author: BLAIR, O. PER CURIAM.

text:
    HARRIETT COOPER v. A. G. NEWELL et al.; GEORGE W. PLUMER, Appellant.
    Division One,
    December 31, 1914.
    1. CONVEYANCES: Voluntary Deed: Subsequent Deed of Trust by Grantor. Where the owner of land executed and recorded a voluntary deed, and the grantee therein knew nothing about the deed until the grantor more than four years afterward executed a deed of trust on the same land in her favor, when she indorsed for his use the note secured thereby, and thereafter she conveyed the land at the grantor’s direction and in consideration of money paid solely to him, the beneficial interest as between the parties remained in the grantor, and the trust deed was a charge upon his equity.
    2. -: Deed of Trust: Assignment of Debt. The assignment of a note secured by a deed of trust carries with it the deed of trust.
    3. -: -: Purchaser With Notice. Where a purchaser of land knew that a grantor in a voluntary deed and in a subsequent deed of trust to secure a note was attempting to sell thq land as his own, and the arrangement for the payment of the price was upon the basis of his ownership, and the purchaser’s agent had actual knowledge of the trust deed, the purchaser was chargeable with notice of the deed of trust and he took his title subject thereto.
    4. -: -: Release by Other than Holder of Note. A marginal release of a deed of trust by one who had previously assigned the note secured thereby, affords no protection to a purchaser of the legal title with notice.

      5. -: -: -: Affidavit that Notes are Lost. An amendment to the statutes on releases providing that satisfaction of a mortgage or deed of trust without production- of the notes secured shall not he permitted until the cestui que trust and the maker of the notes, or their legal representatives, have made affidavits that the notes have been paid and delivered to the maker and cannot be produced because lost or destroyed, does not authorize any one to enter satisfaction who was not previously authorized to do so, but simply attempts to guard -against a false release by the cestui que trust named in the mortgage by reguiring of him and the maker affidavits which, if falsely made, subject the affiants to the pains and penalties of perjury.
    Appeal from Jasper Circuit Court. — Hon. D. E. Blair, Judge.
    Aetibmed.

      H. L. Shannon for appellant.
    (1) Newell conveyed Ms half interest to Ms mother, A. Gr. Newell. It is claimed by respondent that there was no consideration for this deed, and that the effect of the conveyance was to vest the legal title to the half interest in the land in A. Gr. Newell, as trustee, for J. P. Newell. A voluntary conveyance is subject to such a construction against an existing creditor, but not as against a subsequent creditor. Krueger v. Yorhauer, 164 Mo. 156; Caldwell v. Smith, 88 Mo. 44; Scudder v. Morris, 107 Mo. Ap-p. 634. (2) Eespondent introduced no evidence that there was no consideration paid by A. B. Newell to J. P. Newell for the undivided half interest in the land in controversy except that Mrs. Newell had no recollection of the transaction. They were partners in the loan, insurance, and real estate business, and J. P. Newell had the exclusive management of the same. Mrs. Newell acquiesced in whatever was proposed and done by her son. She received a monthly allowance out of the business, not in full satisfaction of her interest in the business, but on account. Whether the value of this land was charged to Mrs. Newell on the partnership account, we do not know, but the burden was on respondent to prove that there was no consideration for the conveyance, for the law presumes a consideration. 13 Cyc., 735. (3) When J. P. Newell executed the trust' deed conveying the land in controversy to J. Y. Koontz, as trustee to secure the $1000 note payable to Anna G. Newell, he had no interest in the land, and said trust deed created no lien on the land. To hold that it did would contravene the doctrine of merger. 16 Cyc. 665. (4) While Anna Gr. Newell would be estopped as against the respondent, Harriett Cooper, from asserting that the trust deed was not a lien on the land in controversy by the fact that she endorsed and delivered the note in controversy to the respondent, this doctrine is not available to respondent because it is not pleaded. Golden v. Tyer, 180 Mo. 196; Loving Co. v. Cattle Co., 176 Mo. 330; Casler v. Gray, 159 Mo. 588; Sanders v. Chartrand, 158 Mo. 352; Cockrill v. Hutchinson, 135 Mo. 67. (5) Mrs. Cooper purchased the note and deed of trust in controversy with-notice of the fact that J. P. Newell had parted with his interest in the land covered by the deed of trust, the deed from him to his mother having been recorded. Sec. 2810, R. S. 1909. (6) Plumer’s equities are at least equal to those of Mrs. Cooper, and being the holder of the legal title, he is entitled to protection. 23 Am. & Eng. Ency. Law (2 Ed.), p. 487. (7) Where it is sought to defeat a clear legal title of record by one having a mere equitable title, on the ground that the equities of the latter were known to the former at the time of acquiring the legal estate, the allegation of notice must be established by clear and satisfactory proof, so as to affect the conscience of the purchaser, and to fix upon him the imputation of mala fides. 39 Cyc. 1785; Hendricks v. Callaway, 211 Mo. 536. If instead of making the note secured by the trust deed in controversy to A. G-. Newell, J. P. Newell had made it to the respondent, Mrs. Cooper, and her action to foreclose had been against A. G. Newell, the facts of this case would not warrant a recovery. How, then, can a recovery be sustained against George W. Plumer, the appellant? Youngblood v. Yastine, 46 Mo. 239.

      McReynolds & Halliburton for respondent.
    (1) The record showing that the conveyance from J. P. Newell to Anna G. Newell was made and filed for record, without any consideration for. same and without knowledge or consent, there was no delivery of said conveyance and the title did not pass but remained in J. P. Newell. Cravens v. Rossiter, 116 Mo. 338; Powell v. Banks, 146 Mo. 620; Seibel v. Higham, 216 Mo. 121; Chambers v. Chambers, 227 Mo. 262; Terry v. Glover, 235 Mo. 544. (2) While the record title to the land was in Anna G. Newell, the legal title was in J. P. Newell. See authorities under point I and testimony of A. G. Newell. (3) There was no place to plead estoppel against Anna G. Newell in this case, as she was not making any claim’ whatever, but stood admitting the allegations of plaintiff’s petitions. If there is any place-for any one to plead estoppel in this case it is for appellant Plumer. (4) A. G. Newell by her individual testimony shows that she paid no consideration for the conveyance from J. P. Newell. (5) At the time Plumer bought this land from J. P. Newell he was furnished with an abstract of title, showing the deed of trust under which Harriett Cooper claimed, which was of itself sufficient to constitute notice, and he was not a purchaser in good faith without notice of the claim of respondent against this land, and he took the title (if any) subject to her adverse claim. In equity one who takes with notice of an adverse claim takes subject thereto, and to constitute such notice anything tending to put a prudent man on the alert is sufficient. Richmond v. Ashcraft, 137 Mo. App. 199; Lee v. Bowman, 55 Mo. 400; Marlow v. Leiter, 87 Mo. App. 584; Smith v. Mount, 149 Mo. App. 674; Rhodes v. Outcalt, 48 Mo. 367; Meier v. Blume, 80 Mo. 183; Roan v. Winn, 93 Mo. 503; Drey v. Doyle, 99 Mo. 467; Barrett v. Davis, 104 Mo. 561; Hill v. Tissier, 15 Mo. App. 306. (6) The question of actual notice to Plumer is one for the trier of the fact. Masterson v. Railroad, 5 Mo. App. 64; Hill v. Tissier, 15 Mo. App. 307; Muldrow v. Robinson, 58 Mo. 331. Judge Blair having tried the fact and found that Plumer had notice of Mrs. Cooper’s claim and there being substantial evidence to support the finding, this court will sustain the finding of the trial court. (7) The burden is not on plaintiff to show that Anna G. Newell paid no consideration for the deed from J. P. Newell but is upon respondent Plumer. Kier v. Birnie, 25 Ark. 225; Loyds v. Lynch, 25 Pa. St. 419, 70 Am. Dee. 137; Blaesi v. Blaesi, 14 N. Y. Civ. Proc. 216. (8) There is no ground for the doctrine of merger in this case. (9) ' The appellant assumes that inquiry by Plumer or his agent would have been futile. If he had inquired only of the Newells it might have been, but J. Y. Koontz was in the city of Carthage and could easily have been found and interviewed. Inquiry by Plumer of the Newells would not have been sufficient to protect-him as an innocent purchaser. Dudley v. Witter, 46 Ala. 694; Skeel v. Sprakes, 8 Paige (N. Y.) 196; Little v. Giddings, 47 Tes. 109. (10) The First National Bank of Carthage and J. D. Perkins were the agents of Plumer in closing the trade with Newell and notice to them or either of them was notice to Plumer. Meier v. Blume, 80 Mo. 183.
   BLAIR, O.

From, a decree of the circuit court of Jasper county establishing the lien of a deed of trust and foreclosing the same, defendant Plumer appeals.

The facts are that in 1899 Plumer and J. P. Newell, of the firm of A. G. Newell & Son, became the owners, as tenants in common, of the north half of the southeast quarter of section 7, township 29, range 31, Jasper county, Missouri. In February, 1901, J. P. Newell and wife executed and recorded a deed to A. G. Newell for a one-half interest in this land. A. G. (Anna G.) Newell was the mother and partner of J. P. Newell but had retired in 1898 from active participation in the transaction of the partnership business, being paid monthly an agreed sum by her son. She knew nothing of the execution or recording of the deed to her until called upon to transfer the title to appellant in 1907, and had paid no consideration for the deed. In December, 1905, J. P. Newell and wife executed the trust deed in question, conveying the land above described to J. Y. Koontz, as trustee for A. G. Newell, to secure a note for $1000, due December 22, 1910. Soon thereafter A. G. Newell indorsed the note to J. V. Koontz, trustee in the deed of trust, and indorsed the coupons in blank; and in a short time, and prior to June 22, 1906, Koontz indorsed the note to the plaintiff, Mrs. Harriett Cooper, Newell having sold it to her for face value. The interest was paid regularly to plaintiff by A. G. Newell & Son. The firm, J. P. Newell being the active member, was and for some time had been loaning money for both plaintiff and appellant Plumer. Mrs. A. G. Newell, Plumer and plaintiff had been reared together in Franklin, Pa., and plaintiff and Plumer were also personally acquainted with J. P. Newell and with each other. In 1907, J. P. Newell wrote Plumer, who then lived in Ohio, that he desired to sell him the half interest in the land; Newell wrote that he wanted to sell as he needed the money. Plumer then had no actual knowledge of the existence of the deed from J. P. Newell to A. G. Newell. He testified he authorized the First National Bank of Carthage to represent him “in this deal with Newell, and also authorized them to pay Newell $2000 for this land when he delivered the deed — when he made a good deed,” and directed them to have their attorney examine the title and to accept the deed if everything was all right. Plumer wrote the bank he had bought the land from Newell and instructed them to pay Newell out of a fund of $3700 Newell had collected for him. The bank had its attorneys examine the abstract of title. The abstract they examined showed the deed of trust J. P. Newell and wife had executed to A. G-. Newell, but showed no release thereof, and, as a matter of fact, it had not been released. The attorneys certified that the abstract showed Anna G. Newell owned a one-half interest and G. W. Plumer (appellant) owned the other half and that they had good title thereto in fee simple, subject only to State and county taxes for 1907. Thereupon the bank accepted and recorded a deed from Anna G. Newell to Geo. W. Plumer and paid J. P. Newell the purchase price, $2000. The deed and abstract and opinion of the attorneys as to the title were, in a few days, sent to appellant,- who then wrote to Newell concerning the trust deed shown in the abstract but received no reply. Soon thereafter he was called to Missouri by other things and then visited Carthage and took up with J. P. Newell the matter of the deed of trust in question. The upshot of this was that, on December 23, 1907, J. P. Newell and A. G. Newell each made affidavit (in statutory form) that the note had been paid and destroyed and for that reason could not be produced for cancellation. A. G. Newell then signed a marginal release in usual form. J. P. Newell continued to pay interest to plaintiff on her note until June, 1910, when he defaulted therein and plaintiff sent the note and deed of trust to Carthage for the purpose of enforcing her lien. Investigation disclosed the sale to appellant and the attempted release of the deed of trust, and this suit followed.

I. The deed executed in 1901 by J. P. Newell and wife to A. Gr. Newell was without consideration and not intended by the parties to convey the beneficial title to A. G-. Newell. The clearest proof of this lies in A. Gr. Newell’s conveyance of the same land to appellant at J. P. Newell’s direction and in consideration of money paid solely to J. P. Newell. Added to this is the fact that A. Gr. Newell knew nothing of the deed to her at least until J. P. Newell ' executed the deed of trust and that then she indorsed for his use the note that deed secured. The cases cited by appellant (Krueger v. Vorhauer, 164 Mo. 156; Caldwell v. Smith, 88 Mo. 44; Scudder v. Morris, 107 Mo. App. 634) merely go to the point that without proof of fraud a voluntary conveyance cannot be set aside at the suit of a subsequent creditor. The question in this case is as to the actual ownership of the land as between A. Gr. Newell and J. P. Newell. As stated, the evidence clearly shows, as the trial court found, that, as between the parties, the beneficial title remained in J. P. Newell despite his deed to A. G. Newell.

II. The legal title being in A. Gr. Newell but the full equitable title being in J. P. Newell, the trust deed executed by the latter charged his equity with the payment of the note in question, and the assignment of the note carried with it, as incident to it, the trust deed securing it. As between these parties (respondent, A. Gr. Newell and J. P. Newell) this was the situation when appellant bought the land in December, 1907.

III. Appellant claims to be an innocent purchaser, for a valuable consideration and without notice. “Whether one actually knows a given fact is often a secret to which he alone has the key; but justice is not so indulgent as to encourage his throwing the key away. Applying to him the principle of common experience, it is held quite generally, even in actions at law (Van Raalte v. Harrington, 101 Mo. 602) and, for stronger reason, in equity, that from facts and circumstances which would naturally put a person of ordinary caution, in the same situation, on an inquiry reasonably leading to a knowledge of the truth, a court may justly infer and find such knowledge.” [Barrett v. Davis, 104 Mo. l. c. 561, 562.] Applying this rule it is not possible to avoid attributing to appellant knowledge of J. P. Newell’s continuing ownership, in equity at least, of the land in question. The two had been tenants in common of the land; appellant’s testimony shows clearly that Newell was trying to sell the land as his own, that he was claiming to be acting for himself in selling it and that the arrangement as to the payment of the purchase price was upon the basis of his ownership. Appellant advised his agent at Carthag’e, in effect, of this fact, and that agent had actual knowledge of the trust deed securing respondent’s note, and such knowledge “countervails the effect of registry and dispenses with it” (Gross v. Watts, 206 Mo. l. c. 395), and notice to appellant’s agent was notice to appellant. [Meier v. Blume, 80 Mo. l. c. 183, 184.]

The situation when appellant bought was therefore this: He had notice that J. P. Newell owned the land in equity and that A. G. Newell held title for him and knew that J. P. Newell had incumbered his interest for $1000, the note now owned by respondent.

IV. With knowledge of Newell’s interest and the unreleased encumbrance upon it, appellant bought the property, and, having bought with knowledge, must be held to have bought subject to that trust deed.

Respondent bought the note before maturity and for value and before the entry of satisfaction. The assignment of the note to her carried the trust deed as an incident. '

An entry of satisfaction by A. G. Newell after she assigned the note, even had such entry been made before plaintiff’s purchase, would not have protected appellant, for after assigning the note she was no longer the party entitled to execute a release. [Lee v. Clark, 89 Mo. l. c. 558, 559; Hagerman v. Sutton, 91 Mo. l. c. 533; Borgess Inv. Co. v. Vette, 142 Mo. l. c. 574; Bank v. Ins. Co., 145 Mo. l. c. 160.]

Since these cases were decided the statute concerning releases has been in some respects amended but such amendments do not affect the question in hand. One amendment provides that, in case satisfaction is sought to be entered without the production of the notes secured, it shall not be permitted until “the cestui que trust named in the mortgage or deed of trust desired to be released” and “the maker of such note or notes” or their respective legal representatives shall, respectively, make an affidavit that the note or notes* have been paid and delivered to the maker and an affidavit that the note or notes have been paid and cannot be produced because lost or destroyed. This amendment does not authorize any one to enter satisfaction who was not previously authorized to do so. It simply attempts to guard against a false release by the cestui que tru-st named in the mortgage by requiring of him and the maker affidavits which, if falsely made, subject affiants to the pains and penalties of perjury. Had the Legislature intended by this provision to authorize any one other than the lawful holder of a note to release a deed of trust or mortgage securing it., it could easily have said so. Until it does plainly say so this court ought not by strained construction torture a meaning from the statute which its language does not justify and which would practically put an end to the negotiation of notes secured by mortgages and deeds of trust except in cases in which, buyers of such notes were willing to take them at the risk of losing’ their security in case the cestui que trust and maker of the note ignorantly or fraudulently made the statutory affidavits and entered satisfaction.

In this case it seems clear A. Gr. Newell had no fraudulent intent in making the affidavit she did make, being deceived as to the facts. Further, fairness requires the statement that the examiners of the abstract are not chargeable with negligence. As the case appeared from the abstract submitted to them it fell within the rule announced in Barrett v. Baker, 136 Mo. 512. The fact distinguishing that case from this is that in this case J. .P. Newell had a real and mortgageable interest, of which appellant had notice, and in the case cited Roy had none. The fact of Newell’s interest was known to appellant but not to the attorneys who examined the abstract.

The doctrine of merger is patently inapplicable to the facts.

The judgment is affirmed.

Brown, G., concurs in the result.

PER CURIAM.

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

All the judges concur; Bond, J., in result.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    LINN COUNTY BANK v. MARY L. CLIFTON, Plaintiff in Error.
    Division One,
    December 31, 1914.
    1. WRIT OF ERROR: Title of Case. When a case comes up to the Supreme Court upon writ of error, its title runs the same as the statute (Sec. 2039, R. S. 1909) prescribes in case of appeal. The parties should not be reversed.
    2. SUFFICIENCY OF PETITION: Aided by Answer. The court cannot look to averments in the answer for the purpose of determining that the petition does not state a cause of action. The petition must stand on its own foot, and its sufficiency be determined by its own averments.
    3. -: Things Discovered After Trial. The judgment cannot be held to be iniquitous by things brought to light since it was rendered. There being no evidence, no motion for a new trial and no bill of exceptions, the sufficiency of the petition as a statement of a cause of action cannot be impeached by things discovered after judgment.
    4. -: Money Loaned on Demand: Allegation of Demand. Averments in a petition that money loaned on notes payable “on demand” is “due and unpaid” are sufficient averments of a demand, after judgment, without demurrer, and that the notes had matured. At their worst they constitute an imperfect statement of a cause of action, and in such case the rule is to aid the petition by every reasonable intendment and inference springing from the averments actually made.
    5. -: No Objection Below. In ruling on the question of whether a petition states a cause of action, it is allowable for the court to be influenced somewhat by the fact that its sufficiency was in no manner questioned’ in the trial court, either by demurrer or by objection to the introduction of testimony, and, where there is no motion for new trial or bill of exceptions, by the stiff and usual rule of appellate practice that a case must be disposed of on appeal on the same theory on which it was tried below.
    6. JURISDICTION: Untimely Filing of Amended Petition: Waiver. The jurisdiction of the court is in nowise affected by the fact that the plaintiff’s amended petition was filed out of time; besides, having entered no objection and filed no motion to strike out because the amended petition was not filed within the time permitted by the court, and having filed answer and gone to trial, defendant waived the objection of untimeliness.
    7. -: Limitation: Allowance Against Estates: Amended Petition. On appeal the special Statute of Limitations of two years as to claims against estates will not avail to oust the court of jurisdiction, where suit was brought within the two years, and the amended petition was not filed until, after the two years had expired, where, by filing an answer, the right to challenge a change or departure in the cause of action has been lost, and there is nothing to show a departure.
    8. -: -: Pleading. The two-year Statute of Limitations, as to claims presented against a decedent’s estate, to be available as a defense to a suit brought in the circuit court, must be pleaded.

      9. -: Failure to Give Bond: Lost Notes. Failure to give boncl in a suit on- lost notes does not affect jurisdiction of the cause. It is merely a condition on which judgment will go. Besides, in this case, no such bond was required, since the suit is not one on lost negotiable promissory notes.
    10. -: Special Acts: Probate Courts. The Constitution of 1875 laid an ax at the root of special legislation, and in harmony with that stroke the Legislature of 1877 felled by repeal all special acts creating probate courts in named counties, and by a general law established probate courts in all counties and in the city of St. Louis, and that general act is still live law.
    11. -: Circuit Courts: Claims Against Estates: Constitutional. Circuit 'courts in Missouri have jurisdiction to try suits against the estates of decedents, and to enter judgment therein, and to cause such judgments to be exhibited to the probate court to be classified as allowed claims against the estates and to be paid, and a bringing of the suit in the circuit court is an exhibit of the demand. Such jurisdiction has been designated by statute, and such statute was authorized by the Constitution of 1875. And not only by the consensus of the bench and bar, but by the public policy of the State, as evidenced by the body of the constitutions and statutes, it has been recognized for nearly one hundred years that circuit courts have jurisdiction of the subject-matter of trying suits seeking to establish demands against estates, and those things are of themselves entitled to great weight as a pregnant circumstance and very persuasive evidence of what the law is.
    12. -: -: -:--: Prior Interpretation. The circuit courts having prior to the adoption of the Constitution of 1875 been given jurisdiction of the subject-matter of trying suits against estates, the rule applicable to interpretation of statutes will be observed, namely, that the Constitution will not be construed as taking away such jurisdiction unless it uses express words of exclusion or repeal, or such words by necessary implication.
    13. CONSTITUTIONAL QUESTION: Decision of Court of Appeals. A decision of a Court of Appeals to the effect that a certain statute is constitutional, though rendered by a court having no jurisdiction of the point, and therefore not binding on the Supreme Court, may receive the benediction of the Supreme Court, and such ratification relates back to the original holding.
    14. VALUE OF PRECEDENTS. While courts should not follow former decisions blindly, they should not ignore them lightly. On the other hand, general language used in an opinion by the judge writing it must always be read in the light of the facts and questions held in judgment.

      Error to Linn Circuit Court. — Eon. John P. Butler, Judge.
    Affirmed.

      Frans F. Lindquist for plaintiff in error.
    (1) The circuit court of Linn county had no jurisdiction over the subject-matter of the action. Such jurisdiction is vested in the probate court. Sec. 22, art. 6, Constitution 1875; Sec. 1674, R. S. 1899; Sec. 34, art. 6, Constitution 1875; Secs. 191, 192, 1753, R. S. 1899; Mt. Olive and St. Louis Coal Co. v. Slevens, 56 Mo. App. 107; Hoffman v. Hoffman, 126 Mo. 486; Beekman v. Richardson, 150 Mo. 436; Matson & May v. Pearson, 121 Mo. App. 128; McKee v. Allen, 204 Mo. 675; Korthman v. Markson, 34 Kan. 542; Kelley’s New Missouri Probate Guide, par. 116; Pearce v. Calhoun, 59 Mo. 271; 2 Woerner’s Law of Administration, par. 392; Scott v. Royston, 223 Mo. 592; Board of Public Works v. Columbia College, 17 Wall. 531. (2) Giving of notes suspended the right to sue upon the account until demand or maturity of the notes. Steamboat Charlotte v. Bumm, 9 Mo. 66. When the old notes were cancelled and surrendered to Chapman, Clifton & Co., upon the execution of such new notes, strong presumptive evidence that the agreement of the parties was that the old notes should be extinguished. Electric Co. v. Ten Broek, 97 Mo. App. 173. The delivery of the old notes to Chapman, Clifton & Co., marked paid, when the new notes were executed, extinguished the old one. Walker v. Dun-ham, 135 Mo. App. 409. Old notes should have been filed. Sec. 643, R. S. 1899. Recovery was conditional on giving bond. No bond was given. Sec. 745, R. S. 1899; Eans v. Exchange Bank, 79 Mo. 185. Copy of notes or account sued on should have been attached to the original petition and served upon the executrix. Sec. 187, R. S. 1899; Bank v. Suman, 79 Mo. 527. Demand notes are not deemed payable until presented or demanded. Sec. 460, R. S. 1899; Johnson v. Bank, 173 Mo. 171; Tiedeman on Commercial Paper, sec. 296. (3). Action was prematurely brought. Weinwick v. Bender, 33 Mo. 80 ; McDowell v. Morgan, 33 Mo. 555; Jennings v. Zerr, 48 Mo. App. 528. No action could be maintained as upon an áccount, because the cause of action was' not due at the time. Pleard v. Ritchey, 112 Mo. 516. The petition does not state facts sufficient to constitute a cause of action against the defendant.

      Bresnehen West for defendant in error.
    (1) The circuit court had jurisdiction to render the judgment in this cause. R. S. 1909, sec. 197; R. S. 1899, sec. 191. This section has been construed so frequently and the jurisdiction of circuit courts in this regard upheld so often that the question as to their jurisdiction is no longer open to discussion. Bank v. Suman, 79 Mo. 527; Stephens v. Bernays, 119 Mo. 143; Richardson v. Palmer, 24 Mo. App. 480; State ex rel. v. Edwards, 162 Mo. 660; Stephens v. Bernays, 41 Fed. 401, 44 Fed. 642; Nichols v. Reyburn, 55 Mo. App. 1; Jamison v. Wickham, 67 Mo. App. 575; Wernse v. McPike, 100 'Mo. 486; Ziegenheim v. Tittmann, 103 Mo. 566; Watson & May v. Pearson, 121 Mo. App. 135; Gewe v. Hanszen, 85 Mo. App. 136. (2) This suit is against the executrix of the estate of W. H. Clifton, deceased, to recover money loaned to the partnership firm of Chapman, Clifton & Co., while said W. H. Clifton was a member of the firm. It is not a suit upon the notes given for the various loans that were made, but rather to recover the loans as evidence of which the notes were given. After the retirement of Clifton from the firm and after his death the notes were renewed by the surviving partners in the firm name, and the old notes were cancelled and delivered np to said firm. It is elementary law that the acceptance of a note does not extinguish the debt for which it was given unless such was the intention of the parties at the time. Steamboat Charlotte v. Hammond, 9 Mo. 59; McMurray v. Taylor, 30 Mo. 263; Doebling v. Loos, 45 Mo. 150; Powell v. Charless, 34 Mo. 485; Reyburn v. Mitchell, 106 Mo. 1. c. 379; Keyser v. Hinkle, 127 Mo. App. 76. The fact that one- of the original debtors was deceased at the time the renewal notes were given makes no difference. Unless the parties agreed that the acceptance of the note should have the effect of extinguishing the debt the original debt would continue to exist. Powell v. Charless, 34 Mo. 485; Savings Institution v. Mead, 52 Mo. 543. The question of whether or not the parties did so agree was one of fact for the trial court, and the determination of that question by that court is final. (3) The suit was brought before the two years period of limitations had expired, and the amended petition did not change the cause of action. Under these circumstances it cannot be said that the plaintiff’s claim is barred by the administration Statute of Limitations. Gewe v. Hans-zen, 85 Mo. App. 136. (4) Where the deceased was one of the original debtors no case has held that demand, protest and notice are necessary to bind him. Leabe v. Goode, 67 Mo. 126; Ridgley v. Robertson, Mo. App. 45.
   LAMM, J.

This cause was sent and docketed here under a reversed title. We reconstruct the title by transposition as above to agree with our usage and avoid confusion in our reports. When a case comes up on error, by present usage here the title runs the same as the statute prescribes on appeal. [R. S. 1909, sec. 2039.] So, when a defendant is plaintiff in error, it has been found that the word “defendant” creeps by slip into our opinions in a double sense; hence, for convenience and to avoid confusion, throughout this opinion we will use the term plaintiff for “defendant in error” and the term defendant for “plaintiff in error.”

The record shows that in the years 1904, ’05, ’06, one W. II. Clifton was a member of a firm of merchants in business at Brookfield, Missouri, under the style of Chapman, Clifton & Co. At a certain time Clifton retired and the remaining partners continued business under the old firm style. Subsequently, to-wit, on the last day of April, 1907, Clifton died testate and some time thereafter his widow, the defendant, Mary L. Clifton, was duly appointed executrix of his will and thereupon took upon herself the burden of administration. Thereafter, on June 3, 1909, plaintiff bank sued her as executrix for money had and received by the firm on sundry dates prior to the retirement of her husband. On the next day summons was served. This was within the two years allowed for the exhibition of claims. On October 8, 1909, leave was granted plaintiff to file an amended petition in forty-five days. Out of time, to-wit, in the ensuing February, such petition was filed in five counts. We infer this was beyond the two years for the exhibition of claims. Without objection on the part of defendant or motion to strike out because filed out of time, or because of a departure, presently an answer was filed making certain admissions and denials and pleading new matter deemed to constitute a defense. A reply coming in, the cause was at issue on the facts and merits, and at a trial to the court without the aid of .a jury judgment went for plaintiff bank for $4287.71 and costs. No motion for a new trial or in arrest or bill of exceptions was filed, but within a year thereafter defendant sued out a writ of error in the Kansas City Court of Appeals. That court certified the case here on a constitutional point and here it is on the record proper.

At bottom the questions are two, viz.: (1) Does tbe petition state facts sufficient to constitute a cause of action? (2) Did the circuit court of Linn county have jurisdiction of tbe subject-matter?

Sufficient further summary of tbe record to pass on those two questions understandingly will appear in tbe body of tbe opinion.

I. Of the petition, (a) Tbe petition alleges, inter alia, that when tbe money -sued for came into tbe bands of tbe firm of Chapman, Clifton & Co. during tbe time testatrix’s decedent was a member, notes were taken as evidence of tbe indebtedness, which were renewed from time to time and part payments were made thereon. At such times as these renewals were made tbe then outstanding notes were surrendered to the firm and tbe last series of notes given in renewal were brought in and tendered to defendant. By her answer she pleaded, inter alia, that after her husband died the firm of Chapman, Clifton & Co., as it then existed, went into bankruptcy and these identical notes were allowed against tbe bankrupt estate in tbe Federal court having jurisdiction of tbe bankruptcy proceeding; that plaintiff bank received dividends thereon, Clifton not. being a member of tbe firm at tbe time and tbe notes having been renewed by tbe firm after her husband’s retirement; she pleaded tbe allowance in bankruptcy, as we construe it, by way of estoppel, or else by way of conclusive evidence that tbe plaintiff bad accepted tbe new notes in full discharge of tbe old notes on which her husband was bound as a member of tbe firm. Be it one way or tbe other, issue was taken on these averments by tbe reply, and tbe court found against her on tbe issue so raised. In this state of tbe record we are asked to consider tbe matter pleaded in her answer, and to determine that tbe court erred in its finding on tbe issue. But such argument avails nothing; for not only have we no evideuce here, absent a bill of exceptions, but the determinative question in hand strikes only at the sufficiency of the petition. To determine the sufficiency of a petition on the averments of an answer is not a rule of decision of this court known to us. We are cited to no case and it is probable on principle that none could possibly exist sustaining the line of argument advanced by learned counsel. A petition stands on its own foot. It is bad or good in law by its own four corners. We may not look to the answer to adjudg-e the sufficiency of the petition in stating a cause of action.

(b) It is argued further that the judgment is iniquitous and that certain elaborately mentioned things, brought to light (it is said) since the judgment was rendered, establish its iniquity. If reason be the life of the law, then, what is said' in the former paragraph applies here. None of those things are before us on a writ of error on this record, and if they were they are logically disconnected from the question of the sufficiency of the petition. Accordingly we put them away from us.

(c) It is argued that by taking notes and renewing them the cause of action on the original consideration, as for money had and received, was suspended until the maturity of the last renewal notes. Therefore, it is said, the suit was prematurely brought, that the petition should have shown by proper allegation that the notes had matured. As to that we say: Assuming for the nonce that the petition should have contained such an allegation or an equivalent one, and assuming, for the purposes of this case only, that absent a demurrer to the petition and present an imnlied admission below that the petition was good in that particular, as here, the point is'still open, yet we cannot allow the petition bad on inspection because of such alleged infirmity. The argument runs on the theory that these renewal notes and all the notes were payable “on demand;” that, therefore, the notes did not mature until suela demand. Hence, a “demand” should have been averred. Now, the petition does contain averments that the various balances claimed are due and imp aid. After judgment we think the averment is sufficient. It is not too far a cry to say that if demand is necessary to make money due, an allegation that the money is due is impliedly an allegation of demand by way of inference. We have been so lately over the question in Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. l. c. 702 et seq., that further exposition is waste time and space. At the very worst it was the imperfect statement of a cause of action, and the rule of decision in this jurisdiction is to liberally aid the petition by every reasonable intendment and inference springing from the averments actually made. The strong presumptions are that the judgment was correct, that the court proceeded by right and not by wrong. Hence, on such bare record as we have here, we must assume that court heard evidence sufficient to found the judgment upon and to sustain it after its rendition.

(d) As we understand the brief of learned counsel for defendant, other specifications of error, though of a double aspect, group themselves more naturally under the head of jurisdiction.

The premises considered we rule the petition stated a cause of action. In making this ruling we are somewhat influenced by the fact that the question of the sufficiency of the petition was in no manner raised below either by demurrer or by objection to the introduction of testimony on that ground. Had defendant at a late day, to-wit, after answer and when the issues were made up, raised below the point of the sufficiency of the petition for the first time at the trial, she would even then have subjected herself to the criticism of this court, often and often administered (see the Kuhlmann case, supra, and authorities cited), that such practice is not favored and smacks of lying in wait. Much more should the practice be looked upon with disfavor when defendant stood by and suffered judgment and then, without a motion for a new trial or in arrest; seeks to overturn a solemn judgment, rendered on due trial, by injecting such question for the first time in the appellate court. Some force and effect, too, must be allowed to the stiff and useful rule of appellate practice that a case must be tried above on the same theory it was tried below — else we would here try a different ease than was tried there and reverse judgments on points on which no exception was taken, nisi prints— this, in the face of the statute in that behalf made and provided.

II. Of jurisdiction.

(a) Complaint is made that the amended petition was filed out of time. It is quite out of the question to perceive how that fact in anywise affects the jurisdiction of the court.; nor do we perceive how defendant, having entered no objection or filed no motion to strike out, is in a position to avail herself of the point, nor how she could complain of the fact after filing answer and going to trial. The right doctrine is that such objection is waived by answering.

(b) But the complaint in hand has another angle, to-wit, that the special Statute of Limitations of two years, in force as to claims against estates at the time this suit was brought, ousted the court of jurisdiction of the claims set up in the amended petition. As to that we say: There is no substance in the point at all, as we view it. In the first place it has bee'n ruled that one of the purposes of our liberal statutes on the allowance of amendments is to toll the Statute of Limitationsi [Walker v. Railroad, 193 Mo. l. c. 474-5 and ante.] Moreover, where, as here, there is nothing to show that defendant objected to the amended petition, and where, as here, by filing an answer the right to challenge a change in a canse of action, if any (i. e., a departure), has been lost (Liese v. Meyer, 143 Mo. l. c. 556, and supra), and where, as here, there is nothing to show there was in fact any change in the cause of action, we cannot allow substance to the contention. Neither did defendant in her answer plead the Statute of Limitations, a fatal infirmity. Not in the case below, it is not in the case above for any purpose.

Furthermore, may defendant argue with one breath-the case was prematurely brought and with the next argue it was brought too late? Hardly.

(c) It is argued there was no jurisdiction, because (it is said) the record shows plaintiff gave no indemnifying bond under the sections 1983 and 1984, Revised Statutes 1909, relating to suits on lost negotiable promissory notes. As to that we say: This is not a suit on lost negotiable promissory notes, hence the statute has no application. Moreover, if one was required (as it is not) a failure to give a bond, if one was not given, does not affect jurisdiction of the cause. It is merely a condition on which judgment will go. Furthermore, as judgment did go, we would assume in aid of regularity on the kind of a record we have here that the condition was complied with, absent a showing to the contrary.

We rule this point, also, against defendant and put our ruling on the authority of cases collected in the foot note to section 1984, Revised Statutes 1909 (quod vide).

(d) With the above questions at rest, we come to defendant’s main insistence, to-wit, that circuit courts in' Missouri are without jurisdiction to try suits at law involving claims against estates, but that jurisdiction exists exclusively in probate courts under our Constitution. Learned counsel for defendant asserts the point is new and novel, admits that at the trial below he made no such point, because he then lay under the spell of an error, common up to that time to the whole bar and all the courts of Missouri, to-wit, that circuit courts had jurisdiction in suits against administrators and executors to establish claims against estates. It is wholly irrelevant to the issue to stop to inquire (as' bruited by counsel on both sides) whether the contention of defendant’s learned counsel is a “new discovery” or “invention,” or whether it is an old heresy long since exploded. Be it one or the other the proposition cannot be allowed to defendant as sound, because:

(1) The twenty-third G-eneral Assembly, Laws 1865-6, p. 83, enacted a special law establishing “probate courts” in Linn and twenty-six other named counties. These courts were given “concurrent” jurisdiction with circuit courts in certain named instances, immaterial here, and “original” and “exclusive” jurisdiction in specified matters, one of which is “to hear and determine- all suits and other proceedings instituted against executors and administrators, upon any demand against the estate of their testator or intestate, subject to appeals.”

Something is made by counsel of this act and of adjudications on it; but that line of argument avails nothing. The act is no longer law and doctrines of the case, construing it have been burned up by the legislative torch. Sprinkled here and there over Missouri were other probate courts created by special acts, and special courts that were given probate jurisdiction, by special acts, so that at the time of the Constitutional Convention in 1875 there was a patchwork of courts having probate jurisdiction — a jurisdiction resting chiefly in county courts up to that time. The demoralizing effect of special legislation, not only on the lawmaker but on the people, was so manifest that the Constitution of 1875 laid an ax at the root of the evil, and presently much of the former special legislation was swept away and with these exploded acts fell by repeal all special acts creating probate courts in named counties. [Laws 1877, p. 232, seo. 20.] So that we pass to an examination of existing laws.

(2) In 1877 the General' Assembly (Laws 1877, p. 229 et seq.) enacted a general law establishing probate courts in all counties and in the city of St. Louis. This Act of 1877, as far as material to this suit, has been brought forward in the various revisions of our statutes and is now live law, appearing as article 4, chapter 35, Revised Statutes 1909, under the title of “Courts of Record;” subtitle, “Probate Courts”— section 4056, Revised Statutes 1909,.reading:

“Said court shall have jurisdiction over all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators and guardians, and the sale or leasing of lands by administrators, curators and guardians, and over all matters relating to apprentices ; and such judges shall have the power to solemnize marriages.”

Notice that the foregoing statute is but the legislation necessary to put into effect the constitutional provision we will refer to further on.

The Constitution prescribes that circuit courts “shall have . . . such concurrent jurisdiction with and appellate jurisdiction from inferior tribunals and justices of the peace as is or may be provided by law.” [Constitution, sec. 22, art. 6.] Turning to section 34 of the same article of the Constitution, it empowers the Legislature to establish a probate court in every county and a uniform system. It then goes on (and, observe, by pretermitting the use of all such words as original, concurrent or exclusive) to prescribe the same jurisdiction for probate courts, employing therefor the same significant and carefully selected words as the Act of 1877 (vide section 4056, supra), which latter section is, in turn, but necessary legislation carrying the Constitution . into effect as above noticed.

Now, by section 23, article 6, of the Constitution the circuit court is given superintending control over “probate courts, county courts, municipal corporation courts, justices of the peace, and all inferior tribunals in each county in their respective circuits.” The phrase, “inferior tribunals,” evidently is used to cover probate courts as in section 22, article 6, of the Constitution, which gives the circuit court such concurrent jurisdiction with, them as “may be provided by law.” This phrase, “as may be provided by law,” is of main significance as we shall soon see; for turning again to the statutes, we find by section 192, Revised Statutes 1909, that all actions by law surviving against the executor or administrator, pending against any person at the time of his death (i. e., in the circuit court), shall be considered demands legally exhibited from the time such action shall be revived. The next section (193) prescribes that actions commenced against an executor or administrator after the death of “the deceased” shall be considered demands legally exhibited, etc. The statute then goes on in other sections to prescribe how demands may be legally exhibited where the claim is adjudged in the probate court and not in the circuit court. Finally, closer home to the point, by section 197 it is ordained that “any person having a demand against an estate may establish the same by the judgment or decree of some court of record, in the ordinary course of proceeding, and exhibit a copy of such judgment or decree,” etc., to the probate court. Then by section 214 it is ordained “that if any judgment of a court of record be filed in said court (i. e., in the probate court) . . . such court shall determine its class,” etc.

In the exposition of the statutory and constitutional scheme thus outlined, it will do to say that it is part and parcel of the common knowledge of Missouri-made law that, beginning almost with its admission to the Union, it has been the uniform and consistent general public policy of the State to allow suits against administrators and executors (to establish claims against estates) to be prosecuted in courts of record other than probate courts “in accordance with the ordinary course of proceeding.” [Vide, Vol. 1, R. S. 1825, p. 113, secs. 52-3; R. S. 1835, p. 56, sec. 7; R. S. 1845, p. 92, sec. 7; R. S. 1855, p. 153, sec. 8; G. S. 1865, р. 502, sec. 8; R. S. 1879, sec. 191; R. S. 1889, sec. 190; R. S. 1899, sec. 191; R. S. 1909, sec. 197, supra.]

Qf course, from the above category we eliminate special acts giving special jurisdiction to this or that court having probate jurisdiction, which acts are no longer in force, and we take no note of inapplicable general laws, if any, limiting concurrent jurisdiction in the matter of mere amount.

Not only was such public policy evidenced as above, but it was evidenced by a uniform rule of decision in appellate courts. So that it is not too much to say that by a concensus of opinion of bench and bar, it was also recognized for nearly one hundred years that the public policy of this State, as evidenced by the foregoing parts of the body of its statutes and constitutions, gave jurisdiction of the subject-matter in hand to the various circuit courts not only before the Constitution of 1875, but after the adoption of that Constitution and the adoption of the legislation necessary to carry it into effect. This venerable aggregation of wisdom in the line of uniform construction, presently reinforced by a wealth of authority as well as by the uniform legislation above noticed, is entitled to great weight as a “pregnant circumstance and very good evidence of what the law is,” precisely as we have written time and again. [Vide, Venable v. Railroad, 112 Mo. l. c. 125, and cases following its pronouncement.]

Moreover, when the Convention of 1875 met it found this public policy in existence and to be reckoned with. Accordingly, we stress the point that when it drafted .its Constitution, it carefully omitted using all or any words earmarking an intention to change the public policy of the State or to put in probate courts exclusive jurisdiction in the matter of allowing claims. So, it just as carefully gave circuit courts such concurrent jurisdiction with “inferior tribunals,” “as is or may be provided by law.” In this condition of things the rule of law applicable to statutes is applicable here, to-wit, that when the circuit court had been given jurisdiction prior to the adoption of the Constitution of 1875, then, that instrument will not be construed as. taking it away unless it uses express words of exclusion or repeal, or such words by necessary implication, neither of which it does. [Tackett v. Vogler, 85 Mo. l. c. 483.]

Said Philips, P. J., in Richardson v. Palmer, 24 Mo. App. 480, in speaking for the Kansas City Court of Appeals to the point in hand:

“It is objected that the circuit court had no jurisdiction of this action as, by the Constitution, section 34, article 6, exclusive jurisdiction over the subject-matter is vested in the courts of probate. The language of the organic act relied on is, that: ‘ Said court shall have jurisdiction over all matters pertaining to probate business.’
“It had, long prior to the adoption of this Constitution, been recognized in practice and by statute, as of the customary jurisdiction of the circuit courts to entertain suits against administrators for the establishment, in the first instance, of demands against estates under administration. Express authority to this end was conferred on the circuit courts by statute, at an early date, which has been continued in every revision up to 1879. [See Sec. 191, R. S. 1879.]
“Had it been the purpose of the framers of the Constitution to accomplish so important and radical a change in practice, as contended for by appellants, it would have been done in explicit terms, and not left to mere implication. [Humes v. Railroad, 82 Mo. 221.]
“Where a court has possessed and exercised jurisdiction over a subject-matter, even if it were conceded that such jurisdiction was conferred over it on another court by a subsequent law, such fact would not oust the jurisdiction of the first court, without the employment in the latter enactment of words of exclusion, in the absence of any repealing clause. Concurrent jurisdiction over the subject-matter is not unusual in the two courts. [Tackett v. Vogler, 85 Mo. 480; Purdy v. Gault, 19 Mo. App. 191; Baptist Church v. Robberson, 71 Mo. 326.] The objection to the jurisdiction'is overruled. ’ ’

Finally, if it be objected that the Supreme Court is not bound by the decision in Richardson v. Palmer, for that the court making it had no jurisdiction to finally determine the constitutional question it did determine, to-wit, whether section 197, Revised Statutes 1909, is constitutional, it will be only necessary to point out that the exposition'of the law by that learned court on the point has the benediction and vise of this court. Such ratification relates back to the original holding and malíes it controlling on us, thus: In State ex rel. Ziegenhein v. Tittmann, 103 Mo. l. c. 566 et seq., spealdng to the same question, we said: “On this point we approve the conclusion reached by, as well as the reasoning of, Judge Philips in the case of Richardson v. Palmer, 24 Mo. App. 480. He declared the law as it is and as it ought to be.”

In leaving the question we make this further observation: The question is far from new. Contra, it has been approached from more angles than one in the appellate courts, and, as already stated, in an unbroken line of cases (in some, by direct adjudication; in others, by the reasoning employed; in yet others, by a mere assumption of the fact) the jurisdiction of the circuit court has been sustained in the allowance of a claim against an estate by suit, the judgment to be certified to the probate court for classification and payment, and no execution being allowed from the circuit court. Witness: Ryans v. Boogher, 169 Mo. l. c. 683, post and ante; Madison County Bank v. Suman’s Admr., 79 Mo. 527; Cole County v, Dallmeyer, 101 Mo. l. c. 64; Wernse v. McPike, Admr., 100 Mo. 476; State ex rel. v. Edwards, 162 Mo. l. c. 666; Stephens v. Bernays, 119 Mo. 143; Nichols v. Reyburn, 55 Mo. App. 1; Jamison, Admr., v. Wickham, Admr., 67 Mo. App. 575; Matson & May v. Pearson, 121 Mo. App. l. c. 134-5; Gewe v. Hanszen, 85 Mo. App. 136; Wabash Ry. Co. v. Ordelheide, 88 Mo. App. l. c. 593; Church v. Church, 73 Mo. App. l. c. 424.

It has been said that precedents are valuable the same as history, the same as experience, agreeable to the precepts, that two heads of equal caliber know more than one head; there is more wisdom in the many than in the few. So that while no court should follow them blindly, yet no court should ignore them lightly.

The decisions of other States (for example, Kansas) industriously collated and relied on by learned counsel for defendant, construing constitutions and statutes somewhat differently worded than ours, ought not to control us, as they evidence a different public policy.

So, too, the general language from some of our own decisions, stoutly relied on by defendant, is not in point. Such language used in a case, by the judge writing it, must always be read and construed in the light of the facts and questions actually held in judgment. [State ex rel. Bixby v. St. Louis, 241 Mo. l. c. 238 et seq.]

The premises considered, we may not overturn the landmarks of the law; nor can we very well follow the lead suggested by the ingenious counsel for defendant. Speaking in figure of speech, we fear his eyes were washed and preternaturally brightened by tears of affliction springing from defeat nisi; and that lie raises the point by force of distress and because no other was left to him, absent a bill of exceptions.

The precept of the fireside, taught long ago at the mother’s knee, announced that drowning men catch at straws. We put this forward as a mild and good humoured view, to shield us a bit from the serious charge fulminated in defendant’s brief against plaintiff’s counsel, to-wit: ‘ ‘ That history repeats itself, from Columbus down to Newton, Fulton, Franklin and Ericson, et al., that the inventor of, or believer in, any new idea should be ridiculed.”

Let the judgment be affirmed. It is so ordered.

All concur.


author: WOODSON, P. J.

text:
    ANNIE GOODALE et al., Appellants, v. LEAH J. EVANS et al.
    Division One,
    December 31, 1914.
    1. WITNESS: Competency: Resulting Trust: One Party Dead. For the purpose of establishing a resulting trust in herself, a widow is not competent to testify that she furnished the purchase money for land conveyed to her deceased husband by a deceased grantor.
    2. CONVEYANCE: Effective Upon Grantor’s Death: Void. A deed to take effect upon the grantor’s death is testamentary in character and void; and a deed which in the habendum clause says, “To have and to hold the premises . . . from and after the death of him the said” grantor, and that the grantee is to “have and hold the premises from and after his death” is such a deed.
    Appeal from Macon Circuit Court. — Ho». Nat M Shelton, Judge.
    EeVERSED AND REMANDED'.

      Waldo Edwards and Ed. 8. Jones for appellants.
    (1) The purported deed through which defendants claim title being limited by its terms to take effect on the death of the grantor, is testamentary in' character and, not being executed according to the requirements of law for the execution of a will, it is invalid as such. Miller v. Plolt, 68 Mo. 584; Murphy v. Gabbert, 166 Mo. 576; Chew v. Kellar, 171 Mo. 215; Griffin v. McIntosh, 176 Mo. 398; Aldridge v. Aldridge, 202 Mo. 572; Givens v. Ott, 222 Mo. 411; Terry v. Glover, 235 Mo. 544; Jordan' v. Jordan, 65 Ala. 301; Pink-ham v. Pinkham, 55 Neb. 729; Carlton v. Cameron, 54 Tex. 72;'Leaver v. Gauss, 62 Iowa, 314; Turner v. Scott, 51 Pa. St. 126; Cunningham v. Davis, 62 Miss. 366; Donald v. Nesbitt, 89 Ga. 290. The controlling canon for the construction of deeds is to ascertain the meaning of the maker from the words he uses in the light of the circumstances which surrounded, attended and waited upon his use of them. Aldridge v. Aldridge, 202 Mo. 572; Long v. Timms, 107 Mo. 512; Speed v. Railroad, 163 Mo. 111. The court should place itself in the place of the maker and read the deed in the light of all the circumstances under which it was made. Speed v. Railroad, 163 Mo. Ill; Murphy v. Carlin, 113. Mo. 117. (2) The ten-year Statute of Limitations does not run against a married woman. Reed v. Painter, 145 Mo. 341; Real Estate Co. v. Lindell, 142 Mo. 62; Rutter v. Carothers, 122 S. W. 1056; Rosenberger v. Mallerson, 92 Mo. App. 27; Linek v. Yorhauer, 104 Mo. App. 373; Linville v. Greer, 165 Mo. 380. (3) Defendants’ evidence does not establish a resulting trust in premises in controversy in favor of the widow of Hopkins Evans. . Reed v. Speery, 193 Mo. 167; Brinkman v. Sunken, 174 Mo. 709; Viers v. Yiers, 175 Mo. 444; Crawford v. Jones, 163 Mo. 577. Defendants ’ attempt to establish trust is barred by Statute of Limitations. Reed v. Painter, 145 Mo. 341; Cantwell v. Crawley, 188 Mo. 44; Bradshaw v. Yates, 67 Mo. 221; Kelly v. Hunt, 61 Mo. 463. A writing to be good as a deed should pass a present interest in the property sought to be conveyed. "Where it becomes operative, or takes effect upon the death of the maker, it is testamentary in character and void as a deed. Miller v. Holt, 68 Mo. 584; Murphy v. Gabbert, 166 Mo. 576 ; Aldridge v. Aldridge, 202 Mo. 572; Givens v. Ott, 222 Mo. 411; Terry v. Glover, 235 Mo. 544.

      R. S. Matthews, Otho F. Matthews and G. F. Hole for respondents.
    (1) The real estate in question was bought and paid for by defendant Leah J. Evans, with her own separate estate and money. Under the statutes the husband could not appropriate the property or money of his wife, without her consent in writing. Sec. 3296, R. S. 1879. In equity the property in question is the property of Leah J. Evans. (2) The real estate in question, by the deed of Hopkins Eivans, made in 1890, divides the property into two parts. A homestead was established on that part of the lot that was to go to the children of Lizzie and David W. Jones, which homestead consisted of eight rooms and was of equal or greater value than fifteen hundred dollars. The other part of the tract of land was turned over to Leah Evans Brush who has occupied it for more than fifteen years before the beginning of the suit in this case and she has made improvements upon it to the value of $900. These plaintiffs and appellants should be estopped from making any claims to either part of said lot. (3) “A marked distinction between a testamentary deed and an ordinary conveyance is that the maker may at any time prior to his death revoke the former, but he cannot revoke the latter.” (4) The law favors vested estates, and estates created by written instruments will be held to vest at the earliest possible period unless a contrary intention is clearly manifest in the grant. “And where the deed created a present vested life estate, bnt postpones the right of enjoyment to grantor’s death with no power in him of revocation, it will not be held to be testamentary. ’ ’ (5) A deed creating a freehold estate in futuro, that is, a contingent estate, per autre vie, without creating at the same time and by the same deed or instrument a particular estate to support it, may be valid. The common law applicable to ancient feudal tenures, and the restrictive effects of such laws upon alienation of real property are no longer applicable in this State. O’Day v. Meadows, 194 Mo. 588; Buxton v. Koeger, 219 Mo. 224; R. S. 1899, sec. 900; Dozier v. Tolson, 180 Mo. 552. The statutes above referred to make an estate of freehold to commence in ftoturo by deed as well as will. Tindell v. Tindell, 167 Mo. 218. The rule of construction is the intent of the papers evidenced by the instrument itself to govern the construction. Davis v. Hess, 103 Mo. 31; McCullough v. Holmes, 111 Mo. 445; Utter v. Sidman, 170 Mo. 293.
   WOODSON, P. J.

This action was brought in two counts, in the circuit court of Macon county, by the plaintiffs against' the defendants, to determine title to acertain house and lot in Bevier, of that county.

The first count was based upon old section 650, Revised Statutes 1899, as amended in 1909, Laws 1909, page 343, now section 2535, Revised Statutes 1909; and the second count was for the partition of the property. Both counts were in conventional form and need no further consideration.

The answer was:

First. .• A general denial.

Second. A plea of title in the defendants by deed.

Third. That the action was barred by the ten, twenty-four and thirty-year Statute of Limitations.

Fourth. That the premises in question were purchased and paid for by the defendant, Leah J. Evans out of her separate estate, and that she was by the right of said purchase the owner of a resulting trust in and to said property, and prayed for a decree establishing and awarding her that right.

The reply was a general denial, and a plea of the Statutes of Limitations against defendants’ claiming a resulting trust.

The common source of title was Hopldns Evans, who died intestate in Macon county, on December 12, 1892, leaving his widow, Leah J. Evans, and one daughter, Annie G-ooclale; a grandson, Albert R. Davis; and two granddaughters, Mary L. Jones and Anna 0. Jones, the sole surviving blood kin to said Hopkins Evans.

Prior to his death, said Hopkins Evans executed a deed purporting to convey the premises in controversy to said Leah J. Evans, which was in words and figures as follows:

“Know all men by these presents that for and in consideration of one hundred dollars, and other good and valuable considerations thereto moving, the undersigned, Hopkins Evans of the county of Macon and State of Missouri, party of the first part, has this day granted, bargained and sold and by these presents do hereby grant, bargain and sell unto Leah J. Evans, of said county and State, party of the second part, wife of the said party, the following described real estate, lying and situate in the county of Macon and State of Missouri, to-wit:
“All of out lot number twenty-eight in the town or village of Bevier in the county and State aforesaid, as the same is laid out, platted and recorded in the proper office in said county, reserving all coal and other minerals thereunder with the right to enter and remove the same at pleasure.
“To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging from and after the death of him the said Hopkins Evans, party of the first part, for and during the natural life of her, the said Leah J. Evans, party of the second part, remainder in fee as follows, to-wit: sixty feet by eighty feet in the southwest corner of said lot to- Leah J. Evans, daughter of John A. Evans and granddaughter of said Leah Evans, and more particularly described as follows: beginning at the southwest corner of said lot twenty-eight, and running thence sixty feet east, thence north eighty feet, thence west sixty feet, thence south eighty feet to the place of beginning: And all the rest and remainder of said lot and premises to the children of Lizzie and David W. Jones, grandchildren of her and said Leah J. Evans, said party of the second part, in equal parts, share and share alike.
“If the said party of the first part shall survive the said Leah J. Evans, party of the second part, then the children and parties above mentioned and described as remaindermen and holders of said premises, after the death of said second party, shall take, have and hold said described lot and premises, and their respective parts, shares and interests therein as above set forth, in fee, from and after the death of him the said Hopkins Evans, party of the first part.
“It is the intention of the grantor by this deed to convey said property to said Leah J. Evans for life, to take effect on the death of the grantor and after her death and after the death' of him (if he should survive her), the property to go to and vest in her grandchildren named in the deed, the said Leah Evans to have and to hold said parcel of sixty by eighty feet in the southwest corner of said lot, fronting on Hunt street, and the children of Lizzie and David "W. Jones to have and to hold all the rest, and remainder of said lot.
“In witness whereof the said party of the first part has hereto set his hand and seal on this 11th day of August, A. I). 1890.
“Hopkins Evans. (Seal)”

This deed was duly acknowledged and recorded.

This deed" was introduced in evidence over the objections of the plaintiffs.

The property in controversy was the homestead of the deceased Hopkins Evans, and was worth the sum of $1500 or more at the time of the execution of the foregoing .deed.

There was about two and three-quarters of an acre in the original tract, purchased by Hopkins Evans and his wife, from William Harvard on April 30, 1885, for which she paid out of her separate means $300', and the balance, some $500, was paid, as testified to, by Leah J. Evans, in the following manner:

“Q. Where did the other money come from? A. Well, I paid part of it as we saved it and made it; as we went along we paid it.
“Q. The balance of the money? A. But I have paid altogether $800 on the place. ’ ’
She. also testified, as follows, regarding the execution of said deed, viz.:
“By the Court: Q. Why was it made to your
husband instead of to you? A. William Harvard is not living, or I could tell you.
“Q. Do you know why? A. I know, yes, sir. I was sick at the time and Mr. Harvard was there wanting payment, and Mr. Evans wanted to give him a mortgage, and I said, ‘Well, Mr. Evans, I am not able to go with you, but if you will have'a deed drawn up in my name I will give the money and I will help to pay for it along until it is all paid.’ ‘ Oh, yes,’ he said, ‘of course I wouldn’t make it out any other way. Of course I will have it made in your name.’ When he brought the deed to me and I looked at it, I says, ‘Mr. Evans, you haven’t done as you agreed to. Tou agreed to have it drawn in my name because I furnished the money,’ ‘Well, it is all the same,’ he says, ‘ don’t make a bit of difference; it will be all the same. ’ And he put me off, but I felt awful at the time and cried over it because it was my poor mother’s money.
“Q. What did he say, if anything, at that time about deeding it to you? A. Well, he told me he was going to make it all right with me, and ‘first time I go to Macon,’ he said, ‘I will see Dysart and I will have Dysart make a deed out to you. Tou shall have it; I am not going to deceive you. Tou shall have it in your own name.’ But we did differ a little about how we would make it out. I wanted it made, because I had money in it, to my daughter. I only have one daughter, and this granddaughter, because we raised her and she always worked for us, and my daughter had rdways worked for us until she was married, and I told him I thought she was entitled to what I had. Pie says, ‘I must let them other children have it, the children that has been born in the house with me; I cannot give them up; I must let them have some of it. ’
“Q. That is your daughter’s children here? A. Tes, sir.
“Q. These defendants? A. Tes, sir. I says, ‘Supposing you deed the whole place between my daughter and granddaughter and my daughter will do all right with her children, ’ He says, ‘ She might use up the money and the little girls not have it,’ He says, ‘I can’t come any nearer than deed it to them children.’ I says, ‘If you won’t do any better, I will have to give in, but they are. my grandchildren, but are not as dear as my own child, but if you are determined the children must have something I will have to give in.’ And that was the way it was.
“ Q. Tou may tell the court where you lived from the time the deed was made until Mr. Evans died. A. In our own house.
“Q. On this place? A. Yes, sir.
“Q. Who built that house? A. Mr. Newton.
“By Mr. Jones: Before you get into that, first we want to object to any testimony with reference to what was said or done immediately, as she testifies after this deed was made by William Harvard to Hopkins Evans, for the reason, as I so stated awhile ago, it is an act to establish a resulting trust in this party, and for the further reason that the party to this deed which they have attempted to introduce in evidence is dead, the party to the alleged contract is dead, and the mouths of the other parties to the contract are closed under the rules of evidence. We move that testimony be stricken from the record.
“By the Court: This witness is only competent for one purpose. This isn’t a transaction — it don't involve the original transaction between her and her husband; it involves the transaction between her husband and Harvard, and the courts have recently decided in two cases that in a case of that character, where the wife is seeking to charge a resulting trust, she is a competent witness for the purpose of showing she paid the money and the husband took the title in himself. She is a competent witness for that purpose and that only, because it isn’t a transaction between her and her husband; it isn’t a transaction between her and a dead person; it is a transaction between her husband and another party.
“We lived on the place ever since we purchased it and it is worth $1500; that is, the house and the lot on which it stood.”

By reading the deed of Hopkins Evans made in 1890, it will be seen that it divided the original lot into two parts; one sixty by eighty feet was conveyed to Leah Evans, now the defendant, Leah Brush; and the other tract was conveyed to children of Lizzie and David W. Jones, after the death of said Leah J. Evans.

A homestead was established on that part of the lot conveyed to the Jones children, which consisted of an eight-room house and was' worth some $1500.

The tract conveyed to Leah Evans Brush had been occupied by her for more than fifteen years prior to the institution of this suit; and she had made valuable and lasting improvements on it, amounting to $900 to $1000.

Both William Harvard and Hopkins Evans, grantor and grantee in the deed of April 30, 1885, were dead at the time Leah J. Evans testified.

I. The first legal proposition presented for determination is, was Mrs. Leah J. Evans, the widow of Hopkins Evans, a competent witness to testify regarding the execution of the deed of 1885, from William Harvard to her husband, Hopkins Evans; and the deed of August 11, 1890, from Hopkins Evans to her, his wife, Leah J. Evans, heretofore set out in the statement of the case ?

The trial court in ruling upon the question of the admissibility of that evidence, said that her testimony was only admissible to show that Mrs. Leah J. Evans had out of her own separate means, paid the purchase price of said real estate to William Harvard, and thereby, by inference, and subsequently in' express terms, seated that all of her testimony was ruled out except for the purpose of showing that she, the wife of Hopkins Evans, had paid the purchase money of said land to said Harvard.

This evidence of. course was admitted for the purpose of throwing light upon the meaning of the deed of August 11, 1890, from Hopkins Evans to his wife, Leah J. Evans.

The learned trial court also stated that the courts, in two recent cases, had held that this witness’s testimony was admissible for the purpose mentioned, but counsel for respondents has not favored this court with a citation of those cases; and after a careful research I have been unable to find them, without the case of Bradley v. West, 68 Mo. 69, is one of them, and of the type of the other.

That case squarely holds that the death of the grantor does not render the grantee incompetent to testify in relation to the execution of a deed, when the question arises in a suit between the grantee and a stranger to the deed. That case, however, was in express terms overruled in the subsequent case of Chapman v. Dougherty, 87 Mo. 617; and the latter case has been affirmed many times since. [Weiermueller v. Scullin, 203 Mo. 466; Bishop v. Brittain Inv. Co., 229 Mo. 699, l. c. 723; Smith v. Smith, 201 Mo. 533, l. c. 547.]

Entertaining these views of the law, we are satisfied that the defendant, Leah J. Evans, was an incompetent witness and that the trial court erred in admitting her testimony for any purpose.

II. This brings us to the consideration of the deed of August 11,1890, set forth from Hopkins Evans to Leah J. Evans, his wife; and in so tar as this proposition is concerned we are of the opinion that it is wholly immaterial whether the testimony of the latter, which we held in paragraph one of this opinion to have been incompetent, be considered admissible or rejected for the reason that the language of the deed is so plain, and its meaning so clear that a resort to parol testimony shedding light upon the situation of the parties and the facts and circumstances surrounding them at the time of its execution, could in no manner alter the clear import of the deed.

When we turn to the habendum clause of the deed we see that it provides that the grantees are “to have and to hold the premises . . . from cmd after the death of him the said Ilophins Evans, party of the first part.”

This language cannot be tortured into meaning that any right, title or interest in or to the real estate in question was conveyed to or was vested in the grantees prior to the death of the grantor.

Moreover, that language clearly negatives the idea that the grantor intended to convey to the grantee any interest in the property until after his death, for he says, that she is to “have and hold the premises . . . from and after his death, ’ ’ etc. -

And in addition to this: The grantor clearly and fully expresses his intention in the latter part of the deed, where he states that “the intention of the grantor by this deed is to convey said property to said Leah J. Evans for life, to take effect on the death of the grantor,” etc.

What is to take effect from and after his death? Clearly the conveyance, for that is what the grantor is speaking of, for he says that by this deed he intends to convey said property to the grantee, to take effect upon his death.

This language is too clear for interpretation or construction. The more such an attempt is made the more befogged becomes the meaning of the deed, which is plain upon its face.

The following adjudications fully sustain our views of this deed: Aldridge v. Aldridge, 202 Mo. l. c. 572; Long v. Timms, 107 Mo. 512; and Speed v. Railroad, 163 Mo. 111.

III. Entertaining these views of the deed under consideration, as expressed in paragraph two of this opinion, namely, that it was not to take e:®eci until after the death of the grantor, we are required by the authorities of this State to hold the deed void, because it is testamentary in character, and not executed according to the statutes of wills.

The following cases are in point: Miller v. Holt, 68 Mo. 584; Murphy v. Gabbert, 166 Mo. 596; Chew v. Kellar, 171 Mo. 215; Griffin v. McIntosh, 176 Mo. l. c. 398; Aldridge v. Aldridge, 202 Mo. l. c. 572; Givens v. Ott, 222 Mo. l. c. 411; Terry v. Glover, 235 Mo. 544; Jordan v. Jordan’s Admr., 65 Ala. 301; Pinkham v. Pinkham, 55 Neb. 729; Carlton v. Cameron, 54 Tex. 72; Leaver v. Gauss, 62 Iowa, 314; Turner v. Scott, 51 Pa. St. 126; Cunningham v. Davis, 62 Miss. 366; Donald v. Nesbit, 89 Ga. 290; Cent. Law Jour., p. 71; 2 Devlin on Deeds (3 Ed.), secs. 309, 854; 3 Washburn on Real Prop., p. 266.

IV. The points considered seem to be the only legal propositions which were ruled upon by the trial court; and for that reason we refrain from passing upon the other questions presented.

The foregoing views result in a reversal of the judgment and a remanding of the cause to the circuit court to be proceeded with in conformity to the views herein expressed.

All concur.