author: BURGESS, P. J.

text:
    LOGAN, Appellant, v. FIELD.
    Division Two,
    December 12, 1905.
    1. APPELLATE JURISDICTION: Constitutional Question: How Raised. A constitutional question may be raised, so as to give the Supreme Court jurisdiction of the appeal, by excepting to an instruction given, and then, in the motion, for a new trial, pointing out wherein the instruction is in conflict with the Constitution.
    2. -: -Nine-Jury Law. The appeal from a judgment rendered on November 17, 1901, by nine jurors, the court having told the jury that nine of their number might render a verdict, to which instruction appellant excepted and raised the point in his motion for a new trial that it was not authorized by the Constitution of the State, is to the Supreme Court.
    3. EXPERT TESTIMONY: No Foundation: Indefinite Answer. Although no foundation was laid upon which to bottom the hypothetical question, yet if the answer was so indefinite and unsatisfactory ’ that it could not have prejudiced appellant, the judgment will not be reversed.

      4. IMPEACHMENT EVIDENCE: General Objection. Objection to evidence as a whole, which was admissible for the sole purpose of laying a foundation for impeachment, should be overruled.
    5. INSTRUCTIONS: Based on Evidence. Where some of the instructions base plaintiff’s right to recover upon the evidence before the jury, it is not necessary that all the instructions should in express terms repeat the same thing over again. All that is necessary is that the instructions, when taken together, .present the case in such a way as to make the jury understand that their verdict must be predicated upon the evidence.
    6. -: -: Right to Complain. Where the verdict was for appellant he cannot complain of instructions for defendant which were confined to the issues involving his right to recover.
    7. INSTRUCTIONS: Physician’s Compensation: When Entitled to no Pay for Services. The court approves as substantially correct instructions given in this case which declared the law as follows:
    1. Implied Promise. The law implies a promise of the patient to pay for medical services, without regard to whether such services were beneficial to the patient or not.
    2. Reasonable Ground for Treatment.' A physician may pursue a particular course of treatment and charge the patient therefor, as long as the physician has reasonable cause to believe the disease of the patient will yield to the treatment, and this without regard to whether the patient is or is not cured or benefited by such professional service.
    3. Physician’s Discretion. The physician has not unlimited discretion to serve his patient.
    4. Physician’s Good Faith. The patient has a right to expect good faith from the physician; also to rely upon the supposed superior knowledge of the doctor to discover, determine and advise what course should be pursued in his case.
    -5. Physician’s Competency. A physician cannot recover for worthless treatment if he knew or ought as a reasonably competent and prudent man of his profession to have known of the uncertainty of a cure, and .the patient went for and received such treatment because encouraged by the physician to receive the same or because the physician failed to inform him of the uncertainty of the treatment.
    6. Implied Promise to Patient. In accepting a patient, the physician in effect says, that he possesses and will exercise reasonable skill and judgment to discover the trouble of the patient and whether it is curable.
    7. Conscious Inability: Fráud: Concealment. If a physician is conscious of his inability to understand or properly treat the patient’s trouble, he should at once inform the patient thereof; concealment by the physician of his ignorance in performing unbeneficial service, would be a fraud, and for which service the physician would be entitled to no compensation.
    '8. Lack of Skill. If the failure of a physician to discover and cure the trouble of his patient is because the physician does not possess reasonable skill or because' he does not exercise such skill, he is not entitled to any pay for his services.
    •8. Worthless Service: Guaranty. The law does not permit a physician to recover for worthless professional service, even though the physician does not guarantee a cure, if such- service is negligent, unskillful or unfaithful. .

      10. Expert Testimony, A jury is not bound by the opinion of physicians who have testified as experts in the case; such opinions may be given such weight as the jury deem them entitled to, or be altogether disregarded by the jury in so far as deemed unreasonable.
    Transferred from Kansas City Court of Appeals.
    Aeeiemed.

      W. 8. Cowherd, B. J. Ingraham and Sam B. Strother for appellant.
    (1) Appellant, in Ms motion for new trial, assigned, among others, the following grounds therefor: “Because the instructions given by the court at the request of defendant are contrary to the Constitution of the State of Missouri.” Appellant, having thus presented to the trial court a question involving the construction of the Constitution of the State, placed the appellate jurisdiction of this case in the Supreme Court. Bank v. Bennett, 138 Mo. 500; Baldwin v. Fries, 103 Mo. 286; Bennett v. Railroad, 105' Mo. 644; Turley v. Barnes, 131 Mo. 552; State ex rel. v. Smith, 141 Mo. 10; State ex rel. v. Smith, 150 Mo. 76. (2) In the examination of his own witness respondent was permitted, over specific objections by appellant, to propound a hypothetical question based on a condition of fact not at that time supported by the evidence, and which was not subsequently shown to exist. All the evidence shows that the trouble Judge Field had in 1890 was inflammation of the nasal cavity; while that he had in 1892 was inflammation above that extending into the sinus. The doctor had relieved the first trouble by “galvanic cautery.” There was not a word of evidence tending to show that he had cauterized this canal leading to the sinus, where the last trouble existed. And yet the question was based on the false premise that in 1890 he had cauterized this canal. This was error. Russ v. Railroad, 112 Mo. 49; Hicks v. Railroad, 124 Mo. 125; Powers v. Kansas City, 56 Mo. App. 577. (3) The admission of statements made by Dr. Logan, Sr., as to what his son (appellant) had said, was nothing more nor less than the admission of hearsay testimony, and is therefore error. There was no ground laid for impeachment. State v. Pruett, 144 Mo. 95; Dun v. Altman, 50 Mo. App. 239; Pange v..Burgess, 71 Mo. 389: (4) Excepting instruction 7, given for respondent, all of his instructions utterly fail to direct the jury to the evidence in the case as the basis for their finding. All of the testimony, excepting that of the respondent, was the testimony of medical experts. This abstract method of framing and giving instructions was peculiarly erroneous in this case. For, by instruction 9, the jury was given to understand that they might disregard all the testimony in the case, and then, by- a series of instructions given by respondent, referring in no way to the evidence, the jury was warranted in drawing their conclusion from any source whatever. Rosenthal v. Brady, 63 Mo. App. 403; Hanlon v. O’Keefe, 38 Mo. App. 273.

      Wash Adams for respondent.
    (1) Instruction 1 given by the court at the request of defendant that “the defendant, by submitting himself to plaintiff for treatment, did not confer upon the plaintiff unlimited discretion to run a bill for any kind of treatment and to any extent the plaintiff might see fit to bestow upon him,” declared a correct proposition of law. Hill v. Featherstone, 7 Bingh. (Eng.) 572. (2) The first clause of instruction 2, given at defendant’s request, “that defendant had the right to expect good faith from plaintiff and to rely upon the supposed superior knowledge of plaintiff to discover, determine and advise what way should be pursued in his case,” is recognized law. Hill v. Featherstone, 7 Bingh. 672; Schoonover v. Holden, 87 N. W. 737. (3) Appellant complains of the instructions given at the request of the defendant which required him to inform the defendant that his case was incurable, or that a cureñas doubtful, if the appellant knew, or ought, as a reasonably prudent and skillful doctor, to have known, that a cure was impossible or uncertain Horn the treatment administered. In other words, the kernel of the appellant’s condemnation of the instruction given at defendant’s request seems to be this: That the doctor in treating apatient has a sort of “graft” that the courts and juries and patients have no right to look into or take away. That though the doctor be ignorant and knows, or has reason to know, that he does not understand the trouble of the patient and therefore can have no fair hope of a successful result of his treatment, he has a right to conceal from the patient his ignorance of the case, to conceal from the patient his lack of reasonable hope of accomplishing the result sought by the patient; to conceal from the patient the doubts in his mind, or that ought to be in the mind of a reasonably learned and prudent doctor, that the treatment administered would be successful to accomplish the result sought by the patient. That such contention is not the law is established by the decision in the former appeal (75 Mo. App. 594) and by the cases therein cited. Under the law, as declared by the decision in the former appeal, a doctor’s right to recover is not defeated by his failure to cure his patient. But to entitle him to recover when the service was worthless or unbeneficial, it devolves upon the physician to prove that this result was for no failure to exercise reasonable skill and diligence on his part, jRes ipsa loquitur. Ordonaux, in his “Jurisprudence of Medicine ” speaks of the right of the physician to recover compensation for his services, and on page 42 says: “If the good effect of his treatment and the consequent value of his services be disputed,' he must be prepared to show that his labor was performed with ordinary skill and in the ordinary way of his profession. ’ ’ 49 N. J. Law 687. The fault in the instructions is that they assume that there is a burden upon the defendant to prove the negative of the plaintiff’s exercise of reasonable skill and diligence, together with thé worthlessness of the treatment, when the burden was upon the plaintiff to prove skill and diligence in the treatment in question, as the benefit therefrom was an issue. The testimony of defendant is not “simply that he did not think he was benefited.” His testimony is positive that he was not benefited at all by the treatment in question, and the plaintiff’s testimony virtually concedes it. (4) The plaintiff having obtained declarations of law to the jury submitting only elements of a contract with the defendant implied by the law, it certainly was the right of the defendant to have all of the elements of contract implied by the law between him and defendant. (5) There is nothing in the appellant’s objection to instruction 2, given at the request of the defendant, to the use of the words therein, ‘ ‘ ought, as a man of his profession, to have known.” Neither these words, nor the words in any other instruction given for defendant, refer to the skill and care of physicians in any other locality. However, if they did, it would not be error. Whitsell v. Hill, 101 Iowa 629 ; Baker v. Hancock (Ind.), 64 N. E. 38. (6) The other instructions given for defendant as a whole declare and recognize that only reasonable skill and diligence were required ■of the appellant in the treatment in question. This was, therefore, implied in instruction 2, given at the request of defendant. The judgment in this case ■should not, therefore, be reversed, because the words, “in the exercise of reasonable skill and diligence,” were not repeated in this instruction. Harmon v. Donohoe, 153 Mo. 263. (7) The plaintiff poses as a nose and catarrh specialist. Thus holding himself out to the public, it is doubtful if he has any cause of action for services which are worthless to the patient. Hupe v. Phelps, 2 Stark (Eng.) 480; Hedden v. Institute, 62 Minn. 147; Baker v. Hancock (Ind.), 64 N. E. 38. Mere ordinary skill and diligence is not what the patient seeks of such a doctor. He has a right to expect more than this without fair notice from the specialist. There is not a meeting of minds between patient and physician on this measure of skill and diligence, as in the case of employment of a doctor who is a general practitioner, who claims no specialty and who does not hold himself as possessing unusual skill in the treatment of diseases. (8) Appellant’s complaint of instruction 9, given for defendant, is groundless. This style of instruction and this particular instruction has been long approved in the courts of this State. Hoyberg v. Henske, 153 Mo. 63. This instruction did not assume, but left to the jury to determine, the incredibility of the expert witnesses in this ease. This instruction was peculiarly proper, indeed it was essential to the justice of the case, in view of the manifest conspiracy existing between the plaintiff and the doctors who testified to win, in this case. Their testimony brings to mind the celebrated words of Lord Campbell in the Tracy Peerage Case, 10 C. L. & Fin. 191, that, ‘ ‘ Hardly any weight is to be given to- the evidence of what are called scientific witnesses; they come with a bias on their minds to support the cause in which they are embarked.” Moratzky v. Wirth, 74 Minn. 146.

       Note. — A former appeal by defendant in this case was decided by the Kansas City Court of Appeals, 75 Mo. App. 594.

   BURGESS, P. J.

On the 24th day of March, 1896, plaintiff instituted suit before Theo. S. Case, a justice of the peace of Jackson county, against the defendant, R. H. Field, upon an account for one hundred and sixty dollars for services rendered defendant by plaintiff, as a physician. Plaintiff recovered, before the justice, judgment for one hundred and sixty dollars, the full amount of his claim. Defendant then took the case, by appeal, to the circuit court of Jackson county, where, upon a trial de novo before the court and jury, plaintiff again recovered judgment for one hundred and sixty dollars. From this judgment defendant appealed to the Kansas City Court of Appeals, when the judgment was reversed and the cause remanded for further trial. Thereafter, on the 17th day of November, 1901, the case was again tried in said' circuit court, and plaintiff recovered a verdict and judgment in the sum of fifty dollars. After unavailing motions for a new trial and in arrest of judgment, plaintiff appealed from this judgment to the Kansas City Court of Appeals, and thereafter, on motion of plaintiff, that court transferred the cause to this court, upon the ground that the court had no jurisdiction of the appeal because of there being a constitutional question involved.

The facts are substantially as follows:

The plaintiff was a practicing physician, making a specialty of diseases of the nose, throat and ear. He had treated defendant in the year 1890, and his bill for that service was paid by defendant. Defendant applied to him again for treatment in the month of October, 1892. The trouble defendant was suffering from in 1890 was different from that with which he was troubled in 1892. In the first instance he had an enlargement or thickening of the mucous membrane or lining of the nasal cavity. The plaintiff cured him, and defendant was not back to see him again until 1892, when plaintiff found that he was suffering from inflammation of the middle turbinate bone, together with inflammation of the frontal sinus. Plaintiff, hoping to relieve the inflammation, and successfully treat the disease without an operation, gave defendant the treatment sued for, telling the defendant that he could not state whether a cure would be worked, and declined to guarantee that such could be effected. It appears, from plaintiff’s testimony, that the defendant, was benefited; that the case at times grew better; that the treatment administered to relieve the congestion in the canal leading to the sinns was successful, but that, from time to time, defendant would catch cold and violently blow his nose, thus keeping up the inflammation which tended to close the connection between the sinus and the nasal cavity.

Defendant’s side of the case was presented by his. own testimony and that of Dr. Leroy Dibble. The propriety and correctness of the treatment administered by plaintiff was supported by several physicians, and defendant’s expert, Dr. Dibble,- testified to the effect that plaintiff had been pursuing correct practice in endeavoring to work a cure without performing an operation. There was no contention on the part of defendant that he had'been in any way injured by plaintiff’s treatment, but he did testify that he did not think he was benefited thereby.

On behalf of the plaintiff the court instructed the jury as follows:

‘ ‘ 1. If you find and believe from the evidence that the plaintiff rendered the services -sued for to the defendant and at his request, and that no price was fixed or agreed upon, then the law implies a promise from the defendant to pay the plaintiff for such services what the same are reasonably worth, if anything; and this is true without regard to whether the treatment of plaintiff by defendant was beneficial to defendant.
“2. If you find and believe from the evidence that the plaintiff rendered the professional services to defendant as claimed by the plaintiff, then plaintiff is entitled to recover what you may find and believe from the evidence such services were reasonably worth, if anything, according to the usual charges of the medical profession in this vicinity; and this is true, although the services rendered may not have produced a cure of the disease with which plaintiff was suffering.
“3. If you find and believe from the evidence that the plaintiff rendered the professional services to defendant as claimed by plaintiff, then the plaintiff is entitled to recover what you may believe from the evidence such services were reasonably worth, if anything, according to the usual charges of the medical profession in this vicinity.
“4. If the plaintiff knew that the disease from which the defendant was suffering was in the frontal sinus, and plaintiff had reasonable cause to believe in the exercise of ordinary care and skill that the same would yield to treatment without an operation, then he had the right to treat defendant for such trouble until such time as he became reasonably certain it was necessary to perform such operation; and he is entitled to recover for such services what the, same are reasonably worth, if anything, without regard to whether defendant was benefited by said treatment or not.”

Thereupon the court, at the request of the defendant, and over the objections of the plaintiff, instructed the jury in the words and figures following, except in instruction No. 2, which was a modification by the court of the instruction asked by the defendant, the modification being the striking out of the word “because” before the word “encouraged” and writing in lieu thereof the words “and was:”

“1. The defendant by submitting himself to plaintiff for treatment did not confer upon the plaintiff unlimited discretion to run a bill for any kind of treatment and to any extent the plaintiff might see fit to bestow upon him.
“2. Defendant had the right to expect good faith from plaintiff and to rely upon the supposed superior knowledge of the plaintiff to discover, determine and advise what course should be pursued in his case.. If the treatment sued for was worthless to defendant, and if the plaintiff then knew, or ought as a man of his profession to have known, of the uncertainty or probable uncertainty of a cure of defendant from the treatment administered, and the defendant went for and received such treatment, and was encouraged by plaintiff to receive the same or because plaintiff failed to inform him of the uncertainty or probable uncertainty of a cure from such treatment, the verdict should be for the defendant.
“3. Plaintiff had no right, even if in the best of faith, to render service of no substantial benefit to defendant and charge therefor, if he himself had doubt, or a reasonably prudent and competent doctor ought to have had doubt, in his mind, of such service being a successful treatment of defendant’s trouble, unless he fully informed defendant of such doubt and defendant with such information of the uncertainty of the success of the treatment, afterward went for and received the same.
“4. The plaintiff in accepting defendant as a patient for the treatment of catarrh of the nose or near thereby in effect said to defendant that he possessed and would exercise reasonable skill and judgment to discover the trouble and whether it was curable, and that if a cure was doubtful he would inform the defendant of such doubt and not conceal the same from the defendant.
“5. If at the beginning of the bill in question or at any time during the plaintiff’s service the plaintiff was conscious of his inability to understand or properly treat the defendant’s trouble, it was his duty to at once fully inform the defendant thereof; concealment by plaintiff of any ignorance of defendant’s case in performance of unbeneficial service charged for would be a fraud, and for which service no compensation could be recovered.
“6. The plaintiff owed the defendant absolute sincerity in accepting and keeping him as a patient. If the trouble with which defendant was suffering and for which he sought plaintiff’s professional aid was in the frontal sinus over the defendant’s right eye, and an operation was then necessary to relieve the trouble of the defendant, and the plaintiff knew this or could have known it by the exercise of reasonable skill and effort, then his treatment of plaintiff was unskillful and improper, and he ought not to recover any amount in this action.
“7. If the jury believe from the evidence that plaintiff failed to discover and cure the trouble of the defendant because he did not possess reasonable skill or because he did not exercise such skill, the finding should be for the defendant.
“8. The plaintiff cannot recover for the service rendered in this case merely because he may have performed such services with the permission or even at the request of the defendant and avoided giving defendant an express guarantee of a cure. The law does not permit a physician to recover compensation for worthless service to a patient even though he refrained from giving an express guarantee of a cure to defendant before and while performing the service sued for, if such service was negligent, unskillful, or was unfaithfully performed by plaintiff, as submitted in other instructions given to the jury at the request of the defendant.
“9. The court instructs the jury that they are not bound to accept the opinion of the doctors who have testified as experts in this case, but may give said opinions and each of them such weight as the jury may deem them entitled to, or altogether disregard such opinions in so far as the jury, from all the facts and circumstances in evidence, may believe such opinions unreasonable.”

To which, action and ruling of the court in giving to the jury said instructions numbered 1 to 9 inclusive at the request of the defendant, the plaintiff at the time excepted.

Over the objection and exception of defendant the court, of its own motion, instructed the jury as follows: “If nine or more of the jurors agree on a verdict in this case, they will sign such verdict and return the same into court.” Thereafter the jury returned into court the following verdict: “We, the following jurors, find for the plaintiff and assess the damages at fifty dollars.”

This verdict was signed by nine of the jurors, and judgment for plaintiff was rendered in accordance therewith.

The first question to be disposed of is that of the jurisdiction of this court over this appeal. The verdict was rendered by nine jurors, as authorized by an instruction given by the court of its own motion, which plaintiff insists was error, as not being authorized by the State Constitution, and that he properly raised that point in his motion for a new trial. In this way a constitutional question was properly raised which conferred jurisdiction of this appeal upon the Supreme Court. [Saxton National Bank v. Bennett, 138 Mo. 494.]

It was held in Gabbert v. Railroad, 171 Mo. 84, that the common law right of trial by jury, by which is meant a trial by twelve jurors who must render a unanimous verdict, might be so amended that nine jurors, concurring, could render a verdict. That decision has always been followed with approval, and recognized as the settled law of this State.

Dr. Dibble, a physician of over thirty years’ experience as such, testified as an expert on behalf of defendant as follows:

“Q. Now, Doctor, I will ask you what the proper treatment is of an established case of disease of the frontal sinns ? A. If it becomes so bad that there was a disease of the frontal sinns there — depending, of .course, upon the extent of that disease — it would be an opening into the sinus for the purpose of making applications directly to it; to get an established drainage, in other words.
“Q. Is that the only effective treatment in such a case? A. As a rule where it is especially bad, where there may be a necrosis or anything of that kind there.
“Q. Suppose that the patient has been suffering with the disease prior to the treatment of the physician, for two or three years, and there has been a constant discharge from the nose of inflammatory suppurative pus occurring not only when he had bad colds but when he didn’t have bad colds, and that pus was of an offensive odor and of yellow color, what would it indicate? A. That there was a disease — chronic disease of the frontal sinus.
“Q. I will ask you to state to the jury whether a mere palliative treatment, such as sprays into the nose of tannin or of vaseline or any other palliative treatment of that sort, would be of any utility in such a case? A. If there was a disease in the frontal sinus itself, you could not reach it with a spray through the nose, only to mitigate the conditions here in the nose itself. In other words, this mucous surface here, enlargement of the bone here, would act as a dam. Of course, there is a natural opening there. If this is congested or the bone enlarged that way, it acts as a dam to prevent the drainage from that sinus, and treatment down here to relieve the inflammatory condition and congestion would allow drainage. If that, drainag’e itself was not sufficient, then there is only one thing, and that would be an operative interference. ' That would depend then entirely upon the individual judgment of the operator or physician and, the condition of the patient.
“Q. Now, suppose the patient in 1890 had all that done; that is to say, that the physician who treated him — in this case Dr. Logan — established that drainage there by galvanic cautery. That is used to cauterize the part and open the parts up? A. Yes, sir.
“Q. Suppose that was done in 1890, and the drainage was there, but that the disease in the frontal sinus still continued, and that the pus was offensive, and was there all the time constantly, what would be the only thing then to do?”

This last question was objected to by plaintiff upon the ground that it was based upon a condition that had not been shown to exist in the case; but the question was overruled and the witness permitted to answer. His ansewer was:

“It would be a matter of individual judgment then as to the operation. I think I, under the circumstances, should make an operation; but, as I said before, not seeing the case, I couldn’t state positively. It would be purely a question of individual judgment as to the operation at that time. ’ ’

The position of plaintiff respecting the admission of this testimony is that it was inadmissible because the ailment of defendant in 1890 was inflammation of the nasal cavity, while his trouble in 1892 was inflammation above that and extending into the sinus; that the doctor had relieved the first trouble by galvanic cautery, while there was no evidence tending to show that he had cauterized this canal leading to the sinus, where the last trouble existed; yet the question was based on the false premise that in 1890 he had cauterized the said canal.

We are inclined to the opinion that no foundation was laid upon which to bottom the question, but the answer to it was so indefinite and unsatisfactory that it could not possibly have prejudiced the plaintiff, and the judgment should not be reversed upon that ground alone.

A point is made upon the ruling of the court in permitting defendant to testify, over the objection of plaintiff, statements made by Dr. Logan, Sr., to Tfitn as to what his son, the plaintiff, had said with respect to the treatment of the defendant by plaintiff and other matters as to defendant’s condition.

The evidence in question is as follows:

“Q.-1 will get you to state to the jury whether Dr. Logan, Sr., Doctor W. G. Logan, the father of the plaintiff, told you in August, 1893, in his office in the Keith & Perry Building, in this city, while his son, Dr. Logan, Jr., was in New York, that there was no use for you to take treatment; that Jim — that is the plaintiff in this case — had long regarded your case as incurable? A. I think you asked me if Dr. W. G. Logan didn’t say that to me in his office. It was in his son’s office.
“Q. Well, in his son’s office. A. Yes, sir; he said that to me.
“Q. Well, he stated to you at the time and place I have just stated that his son Jim had long regarded your case as incurable? A. Yes, sir; and that it was useless for me to take treatment. ’ ’

This testimony, as ruled by the court at the time, was admissible for the sole purpose of laying a foundation for impeaching the witness, and not as direct evidence, and some of the testimony, not necessary to point out, was clearly properly admitted for that purpose. Some of these statements were inadmissible for any purpose, but the objection- seems to have gone to the testimony under discussion as a whole, and under such circumstances the objection was properly overruled. [State v. Johnson, 76 Mo. 121.]

The court gave nine instructions on the part of defendant, all of which, except the seventh, are criticised upon the ground that they fail to direct the jury to the evidence in the case as the basis for their finding. This, we think, a misapprehension, as some of the defendant’s instructions restrict plaintiff’s right to recover upon the evidence before the jury, and it was not necessary that all of the instructions should, in express terms, repeat the same thing over again. All that was necessary was that the instructions, when taken together, presented the case in a way such as to make the jury understand that their verdict must-be predicated upon the evidence.

But whether defendant’s instructions were in accord with the evidence and law of the case or not, such instructions did not go to the question of damages at all, but were confined to the issues involving plaintiff’s right to recover, which issues were found in his favor. He is in no position to complain of the instructions, as the verdict was for him. [Boggess v. Railroad, 118 Mo. 328.] In that case it was said: “The instructions now under consideration did not go to the question of damages at all, but were confined to the issues involving plaintiff’s right to recover. Those issues were all found for the plaintiff. The verdict established his right to recover. How, then, is he prejudiced by those errors? The plaintiff has no right to complain, that the verdict was in his favor; he does not, in fact, so complain; the whole burden of his complaint is, and can only be, that, having been so found, the jury gave him inadequate damages for his injuries, and of any error tending to produce this result he has a right to complain; but not of errors prejudicial only to- his right to recover, when in fact he does recover. The appellate courts of this State are prohibited by statute from reversing the judgment of any court, except for error committed by such court materially affecting the merits of the action. [R. S. 1889, sec. 2303.] And this court has uniformly disregarded such errors as "produce no injury. [Gregory v. Chambers, 78 Mo. 294; Pritchard v. Hewitt, 91 Mo. 547; St. Louis v. Lanigan, 97 Mo. 175; Stanley v. Railroad, 100 Mo. 435; McGuire v. Nugent, 103 Mo. 161; Green v. St. Louis, 106 Mo. 454.]”

Notwithstanding the instructions, the jury found the defendant liable. The only possible objection which can be urged by plaintiff to the verdict is that the amount for the services rendered by him is not sufficiently large, but no objection is made thereto in the motion for a new trial. Besides, all instructions given with respect to the measure of damages which plaintiff was entitled to recover, in the event the issues were found in his favor, were given at his own request, and of which he cannot complain.

"While some of the defendant’s instructions are subject to verbal criticism, yet, when considered in connection with plaintiff’s instructions, they presented the case very fairly to the jury.

Finding no error in the record which justifies a reversal of the judgment, it should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    RODEN v. HELM et al., Plaintiffs in Error.
    Division Two,
    December 12, 1905.
    1. APPEALS: Reviewabie Matters. Unless the motions for new trial and in arrest, filed and overruled, are preserved in the bill of exceptions, there is nothing for the appellate court to review except the record proper.
    2. -: Objection on Appeal: No Exception: Sufficiency of Mortgage. Where there is no bill of exceptions, the Supreme Court will assume that there was no objection on the trial to the sufficiency of the proof to establish the fact that the lands indefinitely described in a certain mortgage were the lands specifically described in the petition.
    3. -: -: No Reply: Evidence. Where the case has been heard and determined upon the evidence, the objection that no reply was filed to the affirmative matter of the answer, will not be availing. The proper course is to move for judgment on the answer before trial begins.

      4. -: -: -: No Bill of Exceptions. Where there Is no hill of exceptions and the judgment recites that the court “after hearing the evidence, doth find the issues for plaintiff,” the appellate court will hold that the cause was heard upon the evidence, and that, therefore, defendant waived any objection to plaintiff’s failure to file a reply.
    5. MORTGAGE: Description: Undefined Interest: Aider. The recital in the mortgage was that the mortgagors “have an interest in certain real and personal property now held in trust for them and others by A. G-. Turner as trustee, and as security for said note they give and grant unto” plaintiff “a lien on said trust estate and charge our interest in said trust estate in” his favor. The petition definitely described certain tracts of land and alleged that the land so described was the land held in trust by Turner, and by express aider in their answer the mortgagors confirmed that allegation by admitting that Turner held said property in trust for them and others, but alleged that they had an interest only to the amount of the annual income or rents. Held, that the description of the property in the mortgage, aided by the answer, was sufficient to constitute the mortgage a lien upon the property.
    6. JUDGMENT: Broader Than Petition. The trial court should not make its decree broader than the pleadings, and if it does that, and the error affects the rights of any party, it will be reversed.
    7. -: -: Trustee. Where the petition alleges that a named defendant was trustee for the other defendants “and others” not made parties, and the decree orders all the property covered by the trust instrument to be sold to satisfy plaintiff’s debt against the defendants named, the decree is erroneous because it terminates the trust and orders the interests of the “others” not made parties to be sold.
    Error to Audrain Circuit Court. — Now. E. M. Hughes, Judge.
    Reversed and remanded.

      George Robertson and F. R. Jesse for plaintiffs in error.
    (1) The decree directing the sale of all the land and destroying Turner’s title, as well as the title of the Helm infants, is outside of the scope of the pleadings. Schneider v. Patton, 175 Mo. 684. (2) The errors complained of, being apparent upon the face of the record, are reached by a writ of error. Bagby v. Ember-son, 79 Mo. 139; Lilly v. Menke, 126 Mo. 211; McIntyre v. McIntyre, 80 Mo. 470; Ryan v. Growney, 125 Mo. 474; Railroad v. Lewright, 113 Mo.. 660; Brown v. Appleman, 83 Mo. App. 79; Railroad v. Carlisle, 94 Mo. 166; State v. Murray, 126 Mo. 526; Bank v. McMullen, 85 Mo. App. 142. In an action to foreclose a mortgage, all of the persons interested in the mortgaged property, must be made defendants. Sec. 4349, R. S. 1899; Wall v. May, 30 Mo. 494.
    P. E. Cullen for defendant in error.
    (1) No exception can be taken on an appeal or writ of error to any proceedings had in the progress of a trial in the court below which are of such a nature that they do not appear on the face of the record proper, unless they have been expressly decided by the court below; and in order that it may appear that such exceptions have been expressly decided by the court below, there should be a motion for a new trial, which should appear in the bill of exceptions, as overruled, and an exception should be taken to the decision of the court thereon. State v. Marshall, 36 Mo. 400. (2) But it is not every defect appearing in the record which can be thus taken advantage of for the first time in an appellate court; it must be a fatal error, such as where the petition absolutely fails to state a cause of action, which was the ground in most of the cases, or where the objection is to the jurisdiction of the court. Railroad v. Mahoney, 42 Mo. 467; Green v. Walker, 99 Mo. 68; In re Gardner, 41 Mo. App. 589. (3) The case was heard in the circuit court as if a replication had been filed denying the new matter in the answer, and when parties have thus tried and submitted a cause, it is too late to claim that there was no issue to try; a reply having been treated as filed in the lower court, it will be so treated in this court. Henslee v. C'onnefox, 49 Mo. 295 ; Epperson v. Tel. Co., 155 Mo. 371; Thompson v. Wooldridge, 102 Mo. 510; Howell v. Reynolds Co., 51 Mo. 156; Leabo v. Goode, 67 Mo. 126; Ins. Co. v. Ilarlin, 72 Mo. 202; Edmonston v. Philips, 73 Mo. 57; Chouteau v. Gibson, 76 Mo. 38 ; Meader v. Malcolm, 78 Mo. 550; Young v. Glasscock, 791 Mo. 574; Heath v. Goslin, 80 Mo. 310; Smith v. St. Joseph, 45 Mo. 449. (4) The petition contains every essential allegation for the foreclosure of a mortgage under the statute. It is also sufficient as a bill in equity to foreclose a mortgage; whether it is an action at law, or a bill to foreclose, must be determined by an examination of the petition itself, and the circumstances of the case. The petition asked for a judgment over against the defendants, and such a judgment was given, and for this, and other reasons, we deem it an action to foreclose a mortgage under the statute. In either view it states a cause of action. R. S. 1899; sees. 4342, 4351, 4352, 4353; Brim v. Fleming, 135 Mo. 604; Hannah v. Davis, 112 Mo. 608; Smith v. Finn, 77 Mo. 499; Kopp v. Blessing, 121 Mo. 391. •
   FOX, J.

At the October term, 1903, this cause was submitted on briefs to this court for determination. My esteemed colleague, Judge Gantt, on March 23, 1904, announced the conclusions reached upon the propositions as then presented for our consideration, in which all of this division concurred. With his permission the statement of facts and legal conclusions are here reproduced. They were thus stated:

This is a writ of error from a judgment of the circuit court of Audrain county. The action was commenced November 12, 1898. The petition alleges that defendants, Thomas, Anna and Elizabeth Helm by their promissory note of date October 31, 1898, promised to pay plaintiff fourteen hundred and fifty dollars one day after the date thereof with interest thereon from daté at the rate of eight per cent per annum, payable annually and if not so paid to become as principal and bear the same rate of interest; that plaintiff is now the holder and owner of said note and that the whole of said note with interest is still due plaintiff, for which he asks judgment and costs.

And for another cause of action against defendants, plaintiff says that the said defendants by their certain promissory note herewith filed, dated October 31, 1898, promised to pay to plaintiff the sum of fourteen hundred and fifty dollars. one day after the date thereof with interest from date at the rate of 8 per cent per annum and if not paid annually to become as principal and bear the same rate of interest. Plaintiff says that the whole of said note and the interest thereof are yet due plaintiff, and for which he asks judgment.

“Plaintiff further says the defendant Thomas Helm some years past was possessed of a great amount of real and personal property to the value of $10,000; that the said Thomas Helm caused said money and property to be invested in the following described real estate in Audrain county, Missouri, to-wit: 160 acres the northwest quarter of section 28, township 52, range 9, and also 80' acres, being the west one-half of the northeast quarter of section 28, township 52, range 9, and also lot No. 31 in Mrs. Sparks Southern Addition to Mexico, Missouri, and caused said land to be deeded to one A. Gr. Turner as trustee, for the use and benefit of himself and his co-defendants herein, to-wit, Anna Helm, who is the wife of said Thomas Helm, and Elizabeth, who- is the daughter of said Thomas Helm. Plaintiff says that on .the 31st day of October, 1898, the defendants herein made, executed and delivered to plaintiff an instrument of writing which is hereto attached and made a part of this pleading by which they did give and grant to said Roden a lien on all the above-described property, and did by said instrument create in said Roden’s favor a charge on said property for the purpose of securing the. note sued on. Plaintiff therefore prays judgment against said defendants for the amount herein sued for and interest, and prays that said judgment may he declared a special lien on said property herein described, and further prays for an order on said trustee to pay said judgment out of any money or property that he may hold as trustee aforesaid and prays further that if said judgment be not paid, that the property herein described or so much of it as may be necessary may be sold to satisfy said debt, judgment, interest and costs and for such other and further relief as may be proper. ’ ’

The instrument sued on is in words and figures following:

“Mexico, Mo., Oct. 31, 1898.
“Whereas, Thomas Helm has become indebted to Thomas P. Roden in the sum of fourteen hundred and fifty dollars on account of necessaries furnished said Helm, his wife and family, and whereas, said Thomas Helm and his wife Annie, and his daughter, Elizabeth, have this day executed to said Roden their promissory note for for fourteen hundred and fifty dollars due one day after date bearing 8 per cent compound interest, and whereas the said Thomas, Anna and Elizabeth Helm have an interest in certain real and personal property now held in trust for them and others by one A. G-. Turner as trustee, and as security for said note we give and grant to said Thomas P, Roden a lien on said trust estate and create a charge in said Roden’s favor against our interest in said trust estate for the purpose of securing said debt or note and agree that said trust estate in whatever form it now is or may be in the future shall stand as security to said Roden for said note and interest. ‘ ‘ Thomas Helm,
“Anna S. Helm,
“Elizabeth Helm.”

To this petition defendant demurred, but as the demurrer was overruled and defendants pleaded over, it is not necessary to reproduce it. "Defendants filed their joint answer in words and figures as follows:

“Now comes defendants herein and for answer to plaintiff’s petition deny each and every allegation set forth in both counts thereof and pray to be discharged.
“Defendants for another and further defense to plaintiff’s second cause of action state that on the-day of--, one Charles H. Rodes was duly appointed trustee of the estate of the defendant herein, Thomas Helm, and that on the 26th day of November, 1880, the said defendants, Thomas Helm, and Anna Helm, made and executed to the said Charles H. Rodes a deed to certain property situated in McLain county, Illinois, and more particularly described as the northwest quarter of section 5, township twenty-four north, of range two, east of the third principal meridian, and containing, by estimation, 173.58 acres. That said conveyance was made to the said Charles H. Rodes by the said defendants, Thomas and Anna Helm, in consideration of love and affection of said Thomas Helm for his wife and heirs at law, and that said conveyance was made in trust to the said Charles H. Rodes as trustee for the purpose to-wit: -that said trustee was directed to pay over to said Thomas Helm for and during his natural life the net annual income or profits arising from the proceeds of the sale thereof in case that it was sold, and in case the said Anna Helm survived her husband, then the one-half of the said land or the one-half of the proceeds of sale was to be held by the said trustee the net income or profit arising from the one-half of the said land or the one-half of the net proceeds of the sale was to be paid by the said trustee to her so long as she may live and the other half of said land or the half of the proceeds of the sale of said land was to go and pass to those who may be the immediate heirs at law of Thomas Helm at the time of Ms death, and upon the death of Anna Helm in the event she survived her husband, Thomas Helm, was in like manner to go and pass to those who may be the heirs at law of Thomas Helm, in the event that Thos. Helm survived his wife, then the whole of the land or the proceeds at his death was to go and pass to his children or heirs at law, and the said trustee was expressly empowered in said conveyance to sell and convey said land whenever he, in his discretion, might deem it best to do so in which event he should re-invest the proceeds of the same on other lands or loan same out as he may deem best. And it was further provided in said conveyance that in the event said office of trustee should become vacant by reason of death or resignation of said trustee that the judg’e of the Boyle County Court in the State of Kentucky was empowered to fill the vacancy and require from the said trustee so appointed bond for the faithful discharge of his duty. Defendants state that on the--day of--, 1885, one Amanda Rodes died in Boyle county, Kentucky, leaving a will which was duly probated, by the terms of wMch will there was left to the said defendant, Thomas Helm, by the said Amanda Rodes, a large amount of property, and that by the terms of the said will the said Charles H. Rodes was appointed trustee of said estate so left to the said defendant, Thomas, Helm, which said estate was left in trust in all respect and in every particular as was the estate theretofore conveyed to the said Chas. H. Rodes, trustee, by the said defendants, Thomas Helm and Anna Helm on the 26th day of November, 1880, and that the said trustee then and there took charge of the said property and money so coming into¡ Ms hands under the terms of' said .will and proceeded to administer the same in accordance with the terms thereof. Defendants state that on the--day of February, 1885, that the defendant A. Gr. Turner, on the resignation of the said Chas. H. Rodes was by the said Boyle County Court. appointed as trustee under and by tbe terms of said deed and of the said will of Amanda Bodes; that be gave bond for tbe faithful performance of bis duties of trustee as required in said deed and will and be at once took charge of tbe said estate and proceeded to carry out tbe terms of said deed and will as therein stated. Defendants state that on tbe--day of February, 1885, be received from said T. H. Bodes as trustee tbe sum of $2,600' in cash and on said day be also received one note for $4,500 secured by mortgage on certain real estate in tbe State of Illinois, and also one coupon interest note for $270, and on tbe--• day of December, 1885, tbe said Turner received from tbe said Chas. IT. Bodes, trustee, as before said sum of $833.32. Defendant states that on tbe--day of —--, 1895, he invested $2,300 of the funds so coming into bis bands in lot No. 31, of the Mrs. Sparks Southern Addition to Mexico, and on tbe — — day of--- 1890, be invested $5,000' of tbe proceeds of said lands in tbe northwest quarter of section 28, and tbe northwest fourth of tbe northeast quarter of section 28, township 52, range 9, and on tbe--day of--- 1892, be invested» all tbe remainder of said proceeds so coming into bis bands as trustee by tbe terms of said will and deed in tbe southwest fourth of the northeast quarter of section 28, township 52, range 9. And that all of said lands was purchased by tbe said trustee with tbe said money so held by him in trust for tbe said Tbos. Helm, bis wife and heirs at law as provided in tbe said deed and the said will as herein above set forth; and that tbe said Turner still bolds tbe said property in trust for tbe said Tbos. Helm and Anna Helm and all of the children of tbe said Tbos. Helm as above set forth. Defendants further state that there are now living as heirs at law of tbe said Tbos. Helm, tbe said Anna Helm, wife of Tbos. Helm, and tbe following children: Elizabeth Helm, defendant herein, Mamie Helm, age 16 years and Bichard Helm, age 14 years. And defendants state that said lands are held by said A. G. Turner, trustee, for the use and benefit of said defendants, Thos. Helm, Anna Helm, Elizabeth Helm, and the said minor children, Mamie Helm and Richard Helm, as herein set forth and as required by said deed and said will. Defendants state that by reason of all of the facts as herein set forth that plaintiff is not entitled to have a lien declared against the said lands and the defendants therefore pray to be discharged with their costs.”

No reply filed.

On March 12, 1899, the cause was heard and the court rendered the following judgment:

“Now on this 21st day of March, A. D. 1899, this cause coming on for hearing, the plaintiff and each of the defendants, in their own proper person and by their respective attorneys, being present, and all. and singular the matters and things are submitted to the court and the court after hearing the evidence doth find the issues for the plaintiff on the second count in his petition and doth find that the defendants, Thos. Helm, Anna Helm and Elizabeth Helm are indebted to plaintiff as shown by their promissory note herein filed in the sum of $1,195.10, ,and that the said indebtedness was for necessaries for Thomas Helm and family, and that said indebtedness bears interest at the rate of 8 per cent per annum payable annually and if not so paid to be compounded.
“The court doth further find that the defendants, Thomas Helm, Anna Helm and Elizabeth Helm have an interest in the following described real estate which is deeded to defendant, A. G. Turner, as trustee for their use and benefit: 160 acres, the northwest quarter of section 28, township 52, range 9, and also 80 acres, being the west one-half of the northeast quarter, section 28, township 52, range 9, and also lot 31 in Mrs. Sparks’ Southern Addition to Mexico, Missouri. The court doth further find that the defendants Thomas, Anna S. and Elizabeth Helm, did on the 31st of October, 1898, make, execute and deliver to plaintiff an instrument of writing giving and granting to said plaintiff a lien on all of the above-described property for the purpose of securing the debt or note herein sued upon.
“It is therefore considered, order and adjudged that the plaintiff do have and recover judgment against the defendants, Thomas, Anna S. and Elizabeth Helm, for the said sum of $1,495.10 and costs and that said judgment bear interest at the rate of 8 per cent per annum payable annually, and if not so paid annually, to be compounded, and that such judgment be and is hereby declared a lien upon the land hereinbefore described and it is further ordered, adjudged and decreed that said lien be foreclosed and that the said land be sold to satisfy this judgment and the costs herein laid out and expended, and that plaintiff have special execution therefor.

On the same day motions for new trial and in arrest were filed and overruled, but the said motions do not appear to have been preserved in a bill of excep-' tions and hence they are not before us for review.

From the foregoing statement it is apparent that there is nothing before us but the record, and accordingly we will confine our consideration to such alleged errors as appear therein.

I. It is conceded that plaintiff was entitled to judgment upon the note against Thomas Helm, Anna and Elizabeth Helm, the makers, but it is insisted that the instrument declared on in the second count was not sufficient to constitute a lien upon the property described in the petition. The point is that the mortgage is void because it did not describe the property in suit. The recital by the mortgagors in the mortgage is that they “have an interest in certain real and personal property now held in trust for them and others by one A. Gr. Turner as trustee and as security for said note they give and grant unto said Roden a lien on said trust estate and charge our interest in said trust estate in Roden’s favor,” etc.

Certum est quod certum reddi potest, is an ancient maxim of the common law. In this mortgage the mortgagors describe the property on which they grant the lien, as “property now held in trust for them,” by A. Gr. Turner as trustee.

The petition alleged that the land held in trust by Turner for said mortgagors was the real estate described in.the petition lying in Audrain county, Missouri, and that said property was the property described in said mortgage, and by express aider the defendants confirm this statement by admitting that Turner did hold said property in trust for said defendants and others, but alleged the defendants only had an interest to the amount of the net annual income or profits of said real estate. While an exact description of the said trust property is not set forth in said mortgage,, still by reference to the property then held in trust for them by A. Gr. Turner as their trustee it was made certain. It was long ago laid down by Coke-Littleton that in case of a feoffment, it should comprehend the certainty of the lands to be conveyed, but “this may be done either by express words or by words which may by reference be reduced to a certainty according to the principle ‘certum est quod certum reddi potest.’ [Coke-Litt., 6 A.]

As said in Edmonston v. Carter, 180 Mo. l. c. 525, in construing this identical instruction, “the mortgagors having in their deed of mortgage solemnly asserted Turner so held property for them, and the fact appearing, outside the mortgage, that he so held this-property, the mortgagors, in the absence of any suggestion that there was any other property to which the mortgage could apply, cannot deny that it was this property that was intended to be covered.” [Jones on Mortgages (6 Ed.), secs. 65 and 66.] The learned author just cited says: “But a description, however general and indefinite it may he, if by extrinsic evidence it can be made practically certain what property it was intended to cover, will be sufficient to sustain the lien.” [Bollinger County v. McDowell, 99 Mo. 632; Hammond v. Johnston, 93 Mo. 198.]

Referring as the mortgage did to lands held in trust for the mortgagors by A. G~. Turner and the answer admitting that the lands sought to be charged were so held by Turner for defendants there can be no doubt that the description was sufficient and the mortgage was not void.

As there is no bill of exceptions before us, there appears to have been no objection to the proof that the lands so held by Turner were the lands intended to be charged.

II. Defendants now insist that the deed of trust and the provisions thereof pleaded by them stand admitted for want of a reply.

Our statute, section 608, Revised Statutes 1899, provides: ‘If the answer contain a statement of new matter, and the plaintiff fail to reply or demur thereto within the time prescribed by the rule or order of court, the defendant shall have such judgment as he is entitled to upon such statement; and if the case require it, a writ of inquiry o°f damages may issue. ’ ’ This provision has often been construed by this court.

In Smith v. St. Joseph, 45 Mo. 449, no reply was filed and plaintiff obtained judgment. On appeal it was insisted by defendant that on the facts stated in its answer it was entitled to judgment. After quoting the above section of the code, Judge Wagner for the court said: “Where the answer sets up new matter, and no replication is filed, the defendant should move the court for judgment upon the pleadings. That the Legislature intended such should be the practice, is plain; for a writ of inquiry of damages is provided for in the event that snch a proceeding would he applicable or necessary. Bnt no notice was taken of the failure to file the replication in the court below; the parties proceeded to trial upon the evidence; no objection was taken or point raised as to any insufficiency or defectiveness in the pleading, and I am not disposed to consider the question at this time. ’ ’ [Howell v. Reynolds County, 51 Mo. loc. cit. 156.]

In Ennis v. Hogan, 47 Mo. 513, the answer alleged new matter and evidently insisted on the failure to reply, because the circuit court gave judgment for want of a reply.

In Cordner v. Roberts, 58 Mo. App. 440, the court gave judgment for defendant on the new matter set up in his answer, no reply having been filed.

In Nelson v. Wallace, 48 Mo. App. 199; Judge Rombatjee refers to the statement of Judge Wagner above quoted and says it is intimated that if a motion for judgment on the pleadings had been made the rule might be different, “yet, even in the latter event, the case may be likened to one where a new trial has been improperly awarded against a party, and where, instead of standing on his exceptions, he takes the chances of a second trial, and, being defeated in that, seeks a review of the action of the court in awarding a new trial, which, as the court held in Davis v. Davis, 8 Mo. 56, is a species of gambling not allowed in a court of justice.”

In Henslee v. Cannefax, 49 Mo. 295; the parties went to trial without a reply having been filed and it was discovered before the case went to the jury that no reply had been filed and the circuit court instructed the jury that the new matter in the answer must be taken as true, but this court held no such instruction should have been given, saying, “courts should not allow traps to be thus sprung, although upon the inattentive. ’ ’

To the same effect is Meader v. Malcolm, 78 Mo. 550. In Heath v. Goslin, 80 Mo. 318, the insistence was that as plaintiff had failed to reply, judgment should have gone for the defendant, hut this court said, “if a party would take advantage of such omission he should do so in a direct way. ’ ’

Here again we are confronted with the fact that defendants have no hill of exceptions, advising us of what transpired at the trial. "We are relegated to the judgment alone and from that we learn that “when the cause came on for trial both sides being represented by counsel, all and singular the matters and things were submitted to the court and the court after hearing the evidence, doth find the issues for plaintiff,” etc.

In the absence of anything in this record to the contrary it is a fair presumption that no motion for judgment on the answer was made but the cause was heard upon the evidence. Now if defendant had, as this court said they should have done, proceeded in a direct way and moved for judgment on their answer, there could have been no occasion for any evidence — if the motion had been sustained, and if denied, it was obviously a matter of exception by defendants in order to show this court that they did not waive their rights. Our conclusion is that as it affirmatively appears the cause was heard upon the evidence and it nowhere appears that the present contention was made in the circuit court, we take it as a fair presumption that it was tried as if a reply had been filed, and that it cannot avail defendants on this writ of error in the state of the record before us.

ni. Again, it is insisted that the judgment of foreclosure is void. If this is predicated on the fact that no judgment was rendered against Turner, we concur fully in what was said in Edmonston v. Carter hy Division One on that point. Turner, the trustee, was made a party defendant simply to charge the estate in his hands. He had not signed the note or executed the mortgage and no personal judgment was sought against or could have been lawfully rendered against him, but he did claim to hold the title to the land in snch a way as to defeat plaintiff’s right to have it sold and as the judgment was for a foreclosure this was all the judgment necessary as against him, and hence not void because the judgment did not dispose of all the questions before the court. We are cited to Lampert v. Haydel, 96 Mo. 439, and Partridge v. Cavender, 96 Mo. 452, holding in effect that where a father or other testator or grantor provided a trust for a son or other person whereby the income should go to the cestui que trust and added a restriction against the alienation, assignment or pledging of such income by the cestui que trust, neither the accrued income nor the accruing’ income could be reached by the creditors of the beneficiary or be assigned by him. In a word, sustaining the doctrine of spendthrift trusts and the restraint upon the alienation of the same. But in Bank of Commerce v. Chambers, 96 Mo. loc. cit. 466, the same learned judge who wrote the opinion of the court in both Lampert v. Haydel and Partridge v. Cavender, 96 Mo. 439 and 452, expressly differentiated the spendthrift trust created by the gratuitous act of a third person, and one created by the owner of property wherein he ties up his property in such a manner that he may be enabled to enjoy the income thereof and set his creditors at defiance. In Bank v. Chambers it was held that, inasmuch as the testatrix created a trust for the benefit of her husband and provided for the payment to him of the net rents, issues and products of certain property “on condition that he release any right, title or estate by the curtesy he might have in her estate, ’ ’ the husband occupied the attitude of a purchaser of that income and but for his compliance with the express condition. in the will by the surrender of his curtesy the income would never have been his, and it was ruled that such income was subject to the claims of creditors.

In this case if the facts were as stated in defendants’ answer, the defendants, Thomas Helm and his wife, by their joint conveyances, conveyed certain real estate of said Thomas Helm in McLain county, Illinois, to the trustee for the benefit of said Thomas Helm, so that said Thomas Helm for and during his natural life should receive the net annual income or the profits arising from the proceeds of the sale thereof in case it was sold, and in case the said Anna Helm, the wife of said Thomas, should survive her husband, then one-half of the net income or one-half of the net proceeds of the sale, if sold, should be paid to her as long as she should live, and the other half should pass to the immediate heirs of said Thomas Helm, but if said Thomas Helm should survive his wife, then the whole at his death should go to his heirs. It was averred that the first trustee resigned and Turner was appointed and qualified and took the moneys derived from the Illinois lands and from a bequest to said Thomas Helm by Mrs. Amanda Bodes, and invested them in the lands in suit and held them in pursuance of said trust deed of November, 1880. Now, in this record we have no record of the said trust deed. No bill of exceptions has preserved the instruments pleaded by the answer of defendants and we do not know what the evidence was. We do not know whether it was an active valid spendthrift trust or a mere dry trust, as the court seems to have found it was. We only know what the record proper recites; that is, that the circuit court found that the defendants, Thomas Helm, Anna Helm and Elizabeth Helm, had an interest in the real estate described in the decree which had been deeded to the defendant A. G. Turner; that said three defendants executed the mortgage sued on; and gave judgment on the note, and declared said judgment a lien on the said real estate, and decreed said lien should be foreclosed and the land sold. It does appear that the court found against the contention of the defendants that said Helms only had an equitable interest in the income, and held that they had an interest in the real estate which was vendible under execution. It may have been that the court construed the trust deed, if one was offered and read in evidence, to have created simply a dry trust which the statute immediately executed by vesting the legal title in the same Thomas, Anna and Elizabeth Helm, and if so properly held their interest was subject to sale. [Pugh v. Hayes, 113 Mo. 424.] So far as the record before us discloses anything, it appears to have settled the issues in favor of plaintiff against defendant, and the evidence is not before us by which it can be determined whether the court reached a proper or improper conclusion. It was the privilege and duty of defendants if they desired our opinion upon the construction of the alleged deed of trust to have incorporated it in a bill of exceptions, but this they have not done. As to any question of the irregularity in improperly joining two counts, or a defective finding, those matters have been waived by a. failure to raise those questions by a motion in arrest. It can at most only be said that it was a cause of action defectively stated and this is good after judgment. [Salmon Falls Bank v. Leyser, 116 Mo. 51; Seckinger v. Mfg. Co., 129 Mo. 590.]

It is conceded that if Thomas, Anna and Elizabeth Helm each owned an interest in the land that interest was liable to plaintiff’s judgment, and their interest could be sold under execution and the court so found. It was not essential that other parties who were not indebted to plaintiff should be made parties in a suit to charge defendant’s interest therein. If other parties had interest therein their rights would not be affected by a sale of defendant’s interest in the property. In view of the fact that the deed alleged in the answer is not before us, it becomes unnecessary to determine the very interesting question presented in the briefs whether a man intending to engage in business where debts will likely be incurred can create a trust in his own favor and that of his family which will effectually shield it from his creditors, existing or subsequent, while retaining the full enjoyment of the income and revenues therefrom. We think the petition contains sufficient to sustain a foreclosure, either under the statute or in equity. It prays for a personal judgment for the amount of the note and interest and that if the same be not paid that the property therein described or so much as is necessary be sold to satisfy the debt, judgment, interest and costs and for such other and further relief as may be proper.

Upon the record before us we are not justified in holding the judgment void or erroneous and it is accordingly affirmed.

OPINION.

In the presentation of the legal propositions, when this cause was originally submitted, as indicated in the opinion, it was not pressed upon the attention of the court that the relief granted by the decree was broader .than the facts stated in the petition and finding of the court warranted. Counsel for • appellant chiefly relied upon the contentions discussed in the original opinion as herein set forth, and it seems to have been taken for granted by both counsel and the court that the decree simply declared the debt a lien upon the interest in the land of those defendants who executed the instrument creating the lien and ordered the sale only of the interests of such defendants in said land. With the decree in that form, with no bill of exceptions preserving the action of the court during the progress of the trial, we still entertain the opinion that the conclusions reached by this court were correct. Upon motion for rehearing our attention has been specially directed to the decree and the force and effect of it in its present form. A rehearing was granted and it only becomes necessary in this opinion to consider the question now so earnestly pressed upon our attention, that the decree is broader than the finding of facts by the court, and grants relief not authorized by the statement of facts in the petition.

The only relief which the court was authorized to grant upon the facts disclosed in the petition, was to declare the debt set forth in the petition a lien upon the interests of Thomas Helm, Anna S. Helm and Elizabeth Helm. It is conceded that A. G-. Turner holds the legal title to all this land as trustee for the defendants to this action, together with others,. who are not made parties and against whom no relief is sought. This is made apparent by the instrument sued on, in which it is recited that Thomas, Anna and Elizabeth Helm had an interest in the real estate in controversy and that said real estate is held in trust by A. G-. Turner for them and others. A careful analysis of this decree makes it manifest that it grants relief not authorized by the pleadings.

It will be observed that the chancellor very properly found that Thomas, Anna and Elizabeth Helm had an interest in the land described; but this was followed by a finding inconsistent with the instrument sued on, that is, that the court finds, by the instrument executed, that the defendants granted to plaintiff a lien on all the property held in trust by said A. G. Turner. This was an erroneous finding and the error is apparent upon the face of the record. The decree of sale of this land follows and it is apparent from the terms of the decree that the sale is not limited to the interest in this land of the defendants against whom the judgment was rendered, but it is a plain' and unambiguous order that the land as described be sold in satisfaction of the judgment against the defendants who were made parties to the action. This order of sale, following the erroneous finding of the court that the lien was created upon all the property, manifestly undertakes to sell the entire land and thereby not only terminate the trust of A. G. Turner in respect to the parties who created the lien, but as well the others for whom he held an interest as trustee. A. G-. Turner is a party to this proceeding. As trustee the duty is imposed upon him to protect the interest of those for whom he holds property, and while it may be said that this judgment could not affect the interest of the other parties for whom he holds this property, for the reason that they were not made parties to the action, yet if the terms of the decree are to be given their ordinary meaning, it at least attempts to terminate the trust existing not only between Turner and defendants, but as well those who have no concern with the creation of the lien, and the trustee being a party to the proceeding has the right to complain in this court at the form of the decree, and the error in this respect, appearing upon the face of the record, may be reviewed by the appellate court without any bill of exceptions. The other defendants, Thomas, Anna and Elizabeth Helm, have the right to insist upon a proper finding and decree of the court in respect to their rights in this property. This is a judicial proceeding and parties who may desire to purchase the property in pursuance of it, necessarily look to the decree and order of sale to ascertain what property is offered for sale. The bidding is influenced by the decree and order of sale, therefore the parties who have an interest in property which is subject to a public sale, have the right to demand of the court a correction of any error in the proceeding which in any way may substantially injure their rights in respect to such property.

We express no opinion as to the nature of this trust, for the instruments introduced in evidence disclosing the character and nature of the trust have not been preserved by any bill of exceptions, and are therefore not before us for consideration. But the petition, which undertakes to disclose the cause of action, the relief sought and the decree, recognizes a trust. The instrument upon which the lien is predicated fully recognizes the existence of a trust in A. G. Turner, and recites that the defendants in this cause have an interest in certain real property which is held in trust for them and others. It is true that the petition does not disclose the interest of. the others mentioned in the instrument creating the . lien in this property, and it may be that, at the time of the rendition of the judgment and under the provisions of the instrument creating the trust in Turner, they had no interest; that can only be known to this court when the others to whom reference is made in the instrument creating the lien, are made parties to the proceedings, and their rights settled, and if they have none, by some appropriate decree terminating the trust as to them. The petition contains no allegations and presents no issue authorizing the court to ignore the interest of others, who according to the instrument granting the lien are interested in the land held in trust by A. G. Turner, or authorizing the decree as entered in this cause, which in effect terminates the trusteeship of A. G. Turner in respect to such land -as to all the parties, regardless as to whether they aré made defendants in this action or not. It is clear that before plaintiff can be entitled to have his debt, as alleged .in the petition, declared a lien upon all the land held by A. G. Turner, and all of it sold for the payment of such debt, the parties other than the defendants herein to whom reference is made in the instrument granting the lien, must be before the court, and by some appropriate decree the trust as to them must be terminated.

The error of this decree is emphasized by the conclusion reached in Edmonston v. Carter et al., 180 Mo. 515. In that case it is apparent that the court construed this judgment and decree as an absolute termination of the trust in A. G. Turner, as to any and all parties concerned, and the judgment based upon the title emanating from the sheriff’s deed, under the foreclosure of, the lien, declared in this proceeding for the recovery of all the land, was affirmed. Under the form of that decree and judgment the court in Edmonston v. Carter et al., supra, was clearly right, for such was its force and effect, and as was very appropriately said in the Edmonston case, the court was not authorized to retry this proceeding in which the judgment was rendered, and that the judgment was binding until set aside in the manner pointed out by law. The instrument creating the lien by Thomas, Anna and Elizabeth Helm was made a part of the petition; in fact it was the foundation of the relief granted in the declaration, that it created a lien upon the land in controversy, and the court in its decree fully recognized the recitation of the trust in this instrument, and then declared the debt a lien upon all the land and ordered it sold to satisfy the judgment rendered. That others not parties to this proceeding were interested in the trust referred to in the instrument creating the lien, is beyond dispute, and that the defendants in this cause could not, by the execution of the note and instrument sued on, terminate such trust as to such others interested, is too plain for discussion. Before this entire land could be sold the trust must be terminated as to all the parties who may have any interest in it; hence we repeat, that the decree in this "cause is broader and grants relief which is not authorized by the facts appearing upon the face of the petition.

As before stated, there is no bill of exceptions before us; however, the errors indicated are apparent upon the record proper and therefore subject to review. “The record, proper, by law, is the petition, summons, and all subsequent pleadings, including the verdict and judgment; and these the law has made it our duty to examine and revise; and if any error is apparent on the face of these pleadings which constitute the record, we will reverse the cause, whether any exceptions were taken or not.” [Bateson v. Clark, 37 Mo. 31; Railroad v. Carlisle, 94 Mo. 166; Railroad v. Lewright, 113 Mo. 660.] That judgments and decrees must be responsive to the pleadings in this State is no longer an open question. In Schneider v. Patton, 175 Mo. l. c. 723, Burgess, J., speaking for the court, clearly announced the rule upon this subject. He thus tersely treated the proposition: “No principle is better settled than that unless a judgment is responsive to the issues presented in the pleadings it is erroneous. [Ross v. Ross, 81 Mo. 84.] It is equally as well settled that a party cannot state one cause of action in his petition and recover upon another, but that the decree which is awarded him must be authorized both by the facts stated in the petition and by the proof. [Reed v. Bott, 100 Mo. 62.] In Irvin v. Chiles, 28 Mo. 576, it is said that ‘a party is not entitled to a judgment on a finding of facts different from any theory of the case set up in the petition or answer.’ In Harris v. Railroad, 37 Mo. 310, it is said: ‘The statute permits a party to amend his petition after his evidence has been given, to make it conform to the proofs; but no such thing was attempted in this case. It then presents the singular spectacle of declaring for one cause of action, and obtaining judgment for another and different cause .... Such a course of procedure is destructive of all certainty in pleading, and can neither be tolerated nor encouraged. ’ The same rule is announced in Newham v. Kenton, 79 Mo. 382. While under the general prayer for relief a party may have any relief to which he may show himself entitled, such relief must be founded on and consistent with the allegations in the bill and not such as may be proven at the trial. [McNair v. Biddle, 8 Mo. 257.]”

We have indicated our views upon the record before us, and it may be added that if plaintiff insists upon the termination of the trust recognized in this proceeding, and the sale of this entire land for the payment of his debt, by virtue of the lien created, then we suggest that all persons interested be made parties to the action and such allegations embraced in the petiticen as would present the issues and authorize the chancellor by some appropriate decree to terminate such trust. Where the purpose sought by a judicial proceeding is to expose real estate to public sale, the better practice is to make all persons who have any interest, contingent or otherwise, in the real estate sought to he sold, parties to the proceeding. The wisdom of this practice is fully recognized by the lawmaking power of this State in the provisions of the statute, requiring all persons interested in the subject-matter of the action to be made parties to it. In Lilly v. Menke, 126 Mo. 211, which was a partition proceeding, Gantt, J., reviews all the authorities, and in addition to a clear announcement of the rule as to what constitutes the record-proper, very forcibly emphasizes the importance and necessity of having all parties interested in the land before the court, to the end that the rights may he litigated prior to the making of any order of sale.

Entertaining the views to which we have herein given expression, the judgment and decree of the trial court is reversed and the cause remanded.

All concur.