author: BOND, C. PEE CURIAM.

text:
    SAMUEL C. CLUBB, Appellant, v. JOHN SCULLIN.
    Division Two,
    July 1, 1911.
    1. SALE OF STOCK: Minor: Power of Curator to Sell. Where the sole cause of action pleaded in the petition is the alleged failure of defendant, as agent of plaintiff’s curatrix, to get the best market price when he made a sale of plaintiff’s certificates of stock, the question of whether plaintiff’s curatrix, as such, was empowered to transfer the legal title and possession of the stock to the agent and through him to the purchaser is not for consideration.
    2. INVOLUNTARY NONSUIT: Inferences in Plaintiff’s Favor: Practice. In reviewing the action of a trial court in-compelling and refusing to set aside a nonsuit taken with leave, every reasonable inference which can he drawn from plaintiff’s evidence will be assumed by the appellate court to be true. The reason is that all issues as to either inferences or facts must be tried by the' jury; and it is only when the evidence and the reasonable inferences therefrom are undisputed, and when the law applicable thereto precludes any recovery, that a trial court is justified in withdrawing a case from the jury.
    3. SALE OF STOCK: Offer: Acceptance and Direction for Delivery: Bailee’s Duty: Restricted Agent: Concealment of Interest. Defendant, president of a ferry company, telegraphed plaintiff’s curatrix on April 24th that he had been offered $500 per share “for a majority or all of the stock” of the company, that he had agreed to sell all his own stock at that price and “strongly recommend you to do likewise,” and asked her to send the stock by mail. The next day she accepted the offer, and stated the stock was with a trust company. In a telegram dated the 26th, he informed her he had sold the stock to another trust company, “agent of the purchasers to purchase at $500 per share the majority of the stock” of the ferry company, and asked her to direct the bailee of the stock to deliver it to him, and she on the same day gave such directions, but too late to he complied with on that date, which was Saturday. He had already in writing subscribed to a sale of the stock to the trust company. At nine o’clock p. m. on Monday the 28th, the bailee delivered the stock to the trust company, “agent of the purchaser,” who was an undisclosed .railway company, and a check in payment was given two days later to the bailee. Another railroad company wanted control of the ferry company, and on the evening of the 26th, after he had contracted for the sale of the stock, defendant knew that another trust company, acting for said other railroad, had .offered $600 a share for a majority of’the stock. Competitive bidding for the stock became active, and the selling price reached $1500 per share by May 2d. Defendant did not make known to the curatrix that he was interested in the trust company that was acting as purchasing agent for the railroad company. Held, first, that when defendant’s offer was accepted by plaintiff’s curatrix and she directed the bailee to deliver the stock, the sale was complete, and the bailee thereafter held the stock as the agent of the buyer, and thereafter defendant had no legal right to withhold possession from the buyer; second, defendant was not a general agent, empowered to act with judgment and discretion, but one with restricted duties, which he performed, and is not liable to plaintiff for failure to obtain $1500 instead of $500 per share for his stock; and, third, his agency being restricted to mere ministerial acts, fidelity to his principal did.not require defendant to inform the curatrix that he was a shareholder in the trust company that was the purchasing agent of the purchasing railroad company.
    4. -: Bailee as Agent of Purchaser. Where the owner of stock accepts an offer for it through her agent and directs her bailee to deliver it to her agent, the bailee thereafter is the agent of the buyer, and the seller’s agent has no right to withhold its possession from the buyer.
    5. -: Restricted Agent: Duty to Get Highest Price: To Disclose Interest. An agent confined to the acceptance of a fixed price in the sale of stock and its delivery and the receipt of the money at that price, is a restricted one, and he is not charged with, the exercise of discretion and judgment in selling the property, but his acts being purely ministerial he is not liable to his principal if he fails to get the highest market price. Nor is he charged with the duty of disclosing his interest as a stockholder in the trust company which acts as purchasing agent of the purchasing railroad company, where he reaps no profit from the sale.
    6. -: Offer Accepted: Liability of Agent for Higher Price. Where the defendant telegraphed the owner of certificates of stock that hé had an offer of $500 per share therefor, and she wired her acceptance and he thereafter telegraphed her that he had sold the stock to a certain trust company, which was the truth, and she wired to the custodian of the certificates to deliver them to him, the transaction was complete, and thereafter the custodian held them as agent of the purchaser; and her agent was thereafter under no obligation to obtain a higher price for the certificates, though they had not then been actually delivered by the custodian to the purchaser, and though the selling price rapidly increased' within the next two days and the competition for them was spirited and active, and though he knew of said increased selling price before the certificates were actually delivered. If there was no increase in the selling-price before he subscribed a contract in her name for the sale of the stock at the price mentioned, and her acceptance thereof and direction to the custodian to deliver them, any knowledge he thereafter acquired of the increased price came too late, and he is not liable for a failure to' get a higher price than the one named.
    Appeal from St. Louis City Circuit Court.— Hon. Robert M. Foster, Judge.
    Affirmed.

      W. Hall Trigg, W. RY Henderson and W. M-. Williams for appellant.
    (1) Without distinction as to whether an agency be one for hire, or undertaken gratuitously, it is incumbent on the agent to bring to the discharge of his duties the utmost of good faith — a full and frank disclosure to' his principal of every material facto coming to his. knowledge and affecting his principal’s rights and interests. Reinhard on, Agency-, see. 231; Eddy v.. Livingston, 35 Mo. 492; Marshall v. Ferguson, 94 Mo. App. 175; Funkhouser v. Ingles, 17 Mo. App. 232; Husaker v. Sturgis, 29 Cal. 142; Anthony v. Smith, 28 Tenn. 508; Casey v. Casey, 14 111. 117; Dennis v. McCagg, 32 111. 440; Porter v. Woodruff, 36 N. J. Eq. 174. Notwithstanding an agent tas been expressly authorized by his principal to sell property of the latter at a given sum; he, nevertheless, owes to the latter the duty of advising him if more favorable terms can be obtained, and if he fails to communicate such information, and sells on terms less advantageous than were to be had, he thereby renders himself liable for the difference between the sum received and what he might have obtained. Holmes v. Cathcart, 88 Minn. 213; Hagenmyer v. Marsh, 37 Minn. 6; Prince v. Dupuy, 163 111. 417; Carpenter v. Fisher, 55 N. E. 479; Tilleny v. Wolverton, 46 Minn. 256; Hall v. Gambrill, 88 Fed. 209;'Edmondstone v. Hartshorn, 19 1ST. Y. 1; Reinhard on Agency, sec. 244; Tiffany on Agency, p. 426; Clark •& Skyles on Agency, p. 1643; Mechera on Agency, sec. 538; 1 Am. & Eng. Ency. Law (2 Ed.), 1069; Morris v. Taylor, 49 111. 17; McNutt-v. Dix, 83 Mich. 328; Kellogg' v. Keller, 27 111. App. 244; Logie v. Gillies, 4 New' Zealand L. Rep. 65; Townsend v. Van Tessel, 8 Daly, 26; Ring v. Potts, 36 New Brunswick, 42. One who is president and a member of the directorate of a corporation, sustains to the individual stockholders a fiduciary .relationship. Whilst not a trustee in the restricted ■sense in which the term is usually employed, he is, -nevertheless, one sub modo. Clark on Corporations (2 Ed.), p. 523; Mulvane v. O’Brien, 49 Pac. 607;. Btewart v. Harris, 69 Kas. 498; 3 Clark & Marshall on Corporations, sec. 747; Bent v. Priest, 10 Mo.. App. 543; .Bent v. Priest, 86 Mo. 475; Goodwin v. Canal Co., 18 'Oh. St. 169; Cook v. Sherman, 20 Fed. 167; 25 Am. Law Reg. p. 125; 26 Canada L. J. p. 66; Bigelow on Frauds, p. 330. (2) Inasmuch as the objectionable feature of an adverse interest held by an agent consists in its tendency to abate that measure of loyalty to which the principal is entitled, not only the nature, but also the extent, of such an interest becomes a pertinent matter of inquiry. Blodgett Co. v. Farmer, 41 N. H. 398; Rex v. Bingham, Hornsham'Spring Assizes, 1811; Credit Assn. v. Coleman, L. R. 6 H. L. 189; Dunne v. English, 31 L. T. Rep. 75. Where fraud is the gravamen of the action, the range of inquiry is greatly extended. Erfort v. Consalus, 47 Mo. 209; Mosby v. Comm.. Co., 91 Mo. App. 500; Bigelow’s Law of Fraud 146-7; 1 Elliott on Evidence, Sec. 184; 14 Am. & Eng. Ency. Law (2 Ed.) 195; King v. Railroad, 29 N. J. L. 82. All matters logically relevant are legally so, unless rendered inadmissible under some rule of exclusion. 16 Cye. Law & Proe., pp. 1110-1112; Thayer on Evidence p. 265; Wigmore-on Evidence, secs. 118, 119 and 389. (3) Information sufficient to put one on inquiry is tantamount to actual knowledge of every fact which could have been learned upon a diligent following up of such notice. 21 Am. & Eng. Ency. Law (2 Ed.) p. 584. Where an agent has violated his trust by selling the. property of his principal at a price less than he knew could be obtained therefor, neither the intrinsic nor the’ market value of the property is material in determining the measure of recovery. The question is one not of value, but of price — the difference between the price at. which the agent sold it and such better price as he might reasonably have procured. Hamilton v. Cunningham^ 2 Brock, 350; Logie v. Gillies, 4 New Zealand L. Rep. 65; Townsend v. Yan Tessel, 8 Daly, 26; Ring v. Potts, 36 New Brunswick, 42; Story on Agency (9 Ed.) 259; Sutherland on Damages (3 Ed.) sec. 770. (4) Declarations and admissions of a guardian, in order to bind the ward,, must be — if anything — even more strictly a part of the? res gestae. than is required in other relationships of somewhat analogous character. 15 Am. & Eng. Ency. Law (2 Ed.) 71; 1 Ency. Ev. p. 568; Woerner’s Am. L. Guardianship, see. 53. (5) The right of jury trial: rests on constitutional guaranty, and every inference of fact of which a plaintiff’s evidence is susceptible must be-accorded it in passing upon a demurrer to such evidence. Const, of Mo., art 2, sec. 28; Pauekv. St.Louis Co., 951 Mo. 467; Buesching v. Light Co., 73 Mo. 219; Knorppv. Wagner, 195 Mo. 637; Mockowik v. Railroad 196 Mo. 550. When it has been shown that the relation of principal and agent existed between the parties litigant,, and that the defendant, acting in the plaintiff’s behalf,, sold the property of the latter at a price less than he-knowingly might have obtained, the plaintiff’s case is, made, and it then devolves upon the defendant tco justify his conduct. Webb v. Marks, 51 Pae. 518; Lamb v. Fairbanks, 48 Yt. 519; Humphrey v. Trans. Co., 65 N. W. 13; Coal Co. v. Phelps, 95 Ind. 271; Porter v. Woodruff, 36 N. J. Eq. 174; Brock v. Barnes,, 40 Barb. (N. Y.) 521; 1 Am. & Eng. Ency. Law (2 Ed.) 1082; 2 Ency. Ev., p. 812; 10 Ency. Ev., p. 38.

      Jacob Klein and E. S. Robert for respondents; Robert & Robert of counsel.
    (1) Every material point raised in this case has been heretofore decided by this court in the other Wiggins Perry cases, adversely to appellant’s contention. Newman v. Trust Co., 189 Mo. 423; Wann v. .'Seullin, 210 Mo. 429; State ex rel. Wann v. Dickson, '213 Mo. 66. (2) The failure of the defendant to disclose to the plaintiff the fact that he was a stockholder in the Chicago, Rock Island & Pacific Railway Company and in the Mercantile Trust Company was not a fraud upon the plaintiff, and did not disqualify defendant from receiving the certificates of stock from the St. Louis Union Trust Company and delivering the same to the Mercantile Trust Company under the terms of the telegram of April 24th, and does not entitle plaintiff to recover against him. Wann v. Seullin, 210 Mo. 486; Hardwick v. Jones, 65 Mo. 54; Kitchen v. Railroad, 69 Mo. 224; Gaty v. Sack, 19 Mo. App. 470; Yan Dusen-Harrington Co. v. Jungeblut, 75 Minn. 299; Alexander v. Williams, 14 Mo. App. 13; Ins. Co. v. School Dis., 25 C. C. A. 492; Northrup v. Ins.'Co., 48 Wis. 420; 1 Thompson on Corporations, sec. 1071; 1 Morawetz on Corporations, sec. 521. (3) “The agency of the defendant was an exceedingly limited one and did not require of him judgment and discretion as to holding the stock.” The rule requiring the agent to disclose his adverse interest applies only to agents who are entrusted with a discretion in the matter of the agency, and is not applicable where the principal makes his own bargain and the agent is a mere ministerial one, without any discretion. Wann v. Seullin, 210 Mo. 477; Tiffany on Agency, p. 418; Mechem on Agency, sec. 67; Pollatschek v. Goodwin, 40 N. Y. Supp. 682; .Mining Co. v. Pox, 4 Ired. Eq. 61; Spalding v. Mat-tingly, 89 Ky. 83; Knauss v. Brew Co., 142 N. Y. 70; Ranney v. Donovan, 78 Mich. 318; Kilbourn v. Sunderland, 130 U. S. 505; Atwood v. Railroad, 85 Ya. 966. (4) In an action for fraud and deceit, where concealment is the ground of the action, it must appear that plaintiff relied upon defendant to make disclosure of the fact concealed and that the concealment was a moving inducement to the plaintiff’s change of position. That rule applies to this action, which is one for ah alleged breach of duty by an agent. The cause of action pleaded is not based upon the ground that the agency was fraudulently procured. Therefore, the alleged concealment cannot be relied upon by plaintiff as a ground for recovery. Wann v. Scullin, 210 Mo. 487; 14 Am. & Eng. Ency. Law (2 Ed.), p. 113; Wannell v. Kerm, 57 Mo. 478; Bailey v. Smook, 61 Mo. 213; Dunn v. White, 63 Mo. 181; Powell v. Adams, 98 Mo. 598; Feller v. McKillip, 100 Mo. App. 664; Tinker v. Kier, 195 Mo. 183; 20 Cyc. 23 and 40; Jordan v. Pickett, 78 Ala. 331. (5) The plaintiff’s evidence shows an accord and satisfaction as to the subject-matter of this suit. The release of the Trust Co., and the Railway Co. of May 2, 1902, accepted by plaintiff’s guardian, was executed and given at the time Mrs. Clubb endorsed his certificate for 145 shares; it was a'full acceptance and ratification of the contract signed by Mr. Scullin. Newman v. Trust Co., 189 Mo. 423; McCormack v. St. Louis, 166 Mo. 315; Coal Co. v. St. Louis, 145 Mo. 651; McGregor v. Ware Co., 188 Mo. 611; St. Joseph v. Hull, 72 Mo. App. 403; Andrews v. Stubbs Co., 100 Mo. App. 599; Perkins v. Hedley, 49 Mo. App. 556; Cornelius v. Rosen, 111 Mo. App. 619; Lightfoot v. Hurd, 113 Mo; App. 612; Rogers v. Pub. Co., 118 Mo. App. 1; Railroad v. Clark, 178 U. S. 353; IT. S. B. & S. Co. v. Thistell, 69 C. C. A. 651; Nassoily v. Tomlinson, 148 N. Y. 326; Jackson v. Yolkening, 80 N. Y. Supp. 1102; Goss v. Rishel, 85 N. Y. Supp. 1045; St. Regis Co. v. Tonawanda Co., 94 N. Y. Supp. 946; Gas Co. v. Johnson, 123 Pa. St.- 576; Keck v. Hotel, 89 Iowa, 202; Truax v. Miller, 48 Minn. 62; Creighton v. Gregory, 142 Cal. 34; Leather Co. v. Foyer, 104 111. App. 268; Coal Co. v. Parlin, 215 111. 244; Richardson v. Taylor, 100 Me. 175.
   STATEMENT.

BOND, C.

— Plaintiff, a minor when this suit was brought, now of full age and a party to the cause, alleges in his petition that on the 25th of April, 1902, his mother, Eleanore Clubb, as his guardian and curatrix, held 145 shares of stock in the Wiggins Ferry Company, which defendant agreed to sell for the highest market price; that defendant was then a stockholder in the Mercantile Trust Company and “largely interested” in the Chicago, Rock Island & Pacific Railway Company; that said Railway Company was then desirous of procuring control of the Wiggins Ferry Company, through the purchase of a majority of its capital stock; that defendant procured the employment of the Mercantile Trust Company as purchasing agent of said Railway Company;' that defendant agreed with said Railway Company to assist its purchasing agent in procuring a majority of the capital stock of said Wiggins Ferry Company at the price of $500 per sharp; that at said dates and afterwards the Mississippi Valley Trust Company of St. Louis,, as purchasing agent for the St. Louis Terminal Association of St. Louis, was also endeavoring to purchase and acquire the stock of said Wiggins Ferry Company, which was known to the defendant; that defendant sold plaintiff’s shares to the said Railway Company through its purchasing agent for the sum of $500 per share, amounting to $72,500, and delivered the same to the purchaser, and caused a transfer to be made of said stock on the books of said Wiggins Ferry Company; that while so doing, defendant “wrongfully and fraudulently concealed from plaintiff and from plaintiff’s said guardian the fact that he was in any manner interested in either the said Rahway Company or its purchasing agent, or was in any wise acting on behalf of either of said companies;” that defendant broke his agreement and acted in violation of his duty as agent in selling said shares of stock for the sum above named, at a time when he had knowledge that they could be sold for $1500 per share, and withheld that knowledge from plaintiff’s guardian and curatrix, well knowing she was ignorant of said fact; that by defendant’s fraudulent refusal to sell said shares at the value of $1500 each, plaintiff lost the sum of $145,000, for which he prayed judgment.

The answer was a general denial, coupled with a second defense setting forth the following telegram:

St. Louis, April 24, 1902.
Ellen Clubb
S. C. Clubb,
The Grafton, Con. Ay., Washington, D. C.
I am offered five hundred dollars per share for a majority or all of'the stock of the Wiggins Ferry Co. Have agreed to-sell all my holdings and strongly recommend you to do likewise. If you concur in my recommendations, send me your stock by mail at once and if the owners of a majority of stock agree to-sell I will forward to you five hundred dollars per share for your holdings on or before May 5th next. Please regard this, as strictly confidential. Wire reply immediately.
John Scullin,
Pres’t Wiggins Ferry Co.

That pursuant to an authority from said Eleanore-Clubb, plaintiff’s guardian and curatrix, defendant signed an agreement to sell the shares of stock of this plaintiff and an equal number of shares of his sister and 179 shares of the said Eleanore Clubb on the terms set forth in the above telegram; that said Eleanore Clubb delivered all of the shares of this plaintiff and of his sister and 34 shares of her own, but failed and refused to deliver the remaining 145 shares of her own, and demanded as a condition of said delivery the payment of the further sum of $145,000; that this defendant had thereafter no further connection with the matter, but the said Eleanore Clubb thereafter dealt directly with the Mercantile Trust Company, and entered into an agreement with it on the following terms, to-wit:

St. Louis, May' 2, 1902.
The Mercantile Trust Company having purchased from Eleanore Clubb, four hundred sixty-nine (469) shares of the capital stock of the Wiggins Ferry Company for the total sum of $379,500, hereby releases and discharges said Eleanore Clubb from any and all claims for damages or otherwise on account of her agreement to sell said shares or any thereof to said Mercantile Trust Company and agree to keep her harmles from any and all such claims.
Mercantile Trust Company.
By Festus J. Wade, President.
Accepted.
Eleanore Clubb.
The above mentioned purchase of 469 Shares of stock in the Wiggins Ferry Company, and the release of the said Eleanore Clubb, were made with our approval and sanction, and we ratify and confirm the same as done for our benefit.
May 2, 1902.
The Chicago, Rock Island & Pac. Ry. Co.
By Robert Mather, Vice President.

That said agreements between the said Eleanore Clubb and the Mercantile Trust Company as the purchasing agent of said railway, and the said railway on its own behalf were in full accord and satisfaction of all claims and demands of whatever nature growing out of the sale of’ any part or all of the said 469 shares of capital stock of the Wiggins Perry Company belonging to the said Eleanore Clubb and plaintiff and his sister.

The reply was a general denial.

Upon the trial of these issues the evidence tended to show that, consequent to the purchase of the St. Louis & Colorado Railroad, the Chicago, Rock Island & Pacific Railway desired an eastern entrance into the city of St. Louis by acquiring a majority of shares of stock of the Wiggins Ferry Company; that to accomplish this purpose it employed the Mercantile Trust Company of St. Louis as a purchasing agent of said stock; that defendant was president of the Wiggins Ferry Company and the owner of a large number of the shares of its capital stock; that the plaintiff and his sister and mother were owners of capital stock of said Wiggins Ferry Company in the following proportion: 145 belonging to plaintiff; same amount belohging to his sister, and 179 belonging to their mother; that after the receipt of the telegram addressed to her by defendant, and set out in defendant’s answer, Mrs. Eleanore Clubb telegraphed in reply, as follows:

Baltimore, Md., April 25, 1902.
Mr. John. Scullin,
Pres’t Wiggins Ferry Co., St. Louis.
Accept offer for myself, Helen and Sam. Certificates with Union Trust Company.
Eleanore B. Clubb.

In reply to which defendant telegraphed her, as follows:

St. Louis, Mo., April 26, 1902.
(Received at Baltimore April 27, 1902)
Mrs. Eleanore B. Clubb.
303 Oakdale Road, Roland Park.
Upon authority of your telegraphic reply to my telegram of April 24th, I have accepted in writing for you, Helen and Sam the proposition of Mercantile Trust Company agent of purchasers to purchase at five hundred dollars per share the majority of the stock of Wiggins Ferry Company. Please direct Union Trust Company to deliver certificates to me or to Mercantile Trust Company immediately.
John Scullin.

Mrs. Clubb on the same day sent the following telegram:

Baltimore, April 26, 1902.
George A. Mills.
Sec’y Union Trust Company, St. Louis, Mo.
Sold Wiggins at five hundred. Deliver all certificates you have Scullin.
Eleanore B. Clubb.

That at 1:09 p. m. Monday, April 28, 1902, Mrs. Clubb sent the following telegram to defendant:

Baltimore, Md., April 28, 1902.
John Scullin, Pres’t.,
Wiggins Perry Company.
St. Louis Trust Company can deliver certificates for 324 shares. The 145 shares are in my safe deposit box. I shall have to go get them. Would the third of May be time enough to deliver them? Answer.
Eleanore Clubb.

On Monday, April 28, 1902, about 9:30 o’clock p. m., the St. Louis Union Trust Company delivered to defendant the following shares of stock (as per notation on its books): “Helen, 145 shares at. $500.00, April 30, 1902, $72,500; Sam, 145 shares at $500.00, April 30,1902, $72,500; Eleanore, 34 shares at $500.00, April 30,1903, less $6,000 for her loan, leaving $11,000.”

That the dates of April 30, 1902, of said interest were incorrect; that the stock was in fact delivered to defendant, as above stated, two days prior, but the check given by the Mercantile Trust Company in payment was received on the date entered above, and was; to-wit:

$156,000 April 30, 1902.
Pay to the order of St. Louis Union Trust Company one Hundred and fifty-six thousand dollars.
George W. Wilson, Treasurer. Treasurer’s check Mercantile Trust Company.

That Mrs. Clubb left Baltimore for St. Louis and got there at two o’clock on May 1, 1902, and was visited that evening by the defendant Scullin and the representative of the Mercantile Trust Company; that she had learned before this time of the competitive bidding for the Wiggins Ferry Company stock and its advanced price; that defendant told her that the “Rock Island people” were trying to buy the stock, and that the defendant sold his and gave her the reason which influenced him; that before parting the defendant said to her, “Don’t you take less than $750 a share for your stock” (referring to the 145 shares of stock which she had not delivered through him); that she did say, in reply, she would probably sell to the Mercantile Trust Company; that she subsequently sold these .shares of stock to the Mercantile Trust Company for $1500 per share, as shown in the written contract of May 2, 1902, between herself and the Mercantile Trust Company, and approved on the same date by the Chicago, Rock Island & Pacific Railway Company, and hereinbefore set out; that at the time of the transactions evidenced by these writings, she indorsed the previously delivered shares belonging to her two children, and the remaining 145 shares belonging to herself, which had not been delivered until the making of this contract, on the 2nd of May, 1902; that upon the consummation of this transaction she received the cheek from the Mercantile Trust Company, on the same date, for $217,500; that before closing this transaction she had been offered $1,000 per share for her remaining shares of stock by the Mississippi Valley Trust Company, as the representative of the Terminal Railroad Association.

The competitive bidding for the stock of the Wiggins Ferry Company was begun by the Mississippi. Valley Trust Company, as agent for the Terminal Association, on Saturday, April 26, 1902, and continued through the following Sunday and until the first few days of May, 1902, when, inferably, some agreement was reached through which the Rock Island Railway Company secured an eastern entrance into the city of St. Louis. Defendant had notice of the beginning of the competitive bidding on Saturday evening, April 26,1902, when a verbal proposition was communicated to the members of the board of directors of the Wiggins Ferry Company through Mr. Church; but this proposition was not in writing, nor the name of the proposer given until signed by the Mississippi Valley Trust Company, about five o’clock Saturday afternoon. When thus executed it offered $500 per share for Wiggins stock and $100 moré if a majority was. gotten. There is no evidence that its written terms, were communicated to defendant prior to the delivery by him of the Clubb stock, on Monday,- April 28, 1902.

At the conclusion of all the evidence, the court gave an instruction that plaintiff was not entitled to recover, whereupon he took a nonsuit with leave. Upon the overruling of his motion to set aside the same, he appealed to this court.

OPINION.

I. No question can arise in this case as to the-legal validity of the contract made by the curatrix of plaintiff through the defendant, whereby his shares of stock in the Wiggins Perry Company were transferred and delivered to the Mercantile Trust Company, on April 28, 1902. Whether the curatrix, as such, was empowered to transfer the legal title as well as the possession of said property is not open to review in this case. The reason is, that the sole cause of action pleaded in the petition is the alleged failure of the defendant, as-agent, to get the best market price when he made the sale of the shares of stock. Plaintiff does not question the legal effect of the act of his curatrix or defendant, as her agent in the matter of devolving the full title to-the shares of stock when they were delivered to the Mercantile Trust Company on the 28th of April, 1902. Indeed, he affirms the conveyance of his title and predicates his right to a further recovery solely on the ground that the defendant fraudulently received a less, price than could have been gotten. We are thus relieved from any consideration of'the power of the curatrix to convey the personal property of her ward by virtue of the peculiar relation which she bears to it under the laws of this State. [Judson v. Walker, 155 Mo. 166.]

Hence, there were only two questions left in this ease: First, whether the contract of sale was made before the shares were delivered to the purchaser, to-wit, April 28, 1902, or when the curatrix subsequently indorsed the shares and made the written contract (in which defendant took no part) on May 2, 1902. Second, whether in his connection with the sale defendant is chargeable with a breach of contract or a violation of his duty as agent.

In reviewing the action of trial.courts in compelling and refusing to set aside a nonsuit taken with leave, every reasonable inference which can be drawn from plaintiff’s evidence will be assumed to be true, despite the possibility of contradictory inferences or conflicting evidence-. For the law is settled that all issues either as to inferences or facts must be tried by the jury. Hence, it is only when the evidence as well as the reasonable inferences therefrom are undisputed, and when the applieatory law precludes any recovery, that trial courts are justified in withdrawing a case from the jury. [Forbes v. Dunnavant, 198 Mo. 193; Mockowik v. Railroad, 196 Mo. 550.]

We will, therefore, take it for granted in the present case that the sale of plaintiff’s shares of stock was completely executed as to the transfer of title, as well as possession, by virtue of the contract, where-under they were turned over on the 28th of April, 1902. For, obviously, if the plaintiff’s stock was not sold until the contract between his curatrix and the purchaser, of May 2,1902 (in which defendant had no lot), there could be no recovery in this suit, whatever right of action plaintiff might have against his curatrix for .failing to account to him for his proportion of the proceeds of that sale.

With reference to the transaction to which the view of the court is thus restricted, the data by which it is to be judged comprise certain telegraphic communications between plaintiff’s curatrix and defendant and some oral testimony. There is no dispute as to either. Unless, therefore,, they afford the basis of a legitimate inference . that defendant either broke his agreement or violated his, duty in so far as he acted as agent, there can be no recovery against him.

The contract between curatrix and defendant and the relations arising therefrom are clear and simple. The defendant gave notice to the curatrix of an offer for her stock and that of all or a majority of the holders of such stock, which he had accepted for his own, and advised her also to accept, and agreed to send her the purchase price if the terms of the offer were met, and requested the transmission of her stock. The curatrix accepted the offer for herself and her two children, and directed the Trust Company, where it was deposited, to turn it over to defendant. This direction was given Saturday, April 26, 1902, too late to be complied with on that day, but was complied with on Monday morning, April 28, 1902, when the stock was placed in the hands of the buyer. A check in payment was given two days thereafter, the proceeds of which, so far as plaintiff’s shares are concerned, were entered to his credit on the books of the Trust Company, where his stock had been deposited. In the performance of these acts defendant acted in strict accordance with his agreement with the curatrix of plaintiff, and in perfect performance of his duty to the extent of the agency assumed in his contract. When the offer conveyed to plaintiff’s curatrix was accepted, and when she had directed the bailee of the property to deliver it, the sale was complete in every element (since the power of the curatrix to sell is affirmed in the petition), and the bailee thereafter held the shares of stock as the mere agent of the buyer. [Erwin v. Arthur, 61 Mo. 387; Allgear v. Walsh, 24 Mo. App. 134.]

These things were done on the 24th, 25th and 26th of April, 1902. On the latter date, and until the Monday following, the St. Louis Union Trust Company held possession of the shares of stock now sued for as bailee of the Mercantile Trust Company, which had acquired the full legal title thereto when the euratrix accepted this proposal to buy, and instructed the custodian of the shares to deliver them. After this date the title to the shares was in the buyer, and neither the Trust Company nor the defendant had any legal right to withhold them from the possession of the buyer. The action of the defendant and the St. Louis Trust Company in the delivery of the shares of stock was under the mandate of the euratrix. The only responsibility under which the defendant rested thereafter, as far as his agency was concerned, was the payment of the price. This was shown to have been paid according to the terms of the contract two days later.

The agency entrusted to defendant was one which carried no power of judgment or discretion in the performance of the acts prescribed. It charged him neither with the duties nor responsibilities of a general agent. An agency confined to the acceptance of a fixed price and the turning over of the property for which it is paid is not one which saddles the agent with the same Labilities towards his principal which attach, as a matter of law, when one person gives another the power to exercise full judgment and discretion in the sale of property. The latter agency would impose the duty of obtaining the highest market price, and the further duties of a full disclosure of any adverse interest on the part of the agent, and complete loyalty and good faith in the performance of the service, in the doing of which the agent would be permitted to reap no personal profit or advantage, other than his compensation as fixed by contract or by law. It would make no difference whether the agency is for hire or is gratuitous, provided it is actually undertaken and entered upon by the agent.

These are familiar principles of law, and are well sustained by the numerous authorities cited in the brief of the learned counsel for plaintiff. But these principles of law have no application to mere ministerial acts involving on the part of the agent no power •of judgment or discretion, but only a compliance with particular and definite instructions which have been predetermined and specifically prescribed by his principal. This distinction is clearly pointed out in three •cases that have been before this court, where the relationship of this defendant as agent was substantially the same a,s the one which he assumed in this case. [Newman v. Mercantile Trust Co., 189 Mo. 423; Wann v. Scullin, 210 Mo. 429; State ex rel. v. Dickson, 213 Mo. 66.]

Under • the rulings announced in those cases, we hold that it was not incumbent on defendant in the case at bar to inform the curatrix of plaintiff that he was a stockholder in the Mercantile Trust Company, purchasing agent of the buyer, or that he was largely interested in the securities of the Railroad Company which was' seeking to acquire this stock, and that he violated no duty under the agency imposed on him in this case in failing so to do.

II. On Saturday, April 26, 1902, the defendant’ acting under the directions of the curatrix of plaintiff’ had accepted the contract of purchase for plaintiff’s stock. The notice given of this sale to the custodian of that stock, and the request to turn it over, completely transferred the legal title, under the pleadings in this case. Up to that date there is no hint in the record that a higher price than that paid for plaintiff’s stock had been offered by any one. On the afternoon of that day, when Mr. Church informed the defendant and other directors of the Wiggins Ferry Company that a proposition had been made to buy its stock at $600 per share, the defendant replied that this proposition came too late; that the purchaser under the proposition theretofore made had already obtained a majority of the stock of the Wiggins Ferry Company. He added, “I wish yon had had it sooner — I am sorry you did not have it sooner.” No name had been given of the proposed purchaser nor any written proposition when this colloquy took place. Later in the same day, not after five o’clock, Mr. Church obtained from the Mississippi Valley Trust Company a proposition to. pay $500 flat for the shares of the Wiggins Ferry Company and $100 additional, provided it obtained a majority of the stock. This was the earliest, of any specific, proposition shown to have been made in this case other than the proposition which had been accepted by defendant for his own shares of stock, and which he had also accepted for the curatrix of plaintiff. There is no .evidence in the record that the defendant had any knowledge of the specific terms contained in the written offer of the Mississippi Valley Trust Company until after the delivery of plaintiff’s shares to the Mercantile Trust Company.

It was then too late for the defendant to retake the shares of stock and sell them to a competitor. The reason is, that the terms of purchase expressed in the first telegram sent by defendant to plaintiff’s curatrix, after their acceptance by her authority, became a binding contract on the part of the Mercantile Trust Company the moment it should accept the stock. This was distinctly ruled when the same contract was before this court in the case of Newman v. Trust Co., 189 Mo. l. c. 446, where, in analyzing the legal effect of the agreement created by the acceptance of the shareholders of the proposition to purchase expressed in said telegram, and by the subsequent acceptance of the shares by the Mercantile Trust Company, the court said: “The acceptance of the stock was obligatory upon the Trust Company if a majority of the stockholders on or before May 5,. 1902, agreed to sell their stock in like manner; otherwise, the acceptance was optional -with the Trust Company until that date. This is the plain and obvious meaning of the contract. The Trust Company exercised its option by accepting the stock and paying the plaintiff the purchase price therefor on the 28th of April, 1902, in the manner set out in the statement. When this was done the sale was complete and the title to the stock passed to the Trust Company, in whose possession it then was.”

So, in the case at bar, the instant the Mercantile Trust Company accepted the stock and agreed to pay therefor, the full title to the stock vested in it, and the right to receive the price vested in plaintiff’s curatrix. [Newman v. Trust Co., supra; Peycke Brothers v. Ahrens, 98 Mo. App. 456; R. S. 1909, sec. 2784.]

In this status of affairs, it is clear that defendant was guilty of no breach of his contract or his duty as gratuitous agent, in that, on the Monday following, he handed over to the Mercantile Trust Company the shares of stock which were delivered to him by the St. Louis Trust Company, under an instruction given it so-to do by the curatrix of plaintiff, of date Saturday, April 26, 1902.

The reason why defendant did not commit a-failure of duty in so doing is, that at the time in question all the conditions of the purchase by the Mercantile Trust Company had been fulfilled and the title to plaintiff’s shares of stock was in that company; and its custody in the St. Louis Union Trust Company was held for the benefit of the Mercantile Trust Company, to whom the curatrix had instructed it to be delivered. [Williams v. Evans, 39 Mo. 204; Harding v. Manard, 55 Mo. App. 364.]

The defendant Scullin had thenceforth no legal right to prevent the delivery of said shares of stock in question by the custodian to the purchaser, and he would have assumed responsibility for the price offered if he had done so. We, therefore, hold that the defendant was guilty of no wrong in not attempting to rescind the sale so made, and that he neither broke his agreement nor violated his duty as agent in the manner in which he acted.

III. The learned counsel for appellant complains of the exclusion of testimony tending to show the making of the sales of the Wiggins Ferry Company stock on Sunday, the 27th, and Monday, the 28th, as evidence of the market value the stock had acquired at those dates. It would make no difference in the view we have taken of this case whether this evidence had been admitted or not. The defendant, even if he had full knowledge the stock had risen greatly in value, could not be charged with any delinquency as agent in this case, for the reason that the contract made by the curatrix was consummate, after her acceptance of its terms and notification to the custodian of the stock on the previous Saturday. It follows that the defendant had no power, and was charged with no duty to unmake her contract, or to commit a breach thereof, or to do any other act which would absolve her from a strict compliance with its terms. It is, therefore, immaterial that the trial court excluded the evidence fin question.

Our conclusion is that the judgment in this case must be affirmed.

Boy , C., concurs.

PEE CURIAM.

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    J. H. BRYANT AND CORA BRYANT, Appellants, v. N. LAZARUS and T. P. NASSAUER, Partners Doing Business Under the Firm Name of LAZARUS & NASSAUER.
    Division Two,
    July 1, 1911.
    1. NECESSARY PARTIES. Defendant should raise the issue of defect of parties before or at the time of filing his answer.
    2. ABSENT WITNESS: New Trial. Where there is no showing of any effort to obtain the presence of a witness his failure to attend and give testimony is no ground for a new trial.
    3. NEW TRIAL: Newly Discovered Evidence. Bryant and Clark were in the saloon business and were indebted to defendants and others, and upon condition that defendants would pay all their debts they transferred their saloon, its fixtures and stocks which much exceeded in value the amount of the debts, to defendants; and Bryant and his wife, in consideration that defendants would permit him to continue the business and would supply him with sufficient goods, and he would out of proceeds of sales pay the debts of himself and Clark, conveyed by warranty deed their separate lot to defendants, which was understood to be a mortgage to secure the performance of the agreement on His part. THey did not comply with it upon theirs. Held, that newly discovered evidence, discovered after judgment for plaintiffs setting the deed aside, to the effect that Bryant was insolvent and Clark solvent when they went into the saloon business, could have no bearing on the issues, and was no ground for granting defendants a new trial.
    4. ORAL CONTRACT: Made Through Agent: Absence Not Explained. Where plaintiffs seek to have their warranty deed set aside for lack of consideration and on the ground that it was intended as a mortgage to secure a stock of goods to be furnished by defendants to them, the failure of defendants to produce the agent as a witness who made the oral agreement on their behalf and to show any reason for such failure, raises a presumption that their defense, that the deed was not intended as a mortgage, is not made in good faith.
    5. SETTING ASIDE DEED: Intended as Mortgage: New Trial. Where the evidence abundantly supports the finding of the trial court that plaintiffs’ warranty' deed was intended as a mortgage, and that the consideration therefor has failed, and there was no evidence in the case improperly admitted, the action of the trial court in granting defendants a new trial, after . judgment for plaintiffs, was error, and on appeal judgment for plaintiffs will he directed.
    Appeal from Dunklin Circuit Court.— Hon. J. L Fort, Judge.
    Reversed (with directions).

      W. W. Bandy, D. R. Cox and J. P. Tribble for appellants.
    (1) The court erred in sustaining respondents* motion for a new trial. The original verdict and finding of the court was for the right party and should not have been disturbed. It has long been the law in this State that a deed of conveyance, absolute on its face, if in fact intended merely as a mortgage, or security for a debt, will in equity be treated as a mortgage, the real intention of the parties in such case being the true test. Schradski v. Allbright, 93 Mo. 42; Oneill v. Chapelle, 62 Mo. 202; Brant v. Robinson, 16 Mo. 129; Desloge v. Ranger, 7 Mo. 327; Book v. Beasley, 138 Mo. 455; Bobb v. Wolff, 148 Mo. 335; Reilley v. Cullen, 159 Mo. 322; Jackson v. Lawrence, 117 U. S. 679. (2) In all such cases the real intention of the contracting parties determines the character of the transaction. Conway v. Alexander, 7 Cranch (U. S.) 218.
   BROWN, J.

— Action to cancel a warranty deed to real estate. The finding below was for plaintiffs; and they appeal from an order granting defendants a new trial.

Plaintiffs’ petition is in two counts. The finding was upon the second count, which charges that in 1903 plaintiff J. H. Bryant and one T. J. Clark were the owners of 4 saloon and fixtures in Dunklin county, Missouri, and being indebted to defendants in a large sum of money for whiskeys and other supplies, and being also indebted to other creditors in small amounts, pledged their saloon, fixtures and entire stock of liquors, etc., to defendants, pursuant to an agreement that defendants would pay themselves out of the proceeds of said property, and would also assume and pay all other debts of Bryant and Clark to other creditors. Said petition also alleges’ that plaintiffs as husband and wife were the owners, as joint tenants, of an improved town lot in Dunklin county, and that at the same time that Bryant and Clark pledged their saloon to defendants, plaintiffs entered into a separate contract with defendants, whereby, in addition to assuming the debts of Bryant and Clark, the defendants agreed to place plaintiff J. H. Bryant in charge of said saloon, and furnish him such additional liquors, tobacco and other supplies as would enable him to continue the saloon business, and out of the sales to be made by him pay the debts of said Bryant and Clark. That in consideration of said last named agreement, plaintiffs conveyed to defendants by warranty deed their town lot before mentioned, as security for the performance of said contract on their part. Plaintiffs allege that defendants wholly failed to perform their part of said last named contract; that they failed to pay the debts of Bryant and Clark; failed to furnish the plaintiff with any supplies^ and turned over said saloon and fixtures to other parties, whereby plaintiffs received no consideration for the aforesaid warranty deed for said town lot; and pray that said deed be cancelled.

The answer of defendants is a general denial, and a plea of title in the real estate under the warranty deed.

The evidence of plaintiffs sustains the allegations of their petition. They testified that the defendants, who reside in Illinois, obtained the warranty deed for the town lot in dispute through a verbal contract entered into for them by their agent, one Ike Levy. That defendants failed entirely to perform the contract on ■their part. Plaintiffs also gave evidence to the effect that the saloon, fixtures and liquors pledged to defendants were worth much more than the entire amount of the indebtedness of Bryant and Clark; and that said property was not pledged by reason of the insolvency or inability of Bryant and Clark to meet their obligations, but .solely on account of' a personal quarrel between Bryant and Clark on account of which they could no longer continue as partners. One P. P. Bryant, a brother of plaintiff J. H. Bryant, also testified that he was present when Cora Bryant signed the deed, and heard defendants’ agent tell her it was only a mortgage; and that in order to induce her to sign the deed, said agent promised her that the lot would be reconveyed to her in sixty days. Two other witnesses testified to practically the same facts as plaintiffs; one of them, a lawyer, J. H. Tribble, stated that he called on Mr. Lazarus, one of the defendants, and requested him to reeonvey the town lot to plaintiffs; that Lazarus exhibited to Tribble a letter written to defendants by their agent, Levy, stating that the warranty deed of the town lot now in controversy was only intended as a mortgage. The result of this interview was that defendants declined to reeonvey the property to plaintiffs, except upon payment of $250.

Defendant Lazarus testified that the total indebtedness of Bryant and Clark was $1,260.25 at the time the saloon and town lot were transferred to defendants, of which indebtedness $893.65 was due to defendants, and the remainder to other parties. Defendant Lazarus also testified that he had no knowledge of the deed being, intended as a mortgage for future supplies of liquors to be furnished to Bryant. He did not deny that he had failed to pay the other creditors of Bryant and Clark. Asked if he had not received a letter from his agent, Levy, explaining the contract under which the warranty deed for the town lot was executed and if he did not exhibit said letter to plaintiffs’ attorney, Tribble, he denied that he had ever received such letter, or knew anything whatever about it.

I. R. Kelso, the attorney who represented defendants when the saloon and town lot were transferred to them, testified that he understood from the talk of defendants’ agent Levy and plaintiff J. H. Bryant, that defendants assumed and agreed to pay all debts of Bryant and Clark; that he had no knowledge of either the saloon or town lot being simply transferred as a mortgage. No evidence was offered as to what amount defendants had realized from the saloon, fixtures and supplies turned over to them by Bryant and Clark.

The court found the issues for plaintiffs; whereupon defendants filed a motion for a new trial, alleging:

(1) That the verdict is for the wrong party.

(2) That the verdict is against the weight of thb evidence.

.(3) The admission of improper evidence.

(4) That T. J. Clark, formerly associated with plaintiff Bryant in the saloon business, should have been made a party defendant.

(5) That since the trial, defendants have found the letter from their agent Levy, referred to by witness Tribble, and which letter they attach to' their motion.

(6) That defendants would not have announced ready for trial had they not expected Clark to be present; (but no showing is made of any effort to secure Clark’s presence at the trial).

(7) That defendants have just discovered that plaintiff J. H. Bryant was entirely insolvent when he went into the saloon business with Clark, and that Clark mortgaged his home to go into said business.

The motion is supported by affidavits.

Defendants have not filed any brief; but we have considered the assignment of errors noted in their motion for a new trial.

We think the evidence abundantly supports the court’s finding in favor of plaintiffs; and we find no evidence in the record which was improperly admitted over the objection of defendants. Some evidence not altogether relevant to the issues was introduced by the plaintiffs; but nothing appears to indicate that it could have mislead the learned chancellor who heard the ease and made the findings.

If Clark, formerly a partner to plaintiff J. H. Bryant, was a necessary party to this action, defendants should have raised that issue before or at the time of filing their answer. It is too late to complain of such matters after going to trial. [R. S. 1909, see. 1804; Reugger v. Lindenberger, 53 Mo. 364.] As no showing was made of any effort on the part of defendants to secure the presence' of Clark at the trial, his failure to attend and give evidence is not a proper ground for a new trial.

We do not perceive that the alleged newly discovered evidence to the effect that Bryant was insolvent and Clark solvent when those parties went into the saloon business, could have any bearing on the issues herein. Plaintiff Bryant testified that he contributed most of the money to start the saloon; but all the partnership property, by whomsoever contributed, was liable for the partnership debts; and the only evidence as to the value of the saloon, fixtures and supplies was to the effect that they far exceeded all the indebtedness of the firm of Bryant- and Clark. Defendants accepted the saloon and town lot as pledges for whatever contracts they entered into, and there is nothing in the evidence or pleadings indicating that they relied in any way upon either the solvency or insolvency of plaintiff J. H. Bryant.

Defendant’s own attorney who was present when the saloon was sold or pledged to defendants, and who drew up the warranty deed for the town lot, testified' that defendants, through their agent, Levy, agreed to assume the debts of Bryant and Clark; and as one of the defendants was on the stand and did not deny that his firm had failed to pay the debts of Bryant and Clark, plaintiffs’ evidence on that point practically stands admitted to be true. There was no substantial evidence offered to rebut the testimony of plaintiff J. H. Bryant, that defendants’ agent Levy agreed that defendants, in consideration of the warranty deed for the town lot, would furnish said plaintiff with such additional supplies as were necessary for continuing the saloon business and that they wholly failed to comply with that agreement. Why Levy, who made the alleged contract with plaintiffs, as defendants’ agent, was not used as a witness, or his evidence obtained and offered by the defendants, does not. appear; and defendants’ neglect to produce him as a witness or to show any reason for their failure so to do, raises a presumption that their defense is not made in good faith. [The Connecticut Mutual Life Insurance Company v. Smith, 117 Mo. 261.] The letter which their agent, Ike Levy, wrote to defendants, and which they' attach to their motion for a new trial, as newly discovered evidence, contains nothing that would aid defendants upon a second trial. It partially corroborates plaintiff Bryant, in that it recites that the warranty deed was intended to be a mortgage; and as defendant Lazarus had upon the first trial, sworn most positively that he never reeived any such letter, and knew nothing whatever about it, even when his attention was called to the fact that he had exhibited it to witness Tribble, the introduction of the letter upon a second trial would tend to show that said defendant Lazarus had sworn falsely on the first trial; so that such letter would be much more harmful than beneficial to defendants, if it were used upon a second trial.

Defendants had a fair trial, and the finding of the trial court that the warranty deed for the town lot was intended as a mortgage, and that the consideration therefor had wholly failed, is fully supported by the evidence and the law. [O’Neill v. Capelle, 62 Mo. 202; Gibbs v. Haughowout, 207 Mo. 384.]

It follows that the order of the circuit court granting defendants a new trial should be, and the same is, reversed; and said court is directed to render a judgment upon its findings, cancelling the warranty deed from plaintiffs to defendants, divesting the title to said town lot out of defendants and vesting the same in the plaintiffs; and it is also ordered that judgment be given in favor of the plaintiffs for the reasonable rental value of said town lot from the institution of this suit until possession of said property be delivered to the plaintiffs, together with the costs of this action.

Kennish, P. J., and Ferriss, J., concur.


author: ROY, C. PER CURIAM.

text:
    HENRY BISHOP et al. v. CARL BLOCKER, Appellant.
    Division Two,
    July 1, 1911.
    1. QUIETING TITLE: Common Source: Through Different Persons. Where plaintiffs claim title through one Wright as some of his devisees under his will, and defendant claims as purchaser from two other persons, and testifies for plaintiffs that after he purchased he was sued by some of the heirs of Wright, and he settled with them by compromise, and merely to quiet title, that they permitted judgment to go in his favor, and that he did not claim under them but under his prior grantors— all the records of the county being burnt — no common source of title is shown.
    2. -: -: Carieton’s Abstracts: Certificate of Entry. An entry in Carieton’s Abstracts, namely, “No. 3. Pemiscot County to Matthew Wright. Certificate of Entry No. 1185, dated January 27th, 1859; filed in Register’s Book One, page 40; consideration, ?300,” and describing the swamp land sued for, does not show any title, legal or equitable, in Wright, and hence none in his heirs; and as they (the plaintiffs) and defendant do not claim through a common'Source of title, and there is no other showing of title in Wright, a judgment for plaintiffs cannot stand. There is no showing that Wright ever paid anything for the land, or was entitled to a patent from the State.

      Appeal from Pemiscot Circuit Court.— Hon. Henry C. Riley, Judge.
    Reversed.

      Faris & Oliver and Ward & Collins for appellant.
    The finding and judgment of the court is against the lavrand the evidence. No common source of. title was admitted in the trial, none was agreed upon and none was proved; respondents claim no title,by adverse possession, in fact they never had any possession of the land; therefore, if respondents recover at all, they must recover upon their paper title, which must show in them a legal or fee simple title. The offering of Entry No. 3 of Carleton’s Abstracts was not competent for the reason that this register, who issued that certificate, held his office by virtue arid authority of a local law found in Laws 1855, p. 154, which act was not offered in evidence; and for the reason that that entry absolutely proved nothing to establish land title. That entry, read in the light of the law as it existed, simply means that Matthew Wright had a register’s receipt, nothing more and nothing less, which would not give him equitable, much less legal title, and would not entitle him to a patent, because under the Swamp Land Law, 1855, there were two offices created in Pemiscot county, a register and a receiver, and under that law any person could go to the register and get a certificate without paying one cent and without becoming hable to pay to anyone in the world anything; this act of getting a certificate from the register, as was done in this entry No. 3, offered in this ease, only indicated that the “would-be” purchaser had selected this particular land, for which he was to pay the consideration, therein named of $300. Here Matthew Wright stopped, as shown by the record; but to get an equitable title, even, he must have taken the certificate of the register (a copy of which the register kept, and a copy of which was sent to the Eegister of Lands at Jefferson City) to the Eeceiver of Public Money and there have paid the receiver the $300 consideration mentioned in the register’s receipt, and then obtained from the receiver a receiver’s receipt, which receipt (not the register’s certificate) gave him an equitable interest in the land; and this register’s certificate and the receiver’s receipt could be sent to the State Eegister of Lands at Jefferson City and a patent would be issued thereon to the purchaser. Laws 1855, p. 154, sees. 4, 5, 6; Nall v. Conover, 223 Mo. 477.
   ROY, C.

— On January 1, 1906, the following petition was filed by plaintiffs' in the circuit court of Pemiscot county:

“Plaintiffs state that they are the owners in fee and claim title to the following described lands situated in the county of Pemiscot, State of Missouri, to-wit: The southwest quarter, the east half of the
northwest quarter and the southwest quarter of the northwest of section eight, in township seventeen north, of range twelve east.
“Plaintiffs further state that the defendant claims some right, title, interest and estate in and to said lands, and that said claim is adverse and prejudicial to plaintiffs.
“Wherefore, plaintiffs pray the court to ascertain and determine the estate, title and interest of the parties hereto, respectively, in and to such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties, plaintiffs and defendants, severally, in and to such real estate.”

On February 20, 1906, defendant filed the following answer:

“For such answer defendant admits that ‘he claims some right, title and interest in and to the lands described in and set out in plaintiff’s petition, but denies that plaintiffs, or any of them, have any right, title or interest whatever in and to said lands, and that defendant herein is the sole and only owner of all interest rights and equities in and to the same.”

The cause was tried July 30, 1906.

It was agreed that the deed records of Pemiscot county were destroyed by fire in December, 1882.

Plaintiffs introduced the following evidence:

(1) Session Laws 1901, pages 251 and 253, inclusive — a special and local law attempting to make Carleton’s Abstracts competent testimony to establish land title in Pemiscot county, Missouri.

(2) The United States to State of Missouri. Grant by Congress, September 28, 1850, conveying the swamp lands to the State.

(3) State of Missouri to Pemiscot county. Patent. Conveying the land in controversy and other lands to Pemiscot county.

(4) From Carleton’s Abstracts, Entry' Ño. 3, asfollows: “No. 3. Pemiscot County to Matthew Wright. Certificate of Entry No. 1185, dated January 27, 1859; .filed in Register’s Book One, page 40, consideration $300. The above certificate of entry conveys the southwest quarter and the east half of the northwest quarter of section 8, township 17, range 12.”

(5) Entry No. 4 of Carleton’s Abstracts. Exactly like the above quoted entry, with the exception it described another 40 acres of land in controversy.

(6) The last, will of Matthew Wright. Third item-in said will is the only one having any relation to the land in controversy and is as follows:

“I do hereby bequeath unto my beloved wife, Elizabeth Ann Wright, for her use, benefit and behoof during her natural life, all the balance of my real estate and personal property not hereinbefore bequeathed, and after her death, all the property, .both real and personal, of which she was seized at the time of her death by virtue of this, my last will and testament, shall be equally divided between the lawful heirs of the said Elizabeth Ann Wright and the lawful heirs of the testator, the aforesaid Matthew Wright.”

Also the testimony of Carl Bloker, who testified:

“That he was the defendant and claimed this land under a deed from Worst and-Brinkerhoff; that some, parties claiming to be the heirs of Matthew Wright had sued him and he bought them out in a compromise and let the judgment go for the defendant (himself); that he had had possession of the land two or three years; had cleared up about 50 acres of it and had paid all the taxes on it since 1902. That he had made the settlement with the parties who had sued him prior to this suit, merely to quiet his title and as a compromise, but that he was still relying upon the title he got through Worst and Brinkerhoff. And that his claim to. this land through Worst and Brinkerhoff was of long standing and long prior to the compromise settlement made in the other lawsuit.”

And the testimony of Sarah Kimés and Mrs. John C. Parks to the effect' that Matthew Wright died in 1866 and Elizabeth Ann Wright in 1892 and tending to show that plaintiffs were a portion of the heirs of said Wright.

The court found and decreed that plaintiff, Mrs.— Hampton, is entitled to an undivided sixteenth, and plaintiffs Henry Bishop, Mrs. Ella Parmer, Mrs. Emma Timberman and Mrs. Sarah Kimes are each entitled to an undivided twentieth, and the defendant to fifty-nine eightieths of the land.

Defendant has perfected his appeal.

Since the opinion was written in the case of Nall v. Conover, 223 Mo. 477, there is no foundation on which the judgment in this case can stand.

There was no common source of title. The defendant’s evidence shows that he relied on his title which he got through Worst and Brinkerhoff, and that he had settled with some of the Wright heirs who had sued him merely to quiet his title as a compromise.

Graves, J., said in the Nall ease, supra (l. c. 492): “Does this record evidence prove a common source of title? We think not. Plaintiffs claim under Thomas C. Powell alone. Defendant attempted to deraign title from Thomas O. Powell and John H. Powell. There is a difference between a single grantor and two grantors. Plaintiffs claim through one, who had no paper title, and defendant claims through two, neither of whom had a paper title. Under such circumstances it cannot be said that a common source of title was either assumed or shown.”

The plaintiffs failed to prove either legal or equitable title in themselves. The certificate of entry read in evidence was no showing of title, and no showing that Matthew Wright ever paid anything for the land, or was entitled to a patent.

In Nall v. Conover, 223 Mo. l. c. 491, Craves, J., says: “It is. clear under this law that the plaintiffs failed by their entry No. 3 from Carelton’s Abstracts to show either a legal or equitable estate. No attempt is made to prove the loss of the triplicate certificates, for at least one of them should have been in Jefferson City. No attempt to prove payment, either from the Receiver’s Books, or from the triplicate copy of the receipt on file in Jefferson City, if in fact any payment was made. No patent was in evidence. Had it been shown that the money had been paid, an equitable title might have resulted from that proof, but there is no such proof or even an attempt to make it. Under the proof presented by the plaintiffs neither legal ñor equitable title was established in plaintiffs. Certificates of this character were held in judgment by this court in the recent case of Phillips v. Trust Co., 214 Mo. 669.”

The judgment is reversed.

Bond, C., concurs.

PER CURIAM.

— The foregoing report of the commissioners is hereby adopted as the opinion of the. court.


text:
    CITY OF MAYSVILLE, Appellant, v. NANCY J. TRUEX.
    Division Two,
    July 1, 1911.
    1- PLAT OF CITY: Defective Certification: Waived By Answer. Where the defendant in her answer, to a city’s suit in ejectment for what it claims is a street, specifically pleads the platting, surveying and laying out of the lots, blocks and streets of said city in exactly the same form, shape and size as they are shown by the plat introduced by the city, except that she. does not admit the street in front of her lots is of the width shown by the plat, her objection that the execution and certification of the plat are defective and insufficient must be disregarded.
    2. PLEADING: Ejectment: No Allegation as to Location of Property: Cured By Answer. A failure of. the petition in a city’s suit in ejectment for a street to state that the street is within the corporate limits of the city is cured by an admission in the answer that the land occupied by her is in the city.
    3. LIMITATIONS: Adverse Possession By Others. A defendant sued in ejectment for land cannot reap the benefit of adverse possession by another unless she proves she succeeded to such other’s adverse possession. There must be something to connect him with the parties through whom she claims.
    4. -: -: Not An issue.. Where the city sues for a strip of ground ten feet wide, claiming it is a part of a street, • and defendant, admitted to be the owner of lots 1 and 8 abutting on the street, by her answer claims title to the amount of land which the plat shows is in lots 1 and 8, and the only question is whether the strip is a part of the street or a part of the lots —in other words, whether the plat is erroneous in saying the street is 33 feet wide instead of 23 or in saying the block is 237 feet wide instead of 227 — there is no question of adverse . possession in the case, and the court erred in giving an instruction upon that issue.
    5. EJECTMENT: Possession: Stone as Marking Street. Testimony of the surveyor that he found a stone which he believed to be the east boundary of. the street, and that by measuring westward thirty-three feet, the width of the street according to the plat, he found that defendant’s fence extended ten feet into the street, is not sufficient evidence that defendant was in possession of a part of the street to authorize the court to direct a verdict for the city.

      6. -: Boundaries of Streets and Lots: Hearsay Evidence. Hearsay evidence is admissible to prove the location of ancient boundaries and monuments of lands in which the public have an interest, such as the boundaries of street's and highways; and for that reason, the acts of the first settlers, of an old town, in constructing the fences and improvements to their lots, would, after the death of the first settlers, be evidence that they understood the true boundaries of their lots and of the street shown on the original plat, and that they constructed their improvements with reference thereto.
    7. -: —;-: -: Presumption. In the absence of evidence to the contrary, the law presumes that private citizens proceed by right and not by wrong. So it is not reasonable to assume that private citizens became trespassers upon a street and made the improvements of their lots project into a street shown by the original plat to be 33 feet wide, when to make the street that wide would be to cut off a strip ten feet wide from their lots as that size is shown by the same plat, and it would also be unreasonable to assume that the officers of the town for more than a half century permitted its streets to be partly closed up by the owners of the lots.
    8. -: -: Presumption as to Plat: Evidence as to Other Lots. The original plat of the town showed the block to be 237.6 feet wide, and the abutting street to be 33 feet wide.. The street can be made that wide only by taking a strip ten feet wide from the block and adding it to the street; and after the owners of the block had long since improved the lots thereof and constructed their fences and houses on the theory that the dimensions of the block and lots given on the original plat were correct, the city sues for the ten-foot strip, contending it is a part of the street. • Held, that it will not be held that, as the plat designates the street as being 33 feet wide, it must be made that wide; and, also, Held, that, in a suit by the city against the owner of two lots in the block, it was competent for her to show that if she were compelled to move her fences back ten feet she would then have ten feet less than she is entitled to according to the plat, and if her improvements were moved back it would be necessary to move back or change most of the improvements constructed in that and other blocks and parts of the city.
    Appeal from DeKalb Circuit Court.— Hon. A. D. Burnes, Judge.
    Reversed and remanded,

      Albert D. Hewitt for appellant.
    (1) In construing maps of official survey, courts give effect to the meaning expressed by their outlines as •well as their language. St. Louis v. Railroad, 114 Mo. 13; Columbia v. Bright, 179 Mo. 441; Campbell v. Wood, 116 Mo. 196. (2) The sale to the defendant and her grantors was designated as lots one and eight, block one, as shown by the plat of the town of Mays-ville. The eastern boundary of these lots was and is shown by the plat as Sloan Street, and the title to her under the deeds did not extend beyond this boundary. Tatum v. St. Louis, 125 Mo. 657; St. Louis v. Railroad 114 Mo. 22; Campbell v. Wood, 116 Mo. 196. (3) There was wholly absent any evidence to support a judgment for defendant; a complete record title in plaintiff having been shown by the records in evidence, the court should have directed the jury to return a verdict for plaintiff, when requested by the plaintiff at the close of all the evidence. (4) Instruction 2, as prayed by plaintiff and refused by the court, should have been given, in which the court was asked to instruct the jury that under the evidence in the case the title to the premises in suit was vested in the public to its use as a part of the public streets of plaintiff, and the jury should find for the plaintiff unless it finds from the evidence that the title has been divested by such visible, notorious, continued and adverse possession as defined by the instructions in this case. This was clearly within the issue raised by the pleadings and the evidence. In fact, this instruction covered the whole case after refusing to direct a verdict for the plaintiff. (5) Instruction 1, given by the court for defendant tells the', jury that the burden is on the plaintiff to show that the property claimed is within the corporate limits of the city of Maysville. This was error in the face of the pleadings and admissions therein. (6) There is not a scintilla of evidence in this ease that anyone either squatter or trespasser, grantor or grantee, in defendant’s chain of title ever occupied the premises or any part thereof prior to the year 1892. Crowd v. Crowd, 195 Mo. 338; Heckescher v. Cooper, 203 Mo. 278; Morrison v. Bomer, 195 Mo. 535.
    W. M. Fitch and Kendall B. Randolph for respondent.
    (1) Plaintiff’s petition is fatally defective in that i t fails to state that the ground in suit is within the corporate limits of plaintiff city. Butler v. Robinson, 75 Mo. 192. This question may be raised for the first time in this court. Cartwright v. Tel. Co., 205 Mo. 131. (2) Plaintiff having failed to show by competent proof that the land in suit was within the corporate limits of plaintiff city, defendant’s demurrer should have 'been sustained, because plaintiff was not incorporated under a public statute. Courts cannot take judicial knowledge of its corporate limits nor of its ordinances. Nutter v. Railroad, 22 Mo. App. 328; Hopkins v. Railroad, '79 Mo. 98; Butler v. Robinson, 75 Mo. 192; St. Louis v. Roche, 128 Mo. 541. (3) The plat in evidence will not sustain ejectment, a. It does not vest a legal title, nor convey the legal title to the lands in suit. b. It does not purport to be made by order of the county court, as required by Sec. 13, p. 294, R. S. 1845. Cartinv. Wolf, 154 Mo. 544. e. The survey on the plat in evidence was valueless as a record, because it was not made by a county surveyor. Williamson v. Fisher, 50 Mo. 200. d. The surveyor’s certificate was void as a record. Majors v. Watson, 73 Mo. 661. e. The plat in evidence was a copy of a copy and made without authority of law. Sec. 1274, Wigmore’s Evidence, f. The plat does not purport to dedicate land in suit as a street for public uses. Same reference as “a.” g. The land in suit has never been accepted or used by plaintiff, as shown by record. Bauman v. Boeckler, 119 Mo. 189; Vossen v. Bautel,.116 Mo. 379; Baker v. Vanderberg, 99 Mo. 378; Mandis v. Hamilton, 77 Mo. 554. h. The plat was.not acknowledged and recorded as required by law, the certificate was not as required by law. Putnam v. Walker, 37 Mo. 379; 2 E. S. 1855, p. 1535, sec. 2. i. Thompson Smith, the patentee, acquired legal title to this land for county seat purposes; he does not make the plat, and there is no authority for anyone else to make it, as shown by the evidence, j. One cannot dedicate land to public use, except he be vested with the legal title thereto. 13 Cye. 442-443; Hannibal v. Draper, 36 Mo. 332. k. The certificate of acknowledgment, being the act of a ministerial officer, cannot take the place of, or perform the office of the instrument itself; the recitations in the acknowledgment are not the statements or covenants of the grantor in such instrument. 1. The plat was not under seal. m. City never accepted any of the lands sued for, now claimed as a street. St. Louis v. University, 88- Mo. 155. (4) Cities may maintain ejectment to recover possession of streets only when they are vested with the legal title thereto. Augusta v. Perkins,'42 Ky. 437; Chicago v. Wright, 69 111. 318;. San Francisco v. Sullivan, 50 Cal. 603; St. Louis v. Eailroad, 114 Mo. 19. (5) It was error to refuse -defendant’s offer to show that defendant had no more land than the plat called for, and if her lot was located too far east, that the same error occurred in the whole city, and was caused by the town being placed too far east, provided the city’s survey was correct. Columbia v. Bright, 179 Mo. 441. (6) Plaintiff city’s alleged grantor, the county, located the lots sold to plaintiff’s» grantor, and plaintiff now claims on those lines received from the county as designated by the county. Henderson v. Beasley, 137 Mo. 199. (7) Statute of Limitations applies to the facts in evidence; possession has never been in plaintiff. Coleman v. Drane, 116 Mo. 387. (8) Under all the facts in evidence, the judgment was for the right party and should be affirmed; the question of limitation was properly raised on the evidence, was properly submitted to the jury and was a question of fact for the jury.
   BROWN, J.

— Ejectment for a small strip of land alleged to b.e part of Sloan street in plaintiff city. There was a judgment below for the defendant, for which plaintiff appeals.

The original town, now city, of Maysville, was laid out and platted in the year 1845, as the county seat of DeKalb county, by one G. W. McPherson, Commissioner, upon land donated to said county by the United'States for county-seat purposes.

Defendant contests plaintiff’s right to recover on the following grounds:

1. By adverse possession.

2. The plaintiff acquired no title to the streets of Maysville, because of certain defects in the execution and certification of the plat of said city.

3. That plaintiff’s petition is fatally defective in that it does not recite that the land in dispute is within the corporate limits of the city of Maysville.

4. That the defendant is the owner of lots 1 and 8 in block 1 of said city of Maysville,; and that she occupies the identical land which was staked out and sold by DeKalb county to the party under whom she claims as being lots 1 and 8 of block 1 of said city; and that plaintiff, as the successor of said county of DeKalb, in the ownership of the streets of Maysville, is estopped from claiming that the land occupied by her is a part of a street of said city.

The defendant derives her title to lots 1 and 8 of block 1 in Maysville, through G. W. McPherson, the-commissioner who platted and laid out said town as the county seat of DeKalb county. Such other parts of the pleadings and evidence as will be necessary to a full understanding of the case will be noted in our opinion.

The plaintiff asks a reversal of the judgment, (1) because the court failed to direct a verdict for it; (2) because the court erred in its instructions given to the-jury at the request of the defendant.

OPINION.

The plat of Maysville shows that Sloan street is thirty-three feet wide and lies along the east boundary of said city, and that defendant’s lots adjoin said street.

The objections urged against the execution and certification of 'the plat of Maysville must be disregarded, because defendant in the second count of her answer specifically pleads the platting, surveying and laying out of the lots, blocks and streets of said city in exactly the same form, shape and size as shown by the copy of plat introduced by the plaintiff; except, that she does not admit that Sloan street (a part of' which she is charged with being in possession of) is. thirty-three feet wide. The width of Sloan street is one-of the points in controversy, as will hereafter appear. .

The further contention of defendant that plaintiff’s, petition does not state that the strip of land in dispute is. within the corporate limits of the plaintiff city, is cured-by defendant’s answer, which admits that all the land occupied by her is in said city. It is a well settled rule-of law that omissions in a petition may be supplied and cured by recitals in the answer. [Grace v. Nesbitt, 109 Mo. 9; Fisher v. Central Lead Co., 156 Mo. 485.] When a fact the existence of which would require proof' by the plaintiff, is admitted in the answer, plaintiff is. thereby relieved of the burden of' proving same. [McKenzie v. Railroad, 216 Mo. l. c. 19.]

Defendant’s plea of the Statute of Limitations is. not sustained by the evidence.' There was¡ some evidence that a man named Hammer occupied a shop on the strip of land in dispute in 1859; but there is nothing-to connect him with any of the parties through whom defendant claims title. If Hammer occupied part of Sloan street adversely to plaintiff, before defendant can derive any benefit from such adverse occupancy by said Hammer, she must prove that she succeeded to his adverse possession. [Adkins v. Tomlinson, 121 Mo. 487.] Besides, we do not think the question of adverse possession is in this case on the pleadings. Defendant by her answer only claims title to the amount of land which the plat shows to exist in lots 1 and 8 in block 1; and if the land she occupies is in those lots, then there is no adverse possession, because plaintiff only claims title to the streets.

The only evidence that defendant is in possession of part of Sloan street is the testimony of a surveyor that he found a stone which he believed to be the east boundary of said street, and that by measuring west ward from that stone thirty-three feet, he found that defendant’s fence extended into the street about ten feet. This was not sufficient evidence upon which to direct a verdict for plaintiff under the pleadings and facts in this case.

As we interpret defendant’s answer, she claims that she only occupies a strip of land of the same size. as lots 1 and 8 of block 1, as shown on the plat of Mays-ville and described in her deeds; and that the land she occupies was surveyed, staked off and sold to the parties through whom she claims, by the commissioner of DeKalb county, appointed for that purpose, and that even though a mistake may have been made in platting Sloan street as thirty-three feet wide when it was not in fact that wide, this would afford no excuse for disturbing her possession. She introduced some proof to support this claim, by showing that most of the other houses and improvements along the west side of Sloan street were on a line with her improvements; and offered to prove that if she was compelled to move her fence back ten feet, she would then have ten feet less than she is entitled to under the plat, and that if her improvements were moved back, it would be necessary to move or change the location of most of the improvements constructed in all other parts of the city. In other' words, she offered to show that in order to give Sloan street a width of thirty-three feet, it would curtail the width of block 1 to the extent of ten feet, or move all other streets and improvements in the city, including the courthouse square, ten feet further west; but the court refused to allow her to introduce this proof; and we think it erred in so doing. It is true no direct evidence was offered that defendant occupies the identical land which DeKalb county surveyed, staked out and sold to the party under whom she claims. It is not probable that such direct evidence would be obtainable seventy years after the transaction; but the fact that the first parties to build on those lots in 1859 made the improvements on the strip of land now in dispute, is some evidence that the commissioner of the county seat marked out and located the boundaries of that block so as to cause them to build there. The evidence shows that town lots in plaintiff city were selling for five dollars each in those days; and it would be rather against reason to suppose that parties would intentionally build houses in the streets when lots were so cheap.

If it is true, as defendant contends, that the courthouse and all other improvements made in the city of Maysville were constructed on the theory that Sloan street was less than thirty-three feet wide, and that if Sloan street is made thirty-three feet wide, it will be necessary to move all other streets and improvements ten feet further west in order to give each owner the land to which he is entitled, according to the plat of the town, this would raise a presumption that there was an error made in the original survey of Sloan street. . No doubt the stakes, stones or other monuments showing the boundaries of the blocks and Streets, as' established by the original survey, could have been easily found when the first buildings and fences in Maysville were constructed; and the conduct of those first settlers, if it shows a uniform understanding that the lots and blocks in said city were located as at present occupied, would be evidence that their improvements were made in accordance with the work of the commissioner who was. appointed to lay out the town. Hearsay evidence is admissible to prove the location of ancient boundaries and monuments of lands in which the public have an interest, like the boundaries of streets and highways; and for the same reason, the acts of the first settlers of an ancient town in constructing improvements would, after the death of said first settlers, be evidence that they understood the true boundaries of their property and the streets of such town. [Greenleaf on Evidence (16 Ed.), pp. 222 and 223. St. Louis Public Schools v. Risley’s Heirs, 40 Mo. 356.]

It would be unsafe to assume that all the citizens of a town would become trespassers and build their houses upon or into the public streets, and it is not reasonable to assume that the officers of a town or city would permit its streets to be closed up or partly closed for more than half a century. In the absence of evidence to the contrary, the law presumes that even a private citizen proceeds by right and not lay wrong. [Long v. McDow, 87 Mo. 197.]

Plaintiff and the trial court seem to have proceeded' upon the theory that as the plat of Maysville designates Sloan street as being thirty-three feet wide, it must be made that wide, even if to accomplish that result it is necessary to hold that block 1 is only 227.6 feet wide, east and west, instead of 237.6 feet wide, as shown by the plat of said city. We cannot subscribe to that doctrine. A more equitable rule is prescribed in our statutes for surveying sectionized lands, whereby if a half-section of land is found to contain a less number of acres than the Government survey thereof indicates, then each subdivision of said half-section must stand its proportionate share of such shortage. [Sec. 11320, R. S 1909.]

1. While the trial court committed errors against defendant, it also committed error against the plaintiff by submitting to the jury the issue of whether or not the land in controversy is in the corporate limits of the city of Maysville, that fact being admitted by defendant’s answer.

2. The court also erred in giving an instruction for defendant on the issue of title by adverse possession, which the pleadings and evidence did not warrant.

For the trial court’s error in giving these instructions, its judgment is reversed and the cause remanded for a new trial, according to the law as herein announced.

All concur.