certain act; to sue for the $2000, under the statute, as it now stands, is not to vary the penalty; it is to demand the precise sum fixed as penalty. The only thing plaintiff has varied, or rather given up, is her right to demand compensation. It is not certain that’ she has given up any compensation since the question whether she is entitled thereto or not depends on whether she has suffered damage. But whether she has given up . her right to be compensated or not, is not a matter of State concern. The matter of compensation is hers to give np or sne for as she chooses. She may give it up, either by not asking for compensation in her petition, or, if she has demanded it therein, by not offering any evidence showing that she is entitled to compensation. As the penalty is the lowest amount provided, it is no injustice to the defendant to permit plaintiff to forego the element of compensation either in her petition or in her evidence. If she is to be compelled to ask for' it in the one, why should she not be refused entirely if she does not seek it in the other? It does not. lie in defendant’s mouth to complain because it is not called upon to pay a larger sum.
“It is argued that if the statute is thus construed so as to permit a plaintiff to sue for less than the maximum, then, we are placing on it a construction which will render it unconstitutional. ’With its constitutionality, of course, we have nothing to do. However, this claim that such a construction will render the statute unconstitutional is based on the view that the statute is penal, not only as to the $2000, but also as to everything in excess of $2000, and that to allow a plaintiff to sue for any amount less than $10,000, is unconstitutional in that it is permitting her to fix the penalty; that, in such case, the penalty is fixed, not by the legislative power, but by the plaintiff in each particular case.' [Citing Cigar Makers’ International Union v. Goldberg, 61 Atl. 457.] Since the Supreme Court in the last Boyd case, supra, has said that the statute is penal as to the $2000, but is compensatory as to the excess, there is no basis upon which to rest the claim that such construction would make the statute unconstitutional. But whether it is or is not thus rendered unconstitutional is a question for the Supreme Court to pass upon whenever its constitutionality is attacked. If the $2000 is all penalty, and all over that is merely compensation, then the legislative power has fixed the penalty at $2000, and plaintiff, by suing for $2000, is not fixing the penalty, but is demanding what has already been fixed by tbe Legislature. The view that the statute is penal throughout the whole range between the two limits fixed therein, as announced in the Young ease, supra, and the view that it is both penal and compensatory as to anything in excess of $2000 announced in the first Boyd case, has been repudiated by the Supreme Court in the last Boyd case, since, in it, the two above named cases are expressly overruled.
“It is urged that the penalty is to be fixed ‘in the discretion of the jury,’ and that to allow plaintiff to sue for $2000 is to take away that discretion. This again assumes that the excess over $2000 is penal in its nature. But if it is not and only the $2000 is penal, then as to the penalty the jury has no discretion. If it believes that plaintiff was killed within the terms of the statute then the penalty is fixed, and its discretion operates only upon the compensatory part of the recovery. Even though a plaintiff bring á suit asking for the maximum amount, yet if no evidence is offered upon which the jury can exercise its discretion as to compensation, the amount allowed cannot exceed $2000, because, in that event, there is nothing upon which a verdict for a greater amount can be based. ‘The discretion of the jury’ has nothing upon which to operate. But as to the $2000, if the killing was within the terms of 'the statute, there is no discretion; the penalty must be given. If, now, a plaintiff, by a mere failure to offer evidence on the compensatory feature, can take from the jury the discretion to award a larger amount than $2000, what is there to prevent such plaintiff from drawing her petition and bringing her suit in such way as to limit her recovery to the penalty purely and thereby limit the jury to the precise sum of $2000? In either case the jury is limited as to the amount of its verdict. And in both, if the jury believes the testimony tending to show that the death occurred under such circumstances as the statute requires, there is no discretion to he exercised,-but the jury must impose the pure penalty fixed by the statute, namely, $2000. So that after all, the question comes down again to whether the last Boyd case means that, as to the $2000, the statute is penal, hut not as to any amount in excess of that sum. From the language used, as well as from the fact that it expressly overrules hoth the Young and the former Boyd cases (both of which held that it was penal as to such excess), we accept it as holding that it is penal only as to the $2000 and not as to any 'amount above that sum. If that is the correct ■ view, then plaintiff has a right to sue for the penalty only, and to forego her right to compensation, if she was entitled to any compensation.
“It is urged that plaintiff brought this suit for $2000 only in order to keep out of the Federal courts. But if, under the statute, only the $2000 is penalty, then she has a right to sue for that alone. And if she has a right to sue for it alone, her reasons for not also suing for compensation cannot be inquired into, nor impugned. So far as that is concerned, as the penalty sued for is the lowest amount recoverable under the statute, she could in turn charge defendant with insisting that it be sued for the larger amount solely in order that the case could be taken to the Federal court. In either case, it is not a question of the motives of litigants, but of their rights under the law. The same is to be said in response to the objection that such a construction will enable a plaintiff to work a fraud upon the jurisdiction of the courts. There can be fraud worked upon the jurisdiction of the courts by bringing a suit solely for the penalty, if there is a clear line of demarcation between the penal and compensatory features of-the statute. As the holding of the-last decision in the Boyd case by the Supreme Court is that the statute in question is penal only as to the $2000 and compensatory as to anything in excess of that amount, the logical result of such holding is that plaintiff can sue for the penalty prescribed without asking for compensation.”

Regarding the phase of unconstitutionality urged in the event it -should be held that plaintiff could sue for the sum of $2000 only, if she so elected, it is enough to say that it is plain that whatever merit there might have been in this contention has been wholly destroyed by the opinion of this court In Banc in the case of Boyd v. Missouri Pacific Ry. Co., 249 Mo. l. c. 126, which latter case came down while the appeal in the instant case was pending. After a careful re-examination of the Boyd case, upon the question of the nature of the elements of recovery, we are again constrained to say that it seems to put upon said section 5425 — the history and language of which when measured by the settled canons of construction render its meaning debatable— the most logical and reasonable construction possible.

It follows that this case should be reversed and remanded with directions to the circuit court to reinstate the verdict of the jury and enter judgment thereon for the plaintiff. Let this be done.

All concur.