author: Napton, Judge, Scott, Judge,

text:
    Powell el al, Appellants, v. McAshan et al., Respondents.

    1. By the general law, if a tenant make erections and improvements upon the leased land and so connect the same with buildings already erected that they can not he separated or removed without material injury to the landlord's property, such erections or structures will be deemed in law fixtures as against such tenant, and he can not remove the same.
    2. An agreement on the part of the landlord, that the tenant may take off and carry away any and all buildings, sheds and other temporary houses and improvements he may erect, would not be construed to authorize the taking away of erections, the removal of which would cause material injury to the property of the landlord.
    3. Such an agreement on the part of the landlord would be valid although oral; it would not be within the statute of frauds.

      Appeal from Buchanan Cowl of Common Pleas.

    This was an action to recover the value of a building and shed alleged to have been wrongfully detached and removed from a certain main building on a lot belonging to the plaintiffs. The facts as they appeared in evidence are substantially as follows: The lot belonged to the heirs of one Peter Powell. At a sale in partition among said heirs on the 30th of March, 1855, the said lot was sold and the plaintiffs became the purchasers. On the 10th of April the plaintiffs notified the defendants to quit the possession. The defendants did not surrender the premises until June. Before doing so they removed the building and shed spoken of in the petition. This building and shed were erected by one Mc-Ghee, who had leased the lot and main building of the heirs of Powell. It was agreed orally that McGhee should have the right to take off and carry away any and all buildings, sheds and other temporary houses and improvements which he might erect. McGhee sold out his improvements and erections to the defendants, and leased the premises to them. The testimony bearing upon the question whether the building and shed were structures of a temporary, or of a permanent character — whether their removal would or would not materially injure the main building, was conflicting. The instructions given and refused are numerous.

      Gardenhire, for appellants.
    I. The improvements were fixtures. Defendants had no right to remove them. (2 Kent, 343; 20 Johns. 29; Gibbons on Fixtures, 38 ; 7 Taunt. 188 ; Phillipson v. Mullan-phy, 1 Mo. 442.) Admitting that the buildings were temporary and not fixtures, defendants had no right to remove them after the expiration of their term. They admit that they were notified to quit the possession of said lot on the 10th day of April, and they made no objections to the form or sufficiency of the notice. They virtually acknowledged that their lease had expired. They had the right of removal, if at all, under the agreement with Hovey. That agreement did noti give them this right. The court erred in refusing the instructions asked by plaintiffs, and in giving those asked by defendant.

      Loan, for respondents.
    I. The defendants not being parties to the suit for partition between Powell’s heirs, are not bound by the judgment. If the contract made by Hovey as agent for Powell’s heirs with McGhee is valid under the law, the plaintiffs are bound by it and the instructions No. 7, 8, 9, 10,11 and 12 were properly refused as they contain only abstract principles of law not affecting this case, and the instructions given on the part of the defendants were proper. The contract is valid. (5 Johns. 5.) If the contract made by Hovey as agent as aforesaid with McGhee is not valid so far as it relates to improvements made by McGhee, yet the said McGhee or his assigns while in the lawful possession of said premises have the right to remove all improvements made by them that will not cause permanent injury to the freehold. (9 Mo. 360.)
   Napton, Judge,

delivered the opinion of the court..

The inclination of courts has been, of late years, to consider every erection upon land by a tenant, for manufacturing or commercial purposes, which, can be removed without injury to the owner of the land, as a personal chattel, belonging to the tenant and removable by him at any time previous to his surrender of the premises. The law was not in ancient times so liberal to the tenant, and many nice questions arose as to what degree or character of connection between the chattel and the land should make the one an inseparable part of the other. The question now is, not whether the building is secured to the ground by posts of wood or by mason-work of rock or brick; nor whether it is attached to the ground by either of these modes or merely set upon blocks or rollers, but the question is simply for what purpose it is erected, and whether its removal will leave the land in the same condition it was in when rented. If the building is erected for trade or manufacture, and can be removed without injury to other buildings already on the ground, the tenant may remove it, and the landlord has no ground for complaint.

The term “ fixture” has been employed in so many different senses as to create some confusion. It has been sometimes used to designate such personal chattels as were so fixed to the land that their removal would prejudice the owner of the land, and would not therefore be permissible either to the tenant or vendor. Frequently, however, the same term is applied to such erections as may be removed by a tenant, but would still pass by a sale and could not be removed by the vendor. The present is a case of landlord and tenant, and $he distinction is unimportant to its decision.

There was also an express contract in this case between the landlord and tenant, authorizing the latter to put up additional sheds and other temporary buildings for warehouses and to remove them when his term expired. > It is true this contract was by parol, but it is not the less valid on that account. It was not a contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them. (Frear v. Hardenburgh, 5 John. 273.)

There was no question in this case as to the right of removal subsequent to the expiration of the tenancy. The buildings were removed before the premises were surrendered to the owners. Whether the premises were held longer than the contract of lease authorized, and what rights and remedies accrued by reason of such holding over, are matters nowise connected with the present suit, and the instructions asked upon this point were with propriety refused.

There was, however, one question of fact upon which instructions were asked, which was not submitted to the jury. If improvements or erections are so connected with the buildings already upon the leased premises that they can not be separated without material'injury to the landlord’s property, they ought not to be removed. This is so by the general law without reference to any contract, and a reasonable interpretation of the contract proved in this case would tend to the same inference. In such cases the property is not left in the same condition in which it is found. If a stranger so mixes up his property with mine that it can not be separated without destroying or materially injuring mine, upon well settled principles of law and justice he must lose his property. This question ought to have been left to the jury. The witnesses differed about it, and although we might readily determine it here satisfactorily to ourselves, the plaintiffs had a right to the opinion of the jury.

Judgment reversed and cause remanded ;

Judge Richardson concurring.

Scott, Judge,

dissenting. As the defendant had by contract the right to remove the improvements he made on the lot, he was authorized in removing the materials he placed on it. If any injury was done to the plaintiffs’ structure, that injury must have been done in making the improvement, not in removing it. The parties interested acquiesced in the improvements as made, and did not complain that in removing the materials their house must necessarily be injured. They should have objected at the proper time. If the defendant in removing his materials, as by contract he had a right to do, did an injury to the plaintiffs’ property, be was entitled to damages for such injury. The law in relation to fixtures has nothing to do with the case: it rests on contract entirely. As the defendant would only rent on condition that he should remove his materials, it is not to be supposed that he intended to give them away in making his improvements. Judging from the character of the structure on the lot, no question can arise as to the length a tenant, with the right to remove the improvements made on the demised premises during the tenancy, would be permitted to go in removing the materials of an improvement made on a valuable building and which could not be taken away without great injury to the landlord. In such cases a presumption might arise that the improvement was made for the convenience of the tenant without any intention of removing the materials of which it was composed. But in such a case a party, I imagine, would not resort to an action of trover for the materials. The very form of this action negatives the idea that there was any room for the application of any such principle in the suit now before the court.

I am in favor of affirming the judgment.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Thornton, Plaintiff in Error, v. Thornton, Defendant in Error.
    1. Case affirmed.

      Error to Henry Circuit ■ Court.

      Wright, for plaintiff in error.
    I. A divorce should have heen- granted on the evidence. (Bishop on Marriage and Divorce, 442; Burgess v. Burgess, 4 Eng. Eccl. R.' 812, 527 ; 4 Barb. 217.) Defendant was at least entitled to maintenance for a reasonable time.

      Rylcmd Sf Son and Freeman, for defendant in error.

      I. The testimony makes out no case against defendant. (26 Mo. 855 ; 18 Mo. 308 ; 24 Mo. 97.)
   Scott, Judge,

delivered the opinion of the court.

We have examined the record in this case. No question of law is presented for our determination ; neither branch of the case is at all supported by the evidence — that for the divorce, nor that for alimony. The statement of the evidence, as preserved in the record, is a full vindication of the judgment of the court, and it is of such a character that it needs no argument or comment to show that it warrants the decree. Its bare statement is sufficient to satisfy the mind that the case made in the petition is not sustained, and we deem it unnecessary to set it out as it could serve no useful pur-

pose. Affirmed;

Judge Richardson concurs. Judge Nap-ton absent.


text:
    Ashburn, Respondent, v. Ayres et al., Appellants.
    1. The Kansas court of common pleas has no jurisdiction of actions to enforce mechanics’ liens.
    2. "Where a material man institutes proceedings to enforce a lien against the contractor and the owner of the building, and dismisses the same as to the original debtor, the contractor, the proceeding must also be dismissed as to the owner of the building, there being no party on the record to defend the suit.

      Appeal from Kansas Court of Common Pleas.

      Ewing, for appellant.
    I. The circuit court has exclusive jurisdiction of actions to enforce mechanics’ liens. (R. C. 1855, p. 1065 ; Gaty v. Brown, 11 Mo. 140.) But if the Kansas common .pleas has jurisdiction of the subject matter, it does not so appear from any thing averred in the petition. Its jurisdiction is limited to the township of Kaw; (Sess. Acts, 1855, p. 60, § 1 & 19 ;) and it is not shown by averment that the building is within the township. Nothing is to be presumed in favor of the jurisdiction of that court.
    II. Plaintiff having dismissed the suit as to Ayres, there was no party to the record who could defend the suit. The contractor is the only person who can contest the validity of the demand, and there could be no judgment against Bryant, the proprietor of the building. (Wibbing v. Powers, 25 Mo. 600.)
   Scott, Judge,

delivered the opinion of the court.

The important question in this case is whether the court had jurisdiction to enforce a mechanic’s lien. The eleventh section of the act concerning mechanics’ liens provides that any person having a lien under or by virtue of this act may bring suit to enforce the same in the circuit court of the county wherein the property on which the lien is attached is situated, without regard to its amount. In the case of Gaty, McCune & Glasby v. Brown, 11 Mo. 138, the terms of the statute conferring jurisdiction on the court of common pleas of St. Louis county were as broad as those employed in defining the jurisdiction of the Kansas court of common pleas, and it was held that the circuit ceurt alone had jurisdiction to enforce the liens of mechanics, as the lien, the foundation of the action, was filed in the circuit court and there was no provision by which it could be transferred to another court. The liens under the act have priority in the order of filing them in the clerk’s office of the circuit court. Where there are many liens on the same building, it would produce great confusion if different courts could enforce their judgments by executions against it. The court in which the liens were not required to be filed could know nothing of them. The sales would be made at places remote from the record of liens, and purchasers might be misled or the property sacrificed by reason of the uncertainty of their existence. The present lien law, unlike those that formely prevailed, is silent as to the manner in which executions against property subject to lien shall be issued. Under such circumstances, it would seem áll-important that the sales should take place in a situation convenient to the records. The circumstance that a lien, the amount of which is within the jurisdiction of a justice of the peace, is authorized to be enforced in the circuit court, carries with it a strong intimation of an intention that all suits to enforce liens should be in the same court. Under the former laws, debts secured by a lien not exceeding the jurisdiction of a justice might be sued for in a justice’s court, and after judgment, if necessary, the lien might have been enforced by scire facias in the circuit court. There is no such provision now. The act organizing the Kansas court of common pleas, in expressly conferring on that court jurisdiction in actions against boats and vessels, may have intended to exclude jurisdiction in other cases of lien. Upon the whole, as it is not clear that the law intended to cpnfer jurisdiction on the court of common pleas, and as it is a matter of construction, we deem it best to give the statute- an interpretation that will be productive of the least inconvenience.

The judgment in the case must necessarily be reversed for the error in permitting the plaintiff to dismiss his suit as to the defendant Ayres. This precise point was determined in the case of Wibbing v. Powers, 25 Mo. 599. Ayres was the real debtor. He made the contract for the materials furnished and was the only person who could defend the plaintiff’s suit. It having been dismissed as to him, there was no one to contest the validity of the plaintiff’s demand; so the result, in effect, is as though Bryant’s property had been condemned to satisfy a lien, the existence of which was never established.

There is another point of view in which this question may be considered. The defendant Bryant is not even a resident of Jackson county, in which Kaw township is situated. The Kansas court of common pleas is one of local jurisdiction. Persons residing out of the limits of Kaw township can not be sued in that court unless joined with one who is a resident. "Will, then, the law permit a plaintiff to join a resident of the township as a defendant merely for the purpose of bringing in one who is not subject to the jurisdiction of the court, and, so soon as he is brought in, suffer the suit to be discontinued as to the resident defendant, thus voluntarily taking away all foundation for the jurisdiction of the court ? In justices’ courts, if the plaintiff fail to obtain judgment against that defendant who resides in the township in which the suit is commenced, he will be nonsuited as to the other defendants who are nonresidents. (R. C. 1855, p. 932, § 18.) The great facility for joining parties now tolerated by law makes this a matter of some importance.

Judgment reversed;

Judge Richardson concurs. Judge Napton absent.


author: RichardsON, Judge,

text:
    Hill et al., Appellants, v. Martin et al., Respondents.

    1. Should a testator, by reason of a failure to name or provide for some of his children in his will, be deemed in law to have died intestate as to those not named, they can not maintain against the devisees an action for the par. tition of the property embraced in the devise; resort must be had to a petition for contribution, in which the equities arising out of advancements may be adjusted.

      Appeal from Lafayette Circuit Court.

      Byland Son, for appellants.
    I. The testator John Hill not having named his son William Hill in his will, there is nothing in the will by which the court can be justified in saying that William Hill was intentionally omitted, and that therefore John Hill did not die intestate as to William, and this case is not like that of Guitar et al. v. Gordon et al., 17 Mo. 408 ; nor is it like the case of Hockensmith & wife v. Slusher, 26 Mo. 237; 9 Fost. 533 ; 18 Pick. 162 ; Bradley v. Bradley, 24 Mo. 311.

      Troxell, for respondents.
    I. There was no sucb case of intestacy as is alleged by appellants; because the said grand-children of the testator were not, nor was either of them omitted to be named or provided for in said will through inadvertence or forgetfulness on the part of the testator. The naming of one of said grandchildren by the testator in his will, more especially the giving to her a valuable legacy, excludes the idea that the other grand-children were not then in the mind of the testator. On the contrary, it is impossible that where, as in the case at bar, the grand-children are all known to the testator — several of them living in his immediate vicinity, and one of them under his own roof — it is impossible that the testator could have selected one of those grand-children as a beneficiary of his bounty, and not have the rest of them in his mind at the time. (17 Mo. 408 ; 24 Mo. 311; 25 Mo. 70 ; 1 Mass. 146 ; 2 Mass.,146; 2 Mass. 570; 5 Mass. 194; 14 Mass. 357 ; 2 N. H. 499 ; 26 Mo. 237.)
   RichardsON, Judge,

delivered the opinion of the court.

This is a proceeding for partition of land and slaves that belonged to John Hill at the time of his death. The plaintiffs are grand-children of John Hill and children of William Hill, a son of John Hill, who died before his father. John Hill by his will gave all his estate (after the death of his widow) to his daughters Mrs. Martin, Mrs. Scott and Mrs. Pai'ks, and to his grand-daughter Luann Hill, the plaintiffs’ sister; and the plaintiffs claim a portion of the estate on the ground that they are heirs of John Hill, and that he died intestate as to them because they are neither named nor provided for in his will. The petition makes all the devi-sees parties, and also strangers to the family, who are represented as claiming interests in the land acquired since the death of the testator; and one of them, Mr. Hays, sets up in his answer that he had become the absolute owner of the land devised to Mrs. Parks by virtue of regular proceedings for partition in the Lafayette circuit court, instituted by her heirs after her death.

In my opinion, the plaintiffs did not adopt the proper mode to accomplish the object they sought. If any part of the land was adversely held by others, the plaintiffs could not assert their rights to it by an action for partition; (Lambert v. Blumenthal, 26 Mo. 471;) and under the circumstances disclosed in the record, their appropriate remedy was a proceeding to obtain contribution from the devisees.

The plaintiffs ground their right to recover on the thirtieth section of the statute of wills of 1835, which declares that if any person make his last will and die leaving a child or children, or descendants of any child or children (in case of their death), not named nor provided for in such will, every such testator, so far as shall regard any such child or children or their descendants, shall be deemed to die intestate, and such child or children, or their descendants, shall be entitled to such proportion of the estate of the testator as if he had died intestate, and the same shall be assigned to them; and all the other legatees, devisees and heirs shall refund their proportionate part, provided such children or their descendants so claiming have not had an equal proportion of the testator’s estate bestowed on them in the testator’s lifetime by way of advancement. The thirty-third section provides that when any devisees, legatees or heirs shall be required to refund any part of the estate received by them for the purpose of making up the share, devise or legacy of any other devisee, legatee or heir, the circuit court shall, upon petition of the party entitled to such contribution, order a contribution and distribution of such estate according to equity.

If a person dies intestate leaving children, they are entitled to the whole of his estate subject to the widow’s dower. The aggregate of their shares is the whole, and the proportional part of each is according to their number; and therefore what their advancements may have been is only a question between themselves, and can not be inquired into by others. And so, if a person makes a will and dies leaving children and does not name them nor provide for them, so far as they are concerned he will be deemed to die intestate, and they will take the same interest in his estate as if he had actually died intestate. In such a case the children would have no equities to adjust with third persons, and there would be no necessity of resorting to the provisions of the thirty-third section for the purpose of obtaining contribution, but, as the whole estate descends on them, they could maintain ejectment for the land, to which they are entitled in right of their ancestor, to the same effect as if there had been no will.

If, however, all of the children are not omitted, but some of them are named or provided for and others not, the devi-sees, whether all of them are children or not, can defeat the claims of those not provided for, by showing that they had received in the testator’s lifetime their equal proportion of the estate by way of advancements. The legacies and devises can not be treated as nullities, but the legatees or devi-sees would only be bound to refund their proportional parts. And in order that the equities of all parties might be properly adjusted, it would be necessary to resort to the mode pointed out in the thirty-third section. A child not provided for can not defeat all the devises by claiming and recovering a share of each, but would only be entitled to contribution for a sum sufficient to make him equal to that which he would have been entitled to if there had been no will.

This case illustrates the reason why pretermitted heirs should resort, in some instances, to the more flexible proceeding of a bill for contribution, rather than to an action of ejectment or partition. If it should be decided that the plaintiffs’ grand-fatlier died intestate as to them within the meaning of the statute, the legatees may show that their father was advanced in his lifetime in whole or in part, or they may be fully compensated by the legatees without interfering with the rights of third persons who may now own the property. There would be no propriety in assigning to them portions of each piece of property when contribution could otherwise be made “ according to equity.”

I do not find that it has ever been decided by this court in what manner a child not provided for in a will may assert his rights conferred by the thirtieth section. In Block v. Block, 3 Mo. 407, and Hockensmith v. Slusher, 26 Mo. 237, the right was claimed in partition proceedings. Beck v. Metz, 25 Mo. 71, was an agreed case. In Bradley v. Bradley, 24 Mo. 311, the children filed a petition against the widow and sole devisee for the assignment of her dower; and in Levin v. Stephens, 7 Mo. 90, and Guitar v. Gordon, 17 Mo. 408, the plaintiffs pursued the mode indicated in the thirtieth section.

The view I have taken of the case renders an expression of opinion unnecessary on the point on which the case seems to have turned at the trial. I am in favor of affirming the judgment without prejudice to the right of the plaintiffs to bring another suit in a different form. Napton, Judge, did not sit, having been of counsel.

Soott, Judge. I concur in affirming the judgment.


author: RichaRDSON, Judge,

text:
    Winston et al., Plaintiffs in Error, v. Taylor, Defendant in Error.
    1. A defendant can not be permitted to introduce evidence to support a de-fence to the action not set up in his answer.
    2. Where property is hailed to a partnership, one partner can not absolve himself from liability to a bailor, without the latter’s consent, by retiring from the firm. Where, however, property is not bailed for any definite time, but the bailor may take the same away at any time, a retiring partner may give notice to the bailor of his retiring and may require him to take away the bailed property; if the bailor should then permit it to remain after the expiration of a reasonable time, he must look to the remaining partners; the retiring partner would be absolved from liability for loss occurring after his retirement.
    3. A judgment obtained in a sister state upon notice to the defendant by publication only, there being no appearance of the defendant, will be deemed null and void outside the state in which it is rendered.

      Error to Miller Circuit Court.

    Claybrook’s testimony, referred to in the opinion of tlie court, was to the following effect, that he had heard Taylor say in California to some of the plaintiffs that he had sold his interest in the ranche, and intended coming home to Missouri and told them to go down and see about their stock ; that “ they talked like they would go down.” The fifth and sixth instructions alluded to are as follows: “5. If Taylor sold his interest in the ranche and notified defendants or either of them to go and get their stock, the defendant can not be affected by the declarations of Amick or any other of the partners after such sale, notice and request, as to any thing which happened after such sale. 6. If the defendant sold out his interest in the ranche and notified plaintiffs or either of them of such sale, and requested them to go and take charge of their stock, he is not liable for any loss of the same, if such loss happened after such sale, notice and request.”

      Edwards Sf Ewing, for plaintiffs in error.
    I. The circuit court gave contradictory instructions to the jury. The seventh instruction asked and given for the plaintiffs is in conflict with the fifth and sixth instructions given for the defendant and calculated to mislead the jury.
    II. The court erred in instructing the jury as to the burden of proof in the case as declared in defendant’s first instruction. The defendant having received the property of plaintiffs, he was bound to account for it when called upon by plaintiffs, and the burden of proof was on him to excuse himself for such failure.
    III. The court erred in permitting the evidence of George W. Olaybrook to go to the jury. No such defence is set up in defendant’s answer as is made by that evidence, and the evidence was therefore incompetent.
    IY. The court erred in sustaining the defendant’s demurrer to plaintiffs’ original petition. The plaintiffs declared on a judgment between the parties rendered by a court of competent jurisdiction in the state of California. The service was by publication under the statute of that state. ( Story’s Conflict of Laws, § 608.)
    Parsons, for defendant in error.
    I. The circuit court erred in striking out that part of defendant’s answer setting up the statute of limitations in bar of the recovery sought. The foreign judgment was the foundation of the action; it not appearing that such judgment is regular or authorized by the laws of California, the demurrer was well sustained to the original petition. The amended petition set up another cause of action, and it was competent for the defendant to plead the statute to such action if it had not occurred within five years, which was a question of fact for the jury.
    II. The circuit court should have sustained the defendant’s motion to strike out all of defendant’s amended petition. It was a new cause of action different from that set out in the original petition. There was no error in admitting the evidence of G. W. Claybrook, which was competent to show care and diligence on the part of the defendant, which was the gist of the matter in controversy, and any evidence tending to show care and prudence in regard to the property of plaintiffs while in charge of defendant was competent in his defence. (1 Parsons on Contracts, p. 621.)
    IY. The burden of proof in this case as to negligence or want of care was upon the plaintiffs, and the defendant was not bound to prove affirmatively that he used reasonable care. (See Parsons on Contracts, 606, 621.) The defendant’s first instruction was therefore proper.
    Y. There is no conflict between the plaintiffs’ seventh instruction and the fifth and sixth instructions asked for by defendant; the promise to ranche the stock was for an indefinite time, defendant therefore had the right to require plaintiffs to receive the stock, and they having failed to do so defendant was discharged from further liability. If there was a conflict in the instructions, it resulted to the injury of defendant, for no instruction maintaining tlie opposite of the above should have been given.
    YI. There being evidence to sustain the verdict, this court will not undertake to weigh it, but will let the verdict of the jury remain undisturbed.
   RichaRDSON, Judge,

delivered the opinion of the court.

The defendant and his partners, who kept a “ ranche” in California', received of the plaintiffs, in September, 1850, eight horses and seven mules to be herded on their ranche, for which the plaintiffs were to pay three dollars per head each month. By this contract the defendant did not insure the safety of the stock, but was only bound to take ordinary and reasonable care of it, and was only responsible for ordinary negligence. (Story, Bail. § 443.)

The amended petition on which the action was tried, after setting out the contract and its legal effect, averred that though the plaintiffs demanded the horses and mules of the defendant, only sis of the horses and four of the mules were delivered, and that the others were lost by reason of the negligence and improper care of defendant. The defendant admitted that some of the horses and mules were lost, but denied that they had been demanded by the plaintiffs, or that they were lost by the carelessness or negligence of the defendant. The only issue tendered by the answer was whether the property was lost by the defendant’s negligence. No new matter was introduced or relied on, and there was nothing to warrant the admission of Claybrook’s testimony, or the giving of the fifth and sixth instructions asked by the defendant. The defence made for the first time at the trial amounted to a release, which was inadmissible, if for no other reason than because it was not set up in the answer.

The defendant could not absolve himself, without the consent of the plaintiffs, from the liability the contract imposed on him and his partners, by retiring from the firm. (Holden v. McFaul, 21 Mo. 215.) But as the stock was not placed in the defendant’s custody for any definite time, and tbe plaintiffs could have removed it at their pleasure, the defendant on, the other hand, could have required the plaintiffs to take it away, by giving them reasonable notice; and, in my opinion, if Taylor had advised them that he intended to give up the business and leave the country, and had requested them to remove their stock, there would be no hardship in holding, if they permitted it to remain after the ..expiration of a reasonable time within which they could have taken it away, that they looked to the other partners to -take care of their property, and discharged him from the contract. Such a defence, however, ought to be clearly made out, not only as to the request, but that reasonable time was given after notice for the removal of the stock, and that a cause of action against him had not already accrued.

There is, perhaps, no absolute rule for determining in every case upon whom the burden of proof rests, whether upon the bailor, to establish the negligence by which the property was lost, or upon, the bailee, to show that the loss has been without any neglect on his part. Sometimes it depends on the form of the action and upon the stage of the cause at which the question arises. In an action of trover, the plaintiffs may rely on a demand and refusal of the property, and thus put the opposite party on the defence ; but in an action of assumpsit, or an action on the case founded on negligence the plaintiff must make out a prima facie case as he charges it; for it is a general common law principle that every person is presumed to do his duty until the contrary is shown. (Story Bail. § 213, 278,410, 454.) It is also said that when the thing bailed is lost or injured, the bailee is bound to account for such loss or injury; but when this is done, the proof of negligence or want of due care is thrown on the bailor. (1 Parsons on Cont. 606.) In this case, however, the question did not arise, and there was no propriety in giving the instructions asked by either party on the subject, for the pleadings admitted the bailment and the loss of the property, and both parties gave evidence bearing on the subject of negligence, and, as the whole case was before the jury, the only question to be decided was whether the loss resulted from the want of ordinary care and attention.

The demurrer was properly sustained to the original petition, for, as the defendant never appeared to the suit in California, the notice by publication was insufficient to authorize an action in this state on the record of the judgment. (Stonestreet v. Shannon, 1 Mo. 375; Sallee v. Hay, 3 Mo. 84 ; Smith v. Ross, 7 Mo. 463.)

Judge Scott concurring, the judgment will be reversed and the cause remanded. Judge Napton absent.


author: EichaRDSON, Judge,

text:
    Miles, Plaintiff in Error, v. Jones, Defendant in Error.
    1. A judgment procured by fraud should be set aside at the instance of the party against whom it was rendered.
    2. It is not necessary in pleading to allege that a guaranty relied on is in writing.

      Error to Ray Circuit Court.

    Demurrer to a petition. The petition alleges substantially that in the year 1855 the defendant Jones became indebted to plaintiff in the sum of $41.47 for money paid by plaintiff to Messrs. Gratz & Shelby for said Jones on a guaranty; that suit was instituted against said Jones before a justice of the peace to recover the amount so paid; that said cause was at various times continued at the instance of said Jones and was transferred to another justice; that on the 12th of July, 1856, the law day of the justice before whom the cause was pending, the justice being unwell, in consequence of such illness announced to the suitors and witnesses then present his determination not to hear or try any of the causes then pending before him, but to continue the same until the next succeeding law day, and thereupon gave parties, witnesses and the attending constable to understand that they need no longer remain; that defendant Jones was present when this announcement was made ; that plaintiff, when on his way to the office of said justice, met several persons who had gone to the office of said justice as witnesses in canses pending before him and were leaving in consequence of the justice’s announcement of his determination not to try any of said causes; that believing his said cause had been continued he did not go in person before said justice ; that defendant Jones, after plaintiff and the other parties and witnesses had dispersed and late in the afternoon of said 12th of July, 1856, returned to the office of said justice, and, with intention to cheat and defraud plaintiff, prevailed upon the justice to hear said cause at that time and in plaintiff’s absence, and thereupon filed for the first time an account by way of set-off amounting to $131.47 ; that the justice yielded to the importunities of said Jones and took up said cause for hearing, and without any testimony in support of defendant’s account allowed the same, and, after deducting plaintiffs demand, rendered judgment against plaintiff for the balance of defendant’s account — ninety dollars and costs; that the justice afterwards issued execution and delivered the same to the constable; that the plaintiff acquired no knowledge of the existence of said judgment or of the issuing of said execution until about the last of August, 1856, too late to take effective measures to stay the collection thereof; that defendant still owes plaintiff said sum of forty-one dollars and forty-seven cents so paid by plaintiff on the guaranty; that the account filed by defendant was a trumped up demand without foundation in fact; that defendant has since the rendition of said judgment and the collection thereof made his boasts that he had overreached plaintiff; that, so far from his (defendant) having had any demand against plaintiff, plaintiff did not owe him any thing; that defendant procured said judgment by fraud. The plaintiff prays the court to set aside and annul said judgment, and give judgment in favor of plaintiff for said sums of $41.47 and $103, with interest, &c.
    The court sustained a demurrer to this petition.

      Troxell, for plaintiff in error.
    I. The judgment was obtained by fraud and was void, or at least voidable. The plaintiff not being present, the justice had authority only to continue or dismiss the cause. Plaintiff had sufficient reason for not appearing on the day the judgment was rendered. There was no need of averring that the guaranty was in writing. The demurrer was improperly sustained.
   EichaRDSON, Judge,

delivered the opinion of the court.

It is sufficiently averred that the judgment before the justice was procured by fraud, which vitiated it, and that the defendant, after he had pocketed the ill-gotten fruits of his fraud, gloried in his shame. The payment of the judgment under the circumstances stated in the petition was not voluntary, and a satisfactory reason is given why an appeal was not asked or taken in time.

The statute of frauds has not changed the common law mode of declaring, and it was not necessary to have stated that the guaranty was in writing. (2 Saund. Pl. & Ev. 126.) The right however of the plaintiff to recover back the money received by the defendant on the execution did not depend on the question whether he could have recovered on his original demand before the justice ; for, admitting that the plaintiff could not have maintained his action, that fact gave the defendant no right to a fraudulent judgment on his set-off.

If the averments in the petition are sustained by the proof on the trial, and it is shown that the plaintiff properly made the payment on the guaranty of a debt due by the defendant, he will be entitled to recover the sum so paid; and the defendant should also be compelled to restore the amount received on his execution.

The demurrer was improperly sustained and the judgment will be reversed and the cause remanded ;

Judge Scott concurring. Judge Napton absent.


author: Rici-iardsoN, Judge,

text:
    The State, Defendant in Error, v. Gardner, Plaintiff in Error.
    1. An indictment, founded on section 8 of the eighth article of the act concerning crimes and punishments (R. C. 1855, p. 624), charging the defendant with an open and notorious act of public indecency, grossly scandalous by “ exhibiting and exposing his private parts in presence of a male and female, at,” &c., is sufficient.

      Error to Polk Circuit Court.

    The following is the indictment in this case : “ The grand jurors, &c., present that John Gardner, of, &c., on, &c., at, <fec., was then and there guilty of an open and notorious act of public indecency, grossly scandalous, by then' and there exhibiting and exposing his private parts in presence of a male and female, at the county of Polk aforesaid, against,” &c.
    Wright, for plaintiff in error.
    I. The indictment is not good either upon the statute or at common law. (2 Bailey, 149; 8 Mo. 494; 1 Cliitt. G. L. 168.) It should have been stated that the acts constituting the offence were openly and notoriously committed; that the act was committed publicly, or in a public place, or in public view. (2 Cox, C. O. 376; 13 Jurist, 42; 5 Barb. 203.) The names of the persons in whose view the alleged exposure took place should have been stated. The presence of “ a male and female” does not necessarily imply that the act was done in the presence of persons.
    Ewing, (attorney general,) for the State.
    This indictment is good; it is in the words of the statute. (R. C. 1855, p. 625, § 8.)
   Rici-iardsoN, Judge,

delivered the opinion of the court.

The indictment not only charged the defendant generally in the words of the statute with being “ guilty of an open and notorious act of public indecency, grossly scandalous,” but specified with sufficient certainty the act that constituted the offence.

The indictment was sufficient, and the judgment will be affirmed;

Judge Scott concurring. Judge Napton absent.


author: Richardson, Judge,

text:
    Lusk, Appellant, v. Lusk, Respondent.
    1. It does not follow as a matter of course that the party prevailing in a suit for a divorce shall have the care and custody of the children; the court may, in its discretion, if the good of the children require it, grant the care and custody of them to the other parent.

      Appeal from Laclede Circuit Court.

    This was a suit for divorce by Amanda J. Lusk against Alfred T. Lusk. It appeared in evidence that the parties were married in the year 1847; that in the year 1850 the defendant left for California intending to return in a year and a half or two years; that he left behind his wife and two children ; that he remained away until the year 1857 ; that in the year 1855, his wife, supposing him to be dead, having received a letter in the year 1854 from California stating the fact of his death, married one G-eorge M. Winton ; that upon the return of the defendant, the plaintiff and said Winton ceased cohabiting. The defendant filed a cross-bill for a divorce, alleging adultery of his wife with said Winton. The court granted a divorce to the defendant, and gave him the care and custody of the children.

      Wright, for appellant.
    I. The court erred in refusing the instructions asked by the plaintiff and also in declaring the law in favor of the defendant. The finding should have been in favor of plaintiff. The view which the court below took respecting the wilful absence of the defendant was erroneous. Defendant by his wilful absence, without reasonable cause, for the space of two years, forfeited his marital rights, and plaintiff became entitled to a divorce. It is not pretended that she had forfeited that right either by condonation or connivance, and it is submitted whether her marriage with Winton, under the honest conviction that her husband was dead, would authorize the court to withhold from her the right to a divorce already acquired. If there was any previous doubt existing on this point, the second section of th.e act of November 28, 1857, (Sess. Acts, 1857,- Adj. Sess. p. 173,) disperses such doubt, by declaring that such subsequent marriage shall not be considered as a reason why she shall not bo divorced. It can not be said that the second section of the act is unconstitutional, for it applies alone to the remedy and takes away no existing right. This is a remedial statute which may be of a retrospective nature when they only go to confirm rights already existing, and a furtherance of the remedy by curing defects or adding to the means of enforcing existing rights. (1 Kent’s Comm. 502 ; Goshen v. Stonington, 4 Conn. 209.)
    II. The care and custody of the children should have been given to plaintiff.
    Freeman, for respondent.
    I. The court did right in divorcing defendant from plaintiff. The plaintiff had, in contemplation of law, committed the crime of adultery, and the supposed marriage with George Winton can not relieve her ; neither can the act of November 23, 1837, release her. That act is unconstitutional and void. (State v. Sloss, 291.) The court properly granted the care and custody of the children to the father. The father while living is the proper one, as a general thing, to have the care of the children even if the wife was not otherwise encumbered with another marriage.
   Richardson, Judge,

delivered the opinion of the court.

The judgment of divorce rendered on the defendant’s cross-bill expressly removed the restriction on the right of the plaintiff to marry again, and as she has really secured all tliat she asked, it is no longer a practical question whether she was entitled to a judgment in her favor, and it is therefore unnecessary for us to consider it. We think, however, that the judgment should be modified so as to give her the care and custody of the children.

As a general proposition, the father is the guardian of his children, and entitled against all the world to their custody during their minority. Biit this is not an absolute right under all circumstances, and it is controlled in the sound discretion of the courts in reference to the best interests of the children. Our statute regulating the subject of divorce provides that the court shall make such order touching the care, custody and maintenance of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be reasonable. If the party against whom the decree is rendered is unfit to be trusted with the care and education of the children, they ought to be assigned to the custody of the other parent; but it does not follow as a matter of course, that the party prevailing in the suit shall have the care of the children. No absolute rule is laid down for determining which of the parties shall keep the children, but “ the leading principle is to consult the good of the children rather than the gratification of the parents.” (Bishop, Mar. & Divorce, § 636.)

It appears in this case that when the defendant went to California, whore he remained more than seven years, the oldest child was about two years of age, and the other an infant, and that during all that time he rarely wrote a letter to his family, and never contributed any thing to their support. So long an absence would naturally to some extent alienate the children from him, and he would not perhaps feel so tender to them as if he had remained at home. It is shown, on the contrary, that during the defendant’s absence the children were under the exclusive care of the plaintiff; that she provided for all their wants ; watched faithfully over their education; was a kind and affectionate mother, and that they were in all respects well taken care of. They would naturally cling to her, as she would to them, and it would be unkind to them to take them from her. There, is not a breath of suspicion against her character, and nothing is disclosed by the evidence to justify the inference that she is not a proper person to protect their health, to provide for their comfort, to guard their morals and direct their education. Their happiness requires that they should be reared up together, and it would be cruel to separate them; and, considering their tender age, no one so well as their mother can give them that kind attention and assistance which they will daily need. The defendant of course can visit them and they may visit him, and as the separation is believed to be necessary for their good and not on accoixnt of any distrust of his parental regard for them, he will no doubt find it to be his pleasure, as it is his duty, to cultivate their affection for him and to contribute to their maintenance as he may be able and their necessities may require.

The judgment will be reversed and modified in conformity to this opinion;

Judge Scott concurring. Judge Napton absent.


text:
    Crook, Respondent, v. Davis, Appellant.
    1. A person can not give himself credit as the partner of another by holding himself out to the world as such without .the consent, express or implied, of such other person.

      Appeal from Andrew Circuit Cowrt.

    This was an action in the nature of an action of trespass de bonis asportatis. The plaintiff alleges that the defendant wrongfully entered the close of plaintiff and took and carried away a large quantity of bricks belonging to plaintiff. The defendant admits the taking of the bricks, but set up that they were sold to him by one McCain, a partner of the plaintiff in their manufacture. Declarations and acts of McCain were adduced to prove the existence of the alleged partnership. It is deemed unnecessary to set forth the evidence and instructions bearing upon this question.

      Ryland Sf Son, for appellant.
    I. Though plaintiff and McCain were not partners as between themselves, they were partners as to third persons.

      Hall and Loan, for respondent.
   Scott, Judge,

delivered the opinion of the court.

We are of opinion that this case was fairly put to the jury by the instructions given by the court. The matter of partnership was made to play a more prominent part in the cause than it deserved. McCain could not by his acts, conduct or declarations make himself a partner of the plaintiff without his knowledge and acquiescence. He could not give himself credit as a partner, by holding himself out as such, without the consent, express or implied, of the plaintiff. It is useless to review the instructions separately, as they clearly put the fact of partnership to the jury, which was the only one on which the defendant relied, and which was negatived by them and very properly, if we may judge by the record, as there was little or no evidence in support of it. If the case is as presented by the record, no benefit whatever could result from the granting of a new trial. Affirmed;

Judge Richardson concurs. Judge Napton absent.


author: Soott, Judge,

text:
    Pilkington, Appellant, v. Trigg & Phillips, Respondents.
    1. To maintain an action for the possession of specific personal property, the plaintiff must be the owner, or be entitled to the possession, of the specific property claimed.
    2. A. purchased certain property of B. and gave to the latter in payment therefor drafts on St. Louis; these drafts B. delivered to C., a banker, for collection; C. received payment of the same and placed the amount collected to the credit of B. Held, that A. could not, in an action for the recovery of specific personal property, recover the amount so collected by C. on the ground that he had been induced to make said purchase by fraudulent representations on the part of B.; nor could such an action be maintained, although C. should, after its commencement, separate from the general mass of moneys in his possession the amount so collected for B. and should place the same in a bag marked “ A. or B.”

      Error to Cooper Court of Common Pleas.

      Stephens Sf Vest and Jewett, for appellant.
    I. The drafts having been obtained by fraud their transfer by Pilkington passed no title to Phillips, and Pilkington could recover their proceeds so long as they could be identified, no matter how many changes they might undergo. (1 Mo, 46 ; 26 Mo. 494Story’s Eq. § 437,439, 513,1256 ; 5 Dana, 196.) ' The plaintiff instituted the proper form of action. Our statute providing for the claim and delivery of personal property is intended as a substitute for the common law remedies of detainer, replevin and trover; and when these actions could be maintained the statutory action like the present can also be had. (See 5 How. Pract. Rep. 327 ; Yoor-hies, N. Y. Code, 152 and note; 1 Chit. PI. 166 ; 17 Mass. 606 ; 23 Maine, 196; R. C. 1855, 1242.) It can not affect plaintiff’s right of action to grant that the money ($950) was placed in a bag and marked as stated in the amended petition since the service of the writ. Plaintiff had a right under the new practice to file an amended or supplemental petition setting up new facts or praying for a new or different relief from that asked in his first petition. (R. C. 1855, p. 1253 ; 8 How. Pract. Rep. 48 ; 9 id. 140 ; 3 How. Pract. Rep. 378.) In this case, after the amended petition was filed, the defendants answered denying its allegations, and went to trial upon this issue. They made no motion to strike out the allegation of facts since the commencement of the suit, but go to trial upon them. The evidence as spread upon the record establishes beyond all doubt a case of gross fraud on the part of Phillips in the sale of the book to Pilkington. The sale being void on account of fraud, if the notes or drafts given for the book had existed at the commencement of this suit in tlie hands of Trigg, the plaintiff would have been entitled to them on disaffirming the sale. Plaintiff being entitled to the notes or drafts, may pursue them through every mutation, or claim the property for which they were exchanged, or the proceeds when the property is irreclaimable, so long as the property or the proceeds remain in the hands of parties not bona fide purchasers, who have paid over the consideration. (DeVoise v. Sandford, 1 Hoffm. Ch. 192 ; 2 Story Com. on Eq. § 1232.) The moment Trigg was notified by plaintiff that the sale was rescinded on account of fraud, he, as also Phillips, became mere trustees or stakeholders for the benefit of plaintiff. (2 Story Eq. § 1265.) The evidence showing that at the commencement of the suit Trigg had the proceeds of the notes in his hands, having set apart a certain sum and marked it as the proceeds of said note, it is conclusive on the defendants that the sum so marked is the identical money received for the note.
    Adams, for respondents.
    I. This record presents the strange anomaly of a suit for a specific chattel, in the shape of a bag of gold conceived and brought forth into existence long after the commencement of the suit. This progeny, created after leave was given to file an amended petition, was a mere, abstraction, and was not and could not form the subject of this litigation. How could a debt due from Trigg to Phillips be converted into a specific chattel in the shape of a bag of gold, without the knowledge or consent of the creditor, and be substituted as the cause of action ? The bag of gold is still the property of Trigg and the debt from Trigg to Phillips still remains unpaid. No evidence was offered or given that had the slightest tendency to prove the case laid in the petition. The evidence looked alone to a transaction between the plaintiff and defendant Phillips about the sale of a document. Trigg was in nowise connected with this matter. Even if a debt could be converted into a specific chattel, the plaintiff would have no right to do so after the commencement of his suit and make it the foundation of the action. (See Norcum y. D’CEnoh, 17 Mo. 114.)
   Soott, Judge,

delivered the opinion of the court.

This case is not affected by the principle that money or property obtained under color of a fraudulent contract may be reclaimed upon the rescisión of the contract by the injured party. We must have an eye to the form of the action in considering the plaintiff’s right to a recovery. The petition alleges that the plaintiff is the owner of and is entitled to the possession of the following specific personal property, viz. : Nine hundred and fifty dollars in specie of the value of $950, which said property is in a bag marked “ B. Pilking-ton or W. T. Phillips.” It is. alleged for the plaintiff Pilk-ington that he was induced by the fraudulent misrepresentations of the defendant Phillips to purchase a book, which was supposed to contain valuable information in relation to the officers of the Virginia line who were entitled to bounty lands from Congress, but which was in reality altogether useless. The plaintiff paid Phillips for the book by drafts on bankers in St. Louis, which were delivered to the defendant Trigg by Phillips for collection, which being collected were placed to the credit of Phillips on the books of Trigg. Pillc-ington, conceiving that he was defrauded, gave notice to Trigg not to pay over the money. At this stage of the transaction, the plaintiff sued the defendants, alleging that he was-entitled to the following specific property, viz., one thousand dollars in gold, of the value of one thousand dollars, which the defendants wrongfully detain from him. The petition having been held bad on demurrer, it was amended as it is first above stated: the plaintiff’s counsel, after the demurrer and before the amendment, having induced Trigg to put nine hundred and fifty dollars in a bag and mark it as is stated in the amended petition.

It would be remarkable if the rights of parties could be made to depend upon contrivances of this kind. This is evidently an attempt to sue a debtor of the creditor’s debtor in an ordinary action at law. It is clear from the testimony that neither the plaintiff nor the defendant Phillips had any right to the specific money for which this suit was instituted. Trigg could not make it the money of Phillips by putting it into a bag without his consent; and if he could even do so, on no principle could it be done after the suit was brought, thereby creating a cause of action after the institution of the suit. The doctrine of courts of equity which sanctions the pursuit of a security or its proceeds in the hands of every one affected with notice of the fraud or trust, has nothing to do with this case. The plaintiff has sued to recover specific personal property, and it is clearly shown that he has no title to it. How then can he expect to recover ? The suit was not brought in a manner which admitted the application of any equitable doctrines, even if the case had been one to which such doctrines had been applicable. The action was in such a form that an inquiry into the validity of the sale on the ground of fraud was altogether irrelevant, for even admitting the sale was void for fraud, that would give no title to the specific property sued for. Affirmed;

Judge Richardson concurs. Judge Napton absent.


text:
    Hodges, Respondent, v. Torrey, Appellant.
    1. In order that fraudulent representations made by a vendor to a vendee with respect to the character of the improvements upon the land sold may be the basis of relief to the purchaser in an action by the vendor on a promissory note given for a portion of the purchase money, it must appear that the misrepresentations were made with respect to something material and constituting an inducement to the contract.

      Appeal from Putnam Circuit Court.

    Davis, for appellant.
    I. The only question here is as to the answer. If the answer sets up facts which, if true, entitle the party in law to a deduction in damages from the amount due by the note, then the court mistook the law in striking out the answer. The point is considered as settled in the cases of House v. Marshall, 18 Mo. 371, and that of Grand Lodge of Masons v. Knox, 20 Mo. 433.

      Holly 8f Burckhartt and Tindall, for respondents.
    I. The answer does not state that the appellant is damaged any amount. It does not state that the representations were falsely and fraudulently made, but states that they were false and fraudulent from the fact that the pre-emption right and improvements were not in existence. If the parties both had equal means of knowledge, and the appellant had an opportunity of examining the land for himself and neglected to do so, it is his own fault and he is without redress. (See Sandford v. Justice, 9 Mo. 855.) The mere fact that respondent represented that improvements were on the land which were not on the land does not constitute a defence unless it is alleged that he did so knowing that he was making false representations. The answer does not allege that the respondent had no claim upon said land at the time of filing the answer, or that there has been any failure on his part to convey the land to him. The answer does not state the facts fully. (See Copeland v. Loan, 10 Mo. 266.)
   Scott, Judge,

delivered the opinion of the court.

This was a petition to foreclose a mortgage given to secure the payment of a promissory note. It seems the defence set up was a partial failure of consideration, caused, it is alleged, by the false and fraudulent misrepresentations of the plaintiff. There were three answers filed to the petition. The first answer stated that the only consideration of the note was an undertaking on the part of the plaintiff to convey to the defendant, by a good and sufficient deed, the north half of the north-east quarter of section 18, in township 66, range 20 ; that plaintiff failed to execute the conveyance, and that defendant had never received possession of said land. This answer also contained a set-off to the plaintiff’s demand, amounting to $234, alleged to be for so much money had and received of defendant to and for the plaintiff’s use. This answer was on motion stricken out. An amended answer was then filed in which it was stated that the note sued on was given as a part of the consideration of the purchase of the south-west quarter of the south-west quarter of section five, and the east half of the north-east quarter of section seven, and the west half of the north-west quarter of section eight, and south-east quarter of the north-east quarter of section eighteen, and, also the north half of the north-east quarter of section eighteen, all in township 66, range 20 ; that the price agreed to be paid for these lands was the sum of $2,630; that all of said sum had been paid except the note secured by the mortgage, the subject of this suit, which was given wholly in consideration of the balance of the purchase money aforesaid; that the plaintiff, at the time of the sale of the said lands, represented that he had and owned a legal pre-emption right and claim to the last mentioned tract, to-wit: the north half of the north-east quarter of section eighteen, which was estimated at the price of $234, which formed a part of the said sum of $2,630 ; that the representations of plaintiff were false and fraudulent in this, that the plaintiff did not hold or have any claim of pre-emption or any right to said land, but the same was public land. This answer was, on motion, stricken out. A second amended answer was filed. The amended answers were filed at a term subsequent to that at which the first answer was filed. The last answer stated that the note sued on was given in consideration of the balance of the purchase upon a contract of sale for the following described lands, viz., the south-west quarter of the south-west quarter of section five; the east half of the north-east quarter of section seven, and the west half of section seven, and the north half of the north-east quarter of section eighteen, township 66, range 10 ; that at the time of the sale of the lands the plaintiff represented that he had possession of and owned a pre-emption claim and had improvements of the value of $234 on the last mentioned tract of land, viz., the north half of the 'north-east quarter of section eighteen; that the purchase was made, relying upon said representation, without any examination of said land by the defendant; that the said representation was false and fraudulent in this, that the plaintiff did not have a claim or the possession of said land at said time, but that the same was public land; that said representation was moreover false and fraudulent in this, that the plaintiff did not have on the said land improvements of the value of $234 or of any other value; that in truth and in fact there were no improvements on the same. Wherefore defendant said that by reason of such false and fraudulent representations he had been damaged, and he claimed and asked to recoup the sum of $254 from said note. This answer was stricken out, and the defendant failing to answer further, judgment was entered for the plaintiff.

This case is unlike that of House v. Marshall, 18 Mo. 368, in which relief was given on account of misrepresentations as to the quality of the land made by the vendor to the purchaser. There land lying in Missouri was sold to one in Kentucky, who had never lived in Missouri, and who had never seen it. So, in the case of Smith v. Richards, 13 Pet. 26, which is a leading one on this subject, a sale was made of land lying in Virginia to a citizen of New York, who had never seen it. Here, it does not appear that the defendant was ignorant of the state of the laud. His petition shows that he seeks relief on the ground that the improvements did not exist, which were represented to be on the land. The defendant says that he did not examine the land. As that subject was on his mind, why did he not make a clean breast of it, and state whether or not an examination of the land was necessary in order to be apprised of its state ? For aught that appears, he might have lived within sight of it. Sugden says the rule of the civil law was simplex commen-dalio non obligat. If the settler merely made use of those expressions which are usual to settlers who praise at random the goods which they are desirous to sell, the buyer, who ought not to have relied upon such expressions, could not upon this pretext procure the sale to be dissolved. The same rule, he continues, prevails in our law and has received a very lax construction in favor of vendors. It has been decided that no relief lies against a vendor for having falsely affirmed that a person bid a particular sum for the estate, although the vendee was thereby induced to purchase it and was deceived in the value. Neither can a purchaser obtain any relief against a vendor for false affirmation of value ; it being deemed the purchaser’s own folly to credit a nude assertion of that nature. Besides, value consists in judgment and estimation, in which many men differ. (1 Sug. Y. & P. 2.) Considering that this was the third attempt to make a defence, and that this attempt was inconsistent with the others, which were inconsistent with each other, the conduct of the defendant has more the appearance of trifling with the court than that of making an answer to the action. The defences were naturally weakened by their inconsistencies, and, under the circumstances, the court acted correctly in requiring of the defendant a legal defence clearly and intelligibly stated. The answer fails to show any such imposition on the defendant as would authorize the granting him any relief. After three efforts he should have made a plain case, one that showed that he was deceived and imposed upon, and not one which is never heard of until he is called upon for the payment of the purchase money. There is no allegation that the misrepresentation was of something material, constituting an inducement or motive to the contract. It is stated that reliance was placed on the representations of the plaintiff, but it is nowhere averred that the improvements were the inducement fo the purchase. W^at are improvements is a matter about which men may differ. What is an improvement in the judgment of one man may be a deterioration in the opinion of another. Why was not the character of the improvements stated ?

Judgment affirmed;

Richardson, Judge, concurring.


text:
    Keyte et al., Plaintiffs in Error, v. Plemmons et al., Defendants in Error.

    1. Each court may control the execution of its own process. Should a court, in a suit for partition, order a sale of land situate in a county other than that in which the suit is pending, it may entertain a motion to set such sale aside on the ground of fraud on the part of the purchaser.
    2. Should, however, an original action he instituted to set aside such sale, it must be brought in the county in which the land is situated.

      En'or to Carroll Circuit Court.

      Davis, for plaintiffs in error.
    I. Inasmuch as the lands are situate in Carroll county and this is an original suit affecting the title to the lands on account of fraud in the sale, no other court has original jurisdiction of the subject of this suit. (R. C. 1855, p. -, art. 4, § 3.)

      Harris, for defendants in error.
    I. The circuit court of Carroll county had no jurisdiction of the action because the sale which is attacked by the petition was made under and by virtue of a process or order emanating from the circuit court of Clinton county. The. latter court had the sole control of all proceedings under its order. (See McDonald v. Tiernan, 17 Mo. 604; Pettus v. Elgin, 11 Mo. 411.)
   Soott, Judge,

delivered the opinion of the court.

By virtue of a judgment in partition rendered by the Chariton circuit, court in May, 1855, land belonging to the estate of Jas. Keyte, deceased, lying”in Carroll county, was sold by the sheriff of that county. At the sale the ancestor of the defendants became the purchaser at a greatly reduced price in consequence as it is alleged of the fraudulent misrepresentations made by him. This suit was brought in the Carroll circuit court by the heirs of Keyte against the heirs of the purchaser to set aside the sale for the alleged fraud. The court below sustained a demurrer to the petition on the ground that the Carroll circuit court had no jurisdiction of the cause.

The parties interested in the sale had the option of two remedies for the misconduct of the purchaser — a motion in the court where the judgment was rendered to set aside the sale at the coming in of the report, or an original action to vacate the proceedings for fraud. Had the former remedy been adopted then the principle of the cases of Pettus v. Elgin, 11 Mo. 411, and McDonald v. Tiernan, 17 Mo. 603, would have been applicable, and the motion would have been properly made in the Chariton circuit court, as that court alone had the control of the execution of its process. But as the plaintiffs did not see proper to pursue this remedy, but adopted that of an original petition, they had no other guide to direct them as to the court in which their suit should be brought than that furnished by the fourth article of the act concerning practice in civil cases. (R. C. 1855, p. 1221.) The third section of that act prescribes that suits concerning real estate, or whereby the same may be affected, shall be brought in the county within which said real estate or some part thereof is situate. As this was an original suit, the fact as to the manner in which the land affected by it was acquired could have no influence in determining the question of jurisdiction. It is sufficient that the land is situate in the county in which the suit is brought, without any inquiry as to the means by which it was obtained.

Reversed and remanded;

Judge Richardson concurs. Judge Napton absent.


text:
    Ballentine et al., Plaintiffs in Error, v. Pratt, Defendant in Error.
    1. Judgment affirmed.

      Error to Linn Circuit Court.

      Shackelford and Turner, for plaintiffs in error.

      E. B. Ewing, (attorney general,) for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

The instructions have been examined, as.well those for the plaintiffs as that for the defendant. The instructions correctly stated the law of the case, and as there was contradictory evidence, it was for the jury to determine its credibility.

Affirmed;

Judge Richardson concurs. Judge Napton absent.


text:
    Coffee’s Administratrix, Defendant in Error, v. Crouch, Plaintiff in Error.
    1. If one comes into the possession of trust property, whether by suit or otherwise, he will hold it in trust for the cestui que trust.

      Error to Newton Circuit Court.

    Demurrer to a petition. The following is the petition: “ Plaintiff states that one Nathaniel ~W. Coffee departed this life in Overton county, in the state of Tennessee, some time in the month of August, in the year 1833, and left at his death a son, to-wit, Granville Coffee, who was his only heir and distributee. Plaintiff further states that the said Nathaniel at the time of his death was the owner of and had in his possession a negro girl named Letty, and a considerable amount of other personal property ; that afterwards, to-wit, on the 4th day of November, 1833, Martha Coffee and Benjamin Gobbert obtained letters of administration on the estate of the said Nathaniel Coffee, deceased, and that the said Martha Coffee took said estate into her possession, which said estate consisted of bonds, notes and accounts, and the negro girl above stated, and other personal property. Said plaintiff states that the said Martha Coffee collected the said bonds, notes and accounts due and owing to the said estate, and out of the money collected from said bonds and on or about the-day of May, 184-, purchased and paid for a negro boy named Jorden and a negro girl named Maria, and the said Martha afterward brought said negro to the county of Newton, in the state of Missouri. Plaintiff states that after-wards, to-wit, on the 12th of October, 185-, the said defendant Milner E. Crouch, as administrator of the estate of one George Barker, deceased, (with whom the said Martha had intermarried) brought suit against Martha Barker in the circuit court of Newton county, Mo., for the value of the negroes above named and also for the value of a negro boy named Irwin, who was a child of the said negro girl Betty and born after the death of the said Nathaniel Coffee, and also a child of said negro girl Maria. Plaintiff further states that the said Crouch, as administrator aforesaid, afterwards, to-wit, on the 5th day of November, 1853, recovered judgment in said suit against Martha Barker in the said Newton circuit court for the value of the said negroes, amounting to the sum of §2,604.50, and afterwards, to-wit, on the 4th day of May, 1855, the said Martha Barker paid unto the said Crouch the principal and interest of said judgment, amounting to the sum of $2,850.16 ; which amount the said Crouch now has in his possession. Plaintiff further states that the said Granville Coffee departed this life on or about August 13, 1853, in the county of Newton aforesaid, and that the said Granville, at the time of his death, was a minor under twenty-one years of age ; that said plaintiff on the 1st of November, 1854, obtained from the judge of the probate court of Newton county letters of administration on the estate of the said Granville Coffee, which letters are herewith filed. Your petitioner asks that she, as administratrix of the estate of the said Granville Coffee, have judgment against the said M. F. Crouch for the said sum of $2,850.16 and interest thereon, and that the defendant be enjoined and restrained from paying over the amount of said judgment and interest thereon, recovered by him on account of said judgment, to the heirs and distributees of the said George Barker.”
    The court overruled a demurrer to this petition and gave judgment “ that the plaintiff have and recover of and from the defendant the sum of $3,297.16, and also her costs,” <fcc.

      Wright and Edwards, for plaintiff in error.
    I. The demurrer should have been sustained. The petition does not state facts sufficient to give plaintiff as administrator of the estate of Granville Coffee a right of action against defendant, either in his individual capacity or as administrator of the estate of said George Barker, deceased. The suit and judgment are against defendant in his individual capacity. This is not authorized by the facts stated. The heirs of George Barker should have been made parties to this suit. It does not appear that said negroes belonged to said Granville Coffee, or that he ever had any right to said judgment, either in law or equity. The petition does not state any fact making defendant individually liable. The suit is brought as administratrix and the judgment is in her favor individually.
   Scott, Judge,

delivered the opinion .of the court.

The proceedings in this case are not remarkable for their regularity, but we are not prepared to say that substantial justice has not been done by the judgment of the court below. The defendant has no right whatever to the money or property in controversy. His intestate Barker only claimed the fund as trustee, and'why suffer the defendant, claiming as Barker’s administrator, to hold it against the cestui que trust? The fact that the money and property were recovered from the plaintiff (Mrs. Barker) by the defendant Crouch, as administrator of ber husband, is no defence for him in this suit. If he sired for and recovered trust property, he is a trustee. The circumstance that the present plaintiff was the defendant in that suit can make no difference, as she did not then claim the property as cestui que trust, but has since become entitled to it. As administrator of Barker, Crouch had nothing to do with funds which he held as trustee. It does not appear on what grounds Crouch recovered a judgment against the plaintiff Mrs. Barker. If one comes in possession of trust property, whether by suit or otherwise, he being a volunteer will be affected with the trust as to the cestui que trust. If at the time of the suit against Mrs. Barker (the plaintiff) she wrongfully held the trust property, and Crouch, the defendant, having the legal title, recovered it from her, he would still hold it subject to the trust. In this view we can see no objection to the judgment against him personally. By bringing the suit he accepted the trust, and having possessed himself of the trust fund, there is no hardship in holding him personally liable, especially as it does not appear that he appropriated the property in any way to the benefit of Barker’s estate. (Valingen’s Adm’r v. Duffy, 14 Pet. 282.)

The judgment will be affirmed;

Judge Richardson concurs. Judge Napton absent.


author: NaptON, Judge,

text:
    Anthony, Plaintiff in Error, v. Ray & Somerville, Defendants in Error.
    1. S. & R. were partners. A. was security for S. for $804; R, was also security for S. for S695. S., to secure A. and R. against these liabilities, executed to A. and R. a mortgage of Ms interest in the partnership eifocts, consisting of lands, goods, accounts, &c., with authority in A. or R. or either of them to take possession, and, in the event of default of payment of the secured debts by S., to apply the property or its proceeds to their payment. R. at the same time gave to A. a separate obligation in writing by which he stipulated that the debt for which A. was bound should be first paid out of the mortgaged property, and also gave him verbal assurances that the property was amply sufficient for this purpose. R. took sole possession of the mortgaged property, but paid no portion of the debt for which A. was security; he did pay off a portion of the debt for which he, R., was security, and refuses to render any account of the partnership. S. is insolvent. Held, in a suit instituted by A. against R. and S. for the purpose of obtaining a due appropriation and management of the mortgaged property, that S. was properly joined as a party defendant to such suit; that it was not necessary, in order to enable A. to maintain such suit, that he should first pay off the debt for which he was security; it was sufficient if there was reason to apprehend a misappropriation of the mortgaged property or its conversion to uses other than those provided for in the mortgaged deed; that it constituted no legal impediment in the way of the maintenance of such a suit by A. that he had acquiesced in the exclusive possession and management of the property by R.; that R. having taken possession of the property and entered upon the discharge of the trust imposed upon him by the mortgage and his agreement with A., neither he nor S. could set up that the mortgage was void for uncertainty in the description of the property.

      Error to Buchanan Court of Common Pleas.

      Gardenhire, for plaintiff in error.
    I. Ray also being a mortgagee of this property and having taken it into his possession immediately after the mortgage was given, and not as the mortgage authorized him when the notes became due, was properly made a party defendant in this suit. It seems that ample time had elapsed for him to have paid these debts, had he been disposed to do so. On the contrary, he does not appear to have attempted any thing of the kind, but was treating the property as his own. So-merville was also properly made a party defendant, because he was a party in interest, and was entitled to the surplus, if any remained, of the proceeds of the property after the payment of the debts for which the mortgage was given. The condition of the mortgage deed was such that Anthony had the right to take possession of the mortgaged property immediately in default of payment of the note of which Anthony was security by Somerville ; and having the right to the possession of the property, he had a right to maintain an action against any person who prevented him from taking possession. The rule of law is clear that a security is not ordinarily entitled to a judgment against his principal until he has paid the debt for which he is security, but the condition of the mortgage deed, giving Anthony the right to the immediate possession of the property on the failure of Somerville to pay the note, exempts Anthony from the operation of this rule. The mortgage is sufficient to convey to Anthony and Ray whatever interest Somerville had in the mortgaged property, and even if the mortgage was insufficient as to creditors and others who were not parties to it, yet it would still be sufficient and binding on Somerville, Anthony and Ray, who were all parties to it.
    Loan, for defendants in error.
    The demurrer was properly sustained. There was a mis-joinder of parties defendants. If this was a proceeding to foreclose the mortgage, Ray should have been made a co-plaintiff or the excuse alleged why he was not joined as such. .If it was intended to call Ray to an account for an improper disposition of the mortgaged effects, then Somerville is improperly joined as a co-defendant; or if it seeks to render Ray liable on his contract, as certain allegations in the petition indicate, it is equally clear that Somerville was improperly joined as a co-defendant with Ray. By the allegations in the petition it is shown that the paper purporting to be a mortgage is void for uncertainty. The petition alleges that Somerville, by the mortgage, conveyed all the real estate to which he might be entitled that was held in the name of Ray and Somerville, and the interest of Somerville in the partnership effects of Ray and Somerville which were remaining after the partnership debts then contracted had been paid. No specific .property is described, and the petition fails to allege that any such property existed after the partnership debts had been paid. Whilst it may be conceded that the mortgage, by the description therein, might be sufficient to transfer Somerville’s interest, yet in a petition seeking relief and founded upon rights derived under the mortgage, it is essential to aver what those rights are which the grantees took and are entitled to under the mortgage, and wherein the plaintiff has been injured by their detention. The petition fails to state that tlie plaintiff has paid the note or any part thereof for which he was Somerville’s security, or that he has sustained any loss or injury by reason of his surety-ship. If the' plaintiff has not been injured he has no right to relief and ought not to complain.
   NaptON, Judge,

delivered the opinion of the court.

The facts of this case, as assumed in the petition, are these: Somerville and Ray were partners. Anthony, the plaintiff, was security for Somerville for about1 $804, and Ray was also his security for about $695. Somerville, to secure these liabilities, executed to Anthony and Ray a mortgage of his interest in the partnership effects, consisting of lands, moneys, goods, accounts, &c., with authority in Anthony and Ray, or either of them, to take possession, and, in the event of Somerville’s not paying off these debts for which the mortgagees were bound as securities, to apply the property or its proceeds to their payment. At the same time Ray gave to the plaintiff a separate obligation in writing, agreeing that the debt for which plaintiff was bound should be first paid out of the mortgaged property, and Anthony the plaintiff received also the verbal assurances of Ray that this property was amply sufficient for this purpose. Ray took sole possession of this property. The note for which plaintiff became security has been long since due, and Ray has paid no part of it, but has, it is charged, paid off a portion of the $695 note with it, and refuses to give any account of the partnership. Somerville is insolvent. The prayer is for discovery of the condition of the partnership, the amount of the mortgaged property, what has become of it, and an appropriation, or security for its due appropriation, to the payment of the $804 debt. To this petitiou there was a demurrer and the demurrer was sustained.

The principal objections to this petition are, that Somer-ville is an improper party; that there is no allegation that plaintiff has himself paid off the $804 note ; that the mortgage was void for uncertainty ; and that the bill is a fishing bill, pot sufficiently pointing out any substantial grounds of complaint, or showing very clearly what distinct relief is desired.

In relation to the alleged invalidity of the mortgage, it is sufficient to say that the defendants are not entitled to any such defence. One of them, Somerville, is the mortgagor, and the other is the mortgagee, and took possession of the property and undertook to discharge the trust. It certainly is not competent for Ray to allege the invalidity of an instrument of which he has already availed himself, and under which he has acted, so far, apparently without objection. The creditors of Somerville do not appear to object, and it is not for the mortgagee or trustee and the mortgagor to make such an objection. Whether the description of the property is sufficient or insufficient is, therefore, a matter of no importance in this case.

We are not of opinion that it was necessary for the plaintiff to pay off the $804 debt before he could have the relief sought for in this petition. This is not a suit by a security to obtain a general judgment against his principal, in which he must of course first show that he has satisfied the debt. But the proceeding is to prevent anticipated mischief, some future injury to his rights. It is in the nature of a bill quia timet, of which Judge Story says : “ The object of the bill in all such cases is to secure the preservation of the property to its appropriate uses and ends, and, wherever there is danger of its being converted to other purposes, diminished or lost by gross negligence, the interference of the court becomes indispensable. It will accordingly take the fund into its own hands, or secure its duo management and appropriation, either by the agency of its own officers or otherwise. Thus, for instance, if property in the hands of a trustee for certain specific uses or trusts, either express or implied, is in danger of being diverted or squandered to the injury of any claimant having a present or future fixed title thereto, the administration will be duly secured by the court, according to the original purposes, in such a manner as tbe court may, in its discretion, deem best fitted to the end — as by the appointment of a receiver, by payment of the fund (if pecuniary) into court, or by requiring security for its due preservation and appropriation.” (Story on Eq. § 827.) In this case, Somerville, the principal debtor, is insolvent, the debt has been due for some time, the mortgaged property has not been applied to its extinguishment, but on the contrary has been used to pay off another debt not properly chargeable to this fund until an entire satisfaction of plaintiff’s demand; and this is the only fund to which the plaintiff can look for relief. He has a right to see that it is duly administered by the trustee to whose charge it has been confided. He was a joint trustee himself with Ray, but he has thought proper to acquiesce in the exclusive possession and management of Ray; but by this course he has not lost his right to call upon Ray for an account of this trust. Whether the court would,, under the circumstances, appoint a receiver or not, can not be now foreseen. That is very much a matter of discretion with the court, and of course must depend on the facts which transpire at the hearing of the case. ,

Somerville was properly made a party, for two reasons : first, he may ultimately be entitled to any surplus of the mortgaged property, and, secondly, he has at all events a right, as the principal debtor, to see that his burdens are not improperly increased.

Upon the whole, we do not see any substantial objections to this petition, and think the defendants should have been made to answer. Judgment reversed and remanded;

Judge Richardson concurring.