author: BROWN, P. J.

text:
    ANGIE MORAN, Appellant, v. SAMUEL B. STEWART.
    Division Two,
    December 10, 1912.
    1. DOWER: Damages for Deforcement: Direction to Commissioners: No Exceptions at the Time. Unless tlie appellant objected and excepted to the action of the court at the term at which commissioners were appointed to admeasure plaintiffs dower in the lands and were directed to disregard the improvements made upon the land since the death of her husband, and unless appellant saved exceptions to the order of the court approving the report of the commissioners obeying those directions, any error the trial court committed in directing the commissioners to ascertain the value of the real estate as of the date of the death of appellant’s husband and not to consider any permanent improvements placed thereon by defendant, is not for review on appeal. If the court erred in those directions, objections and exceptions should have been made at the time the order was made and the report was approved.
    2. NECESSITY FOR EXCEPTIONS. The statute (Sec. 2028, R. S. 1909) does not designate the class or nature of errors which may be preserved for review by bills of exceptions; but it has long been the practice in this State to require exceptions to be preserved to all erroneous rulings and orders of trial courts which tend to produce unjust or erroneous final judgments; and the General Assembly has left to the appellate courts to determine what orders and rulings should form proper matters of exception and the effect of such errors upon the rights of litigants in a concrete case.
    8. -: When Made. Exceptions to erroneous and improper acts of a trial court which tend to prejudice the rights of litigants, should be saved at the very time the error is committed, in order that the court may correct its own error or mistake before it ripens into a final judgment; and unless timely made, the erroneous ruling cannot be reviewed upon appeal.
    4. DOWER: Damages for Deforcement: Direction to Commissioners: Exception to Approval of Report. It is not necessary for the trial court to give to the commissioners appointed to admeasure a widow’s dower written directions in regard to their duties, and if no directions are given and their report is erroneous under the law and facts, an exception to the order of the court approving the report is sufficient to preserve the error for review; but an exception to the order of the court overruling objections to the report only is not sufficient; the appellant should have gone further, and excepted to the order approving the report.
    5.-:-:-: -: Motion to Set Aside. And appellant having saved no exception to the order approving the commissioners’ report, nothing was gained by filing a motion after the adjournment of the term praying the court to set aside its order approving the report, and saving an exception to the order of the court striking that motion from the files. The time to have saved the exception was when the court approved the report.
    <6. -: Quarantine: Ripening Into Adverse Possession. The suit hy the heir or remainderman is not barred by limitation by the fact that the widow has held possession under her quarantine right or homestead. She cannot by retaining possession under either right become the absolute owner by limitation.
    7. -: Several Tracts: Right of Remainderman. Where there are two separate tracts of land, and defendant, in a suit hy the widow to have dower admeasured in one of them and for damages for deforcement, is the owner of both as remainderman, subject to her right of quarantine, dower and homestead, he may have dower assigned in both tracts, and her homestead and dower may be set off to her entirely in the one tract she is occupying.
    S. -: Under Antenuptial Contract. Where the widow in her pleading asserts she is holding a certain tract under quarantine, dower and homestead, she cannot be heard to claim the tract under an antenuptial contract. Besides, the antenuptial contract in this case, having been on a former appeal held invalid for lack of sufficient consideration, is no longer valid for any purpose.
    3. -: Admeasurement: By Commissioners. The preliminary trial in a suit to admeasure dower and for damages for de-forcement is to determine the right of the widow to dower; and having determined that she is entitled to homestead and dower in one tract and to dower in another, the court cannot in that preliminary trial decree how much of the second tract her dower rights will cover; that must he ascertained by the commissioners when they come to appraise the land and set off one-third thereof in value to her.
    10. -: -: Damages for Deforcement. Where defendant never at any time deprived the widow of the possession of any part of the land which was set off to her as dower and homestead, she is not entitled to damages for deforcement of dower in tlie rest. A judgment for damages for deforcement of dower is a special judgment against tlie interest of the heir or other person who has wrongfully deprived the widow of dower in the very land which she has succeeded in having set off to her in. the dower' suit.
    Appeal from Andrew Circuit Court. — Ron. Alonso ZA Burnes, Judge.
    AFFIRMED.

      James W. Boyd and James M. Bea for appellant.
    (1) Sec. 367, E. S. 1909, provides that the value of the whole dower to her belonging from the time of her husband’s death, if he died seized in land, until the day she shall recover her dower, shall be assessed as her damages. This court has from the earliest days, held this statute to mean what it says, so that the defendant in the assessment of damages would not be entitled to any abatement of the amount thereof on account of any improvements, which he may claim he put upon said premises. Bankin v. Oliphant, 9 Mo. 241; McCIanahan v. Porter, 10 Mo. 749; Graves v. Cochran, 68 Mo. 77; Gentry v. Gentry, 122 Mo. 218 Smith v. Stephens, 164 Mo. 422; Eiley v. Clamorgan, 15 Mo. 203; Thomas v. Hesse, 34 Mo. 13; Thomas v. Mallinckrodt, 43 Mo. 58; Eannels v. University, 96-Mo. 226; Gore v. Eiley, 161 Mo. 238; Brown v. Woody,. 98 Mo. 259. (2) The judgment of the court in overruling the exceptions to the report of the commissioners and then in hearing the evidence as to the rents and profits received by the defendant from said 500 acres of land and then holding and deciding that the plaintiff was not entitled to anything at all out of said rents and profits must be based on the theory that the widow should be charged with the rents of the homestead before her dower was assigned. . As a matter of faet she-cannot be charged therewith. She held the homestead up to the time the dower was assigned free, and up to that time under the statute hereinabove referred to she was entitled to the rents and profits of every acre of land of which David Moran died seized. Hence, the judgment of the court ought to be-reversed and this court ought to direct the circuit court, to enter judgment for the appellant for one-third of the rents and profits the respondent received from said 500 acres of land without giving him any improvements he may have made or even any taxes which he may have paid thereon. (3) Had the appellant waited for ten years after the death of her husband to institute a proceeding for the recovery of dower in real estate her claim to dower would have been barred. R. S-. 1909, Sec. 391. “All actions for the recovery of dower in real estate, which shall not be commenced within ten years from the death of the husband,, through or under whom such dower is claimed, or demanded, shall be forever barred.” Robinson v. Ware,, 94 Mo. 678; Harrison v. McReynolds, 183 Mo. 533. Now, if the appellant could not have maintained an. action for dower after the lapse of ten years, can the respondent after a lapse of eleven years inject into appellant’s suit for dower his claim that she ought not to have dower in the lands in which he has during all that time enjoyed possession, and ask that she be fubbed off with the home place and without any damages in the way of rents and profits?

      Booher & Williams and Vinton Pihe for respondent.
    (1) If the widow’s possession and occupancy was an acceptance of the marriage contract provision, she is estopped to claim dower. If her possession and occupancy was under her quarantine right, then she-held for and under the heir, and her possession could. not be adverse, as this court bas so often held. Brown v. Moore, 74 Mo. 633; Null v. Howell, 111 Mo. 273; Fischer v. Siekmann, 125 Mo. 177; Melton v. Fitch, 125 Mo. 290; Carey v. West, 139 Mo. 146; Westburger v. Oallencamp, 154 Mo. 28. (2) It was provided by the Statute of Merton that she should recover her dower with damages from the death of her husband. “But the statute gave such damages against the tenant only on his being convicted of deforcement and as he who was always ready to assign dower could not be convicted of deforcement, he was allowed to plead tout temps prist; and the widow, in order to convict him of deforcement was obliged to reply that she had made demand of dower, and it had not been assigned to her. ’ ’ Woodruff v. Brown, 17 N. J. L. 259; Driskill v. Hanks, 187 B. Mon. 855; McLaughlin v. McLaughlin, 20 N. J. Eq. 190; Grayson v. Moncure, 1 Leigh (Va.), 452. (3) When the report of the commissioners gave her the identical land for homestead and dower which she had enjoyed “under her homestead and dower right” since the death of her husband, the controversy was at an end. There was nothing left to do. Plaintiff had not been deforced of her dower; she had not been compelled to sue; dower had not been unfairly assigned, and she had actually secured her dower forthwith.
   BROWN, P. J.

Action by widow for dower and damages for deforcement thereof. From a judgment assigning dower and rejecting her claim for damages, she appeals.

On February 5, 1891, David Moran, seventy years old, with two adopted children, but no lineal heirs, was united in marriage with the plaintiff then a lady of thirty summers. They resided in Andrew county, where the husband was possessed of two farms, one of 500 acres, and the other a smaller tract of 106 acres.

On the smaller farm, these victims of the designing Cnpid made their home until thirteen months later, when the G-rim Reaper, unmindful of the achievements of the aforesaid Cnpid, and with a shameless disregard for connubial felicity, entered the Moran home and wantonly struck down the doting husband.

When the funeral was over, it was discovered that Moran had devised all his lands to his adopted children except a life estate in the 106-aere tract.

By an antenuptial contract, Moran, in consideration of marriage, settled upon plaintiff the 106-acre tract, “during her life or widowhood;” and in consideration of rights acquired by that settlement, she agreed to waive all claim to dower and homestead in the real estate of her husband. [See 173 Mo. 211, for copy of contract.]

However, the plaintiff was not at all satisfied with such rights in the 106-aere tract as were given to her by the marriage contract; and during the last twenty years has assiduously sought to enlarge her estate in the realty of her deceased husband. This is her fifth appearance in this court in her efforts to acquire more property than she agreed to accept in full satisfaction of her marriage with Moran. [See 122 Mo. 295; 132 Mo. 73; 151 Mo. 555; 173 Mo. 207.]

On the 27th day of November, 1899, she instituted this action against the adopted son of her husband for dower in the 500-acre tract occupied by him; and also claimed damages for the deforcement of her dower in that tract.

Defendant pleaded the marriage contract as-a bar to plaintiff’s dower; but this court held that said contract was not based on a sufficient consideration, and did not bar the plaintiff’s right to dower. The first appeal in this particular cause resulted in a reversal and remanding of the 'cause for new trial. [Moran v. Stewart, 173 Mo. 207.]

On May 25, 1903 (after tbe canse was remanded by tbis court), defendant amended bis answer so as to admit tbe plaintiff’s right to dower in tbe 500-acre tract occupied by bim; but asserted that be bad made several thousand dollars worth of permanent improvements on tbe property since tbe death of Moran, and prayed that tbe value of these improvements be deducted from any dower that might be assigned to her. Defendant in bis amended answer also averred that plaintiff was entitled to dower and homestead in tbe 106-acre tract occupied by her. That tbe said 106-acre tract was equal in value to one-third of all tbe real estate of her deceased husband, and prayed that dower be assigned to her in all tbe real estate of deceased, including tbe 106-acre tract.

In plaintiff’s reply, she alleges that since tbe death of her husband, she has held tbe 106-acre tract “by virtue of her right of homestead and quarantine.”

On November 12, 1903, both parties, after waiving a jury and admitting “tbe facts set up in tbe pleadings,” submitted tbe case to tbe court. The court found tbe issues in favor of plaintiff, and that she was entitled to dower in tbe 500-acre tract, with damages for tbe detention thereof; also that she was entitled to both dower and homestead in tbe 106-acre tract.

Tbe court then appointed appraisers to view tbe property and set off to plaintiff, first, a sufficient amount of tbe 106-acre tract to equal $1500 in value as her homestead, and also a sufficient amount of tbe remaining lands occupied by tbe plaintiff and defendant to equal one-third of all tbe real estate of tbe deceased, said one-third to include the amount set off as homestead.

At tbe same time tbe court also made an order directing tbe commissioners that in ascertaining tbe value of tbe different tracts of land owned by tbe deceased, they should not consider any permanent im provements placed' upon the lands since the death of Moran.

On February 23, 1904, the commissioners filed tbeir report reciting that they had set off plaintiff’s homestead in the 106-acre tract and also the remainder of said 106-acre tract in fnll of her dower in all of her late husband’s lands.

"When this report was filed, the plaintiff filed objections thereto, alleging among other things that the commissioners had placed a value on both tracts of land as of the date of the death of David Moran; that said lands had greatly increased in value since his death, and that the commissioners should have awarded the plaintiff one-third in value of all of said lands at the date of the assignment of her dower and homestead.

By what we suppose is the bill of exceptions in this cause, it appears that the plaintiff’s objections to the report of the commissioners were overruled by the court while the plaintiff’s attorney was temporarily absent from the court room. "When he returned on the same day and was informed of the action of the court, he announced his desire to introduce in support of said motion numerous files in other suits in which the plaintiff was or had been a party; and also the will of the late David Moran. Upon objection of the defendant, the court refused to allow these documents to be introduced, on the ground that the offer came too late; whereupon plaintiff saved her exceptions.

It does not appear that the plaintiff at any time excepted to the order of the court appointing and directing the commissioners how they should set off the plaintiff’s dower and homestead, nor does it appear anywhere that she excepted to the action of the court in confirming and approving the report of the commissioners.

After the commissioners’ report was approved* the plaintiff filed a motion for a new trial, which being overruled, she appealed to this court. Later, this appeal was dismissed by the plaintiff as having been prematurely taken.

Thereafter, at the May term, 1908 (four years after the approval of the commissioners’ report), plaintiff moved the court to set aside its order approving the report of said commissioners appointed to set off dower and homestead; which motion was by. the court stricken from the files on the 10th day of November, 1908; and plaintiff excepted.

Thereafter, at the November term, 1908, at the .request of the plaintiff, the cause was redocketed, and the issue of the plaintiff’s right to damages for the detention of her dower in the 500-acre tract was tried before the court sitting as a jury, and a judgment rendered in favor of the defendant, holding that plaintiff was not entitled to any damages; whereupon the plaintiff prosecuted this appeal.

For reversal of the judgment, plaintiff contends.: (1) that the court erred in directing the commissioners to fix the value of the real estate as of the time of the death of David Moran and not allowing them to consider the enhanced value of the property brought about by the improvements made by defendant; (2) that plaintiff was the absolute owner of the 106-acre tract, and the court erred in assigning her dower in that tract; (3) that the defendant was barred at the time of filing his amended answer from having dower or homestead set off to plaintiff in the 106-acre tract; and (4) that the court erred in not awarding her damages for the detention of her dower by defendant.

Other alleged errors of the trial court are complained of; but they are either embraced in the foregoing assignments or found not worthy of attention.

OPINION.

I. The main insistence of the plaintiff is that the court erred in directing the commissioners to ascertain the value of the real estate as of the date of the death of Moran and instructed them not to consider any permanent improvements placed thereon by defendant.

Upon the record, this issue is not properly presented to us for review; first, because plaintiff did not object or except to the action of the court at the November term, 1903, when the commissioners were appointed and directed to disregard the permanent improvements made on the land since the death of Moran; and, second, because no exceptions were saved to the order of the court approving the report of the commissioners. •

The ac ' m of the trial court in finding plaintiff was entitled to dower in both the 106 and the 500-acre tracts, its order appointing commissioners to set off homestead and dower therein, and directing them how to fix the value of said property, was not a final judgment nor any part thereof. It was only a preliminary order of the court leading’ up to a final judgment. [Rannels v. Washington University, 96 Mo. 226, l. c. 231.]

If the court erred in its directions to the commissioners, its attention should have been called to the error by a proper exception at the time such error was committed, so that the same could have been corrected then and there.

Sec. 2028, R. S. 1909, which provides that exceptions may be saved to the “opinion” of the trial court during the progress of trials, does not designate the class or nature of errors which may be preserved for review by bills of exceptions; but it has long been the practice in this State to require exceptions to be preserved to all erroneous rulings and orders of trial ■courts which tend to produce unjust or erroneous final judgments. It was impossible for the G-eneral Assembly to foresee and designate the sundry classes of erroneous rulings, orders or misconduct of the trial courts which might injuriously affect the rights of the litigants in the final determination of civil cases. It was therefore left to the appellate courts to determine what orders and rulings should form proper matters of exception and the effect of such errors upon the rights of litigants in each concrete case.

It has been held that the following orders made by trial courts if erroneous and injurious to a litigant, must be excepted to by him when made: orders awarding changes of venue—Gibney v. St. Louis Transit Co., 204 Mo. 704, l. c. 717; orders consolidating suits—Turley v. Barnes, 67 Mo. App. 237, l. c. 240; orders striking out parts of pleadings—Linn County v. Bank, 175 Mo. 539.

If the trial court erred in directing the commissioners to disregard permanent improvements made on the land of Moran and to assign the homestead and dower of plaintiff out of the 106-acre tract, so far as it would go, that error must have been as apparent to plaintiff’s attorney at the time the interlocutory judgment was entered and the order made as when the commissioners filed their report at the succeeding term of court; and no reason being apparent why he failed to except to that interlocutory order when it was made, the objections to the report of the commissioners, made in exact conformity with the order under which they were appointed, comes too late, and cannot be considered on appeal. [Richardson v. Association, 156 Mo. l. c. 413; Windes v. Earp et al., 150 Mo. 600.]

In the trial of civil cases, the same duty rests upon plaintiff’s as defendant’s attorneys to aid the court in every possible way to try the case according to law; and among other duties so imposed is to except to every erroneous or improper act of the trial court which tends to prejudice the rights of their clients. Said exceptions must be saved at the very time such error is committed, to the end that the trial court may correct its error or mistake before it ripens into an err'oneous or unjust final judgment.

It was not necessary for the circuit court to have given the commissioners any written directions in regard to their duties. [Chicago, etc., Railroad Company v. Randolph Townsite Company, 103 Mo. 451, l. c. 468.]

If no directions had been'given to the commissioners and their report had been erroneous under the law and facts, an exception to the order of the court approving this report would have been sufficient to have brought such error here for review; but the abstract does not show that any such exception was saved. An exception was Only saved to the order of the court overruling objections to the report.

The statutes do not require written exceptions to the report of commissioners appointed to assign dower or homestead. [Secs. 374 and 6713, R. S. 1909.]

The trial court may determine the correctness or legality of such report in whatever manner is satisfactory to it. If written exceptions be filed and overruled, that does not injure either party, because the court can overrule the written objections and still reject the report of the commissioners on grounds not mentioned in such objections.

"When the report was approved, it became binding; and then the plaintiff should have excepted to the order approving it. This she failed to do. [Richardson v. Association, 156 Mo. 407. l. c. 411.]

The report of the commissioners appointed to assign plaintiff’s dower was approved by the circuit court on March 24, 1904, and more than four years thereafter, to-wit, on November 20, 1908, the plaintiff apparently having discovered that she had saved no exceptions to the approval of said report filed a motion praying the court to set aside its order approving the report, and saved her exceptions to an order of the court striking said motion from the files.

The filing of this last named motion and the saving of exceptions to the court’s action in' striking it from the files, did not help the plaintiff. When the trial court commits an- error to which an exception may he properly saved, such exception must he saved promptly. [Harrison v. Bartlett, 51 Mo. 170; City of St. Joseph v. Ensworth, 65 Mo. 628; Bond v. Finley, 74 Mo. App. 22; Richardson v. Association, 156 Mo. 407, l. c. 411.]

II. Plaintiff further insists that the court committed error in finding that dower should he assigned to plaintiff in the 106 acre tract, because plaintiff was the absolute owner of such tract at the time defendant’s amended answer was filed, and that defendant’s right to have dower assigned in that tract was barred by the Statute of Limitations.

The proposition that one occupying the home and plantation of deceased under a widow’s quarantine can by that act acquire an absolute title against the heir or remainderman, is novel,-and wholly’untenable. Under no construction of plaintiff’s pleading could she have been entitled to anything more than a life estate in the 106 acre tract; and the settled rule of law is that possession of one holding a life estate can never become hostile to the remainderman. [Hall v. French, 165 Mo. 430.]

Our attention has not been called to any law which would bar the right of an heir to apply to the circuit court to assign dower to a widow who, as in this case, is occupying lands under the right of quarantine. Through filial consideration and affection, heirs often allow the widowed mother to occupy the whole of their father’s real estate and enjoy the income thereof for an indefinite period. To hold that heirs should be penalized by forfeiting their interest in the property for such, generosity toward a parent, wonld violate tlie plainest laws of humanity.

A delay on the part of the heir or remainderman in bringing suit for the assignment of the widow’s dower while she is in possession, does not bar the action, because the possession by the widow is not hostile to the heir or remainderman. [Fischer v. Siekmann, 125 Mo. 165; Carey v. West, 139 Mo. 146.]

In the instant case, at the time of filing his amended answer the defendant was the owner of the remainder in both the 106 and the 500-acre tracts, subject to the widow’s quarantine, dower and homestead rights; and it was altogether proper on his answer for the court to order plaintiff’s dower in both tracts assigned at the same time. It is always the policy of the law to prevent a multiplicity of suits. The plaintiff seems grieved because she received no part of the-500 acres as dower. Her homestead expressly asserted in her reply had to be set off in the 160-acre tract; and no doubt the court and commissioners thought it would be more to her interest to have her dower assigned out of the remainder of that tract than to give her part of her dower in another tract and allow the defendant to recover possession of a part of the 106 acres.

. In the last brief filed by appellant, she asserts that she is holding the 106 acre tract under the marriage contract, notwithstanding her reply in this cause shows she is holding it under dower and quarantine. She can have no interest whatever under the marriage •contract. She had to repudiate that contract in order to have dower and homestead; and this court having held that the marriage contract was based upon arj, insufficient consideration, it is not valid for any purpose.

III. The further contention of plaintiff that, having found that she was entitled to dower in the 500-acre tract, the court erred in approving the report of the commissioners by which she was 'not given any part of that tract, is unsound. The preliminary trial to» determine plaintiff’s rights was upon the pleadings, which, as we have seen, were admitted to be true; and from that trial, the court could make no final decision as to how much of the land plaintiff’s homestead and dower rights would cover. That had to be ascertained and was ascertained by the commissioners when they appraised the land and set off one-third thereof in value to the plaintiff.

IV; Another contention of plaintiff is that she was not allowed to recover damages for deforcement or detention of her dower. The evidence clearly shows that defendant never at any time deprived her of the possession of any part of the land which was set off to her as dower and homestead; consequently there was no evidence upon which a judgment for damages could be based. When all the provisions of the dower law are read together, it becomes apparent that a judgment for damages for deforcement of dower is not a general judgment, but must be a special judgment against the interest of the heir or other person who has wrongfully deprived the widow of dower in the very land which she has succeeded in having set off to her.

Sec. 389, R. S. 1909, being a part of the article defining the widow’s rights to dower, reads as follows: “In all cases of judgments for damages, or yearly allowance in favor of any widow under the provisions of this article, execution thereof shall be 'awarded only against the estate in which dower shall have been assigned.” See Griffin v. Regan, 79 Mo. 73; and Reineman v. Larkin, 222 Mo. 156, l. c. 166.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Ferriss and Kennish, JJ., concur.


source: Caselaw Access Project

author: ROY, C. PEE CURIAM.

license: Public Domain

text:
    JOHN H. DOLPHIN v. BERTHA KLANN, Appellant.
    Division Two,
    December 10, 1912.
    1. PLAT: Presumption. Where a plat has been made and filed in accordance with Sec. 10290, R. S. 1909, describing ail lots for sale, by numbers, and their precise length and width, the law presumes that the lots and streets were accurately surveyed and marked out on the ground as a basis for the plat.
    2. -: -: Internal Evidence. Where a plat filed according to Sec. 10290, R. S. 1909, shows the curving course of a railroad marked thereon; where the lengths of the lines running east and west as boundaries of the lots are also marked; where the lots bordering on the railroad are irregular in shape and the lengths of their boundaries are marked accordingly; where an old hedge fence corresponds with one boundary of the land as called for by the distances given in the plat, and where an old . fence around defendant’s lot therein is placed in accordance with the plat, — these things, taken in connection with conceded extrinsic facts, show that the plat was based on a survey not only of the boundaries of the addition but of the interior lot lines.
    3.-: Unmarked Lines: Calis for Distance. An unmarked section line does not constitute either a “natural monument” or an “artificial mark,” and does not overcome a call for distance.
    4. -: Evidence: Surveyor. The testimony of a surveyor who did not put the data of his survey in evidence or show that he was the county surveyor when he made his survey, is not evidence as to the location of the boundaries of an addition to a city.
    5. SURVEY: Illegal: Surplus. A survey is illegal which makes a surplus of thirty feet in the width of the east half of a section, in violation of the act of Congress which requires that in subdividing fractional sections on the west side of a township, the surplus over forty chains in width shall all go to the west side of the section.
    <8. EJECTMENT: Plat: Showing of Right. When the defendant in ejectment is in possession claiming under a plat as actually laid out on the ground, the plaintiff cannot displace her except by affirmatively showing a better right.
    7. SURVEYS: Presumptions. .Where' surveys are illegal in the matters shown to the court, it will not be presumed that they were correct in those particulars as to which the court is not informed.

      8. PLAT: Considered as a Whole. A plat is not to be taken to pieces; it is to be taken as a whole.
    9.-: Not be Warped to Right or Left. The boundaries of a lot as laid out by a plat will not be changed when to do so would shift to the eastward the position of every lot in a whole block and destroy the addition as laid out, substituting therefor another and a different one.
    Appeal from Greene Circuit Court. — Hon. James T. Neville, Judge.
    REVERSED AND REMANDED.

      John Schmook for appellant.
    (1) "When, in making surveys of lots' and blocks, the lots are staked out upon the ground, the stakes must control. The stakes are to be regarded as controlling monuments, and if they are afterwards- removed, the point where they were previously set or located may be shown and will govern. Newell on Ejectment (Ed. 1892), pp. 568, 56-9. (2) If, in laying off the land, the grantor mistook the government line,, and the tract as laid off was marked by stakes and other monuments, the grantee took according to the lines actually run and established, though they did not correspond to the line in the government survey. Fisher v. Bennehoff, 13 N. E. 150.
    . J. T. White for respondent.
    (1) There being no declarations of law asked or given to indicate the theory of the trial court, all inferences which may be drawn from the facts in favor of the plaintiff must be drawn in order to sustain the verdict. (2) If the lines had been actually located and staked out on the ground, that would have some significance, as appellant claims; but there is not a scintilla of evidence where any lot or any line in the addition was originally staked out or placed, and particularly is there' no evidence that the boundary line in dispute between the lots of the parties, was.located at. the place defendant claims, when the addition was staked ont. If that line had been staked and monument set to mark the corners when the addition was staked ont, it would not control the parties now unless these stakes or monuments were visible at the time they bought and took possession of those vacant lots. Whitehead v. Atchison, 136 Mo. 495.
   ROY, C.

This is an ejectment suit to recover possession of a strip twelve and one-half feet wide, which the plaintiff alleges is the east part of lot twenty in block two of Chamberlain’s Addition to Springfield.

The defendant claims that the strip constitutes the west part of lot twenty-one in said block.

It is agreed that plaintiff owns lots nineteen and twenty and that the defendant owns lots twenty-one and twenty-two, and the dispute is as to the boundary line.

The case was tried without a jury. On the written request of defendant, the court made a special finding-of the facts and found for plaintiff. The defendant has appealed.

On March 21, 1887, one McCann conveyed to-Chamberlain a tract of land described as follows: “Beginning in the center of Walnut street as laid down in Bobertson’s Addition to the city of Springfield, Mo., eleven hundred and twenty-three (1123) feet east of' the range line dividing range twenty-one (21) and twenty-two (22); thence east along center of Walnut, street projected four hundred and ninety-six and three-tenths (496.3) feet to the west line of the right of way of the Springfield and Southern Railway, thence south and east on and along said west line of the right of' way nine hundred fifty-four (954) feet to a point on the east line of the west half of the southwest quarter of the northeast quarter of section nineteen (19),, township twenty-nine (29) north, range twenty-one-west of the Fifth (5th) P. M., thence south on said line-one hundred and seventy (170) feet to the center of Cherry street projected, thence west on and along said center of Cherry street projected six hundred and sixty-two (662) feet to the center of said section nineteen (19), thence north along the line dividing the east and west halves of section nineteen (19) four hundred and seventy-two (472) feet to the center of Elm street projected — thence west on and along the center of said Elm street projected three hundred and thirty (330) feet, thence north five hundred and nineteen feet to the center of Walnut street projected; the place of beginning. Reserving for the ordinary purposes of roads and highways a strip of thirty (301) feet off the north and south side and sixty feet through the center portion running from the point where Elm street projected joins this tract of land to the right of way of the Springfield and Southern Railway/’

On April 5, 1887, Chamberlain filed a duly executed and acknowledged plat of said addition in the office of the recorder of deeds, in which the land included was described just as in the deed to him. The plat ÍS as follows: (See plat on opposite page.)

It is conceded by the evidence on both sides that the starting point and the distance along the north boundary of the addition are correct and that by following the right of way of the railroad southeast-wardly the distance of just 954 feet called for, and running thence south 170 feet just reaches the center of Cherry street; and that running thence west with Cherry street 662 feet just reaches an old post and wire fence, which runs a short distance north and is thence continued by a hedge fence; and such evidence of both sides shows that, with the boundaries of the addition thus run, the line between the plaintiff and defendant is where defendant claims that it is, and that on a part of that lino as claimed by the defendant there was, shortly before the trial, an old fence which had enclosed defendant’s garden.

The plaintiff claims that the east boundary of the ■west half of the southwest quarter of the northeast ■quarter of the section is eighteen feet further east than is called for by the distancé of 954 feet along the right •of way, and that the description in the plat should be so construed as to hold that such line is the east boundary of the addition. Plaintiff also claims that the center of the section is twelve and one-half feet further east than is called for by such measurements.

Mr. Culler, who had been county surveyor for three and a half years made a survey by which he located the line between the parties at the place contended for by the defendant.

Mr. Phillips, who had been county surveyor and city engineer and surveyor under the government,, testified as follows •

“Q. Now, I will ask you, in accordance with that,, where the west line of Mr. Dolphin’s lot number nineteen would be, according to Mr. Culler’s survey there?' Where would it be in reference to the poles of the street railroad company in the street there? A. It would be in the neighborhood of twelve feet west.
“Q. In the street? A. Yes, sir.
*‘Q. Now it would come clear outside of the poles-' of the street railway there? A. I think so.
“Q. What lot was taken for that street? A. Eighteen.
“Q. Now, Mr. 8chmook asked you about the west line is it? A. Por a short distance it is an old post, and wire fence running north, and then—
“Q. Well, next to Cherry street, what sort of a-fence is it? A. At the southwest corner of the addition?
“Q. Yes. ’ A. It is an old wire fence, and then-runs into a hedge fence.
• “ Q. Where is that fence in reference to the center-line of the addition there, the line mentioned in the-description in the plat here? A. It is twelve feet further west.
“Q. I will ask you if you know whether on the east of that addition if there is a tract of land, according to Mr.' Culler’s survey if he is correct, if there is any land not claimed by anybody in the addition there ? Is there a strip over there on the east? A. There would be, yes, sir.
“Q. Of how much? A. It would leave eighteen, feet over there.
“Q. Now take this fence on the west which yon say — the hedge fence which yon say is twelve feet west of the center line, how does that correspond with the line of the tract south of that, with the west line of Pickwick Place? A. It would correspond very closely.
t“Q. That fence or that line as yon claim it, does that correspond with the west line of Pickwick Place? A. Yes, sir, it is on the line with those old trees, an old fence before the old fence was taken down.
“Q. The line through the center of the section as yon found it there corresponds with the west line of Pickwick Place? A. Yes, sir, it corresponds with the line of trees.
“Q. Have yon surveyed that section nineteen pretty generally? A. Yes, sir.
“Q. Yon know where the section lines are? A. Yes, sir.”

He also testified:

“Q. Now, did yon and Mr. Culler make that survey in the center of Walnut street along the railroad right of way 954 feet? A. We did.
. ‘ £Q. Now when you came to the 954 feet were you to the center of Cherry street? A. Not quite. It don’t quite reach the intersection of Cherry street.
“Q. Now, when you got 954 feet, you got to the section line, or the half section line, which is it? A. It is a quarter quarter line. But it don’t reach it.-
“Q. How many feet east or west of that quarter quarter line is it? A. About eighteen feet.
“Q. Which way? A. This 954 feet stops short of it.
“Q. Now what section is that in? A. Nineteen.
“Q. That is in section nineteen. Is section nineteen a section that contains lots? A. Yes, sir.
“Q. On the west? A. Yes, sir, fractional section.
“Q. The consequence is that they measured what •would be to tbe section line if tbe forties were exact forties? A. Yes, except two feet.
“Q. Are tbe lots there full? A. They are more than full. They are eight feet full. They have allowed two feet.
“Q. So this 954 feet call lacks about eighteen feet; is it eighteen feet west? A. The 954 feet strikes a point eighteen feet west of this quarter quarter line. Then if we run straight south we would run parallel with this line eighteen feet from it.
“Q. So that is eighteen fe.et west of this quarter quarter line? A. Yes, sir. But if we stop at the 954 feet and proceeded from there, as we did, there is where we located the iron pin.
“Q. If you go on to where you strike the quarter quarter line before you turn south — well now the way you did, going the 954 feet, then the next call south is 170 feet? A. Yes, sir.”

Also:

“Q. Then running southeast along the west line of the right of way 954 feet, and from there south to the center line on Cherry street, and from there west to the old fence, allows for all of the lots in this addition according to the plat fronting on the north side of Cherry street? A. Yes, sir.
“ Q. And it was based upon that that you and Mr. Culler agreed and set this iron pin? A. We supposed that was the way it was surveyed.
“The Court. Q. If you go to the range line on Walnut street and then survey east 1123 feet to the beginning point, and then make all the calls in this plat to the southwest corner of the addition you will be in the center of Cherry street on the line of that old fence ? A. Yes, sir.
“Q. You don’t know whether it is west of the center of the section twelve feet or not? A. That is according to the distances given in the calls.
“Q. If you go the distances given in the calls you ■will wind up on Cherry street on that line? A. Yes,* sir.
“Q. But you will never strike the east line as called for as one of the calls? A. Possibly not quite.
“Q. Did you survey that to see that the center of the section would he twelve and one-half feet east of the old hedge fence? A. Yes, sir. Yes, I run both section lines through there.”

There is no evidence showing that there was ever at any time any monument or object marking the location of the center line of the section or of the east line of the west half of the southwest quarter of the northeast quarter of the section at the places where the plaintiff claims that such lines are; and there is no evidence that such lines were ever so located by a survey except the evidence of Surveyor Phillips as above set out.

Plaintiff’s evidence showed that the eighteen foot strip on the east is not claimed by any one adversely to the owner of the adjacent lot, and there is no evidence that the twelve and one-half foot strip on the west of the addition is so claimed. Prior to the filing of the plat, Cherry street was laid out and opened along the south line of the addition at the place called for by the plat.

The verdict and finding having been for the plaintiff, and there being no declarations of law, the verdict should not be disturbed if there is. evidence to support the finding. We hold there is no such evidence for the following reasons:

I. Sec. 6559, Revised Statutes 1879, now Sec. 10290, Revised Statutes 1909, required that any one laying out an addition should “cause to be made out an accurate map or plat thereof particularly setting forth and describing; ... all lots for sale, by numbers, and their precise length and width.”

There are two strong reasons for finding that the lots .and streets and their location were accurately surveyed and marked out on the ground as a basis for the plat. The first reason is that the law presumes that such survey and marking were made. We have no case in this State expressly so holding; hut in Burke v. McCowen, 115 Cal. l. c. 485, it is said: “The making and filing of the plat or map of the Ukiah North Addition implies that said addition had been surveyed, and that the map or plat thereof filed September 18, 1889, was based upon said survey, and that such survey was marked upon the ground so that the streets, blocks and lots could be identified.” That court then cites on the point McDaniel v. Mace, 47 Iowa, 510; Banker v. Caldwell, 3 Minn. 103; Jackson v. Freer, 17 Johns. 29, 31; Jackson v. Cole, 16 Johns. 261.

Those cases are not all directly in point, but they support the general proposition.

II. The plat bears on its face facts which, taken in connection with the conceded extrinsic facts, show that the plat was based on a survey not only of the boundaries of the addition but of the interior lot lines. The plat shows that the course of the railroad is not straight, but that it curves to the eastward as it goes southward. The lengths of the lines running east and west as boundaries of the lots are marked on the plat. The lots bordering on the right of way of the railroad are irregular in shape and the lengths of their boundaries are marked accordingly. It would have been difficult if not impossible to correctly indicate such distances without such survey. We have a right to take notice of the historical fact that on the invention of wire fencing, hedges were no longer planted in this State, and that the hedge fence at or near the southwest’ corner of the addition was there when the addition was platted. We have a right to draw the inference that such fence was adopted by the maker of the plat as the west boundary; in other words, as the center line of the section. It was right on the line ■called for by the courses and distances. Tbe old fence enclosing a part of defendant’s, premises shows that it was placed there in accordance with such courses and distances disregarding the.two lines as now claimed by plaintiff for the east and west boundaries of the addition.

In Whitwell v. Spiker, 238 Mo. l. c. 638, it was said by Bnown, J., speaking of government monuments and surveys: “These, in thickly settled communities, and especially in cities, become obliterated, and their places are supplied by houses, fences and other visible things that have been planted or adopted for that purpose. When this has been done they may be used as landmarks for all, and their removal does not, of course, remove the land that has been bought and sold with reference to them.” Any surveyor who undertakes to establish a different line should be required to show ““good grounds for the faith that is in him.”

III. Even if it were true, as contended for by the plaintiff, that the east boundary of the addition running south from the railroad is eighteen feet further east than called for by the distance given along the right of way, that boundary would not, in such case, be the east boundary of the addition. That line was never marked by any monument or object of any kind. Such an unmarked line does not constitute either a ‘natural monument” or “artificial mark,” and does not, when called for in a deed, overcome the call for distance. It was so held by Valliant, J., in Guitar v. St. Clair, 238 Mo. l. c. 627, and in Koch v. Gordon, 231 Mo. l. c. 652.

The same rule holds good as to plaintiff’s- claim that the center of the section is twelve and one-half feet east of the fence. We hold that the call for 954 feet from the center of Walnut street along the right of way prevails over the call for an unmarked sub-divisional line of the section, and that the courses and distances around to the southwest corner of the addition prevail over the unmarked line which plaintiff claims to he the center line of' the section, and that would he the case even though it were the true line.

IV. We hold that there is no evidence sustaining-plaintiff’s claim as to the location of the boundaries of the addition. The witness Phillips, on whose sole testimony the contention of plaintiff is based, was not the county surveyor for three and a half years at least before the trial. There is no evidence that he ever,, while such county surveyor, located those lines. It was said by G-aNtt, J., in Granby Mining Co. v. Davis, 156 Mo. 422, that where the interior comers of sections have been fixed by county surveyors', such corners as thus fixed will be binding in the absence of proof that such surveyor has violated the law in his methods. The survey or surveys alleged to have been made by Phillips are not shown to have been made by him while such surveyor. He does not give any data from which he made such surveys, such as his starting points, etc.

In Jones v. Lee, 77 Mich. 42, 43, it was held that the testimony of surveyors as to their surveys where the data from which the surveys were run were not given, has no force or effect and that plats so made and in evidence did not give the data necessary to measure the rights of the parties.

V. The surveyor, Phillips, did not explain how, in finding the center of the section, he allowed seven and one-half feet surplus in the width of the west half of the southwest quarter of the northeast quarter of the section. That makes a surplus of thirty feet in the width of the east half of the section. That is a violation of the act of congress which requires that in subdividing fractional sections on the west side of the township, the surplus over forty chains in width shall all go to the west side of the section. [Vaughn v. Tate, 64 Mo. 491; Knight v. Elliott, 57 Mo. 317.] It thus appears affirmatively that the Phillips surveys were not legal. If it be said that the plat gives a surplus, of two feet in the south boundary of the west half of the southwest quarter of the northeast, quarter, which is •equal to eight feet surplus in the width of the east half ■of the section, we answer that such fact does not help the plaintiff. The defendant is in possession claiming under the plat as actually laid out on the ground, and the plaintiff cannot displace her except by affirmatively showing a better right. We have not overlooked the fact that, if the Phillips surveys were otherwise correct, the allowance of a surplus by Phillips was favorable to .the defendant and threw the center of the section further west than -it would otherwise have been. Tt should, however, suffice to say, that those surveys "being illegal in the matters which we know about them, we will not presume that they were correct in those particulars as to which we are not informed.

VI. Finally, moving the southwest corner of the •addition twelve and one-half feet east of that fence will change the direction of the west boundaries of •every lot in block two. It will shift the position of every one of those lots to the eastward. It will change Ike width and contour of the fractional lots.

It was said by ValliaNt, J., in Guitar v. St. Clair, supra: ‘ ‘ The plat is not to be taken to pieces, it is to he taken as a whole, and the rights of the city and of individuals, in so far as they are derived from the plat, date from its filing.” "We hold-that the plat cannot be warped to the right or left. To do so in this •case would be to destroy the addition as laid out, and substitute another and a different one therefor.

The judgment is reversed.

Blair, G., dissents.

PEE CURIAM.

The foregoing opinion of Boy, <7., is adopted as the opinion of the court.

All the judges concur.

On motion for rehearing the cause is remanded* for a new trial.


author: BLAIR, C. PER CURIAM.

text:
    FIRST NATIONAL BANK OF PLATTSBURG v. BESSIE M. RENICK et al., Appellants.
    Division Two,
    December 10, 1912.
    1. APPEAL: Finding of Chancellor: Evidence. The evidence in this suit to set aside a deed of trust is held sufficient to support the chancellor’s finding that the note upon which the deed of trust was based was without consideration.
    2. -: -: -: Credibility of Witnesses: Altered Testimony. The trial court is held to have been justified in refusing to credit witnesses who had apparently altered their testimony to conform to a prior decision by this court of the point in issue.
    Appeal from Lafayette Circuit Court.- — Eon. Samuel Davis, Judge.
    AFFIRMED.

      John A. Gross and James W. Boyd for appellants.

      JE. S. Herndon and Culver, Phillip & Spencer for respondent.
   BLAIR, C.

This is a suit to set aside a deed of trust executed June 25, 1898, by Emanuel S. Fry tolls three children to secure notes amounting, with interest, to about $30,000. On the same day the deed of trust was executed Fry conveyed all his other property and the present plaintiff instituted an action against him, attaching the 220 acres of land covered by the deed now assailed. In that action there was judgment for defendant on the plea in ^abatement and for plaintiff on the merits. On plaintiff’s appeal the judgment on> •the plea in abatement was reversed and the cause remanded and on retrial the attachment was sustained. The land now involved was bought by plaintiff at execution sale under the judgment. The opinion of this court in that case (168 Mo. 492) states the facts as then proved, and it was there held the trial court might well have directed a verdict sustaining the attachment. On the trial of this case the principal evidence for defendants was given by the same witnesses who testified for defendant Fry ' in the attachment proceedings.

The action of this court in reversing the judgment and remanding the former case was in part predicated upon the conclusion that there was no evidence in the record (168 Mo. l. c. 514) tending to show there was any consideration for the notes secured by the deed of trust now sought to be set aside. The record disclosed that the notes mentioned depended for their consideration upon a note for $6000 executed in 1874 by Emanuel S. Fry to his then wife, for one half the sale price of Virginia lands given the wife by her father. In that case it appeared the note was executed without any previous agreement respecting it after the husband had reduced the proceeds of the lands to his possession. The evidence in the former case chiefly consisted of depositions and these were offered in the present case in proof of the character of the testimony of the principal witnesses in the former case, they being also the principal witnesses in this case. As to what the character of that testimony was in the attachment proceedings, reference, for the sake of brevity, is made to the decision of this court in the attachment proceedings. In that case, on retrial, the circuit court directed a verdict sustaining the attachment and no appeal seems to have been taken. It also appeared in evidence in the present case that in other cases instituted by other creditors of Fry the depositions of some of the witnesses had been taken and that in no instance, prior to the institution of the présent suit, had the testimony as to the facts indicating a want of consideration for the original $6000 differed materially from that in the attachment proceedings first mentioned.

The evidence now discloses that some of the witnesses have a recollection of the circumstances under which the $6000 note was executed and delivered entirely different from that they had when their testimony was previously taken. Under these circumstances the trial court refused to believe them and found for plaintiff and defendants appealed.

In First National Bank of Plattsburg v. Fry, 168 Mo. l. c. 513, it was said of the very transaction involved in this case that “When the rights of creditors are involved, transactions like this between husband and wife are to be scrutinized with the most jealous care.” It was further pointed out that the presumption was that the deed from Deyerle and wife to Mrs. Fry and that from Fry and wife to Chapman were acknowledged February 28, 1874, and that the presumption was these deeds were delivered on the day they were acknowledged and, therefore, two days before the execution of the note from Emanuel S. Fry to his wife which bore date March 2,1874. Since defendants’ position is that the trial court was wrong in finding from the evidence that the $6000' note was without consideration, it becomes necessary to examine the evidence in this record.

That the character of the evidence before the trial court may be understood, excerpts therefrom may prove enlightening. J. D. Deyerle, one of defendants’ principal witnesses, had testified in 1898 that the deed to Fry and wife from Deyerle and the deed from Fry and wife to Chapman were both acknowledged on the same day and delivered on the day they were acknowledged. In 1907 he testified that the deeds were not delivered until two or three days after they were acknowledged. During his cross-examination the following occurred:

“Q. You. say to-day, nine years later, that you were mistaken when yon made these answers to these questions, and you also say that you cqn give no reason for saying why your memory to-day is better than it was nine years ago; is that right? A. Only by my recollection, sir.
“Q. Now, the fact in the matter was this, Mr. Deyerle; you gave your testimony in 1898, and you know this case was tried after that, don’t you? A. Yes, sir; I heard it.
“Q. You know from Mr. Fry that it was tried? A. Yes, sir.
“Q. Mr. Fry told you that the case went to the Supreme Court of Missouri, didn’t he? A. Yes, sir.
“Q. And he told you that the Supreme Court of Missouri had reversed the decision, didn’t he? A. Yes, sir.
“Q. And Mr. Fry told you that the Supreme Court in reversing that decision had held that there was no consideration for the note that was given by him to his wife — the $6000 note, referred to in your testimony, unless it could be shown that an agreement, existed between him and his wife before the note was-, executed that the note was to be given in consideration of her deeding this land to Mr. Chapman, joining in the deed to Mr. Chapman; he told you that, didn’t he? In substance? A. I don’t exactly know the circumstances, something to that effect.
“Q. And he told you it was necessary to get evidence to that end, didn’t he?
“Objected to by counsel for defendants, because the defendants are not bound by any conversation he had with E. S. Fry.
“Q. He told you that it was necessary to get evidence to that effect, to show that this agreement existed between him and his wife before the deeds were executed, didn’t he — in substance — sir? A. No. sir.
“Q. He didn’t tell you that? A. No, sir.
“Q. Then they took your deposition over, didn’t they? A. Next time they came.
“Q. That is the time that Mr. Fry came here and told you about what the Supreme Court had decided? A. Yes, sir.
“Q. When it became necessary to take your deposition over the second time, the Supreme Court had decided the case, hadn’t it — sir? (Objected to as hearsay testimony.) A. I don’t know.
“Q. You know it from what Mr. Fry told you? A. That they had reversed the case hack? ,
“Q. And he told you the facts you said he told you? A. Yes, sir.
“Q. And then your deposition was taken the second time? A. Yes, sir.
“Q. And then when they took your deposition over the second time, you changed your testimony from what it had been on the first trial? A. Yes, sir.”

With reference to the same matter, the delivery of the deeds, etc., the same witness further testified:

“Q. Didn’t you say to me on cross-examination that Mr. Fry had explained to you that the Supreme Court of Missouri had reversed the judgment in the case of Bank v. Fry, and explained to you why they had reversed it? Did you not make that admission yourself on your cross-examination? A. Yes, sir, I believe I did.
“Q. That is true, isn’t it? A. Yes, sir.
“Q. Now, I say that it was after the time that Mr. Fry had explained to you. the decision, that you first made the statement that the two deeds we have been talking about were not delivered until three days after they were acknowledged? A. Yes, sir.
“Q. You had never made any such statement as that before? A. No, sir.
“Q. At that time you made the statement that they were delivered on the same day they were acknowledge d, and yon now say yon were mistaken when you made that statement! A. Yes, sir.
“Q. "When did your father make the deed to yon for your share of this land? A. I have forgot that •date, now, sir.
‘ ‘ Q. About what time ? A. The Franklin county land, you mean that division?
“Q. Yes. A. I think, sir, about six months after.
“Q. .That is your recollection now, that it was «ix months after? A. Yes, sir.
“Q. Don’t you know it was two years after? A. No, sir.
“Q. Didn’t you state in your deposition it was the 2nd day of November, 1876? A. My deed?
“Q. Yes. A. I don’t remember, sir.
“Q.. You do not remember whether that was correct or not? A. Made the deed to me?
“Q. Yes, sir, you don’t remember if that is correct or-not? A. No, sir.
“Q. "Why can’t you remember a transaction of that kind, which was a business transaction, in which .you were interested, but you can remember the statement made by your sister to your brother-in-law thirty-three years ago, a transaction in which you were not particularly interested? A. I cannot say, •only from my memory.
“Q. There was nothing particular to impress this transaction on your mind, was there? A. No, sir. <
“Q. Now what did your father say to you when 'he made the deed to you of your portion of the land? A. Just made me the deed, turned it over to me.
“Q. Don’t you recall what he said to you at the time? A. No, sir.
“Q. And were you present when he made the •deed to your sister, Mrs. Chapman, for her portion -of the land? A. Yes, sir.
“Q. Do yon remember wbat be said to ber at that time? A. No, sir, I can’t remember, sir.
“Q. Tbe deed to Mrs. Chapman for ber portion of tbe land and tbe deed to yon for yonr portion of tbe land was made after tbe deed was made to Mrs. Fry, for ber portion of it? A. Tes, sir, it was.
“Q. Yet yon don’t recall wbat occurred when-these deeds were made? A. Not exactly.
“Q. Yet yon were personally interested in this-matter? A. Yes, as far as my own deed.
• “Q. Yon cannot recall those things, and yon do-recall tbe conversation between yonr sister and ber bnsband when tbe deed was made to ber? A. Yes., sir.
“Q. Wbat else occurred on that day, besides-these transactions'? A. Yon mean when tbe deed was made?
“Q. When tbe deeds were delivered and your sister remarked to ber bnsband, ‘Where is tbe note?r and ber bnsband turned to yon and asked if yon could get him a blank note, etc., wbat other conversation occurred there on that day? A. I cannot recall, sir.
“Q. Yon don’t recall anything else that occurred on that day? A. No, sir.”

Henry S. Deyerle’s deposition bad been twice previously taken and in neither instance bad be testified to any conversation between Fry and bis wife indicating a previous agreement between them that Fry was-to give bis note to ber in consideration of bis receipt of tbe purchase money and notes for tbe Virginia, lands. In this case be testified to such a conversation but was unable to explain why be remembered it thirty-three and one-half years after tbe transaction when be failed to remember it on tbe occasions when bis-deposition was taken six and ten years before bis testimony in tbe present case was,given.

Tbe substance of tbe testimony of Henry S. Trout, so far as it was competent and admissible, was-that on February 27, 1874, the day the deeds were drawn, he heard Mrs. Fry direct the conveyancer to make the notes or bonds Chapman was to give for the deferred payments payable to Emannel S. Fry; saying she “had an understanding and agreement with him which was satisfactory to her as to the amount of ■the purchase money.” According to,Trout this was Mrs. Fry’s language and he claimed to have a distinct recollection of it. His testimony was given thirty-three years after the alleged occurrence and followed a conversation with E. S. Fry in regard to the matter. The witness remembered scarcely anything else which occurred at or near the date of the drafting of the deed. He was unable to remember the date of. Mrs. Fry’s marriage, though assigning his cousinly interest in her affairs as the reason the conversation to which he testified was impressed upon his memory. He was sixty-five years of age when his testimony was taken.

C. ~W. Chapman, testifying thirty-three years after the fact, claimed to remember seeing his grandfather, Benjamin Deyerle, hand to Mrs. Fry something at some time during the spring of 1874 and say to her that they were the papers to the Franklin county land. He did not remember that Mrs. Fry said anything at all on that occasion though it was at that time, according to J. D. Deyerle, Mrs. Fry asked for and received the $6000 note from her husband.

Emanuel S. Fry’s deposition had been taken several times before the trial in this case. In his deposition taken in 1898, twenty-four years after the event, he testified concerning the happenings at the time of the allotment of the Virginia lands by his wife’s father thus:

“A. The land was all together and it would have to be divided, about forty or forty-five hundred acres of land, into four different lots between four different children, each one was to have one-fourth, of the land, of course, I.was to have my wife’s as she was one of the children. After talking awhile Mr. Chapman remarked, says I will give yon $12,000 for yonr part, my part of the land. I told him I didn’t know anything about the price of land in that country and Mr. Deyerle was sitting there in his seat. Of course, I didn’t live out there and didn’t know the worth of land there. I just remarked to him I would leave it to Mr. Deyerle, knowing that I didil’t know anything about what that land might he worth, property like that, whether I should take it or not, take the $12,000 or not; the old gentleman said, he just remarked, ‘Fry, I believe that is a good price.’ I told him all right. Mr. Deyerle gave his decision, he said all right, he would give it. I thought it was right, what they said and they was to write out the deed; old Mr. Deyerle, young David Deyerle was there.”

In his testimony in this case he details an alleged conversation in which he, his wife and his wife’s father participated; in which the wife took the part he had assigned himself in his previous testimony and in which she also stated that he, Fry, had agreed to give her his note for $6000 for one-half the purchase price of the land. Trout, who was present, remembers the conversation quite differently.

Fry had previously testified also, when asked, “Then why did you give her (his wife) your note,” as follows:

“A. Because I thought it was right. Mr. Dey-erle deeded it to both of us. He remarked ‘Had we better draw this deed to you?’ she said ‘No, let Mr. Fry have half of it.’ I had the deed recorded, wrote up and I gave her my note for half of it.”

In this case he details a conversation at the time1 of the delivery of the deeds in which he makes it appear that the reason for his executing the $6000 note was the alleged agreement at the time of the division of the land, a conversation which it appears he had not recalled until after this court handed down its opinion in the attachment proceedings.

The significance of the changes in the .testimony of Pry and the Deyerles is considerable when it is re'■called that they were made after this court had held the $6000 note without consideration because of its delivery, without previous agreement, after Pry’s reduction to possession of the purchase money and notes given by Chapman for the land and after Pry had advised these witnesses of the decision and of its purport.

In addition, neither Pry nor his children had ever treated the notes to the latter as an existing liability. He was made their guardian and curator about 1885, regularly settled his accounts as such, and as they became of age took from each of them a receipt in full of all sums in his hands due from him to them and at no time during the pendency of this guardianship did he charge himself with the notes alleged to have been successively executed to them in renewal of' the $6000 note, though regularly making the usual affidavit to the effect that in his settlements he had charged himself with all moneys and property in his possession belonging to them. Further, Pry kept accounts against his children for sums advanced to or for them, charging them with a total of about $4000 but crediting none of these charges on the notes to them. Had these credits been entered as of the dates they were charged in the account kept by Pry, the notes secured by the deed of trust here in question would have been most materially reduced.- Again, the attitude of the children after the deed of trust was executed and recorded but ill consisted with the idea that they regarded the notes as valid and justly enforceable obligations. The land has been rented mainly to Mrs. Emanuel S-. Pry (a second wife) and the proceeds and more, in excess of taxes and interest on the prior mortgage, have been expended in Fry’s litigation with Ms creditors though this is the first case in which the alleged interests of Fry’s cMldren have been directly assailed.

In view of the rule heretofore mentioned and the character of the evidence in this case, as indicated above, the finding of the chancellor on the evidence to the effect that the $6000 note was executed without consideration ought not be overturned. The lapse of time, the discrepancy between the testimony formerly given and that given at a later period, the fact that the changes made so exactly conformed to the needs of appellants as pointed out by this court in its former decision, the fact that Emanuel S. Fry, who is the most active'personage in all this litigation, reported the reversal to the Virginia witnesses and explained to some, at least, of them exactly what was needed to meet the decision and that then he and these witnesses again gave their testimony with the very substantial changes necessary to support appellants’ contention in this case — all these things are to be borne in mind when examining the accuracy of the trial court’s conclusion as to the facts. [Moore on Facts, secs. 893,. 1059.]

The judgment should be and is affirmed.

Royy C., concurs.

PER CURIAM.

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

All the judges concur.


author: FERRISS, J.

text:
    J. A. BARRETT et al., Appellants, v. STODDARD COUNTY et al.
    Division Two,
    December 10, 1912.
    1. AMENDED PETITION: Striking Out Amendment: No Exception, etc. If no exception is saved to the action of the court in sustaining a motion to strike out the allegations of new matter contained in plaintiffs’ amended petition, and such ruling of the court is not referred to in the motion for a new trial,, the matter contained in those allegations is not for consideration on appeal. When the motion to strike out was sustained, the issues ráised by those allegations passed out of the case, no exception having been saved.
    2. -: -: -: County Depositary: Dissolution of Bank: No Statutory Suggestion. Plaintiffs, resident taxpayers, . sued the county and its other officers to have the action of the county court in selecting a certain bank as county depositary set'aside. In an amended petition they alleged that since the commencement of the suit the said bank had sold its assets and business to another, except its contract with the county as depositary, and that the bank had dissolved, etc. The court sustained a motion to strike out these additional allegations, and no exception was saved. No suggestion of disability as contemplated by the statute was made at the trial, and when objection was made to proof tendered of said allegations, plaintiffs acquiesced in the objection and withdrew the tender. Held, that the issues raised by these allegations cannot be considered on appeal.
    S. COUNTY DEPOSITARY: Bid: Contract to Buy Warrants at Par. A proposition from a bank to buy at par all county warrants issued by the county court during the biennial period, not in excess of the revenue, has no place in the bid of a bank to become county depositary, and in no way affects the duty of the county court to select as depositary the bank which makes ■“the largest offer for the payment of interest;” and if not included in the bids of either of the two banks which offer to pay the same rate of interest, the fact that the court order reciting the naming of one of them as depositary also recites that the bank agrees to buy at par all such warrants, does not invalidate that acceptance, nor show that the court’s discretion was abused, nor that the selection was arbitrarily made or the result of favoritism.
    4. -: Bond: Owners of Unincumbered Real Estate: Finding of County Court. The statute imposes upon the county court the duty of ascertaining the qualifications and sufficiency of the sureties on the county depositary’s bond; and where the-bond is signed by at least five sureties and the court record recites that the court has examined the bond and found it to be “signed by the requisite number of solvent sureties who own unincumbered real estate in the State of Missouri of as great a value as the amount of the bond,” and there is nothing in the facts to impeach that record, the action of the court in accepting the bid of the successful bidder is not invalid because of a lack of a sufficient statutory bond. And that record is not impeached by the fact that the bond was fixed at $250,000 and was signed by fourteen sureties, thirteen of whom made affidavit that they were worth $162,300 in unincumbered, real estate, and the.fourteenth made no affidavit and the value of his real estate-is not shown. The statute does not require the sureties to make-affidavit. The fourteenth signer may have been worth the face of the bond in unincumbered real estate.
    5. -: -: Public Officer. County depositaries are not public officers, and the statute in reference to the qualifying of ' public officers does not apply to them. They are debtors of the county, and their bond is given to secure the debt. The statute pertaining to them requires the bond to have at lease five solvent sureties, owners of real estate to the value of the face of the bond, and to be approved by the county court, and nothing more.
    Appeal from Stoddard Circuit Court. — Hon. W. N* Evans, Judge.
    AFFIRMED.

      R. 8. Houck and H. 8. Shaw for appellants.
    (1) The dissolution of defendant, the Bank of Essex, deprived the circuit court of jurisdiction to proceed further herein and the action abated. 9 Am. & Eng. Ency. Law (2 Ed.) 606; Bank v. Selma, 21 Wall. 609; 5 Ency. PL & Pr., p. 96; Youree v. Insurance Co., 180 Mo. 164; Sauer v. Hotel Co., 65 Mo. 287; Bradley v. Rappell, 133 Mo. 552. The death of a party, necessary to the determination of a controversy, abates the entire action and the court cannot proceed to render judgment for or against the surviving parties. 5 Ency. PI. & Pr., p. 840. The relation of the depositary of county funds to the county is one entered into with, a view of confidence reposed, involving personal service and trust. Reagan v. County-Court, 226 Mo. 79; State ex rel. v. Hawkins, 130 Mo. App. 41; State ex rel. v. Bourne, 151 Mo. App. 104; Sec. 3815, R. S. 1909. Such contracts can neither survive the life of the parties thereto, nor he assigned. Lawson on Contracts (1 Ed.), See. 437; Yerrington v. Greene, 7 R. I. 559; Lansden v. McCarthy, .45 Mo. 106; Boykin v. Campbell, 9 Mo. App-. 495; Implement Co. v. Iron Works, 122. Mo. 222; Afflick v. Streeter, 125 Mo. 708; Snyder v. Railroad, 86 Mo. 613; Chouteau v. Boughton, 100 Mo. 410; 2 Am. & Eng. Ency. Law (2 Ed.), p. 1036. (2) The attempted selection of the Bank of Essex as depositary of the county funds was absolutely void and of no effect. A county court is a court of limited jurisdiction. It does not proceed according to the common law. It derives its powers from legislative enactment and is confined to the authority given. State ex rel. v. Patterson, 207 Mo. 147; Doddridge v. Patterson, 222 Mo. 155. Where a special power is conferred and a special method is prescribed for the exercise of such power, such method must be strictly followed. Heidleberg v. County, 100 Mo. 74; In re Knapp, 144 Mo. 661; 26 Am, & Eng. Ency. Law (2 Ed.), p. 605. Sealed bids cannot be changed after all the bids have been opened. Moher v. Chicago, 114 Ill. App. 292; State v. Commissioners, 11 Neb. 484; Beaver v. Trustees, 97 Ohio St. 108; Boren v. Commissioners, 21 Ohio St. 311; Sanitary District v. Lee, 79 Ill. App. 159. The contract of the county with the depositary is made by offer and acceptance, and the acceptance must be in the terms and coincide with the offer. Lawson on Contracts (1 Ed.), Sec. 16; Egger v. Nesbit, 122 Mo. 675. (3) The bond filed by the Bank of Essex as depositary of the county funds did not meet the requirements of the depositary act. Such bond was a prerequisite to the transfer of the county money to said bank. Secs. 1226 and 3806, R. S. 1909. In so far as the depositary performs duties to the public, it is a public officer. Henry County y. Salmon, 201 Mo. 136. Secs. 1226 and 3806, R. S. 1909, should be construed together as forming a part of one genera] plan to safeguard the public revenues. 26 Am. & Eng. Ency. Law (2 Ed.) 632, 676, 623; Sales-v. Asphalt Co., 166 Mo. 671; Black on Interp. Laws, p. 204.

      N. A. Mosley and Wammack & Welborn for respondents.
    (1) If no exception is saved to the action of a trial court in sustaining a motion to strike out a part of the pleadings, but the complaining party thereafter proceeds to trial on the merits and does not in its motion for a new trial, call the trial court’s attention to the action of said court in sustaining such motion to strike out, the appellate court cannot review the action of the trial court upon such motion. Tobacco Co. v. Walker, 123 Mo. 662; State v. Ware, 69 Mo. 332; Keen v. Schnedler, 92 Mo. 525; Ellis v. Lamme, 42 Mo. 153; Sec. 2081, R. S. 1909. (2) In selecting the county depositary, the county court has a right to exercise its discretion and, unless it is clearly shown that the court exercised such discretion improperly or unreasonably, its action in so doing will not be reviewed. Reagan v. County Court, 226 Mo. 79; State ex rel. v. Hawkins, 130 Mo. App. 41.
   FERRISS, J.

The following statement of the case is adopted from the statement and brief filed here by appellants.

This is an action by fifty and more resident, solvent and responsible taxpaying, citizens of Stoddard county, Missouri, against the above named defendants, for the purpose of having the action of the county court of said county, in selecting the Bank of Essex, of Essex, Missouri, as 'the depositary of the various funds of tlie county and tlie funds under tlie control of the county court, inquired into and annulled, and for a mandatory injunction requiring said defendants to refrain from all further action under said selection, and to require said county court to either readvertise and relet said funds or to accept the bid of the City Bank of Bloomfield, Missouri, the alleged highest and best bidder.

The facts of the case are as follows:

The county court of Stoddard county, Missouri, in due season, caused the clerk of said court to publish a notice in the county newspapers to the effect that said court would, on May 6, 1907, “receive sealed proposals from any banking incorporation, association or individual banker” that might desire to be selected as the depositary of the county, and in other respects complying with the law. On May 6, 1911, the day designated, the said county court met, and at noon opened the several bids received, and caused said bids to be spread upon the records of the court. The court thereafter adjourned, taking the matter of a selection of a depositary under consideration until the next day. Among the several bids so received was the bid of the Bank of Essex, of Essex, Missouri, which said bid was as follows:

Essex, Mo., May 6, 1907.
To tlie Honorable County Court of Stoddard County, Missouri.
Gentlemen: We, the undersigned Bank of Essex, Essex, Mo., bid for tbe county money for the ensuing two years, as advertised in The Bloomfield Vindicator, four and five-eighths per cent per annum on daily balances.
•We further agree to maintain a paying station in the city of Bloomfield during the entire period of said contract, and to furnish good and sufficient bond for the faithful performance of the duties thereto, and safe custody of all moneys coming into our hands. This bid is accompanied by a certified check for the sum of one hundred and sixty-four dollars.
Respectfully submitted,
. Bank of Essex,
By Philip Collins, President.
Attest: C. L. Harrison, Cashier.

Tlie bid of the City Bank of Bloomfield, Missouri, was as follows:

Bloomfield, Mo., May 6, 1907.
To tlie Honorable County Court oí Stoddard County, Missouri.
Gentlemen: The City Bank of Bloomfield, Mo., desires to be selected as tbe depositary for the next two ensuing years of the county funds, district school funds, capital school funds, drainage funds, road funds, and all money under and coming under the control of the county court of Stoddard county, Missouri, and agrees to pay interest on daily balances on all funds so deposited at the rate of four and five-eighths per cent per annum (payable monthly).
■And further agrees to pay face value for all county warrants, and to execute a sufficient bond as the law directs.
City Bank ojt Bloomfield, Mo.
By George Houck, President.

~ When the court convened the next day, pursuant to adjournment, it took up the matter of the selection of a depositary, and made the following order:

The matter of the selection of a county depositary again being taken up for consideration, and the court after considering all the bids filed by the various banks of the county of Stoddard to act as such depositary for the two years next ensuing this date, is of the opinion that the bid of the Bank of Essex, proposing to pay four and five-eighths per cent on daily balances, and in addition thereto to buy all warrants issued by said court, not in excess of the revenue, at par, is the best bid offered.
It is therefore ordered by the court that the said Bank of Essex be and the same is hereby selected as the depositary of all funds now in the hands of the county treasurer, or that may hereafter come into his hands, except that moneys that may hereafter be realized from the sale of the drainage district bonds, said bank to pay monthly to said county interest on daily balances at the rate of four and five-eighths per cent per annum; and it is further ordered that the said Bank of Essex enter into bond to said county as such depositary in the sum of two hundred and fifty thousand dollars, as required by law.

On May 11, 1907, tlie said Bank of Essex filed its bond, as directed by tbe order of tbe court, in tbe penal sum of $250,000, conditioned upon tbe faithful performance of tbe duties and obligations devolving upon it by law as snob depositary, tbe payment of all checks drawn upon it by the county treasurer, whenever sufficient funds were in the depositary, the faithful keeping of all county funds, district school funds, capitol school funds, road funds, bridge funds and drainage funds, and the accounting for same according to law to its successor, and the payment of four and five-eighths per cent interest on daily balances. Said bond was signed by fourteen sureties, thirteen of whom justified on said bond by making affidavit stating the amount and location of their personal and real property. These affidavits were attached to and filed with the said bond in the office of the clerk of the said court, showing said sureties to be worth the sum of $109,000' in personal property, and $188,300 in real estate. From the latter sum, however, must be deducted the sum of $26,000 mentioned in said affidavits as incumbrances on their said real estate. Said bond was at once approved by the court as “signed by the required number of sureties, who own unincumbered real estate in the State of Missouri of as great a value as the amount of the said bond.”

On July 3, 1907, this action was instituted for the purposes above-mentioned, by filing petition, and the court thereupon issued a temporary writ restraining the defendants from proceeding further under said order, and directing the payment of the funds in question to the City Bank of Bloomfield, Missouri, which was accordingly done.

The cause was thereafter removed on the appli-' cation of defendants to the circuit court of Howell county, Missouri, and thereafter, before the trial of said cause, appellants filed an amended petition differing from the original only in the following allegations:

‘ Plaintiffs further state that since the commencement of this action the said Bank of Essex has sold and assigned all its assets, good will and business to the Farmers’ Bank of Essex, and that said last named "bank has assumed all the liabilities of the said Bank of Essex, except that said Farmers’ Bank declined and refused to accept the contract of said Bank of Essex with said Stoddard coiinty to be county depositary, and that said Bank of Essex has ceased to do business or to operate as a bank, and that its affairs are now liquidated and said banking company dissolved.
“Plaintiffs further state that upon the refusal of said Farmers’ Bank to become county depositary, as aforesaid, said Bank of Essex assigned its said supposed contract as such depositary to one Alfred L_ Harty; that said assignment was illegal and void, and has not been accepted by the county court of Stoddard county, nor has the said Alfred L. Harty ever given any bond or other obligation with respect thereto.”

Thereafter, on February 12, 1909, defendants filed a motion to strike out that portion of the amended petition above set out, which, upon being heard by the court, was sustained, and said paragraphs ordered stricken out.

It was admitted, among other things, by respondents’ answer that plaintiffs were resident, solvent and responsible taxpaying citizens of Stoddard county, Missouri, that the city bank is a resident of Stoddard county, and duly incorporated; that it was engaged in a general banking business and was a solvent institution, and that it accompanied its bid with a certified check as required by law.

Hpon the trial of the cause, the court, after hear--ing plaintiffs’ evidence, upon motion of defendants dissolved the temporary injunction and dismissed plaintiffs’ bill, from which said action on the part of the court plaintiffs have perfected their appeal to this court.

I. Appellants contend that the allegations made in the amended petition, to the effect that the Bank of Essex was dissolved, deprived the court of further jurisdiction, and that the action abated. No exception was saved to the action of the court in sustaining the motion to strike ont this portion of the petition, nor was snch ruling of the court referred to in the motion for a new trial; hence, the matter is not before us in proper form for review. .Nor can this amendment he treated as a suggestion to the court that the corporation was no longer a legal entity. There was no such suggestion of disability as is contemplated by Sees. 1916 and 1917, R. S. 1909. The facts alleged were tendered as issues in the case. When the motion to strike out was sustained, these issues passed Out of the case, no exception having been saved. Furthermore, when objection was made to proof tendered of the facts so alleged, appellants acquiesced in the objection made, and withdrew the tender.

II. Appellants further contend that the acceptance of the bid of the Bank of Essex by the county court was void, because the order accepting the bid recites that the bank proposed to pay par for county warrants, such provision not being contained in the sealed bid. It is claimed that this acceptance does not correspond to the bid, and hence there was no meeting of minds, and no contract made. The argument is based upon the proposition that the county court, possessing limited jurisdiction, must follow the exact, provisions of the statute. This objection would possess more merit if either of the contracting parties was objecting. It is difficult to perceive how this alleged irregularity injuriously affects the taxpayers who are the complainants. However, we are not impressed by the objection. The notice, bid and order of acceptance conform to the statute, Art. 8, Ch. 34, R. S. 1909. Section 3803 of said article deals only with the. funds of the county. There is nothing in the statute about the purchase of county warrants by bidders therefor. The proposition to buy county warrants at par has no place in the bid, so far as the statute is concerned, and in no way affects the duty of the county court to select the-depositary which makes “the largest offer for the payment of interest.” [Sec. 3805.] In this regard, both bids conform to the statute, and are alike. The offer to buy county warrants, whether contained in the sealed bid or not, addresses itself to the discretion of the court, where the bids are otherwise equal. From the standpoint of the law, then, the two bids were equal. There is no showing in favor of either bank as to reliability and resources. They seem of equal merit. We see no ground for the charge of unfair discrimination or abuse of discretion. The statute (section 3805) gives the county court the right to reject any bid, and unless it clearly appears that this discretion has been abused this court will not review the county court’s action. Reagan v. County Court, 226 Mo. 79.] What we have just said disposes of the further contention of appellants, that the selection of the Bank of Essex “was arbitrarily and oppressively made, and was the result of prejudice and favoritism. ’ ’ We find no evidence in the record to sustain such charge.

III. Lastly, appellants urge that the bond filed by the Bank of Essex “did not meet the requirements of the depositary act.” The statute requires the bond to be approved by the county court, “with not less than five solvent sureties, who shall own unincumbered real estate in this State of as great value as the amount of said bond.” The.order of the county court approving* the bond contained this recital: “The court having examined said bond, and finding same signed by the requisite number of solvent sureties who own unincum-bered real estate in the State of Missouri of as great value as the amount of the bond, it is further ordered by the court that said bond be and is hereby approved.”

The record shows that of the fourteen sureties who signed the bond, thirteen filed affidavits of their real estate holdings, aggregating $162,300. The fourteenth signer filed no affidavit. Counsel for appellants contend that the depositary is a public officer, and must qualify as such under Sec. 1226, R. S. 1909. In this we think counsel err. Said section is found in the chapter headed “Official Bonds,” and plainly applies to public officers proper. We held in Henry County v. Salmon et al., 201 Mo. 136, that county depositaries are not public officers, but are debtors of the county, and that the bond is given to secure the debt. The depositary statute (section 3806) requires the bond to have at least five solvent sureties, owners of real estate to the value of the face of the bond, and to be approved by the county court. Nothing more. There is no pro vision for affidavits of the sureties. It is left to the court to satisfy itself as to the solvency of the sureties and the value of their real estate. So far as this record goes, the fourteenth signer of the bond may have been worth its face in unincumbered real estate. The law imposes upon the county court the duty of ascertaining the qualifications and sufficiency of the sureties. In this case tbe court has found as a fact that the sureties were of the requisite number and possessed the necessary qualifications, and the record of that court so shows. There is nothing in the record before' us to justify an attack upon this finding of the county court.

The judgment is affirmed.'

Broiun, P. J., and Kennish, J., concur.