source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    ADA J. B. MILLAR Appellant, v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY.
    Division One,
    January 14, 1909.

    1. APPEAL: Tort: New Trial Granted: Abatement. In an action for tort, wherein plaintiff recovered a verdict and judgment for damages for the negligent killing of her husband, and the trial court on defendant’s motion granted a new trial and an arrest of the judgment, and from those orders plaintiff appealed but died before the cause came on for hearing in the appellate court, her action abated, and cannot be revived in this or any other court by the substitution of her administrator or executor as the plaintiff.
    2. -: -: Abatement After Verdict: Section 762, R. S. 1899. Section 762, Revised Statutes 1899, providing that “after verdict shall be rendered in any action, and after an answer of confession in any suit brought, if either party die before judgment be actually entered thereon, the court may, within one term after such verdict or answer, enter final judgment in the name of the original parties,” does not apply to a case where, after a verdict has been returned against defendant and a judgment rendered, motions for a new trial and in arrest have been filed and sustained, and thereafter the plaintiff dies. The word “verdict” therein refers to a verdict in which no judgment has been entered in'the trial court.
    3. -: -: -: Act of 1891. Nor does the Act of 1891, granting to either party the right of an appeal from an order granting a new trial, change the situation. It does not mean that, if plaintiff dies after he recovers a verdict and judgment and a new trial is granted, the cause of action may be revived in the name of his administrator or executor. In the nature of things there is no adjudication after a new trial granted in the suit for tort, and no property rights have descended to the plaintiff’s legal representative.
    Appeal from St. Louis City Circuit Court. — Hon. O’Neill By an, Judge.
    Appeal dismissed.

      Boyle & Priest, F. S. Whitelaw and T. E. Francis for respondent.
    An action under the Damage Act does not survive to the administrator, and the plaintiff in this case having died pending this appeal, this action must abate. Bates v. Sylvester, 206 Mo: 293.

      Lon O. Hooker and Earl M. Pirkey for appellant in reply.
    The executor has the right to revive the action in his own name. R. S. 1899, sec. 762. The case of State ex rel. v. Stratton, 110 Mo. 426, decides that where a plaintiff dies after verdict but before judgment and a motion for a new trial has been filed by defendant, the court should proceed and act on the motion for a new trial. In the case at bar plaintiff’s claim was reduced to verdict and judgment when the - court sustained respondent’s motion for a new trial and its motion in arrest; plaintiff then appealed and such action of the trial court is not a finality unless it is affirmed by tbis court, and if it is not affirmed by this court then the unauthorized action of the trial court should not deprive plaintiff of her verdict and judgment. The case cited by respondent in this connection does not decide. or have any bearing on the question of revival. All it decides is that where the defendant in an action under section 2864 dies before judgment the action does not survive against the administrator. The statute directs a court to enter up judgment if the plaintiff dies after verdict and before judgment. If, in such a ease, the trial court would refuse to enter up judgment, there is no question but what it could be compelled to do so. In this case a verdict and judgment were both entered, when the court by an unauthorized act attempts to set them aside. Before his action is consummated, plaintiff appeals, this suspends his action until the appeal is heard and consequently plaintiff’s verdict and judgment still exist. If this court reverses the action of the trial judge a new verdict and judgment are not required of plaintiff; all that is done is to reverse and set aside the action of the trial court in sustaining'defendant’s motion for a new trial and in arrest and the old verdict and judgment, which have been merely suspended, stand. Consequently, this cause should be revived in the name of the executor.

      Note. — Decided December 23, 1908. Motion for rehearing filed. Motion overruled January 14, 1909. This opinion should be read in connection with Millar v. Transit Co., 215 Mo. 607, decided on December 23, 1908, in which no motion for a rehearing was filed.

   GRAVES, J.

This case is numbered 13392 in this court, and is one branch of a cross appeal taken by plaintiff in the case of Ada J. B. Millar, plaintiff, vs. St. Louis Transit Company and United Railways Company, defendants. The facts material to this appeal by Mrs. Millar appear in the appeal taken by the St. Louis Transit Company in case No. 13118, just decided, and reported in 215 Mo., page 607, except the record shows there was introduced in evidence a certain lease from the United Railways Company to the St. Louis Transit Company and two ordinances of the city of St. Louis, relative thereto. This lease and these ordinances are fully described and discussed in the recent case of Moorshead v. United Railways Company, first decided by the St. Louis Court of Appeals in 119 Mo. App. 541, and later by this court in 203 Mo. 121. Reference is made to these two opinions for the full description of the several instruments. To outline these here again would be but a useless undertaking and one profitable neither to the Bench nor the Bar.

On this appeal the United Railways Company denies any liability to Mrs. Millar for the death of her husband, and further this defendant contends that, in as much as Mrs. Millar died pending her appeal, as against it, the suit has abated, and there is no' authority in law to authorize the further prosecution thereof by her administrator. The administrator has asked that this case be revived in his name, and this application was taken with the case.

Upon the record before us there are these two questions here not involved in the appeal of the St. Louis Transit Company, i. e., (1) Was there ever any action against or any liability upon the United Railways Company, and (2) if so, then did the same abate by plaintiff’s death? This is all that need be stated in addition to the facts stated in the other appeal.

The most orderly manner of taking these two questions will be in the inverse order, for even if we concede there was an original cause of action, yet if such has abated, by reason of the death of the plaintiff, the abatement should be first determined, and if it should be found that it had in fact abated, further discussion would be unnecessary.

Counsel for plaintiff predicate their right to have the executor of Mrs. Millar substituted on what is stated or can be read into section 762, Revised Statutes 1899. -This section reads: “After a verdict shall be rendered in any action, and after an answer of confession in any. suit brought, if either party die before judgment be actually entered thereon, the court may, within one term after such verdict or answer, enter final judgment in the name of the original parties.”

This is an action in tort, and it is not seriously insisted that, had the plaintiff, Mrs. Millar, lost in the trial in the court nisi and then died pending her appeal, her executor could revive the suit here.

Appeals are purely statutory. No right of appeal existed at the common law. The statute relied upon does not attempt to prescribe what shall be the situation of a case upon appeal. The statute itself is but declaratory of the common law in courts nisi. [1 Cyc. 76.] The word “verdict” as therein used refers to a verdict upon which no judgment has been entered in the trial court, and provides that in certain contingencies a judgment may be entered upon such verdict after the death of a party to' the action. This is not the case here. From the abstract of record before us it appears that on April 17,1905', the verdict against both defendants was returned, and on the same day judgment was entered in favor of the plaintiff for the amount of the verdict and against both the defendants for the amount of the verdict. All this was whilst plaintiff was living. Later, on April 20, 1905, motions for new trial and in arrest of judgment were filed, and on July 7th following the motions were overruled as to the St. Louis Transit Company and sustained as to the United Railways Company. Plaintiff was at the time living, and from the judgment granting a new trial to the United Railways Company, she duly appealed. Prior to the Act of 1891, page 70', there was no right to appeal from such an order. This act reads:

“Section 1. That section 2246 of the Revised Statutes of 1889 be and the same is hereby repealed, and the following new section enacted in lieu thereof, to be known as section 2246:
‘ ‘ Section 2246. Any party to a suit aggrieved by any -judgment of any circuit court, in any civil cause from ■which an appeal is not prohibited by the Constitution, may take his appeal to the court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, or dissolving an injunction, or from any interlocutory judgment in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.”

There have been subsequent amendments, but they .do not go to the point in question. They simply add to the Act of 1891, but do> not in any way affect the specific right to appeal, in this particular situation, i. e., from an order granting a new trial. Without this Act of 1891, when the trial court vacated its judgment and set aside the verdict, the plaintiff was simply left as if no trial had been had in her case. In other words, she had a cause of action pending but no adjudication thereof. If under those circumstances she had died, the cause of action died with her. The question is, although not argued or discussed in the briefs, does this Act of 1891 change the situation? We must also bear in mind that this statute contemplates that either party may appeal from an order granting a new trial. So that in this case had defendant gotten judgment below, and plaintiff had filed the motion for new trial and the same had been granted, then the defendant could have appealed. In such case, could it be said that the suit could be prosecuted here in the name of her executors? We have practically held that she could not. [Davis v. Morgan, 97 Mo. 79.]

Under the supposed case, she never for a moment had a verdict or judgment, whilst in the actual case at bar she did for a short time have both a verdict and judgment. "We take it from the very terms of the act itself that there is no final judgment in either case. The judgment appealed from is an order granting a new trial and not from a final judgment on its merits. But if the party was alive and prosecuting the appeal, and this court reversed the order of the trial court in granting the new trial, the effect would be to reinstate the judgment and verdict theretofore had and obtained.

Apropos to the question in hand, we should consider the character, of the plaintiff’s right. Her right is and was not a new cause of action, but by the very Damage Act the right of her deceased husband to sue was transmitted to her. [Proctor v. Railroad, 64 Mo. 1. c. 119; White v. Maxcy, 64 Mo. 1. c. 558; Gray v. McDonald, 104 Mo. 1. c. 311; Hennessy v. Brewing Co., 145 Mo. 1. c. 112; Strode v. Railroad, 197 Mo. 1. c. 626; Bates v. Sylvester, 205 Mo. 1. c. 500.]

The case of Bates v. Sylvester was an action for tort by the widow for the wrongful killing of her husband, as is this ease. In that ease the tortfeasor died, and an attempt was made in the circuit court to revive the action against him in the name of the administrator. Discussing the question, and after reviewing all the cases, Gantt, J., said: “Our conclusion is that in the light of the common law and the construction placed upon our Damage Act by this court, the action of the plaintiff did not survive against the defendant as administrator of James J. Sylvester and the judgment of the circuit court in refusing to permit the cause to be revived was and is correct and accordingly it is affirmed.” Judge Gantt likewise discusses the effect of our sections 96 and 97, Revised Statutes 1899, being the Administration Act. These he holds do not change the law, and cites and quotes with approval the discussion of similar sections of the New York statutes, by Ruger, C. J., in Hegerich v. Keddie, 99 N. Y. 258, wherein it was said: “The plain implication from its language would, therefore, seem to be at war with the idea that the Legislature intended to create a cause of action enforcible against, as well as by, representatives. The cause of action thereby given is not to the estate of the deceased person, but to his or her representatives as trustees, not for purposes of general administration, but for the exclusive use of specific beneficiaries. The wrong defined indicates no injury to the estate of the person killed, and cannot either logically or legally be said to affect any property rights of the person, unless it can be maintained that a person has a property right in his own existence. The property right, therefore, created by this statute is one existing in favor of the beneficiaries of a recovery only, and depends for its existence upon the death of the party injured. It had no prévious life and cannot be said to have been injured by the very act which creates it.” The Sylvester case reviews all the authorities, and not only holds that there can be no revivor against the administrator of the tortfeasor, but that the same shoe must fit the foot of a beneficiary of this transmitted right to sue. This beneficiary in the case at bar is the widow, who has since died.

Does this Act of 1891, now part of Revised Statutes 1899, section 806, affect the situation of the case? In cases where there is no survival of the action, but wherein the plaintiff has had judgment, 1 Cyc. 79, states the rule thus: ‘1 The rule applies in cases where there has been a judgment for plaintiff on a cause of action which does not survive, as by the judgment the cause of action is merged therein.” In such case the administrator should be substituted for the deceased in this court, for the reason that the cause of action has been merged into a judgment, which judgment is a property right, and is fully covered by the provisions of section 96, Revised Statutes 1899. We permit the revival and substitution in all sueb cases, but on the theory that the judgment is a property right.

On the contrary in an action for tort we expressly held that where the plaintiff failed below and was forced to a nonsuit, and then appealed from the judgment refusing to set aside the involuntary nonsuit, and pending such appeal, the defendant died, we would not consider such an appeal, and the cause was stricken from the docket, and this, too, after the administrator had been brought .into this court by consent of parties. [Davis v. Morgan, 97 Mo. 79.]

The judgment from which Mrs. Millar appealed in this case reads: “The court having heard the United Railways Company’s motions for a new trial and in arrest of judgment, filed herein on April 20, 1905, doth sustain the motion for a new trial on the second and third grounds thereof, and doth also sustain the motion in arrest of judgment. ’ ’

In this judgment before us there is no merger of the original cause of action into a judgment of dollars and cents. Property rights cannot be read into this judgment, and if not, the administrator has no place in this court or in any other court under the provision of sections 96 and 97, Revised Statutes 1899.

Under the law existing at the time this appeal was taken and now, so far as we have been able to find, we find no authority to allow the application of the administrator to be made a party hereto, or the cause to be revived in his name. Such application is therefore refused, and this appeal stricken from our docket. Such being our conclusion, we have no case here for consideration, and the discussion of the first question suggested in our statement, supra, would be out of place.

All concur.


author: LAMM, P. J.

text:
    CHARLES A. BRUNN and FRANKLIN J. DONNELL et al., Appellants, v. KANSAS CITY.
    Division One,
    January 14, 1909.
    1. CONDEMNATION: Interest on Judgment: City Charter. No interest can be allowed on a judgment against Kansas City for damages for private property taken by the city to be used as a public park during the time an appeal is pending. The charter provision which says that “no interest shall be allowed or collected on the judgment or on the assessments until such judgment be affirmed or appeal dismissed” prevails over the general statute (R. S. 1899, sec. 3707), which says that interest shall be allowed on any judgment “from the day of rendering the same until satisfaction be made by payment.” Nor is such charter provision in conflict with the provisions of the Constitution which says that “private property shall not be taken or damaged for public use without just compensation.”
    2. -: Delegation to City: Public Parks. The constitutional power in the Legislature to delegate to cities the right of eminent domain to condemn property for parks for the common health and pleasure of the people, is no longer questionable.
    3. -: -: Code of Procedure. And when a grant to a city of the size of Kansas City to exercise the power of eminent domain is made both by the Constitution and a legislative Enabling Act, then the city’s right, in framing and adopting its charter, to provide a plan and code of procedure for exercising that power, is not an open question.
    4. -: -: -: Exceptions. When special charter provisions relating to procedure in condemnation cases are not inimical to the general scope of the policy of the Constitution and statutes, they govern as against the provisions of the general law; that is, such special provisions are to be considered as exceptions read into or grafted upon the general law.
    5. -: -: -: -: Interest on Judgments. The provision of the Kansas City charter, withholding interest on a judgment in favor of the landowner in a condemnation case brought by the city, pending an appeal, must be read into the general statute, allowing interest on judgments. Such charter provision is a mere incident to the subject-matter of the exercise of the right of eminent domain and is implied in the main charter power granted to the city.

      Appeal from Cass Circuit Court.— Hon. N. M. Bradley, Judge.
    Affirmed.

      Frank F. Brumback and E. P. Garnett for appellants.
    The allowance of interest on the award, from its date, was necessary to complete plaintiffs’ just compensation for the property taken. The jury found that they were entitled to that amount on that date; when the compensation was withheld for four years, there should have heen added additional compensation, which is ascertained by calculating interest on the award from its date. Otherwise, the property-owner does not receive the just compensation for the property taken as provided by the organie law of the land. Any charter provision which limits any part of the just compensation is void. Lewis on Eminent Domain, sec. 499; Plum v. Kansas City, 101 Mo. 525; Martin v. St. Louis, 139 Mo. 246; In re Paseo, 78 Mo. App. 518; Hampton v. Kansas City, 74 Mo. App. 129; Warren v. Railroad, 41 Minn. 424; Melter v. Railroad, 37 N. J. L. 222; West v. Railroad, 56 Wis. 318.

      Edtvin G. Meservey and Francis M. Hayward for respondent.
    The provision of the charter of Kansas City, article 10, section 18, in the case of taking land for public parks, is valid and not in conflict either with the Constitution or the statutes of the State. 15 Cyc. 930; Martin v. St. Louis, 139 Mo. 246; Phillips v. Pease, 39 Cal. 582; Chicago v. Wheeler, 25 111. 496; Fink v. Newark, 40 N. J. L. 533; Hamersley v. New York, 56 N. Y. 533; Erie Co. Com. v. Buffalo, 63 Hun 565; In re Dep. of Pub. Parks, 53 Hun 280; Pegler v. Hyde Park, 176 Mass. 101; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Ward, 134 Mo. 172; Kansas City v. Oil Co., 1401 Mo. 458; Kansas City v. Bacon, 147 Mo. 259 ; Kansas City Charter, sec. 19, art. 10.
   LAMM, P. J.

This is a snit to recover interest on an award (or judgment) in a condemnation suit. Attending to the latter: In establishing its Penn Valley Park, Kansas City commenced an omnibus suit under article 10 of its charter, regulating its exercise of the right of eminent domain, in the circuit court of Jackson county, to take the real property of divers owners and to assess against that of others benefits to pay the damages for land taken. M. S. C. Donnell with many others owned tracts within the proposed park limits, and was made a party defendant. His parcels of land were covered by conveyances in trust, but these are immaterial to any question now submitted. The issues in that proceeding were submitted to a charter jury of six freeholders who .made an assessment of benefits and an award of damages — Donnell’s item being $28,762. (Note: Dates are material and should be kept in mind.) The award was made in the form of a verdict filed on the 24th day of April, 1897, covering 951 parcels of land. It was approved by, and judgment rendered in, said court on November 5, 1898, which judgment said nothing about interest. The cause of this delay in entering judgment is dark. Donnell elected to abide the judgment but other parties defendant appealed — many motions for a new trial and in arrest being filed and overruled. Time was taken to settle and file a bill of exceptions. It was extended by sundry .entries until October 31, 1899, when the bill was filed.

In Banc in this court on June 30, 1900, the judgment was affirmed in an opinion by Valliant, J., concurred in by a majority of his brethren (157 Mo. 450). The mandate was sent down and filed below on July 11, 1900.

The face amount of the award in favor of Donnell was paid by the city into court in an interpleader proceeding in which Kansas City was plaintiff and Donnell and other claimants of the fund were defendants, on April 11, 1901. A referee was appointed in that case and at the time of the trial of the case at bar the latter case was still pending, but no point is now made on its pendency, or because other parties claim or are litigating over «the corpus of the fund or the interest accruing.

The present plaintiffs are the administrators of ■ the estate of M. S. C. Donnell, deceased, and of the estate of Catherine E. Donnell — trustee in the aforementioned trust conveyances affecting Donnell’s lands. Prior to the interpleader suit, plaintiffs brought the present action to recover the interest at six per cent per annum on the original award. The cause went on change of venue to the Cass Circuit Court and was there heard by Judge Bradley.

In entering his decree the learned judge made a finding of facts covering matters heretofore stated, concluding on the law of the case as follows:

“3. The court finds that it was the duty of said defendant herein to pay into court at the time the said sum of $28,762 was paid, the interest on said amount from July 11, 1900, to April 11, 1901, at the rate of six per cent per annum, which amounted to $1,294.29, on said date.
“4. The court further finds, that as said sum of $1,294.29 was due and should have been paid into court on the said 11th day of April, 1901, the said sum of $1,294.29 should draw interest from said last-named date at the rate of six per cent per annum up to the rendition of judgment herein.
“5. The court finds all other issues herein in favor of the defendant.
“6. It is therefore considered and adjudged by the court, that said plaintiffs have and recover of and from said defendant the said sum of $1,294.29, with six per cent interest thereon per annum, amounting in the aggregate to the sum of $1,659.85', together with all costs herein, and that execution issue therefor. ’ ’

From that judgment, plaintiffs appeal.

Section 18, article 10', of the charter of Kansas City provides that any party aggrieved by any verdict and judgment in a condemnation proceeding may appeal therefrom by filing the affidavit required in appeals in other civil cases and a bond, which bond and affidavit must be filed within twenty days from the rendition of the judgment of confirmation of the verdict. Moreover, that section has the following provision: “In case of appeal, the judgment shall stand suspended until the appeal is disposed of, and no interest shall be allowed or collected on the judgment. or on the assessments u/ntil such judgment be affirmed or appeal dismissed. No writ of error shall be allowed.”

Section 19 of article 10 of the charter follows: “The common council shall have the power, with the concurrence of the board of park commissioners, at any time before any of the parties assessed with benefits shall have paid the amount so assessed, to repeal the ordinance ordering the proposed improvement, if such repeal be deemed for the best interests of the city; and in such event the judgment for compensation and benefits shall be void.”

The pleadings, evidence and instructions were sufficient to raise all points argued, vis.-. On one side it is said that the provision of the city charter denying interest on the owner’s award of damages, or (otherwise put) on the amount of the judgment in his favor, pending appeal, is unconstitutional and void; that it impinges on the provisions of the Constitution requiring “just compensation” to be made for private property taken for public use (Const., art. 2, sec. 21), and that the statute (R. S. 1899, see. 3707), giving six per cent interest on judgments, applies.

Section 21 of article 2 of the Constitution reads: “Sec. 21. That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without consent of the owner thereto shall remain in such owner, subject to the use for which it is taken.”

Section 3707, Revised Statutes 18991, reads: “See. 3707. Interest shall be allowed on all money due upon any judgment or order of any court, from the day of rendering the same until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than six per cent interest shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear six per cent per annum until satisfaction made, as aforesaid.”

On the other side it is said that such charter provision is not obnoxious to the Constitution when construed in connection with section 16 of article 9 of the Constitution giving inhabitants of cities of more than 100,000' the right to frame a charter for their own government and giving the right to amend the same. It is further contended that the charter provision assailed supersedes the general statute on interest so far as concerns judgments in condemnation proceedings instituted under defendant’s charter.

The learned trial judge took defendant’s view of that proposition and plaintiffs assign error on the point. Such, in brief, is the case and such the bone of contention on appeal.

At the outset it is well to say that it is not alleged or shown that Donnell accepted the face amount of the award and took down the money. Therefore the case is free from estoppel in that regard. Moreover, plaintiffs do not assail the general charter scheme adopted under the powers donated by the Constitution and statutory Enabling Act whereby Kansas City received her warrant of authority to frame a charter containing provisions for exercising the right of eminent domain. Therefore it cannot be said that plaintiffs in one breath deny the constitutionality of the general municipal scheme of. sequestrating private property for public use for parks, and with the next breath claim the award under that scheme. Hence, there is no estoppel in that view of the case. Moreover, while in a brief of commendable directness and force plaintiffs’ learned counsel lay some stress on the natural justice of their claim, whether as interest or as damages for withholding Donnell’s award, and while they argue that the just compensation granted by the Constitution demands that the corpus of the award be increased by an increment of interest or damages to compensate the delay, yet we do not construe their brief, when viewed in its whole scope and true intendment, otherwise than as outlined in the proposition that the general statute allowing interest on judgments should stand and that the charter provision denying interest should fall. Furthermore, the case is free from embarrassment arising from, the receipt of rent by Donnell during the pendency of the condemnation proceeding. His tracts of land were practically bare of improvements. They produced little rent or none, and defendant bases no claim on the receipt of rents during the delay in the condemnation case after the verdict of the jury and before the judgment of affirmance or during the pendency of the appeal in this court. So, the case proceeds on the theory that, ^pending appeal in the condemnation case, defendant city did not take possession of the property. Whether its market value went up or went down pending the delay is not disclosed.

So much for preliminary observations tending to fetch a compass on the concrete case itself.

The books abound with cases in Yhich courts have approached the vexed question of allowing interest on awards in condemnation proceedings from many sides. For example, in some cases there has been an absence of regulation of the question of interest in the scheme of procedure whereby the right of eminent domain is exercised by municipal or other corporations, or an absence of general statutory provisions relating to interests on judgments in such cases. All well-reasoned cases deem the judgment confirming the award and vesting the title out of its owner and into the plaintiff as a “judgment” as that term is used in statutes requiring interest to be paid on judgments. [Martin v. St. Louis; Plum v. City of Kansas, infra.] Some courts have taken the view that the additional compensation over and above the award, when that has been allowed, arises on principles of natural justice between man and man and rounds out and completes the idea of just compensation of the landowner. Cases and text-writers maintaining such views may be found collated in the briefs of counsel — e. g., Metler v. Railroad, 37 N. J. L. 222; West v. Railroad, 56 Wis. 318; Warren v. Railroad, 21 Minn. 424.

But a good rule seems to be that when the matter of interest is regulated by the statute regulating procedure in exercising the right of eminent domain that statute should be given full play. It is said in a standard work (15 Cyc. 930-1): “Whether the interest is to he computed from the time of entry and possession, from the date of the vesting of the title to the land appropriated, from the date of the filing of the award, from the date of the confirmation of the award or from a fixed time after its confirmation, from the date- of entering the final order, from the time of demand, or from some time different from all of these, depends upon the provisions of the statute under which the condemnation proceedings are had.”

In line with that general doctrine is the reasoning underlying Martin v. St. Louis, 139 Mo. 246, and Plum v. City of Kansas, 101 Mo. 525 — both cases relating to the landowner’s right to interest. The Plum case was under defendant’s former charter which was silent on the question of interest. That case must be read in the light of that pertinent fact, and when its doctrine is sought (as it is) to be' applied to the case at bar it must be borne steadily in mind that the charter of Kansas City has been altered in that vital particular. Article 10' of the present charter is an amendment adopted in accordance with the constitutional plan of amending it by vote of the people on June 6, 1895. The Plum case was decided in 1890. The Martin case was under the charter provisions of St. Louis and that charter was silent on the subject of interest. In both those cases the necessity of keeping within the charter provisions was assumed but in the absence of specific charter direction the problems up for solution were solved in the light of the provisions of general statutory law aided by equitable construction. That was the best the court could do in working out just results in the Plum and Martin cases.

The case, then, as once before said, hinges in last analysis on the question: Shall the general statute relating to interest on judgments-be enforced or do the charter provisions relating to interest supersede the general statute and command obedience as valid law?

On that question we are of opinion that Judge Bradley found the right answer below. This, because:

The constitutional power in the Legislature to delegate to cities in Missouri the right of eminent domain to condemn property for parks for the common health and pleasure of the people cannot he questioned at this late day. Further, when such grant is made by both Constitution and Enabling Act, as. in this case, then the right of a city of the size of Kansas City, in framing and adopting its charter, to provide a plan or code of procedure for exercising the right of eminent domain is no longer an open question. These questions when new were not taken as granted and settled and answered as of course. To the contrary, they have been threshed out at the bar and settled by the appellate bench in a line of decisions familiar to students of municipal law, on full deliberation, on reason as well as authority, and need no new exposition. [Kansas City v. Bacon, 147 Mo. 259; State ex rel. Kansas City v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. Ward, 134 Mo. 172; Kansas City ex rel. v. Scarritt, 127 Mo. 642.]

Further, it is settled law that when special charter provisions relating to procedure in condemnation cases are not inimical to the general scope of the policy of our Constitution and laws, then such special provisions govern as against the provisions of general law —that is, such special provisions may be likened to exceptions read into or grafted on the general law. [See authorities, supra.] Again, it must be taken as the accepted doctrine that powers granted, and charter provisions adopted pursuant, relating to the exercise of the right of eminent domain by a city of the class of Kansas City in establishing parks, boulevards and streets, pertain peculiarly to the domestic municipal affairs of such city and therefore come within the purview of its powers freed from interference by the Legislature, so long as such provisions do not contravene the general policy of our laws and Constitution. In fine, the constitutional idea was that charters under consideration should present a complete scheme of local self-government and that where their provisions conflict with the general statutes on a merely municipal regulation (such as condemnation proceedings are held to be) the' charter provisions should control; and it has been held that the constitutional plan for amending charters (sec. 16, art. 9), which directs that they shall be amended by a vote of the people “and not otherwise” is mandatory and forbids the regulation and direction of purely municipal affairs by act of the Legislature. [Kansas City v. Scarritt, 127 Mo. supra.]

Such is the undeniable doctrine of Kansas City v. Bacon, supra, and a line of cases therein discussed. The case was in Banc and was presented by an array of distinguished counsel. In the light of their briefs and arguments it was exhaustively considered and the above doctrine formulated as the law. In reaching that conclusion the court had the benefit of a learned dissenting opinion by Sherwood, J. In the majority opinion it was said: “It was unanimously ruled [referring to our former opinions under review], that condemnation proceedings by a city organized under section 16 of article 9 of the Constitution of Missouri in acquiring lands for streets, alleys, parks, etc., clearly fell within the domain of municipal government and regulation, and that this charter by virtue of the Constitution itself superseded the provisions of the general statutes on that subject so far as Kansas City was concerned. It would seem, therefore, that if any question is ever to be considered settled by judicial construction, and if the salutary principle of stare decisis is not to be actually ignored and discredited, the constitutionality of the freeholders’ charter of Kansas City adopted in 1889 is no longer an open question.” In that case; too, the amendment to the charter under consideration, viz.-, article 10 adopted in 1895, was under review and was held to be in harmony with the Constitution and laws of Missouri (p. 272). As giving point to the discussion, it is not amiss to note that it was contended in that case that a general act of the General Assembly pertaining to ‘ ‘ every city in this State which is now or may be hereafter organized under and by virtue of the provisions of section 16 of article 9 of the Constitution of this State,” and empowering every such city to establish and maintain a system of parks and boulevards was interposed as a defense, but the charter provisions were sustained in spite of that act.

In Kansas City v. Ward, supra, it was held (quoting from the syllabus) that “The provisions of article 10 of the charter of Kansas City are not a regulation of the practice, jurisdiction and judicial proceedings in the State circuit courts, contrary to the general laws of the State, inasmuch as said charter provisions supersede the laws of the State relating to such city.”

We deem the eases cited controlling on the question presented at bar.

The delay incident to the Penn Valley Park condemnation proceeding was not unusual. There are no facts showing bad faith on the part of the city in the delay. The charter plan of procedure in acquiring parks contemplates that the city has the option to quit at any time before the payment of assessments has begun. If the city by its ordinance elects to quit then the judgment becomes void and the improvement plan falls to the ground. The charter plan further contemplates that a park scheme should go through as a whole or not at all, and be operative only when the courts have put their sanction upon it. An appeal being provided, it results that judicial sanction culminates in an affirmance of the judgment in the appellate court. The charter scheme further contemplates that interest on benefits as well as assessments of damages should not run pending the appeal. A case might be imagined where all this might work a hardship to the landowner. To illustrate: The filing of the petition to condemn and notice to the defendants was in the nature of a caveat to all concerned, including the world at large, that the city had laid its hand on the property and that the proceedings might ripen into a sequestration of it. Beginning from that time the owner’s power to sell would be whittled away, his right to improve and develop^ the property would be in abeyance. After judgment and pending appeal he would hold but a base or qualified fee subject to all inconvenience and injury having their root in that fact. Finally, when the proceedings were dismissed by an election of the city not to go on with its scheme, the landowner, pinched in pocket, would have nothing but his memory of troubles and detriment suffered. But all these things are but incidents of the exercise of the right of eminent domain, to which right every rood of land in a civilized state is subject; and neither the ingenuity nor wit of man has hitherto been adequate to discover any plan of general or special taxation,, or for the establishment of boulevards, parks and streets, ideally equitable and free from inequalities and unfairness in an easily imagined case. I doubt not that such Utopian plan for the future is but the irridescent dream of a dreamer. As said by Brace, J., in Kansas City v. Ward, supra: “The inconveniences arising from the institution of these proceedings and the delay or ultimate failure that may mark the course of their subsequent prosecution are the necessary incidents of the right of eminent domain in an orderly and judicial manner and cannot be wholly provided against by legislation. ’ ’

The charter provisions withholding interest on the judgment in favor of a landowner pending appeal must be read into the general statute allowing interest on judgments. Such charter provision is a mere incident to the subject-matter of the exercise of the right of eminent domain and is implied in the main charter power granted to Kansas City.

In this case interest was allowed from July 11, 1900 (the date our mandate was filed and became operative), up to April 11, 1901 (the date on which the city paid the money into court). The allowance was well enough. Let the judgment be affirmed.

All concur.


author: VALLIANT, J.

text:
    PHILLIP SEIBEL et al., Appellants, v. CHARLES C. HIGHAM et al.
    Division One,
    January 14, 1909.
    1. DEED: Delivery. Delivery by the grantor to the grantee with the intent to pass the title, and acceptance by the grantee with intent to take the title, are absolute essentials in the execution of a deed.
    2. -: in Escrow: Depositary. The depositary of an escrow, strictly speaking, is not an agent at all, but a trustee of an express trust, with duties to perform for both the grantor and grantee which neither can forbid without the consent of the other.
    3. —:-: -: -: Death of Grantor: Delivery. The death of the grantor in a deed held in escrow does not annul the depositary’s authority to do what he was appointed to do, nor does it impair the right of the grantee to perform the condition and take down the deed.
    4. -: -: -: Delivery. A deed was made to one of four persons for the benefit of all. He made a warranty deed to two grantees and placed it with a depositary to be delivered to the grantees upon the payment by them for the beneficiaries of $7,000 within a certain time or of $10,000 on or before a later date. No money was paid, but before the option expired the grantor died, and thereafter the option expired, and one of the beneficiaries went to the depositary, who did not know that the grantor was dead, and representing himself to be the grantor’s agent requested that the escrow be 'delivered to him, and that was done, and he receipted for it as the grantor’s agent. Afterwards, without the knowledge of two of the beneficiaries, he obtained a quitclaim deed from the grantees to the fourth beneficiary, under the pretext that such deed was necessary to clear the title of record; and he and such other sold the property to one of the defendants, who bought without notice of the existing rights of the other beneficiaries. Held, that there never was'any delivery to the grantees named in the warranty deed. They never had any right to demand it from the depositary, and after the expiration of the option that deed was a dead instrument, and no title passed to its grantees, and none passed by their quitclaim to their grantee; but upon the expiration of the option the title passed back to the grantor in the warranty deed, and upon his death to his heirs or devisees in trust for the same purposes as those for which he had held it.
    5. -: -: -: -: Innocent Purchaser. Where the option had expired and the escrow deed had because of that fact become a dead instrument and the depositary as a result of fraudulent representations delivered the deed to a pretended agent of the grantor and such pretended agent obtained a quitclaim from the grantees of the escrow and recorded the escrow, a purchaser from said agent, without notice, is not an innocent purchaser. The depositary of the escrow was not the agent of either the grantor or grantees and did not, wrongfully or otherwise, deliver the escrow to the grantees, and hence a purchaser who traces his title through them, though without notice of the fraudulent representations by which the deed was obtained from the depositary, is not an innocent purchaser.
    6. -: -: -: -: -: Knowledge. Where the holder of an option knows that the person from whom he is about to buy holds the title for the benefit of others, and before the expiration of the option another steps into his shoes and by the advantage which the option affords obtains the property at the option price and the deed is made to him, and he conveys it without consideration to a corporation, the corporation is not an innocent purchaser, although its grantor did not have the personal knowledge that the land was held by his grantor for the benefit of others that the option-holder had.
    7. FRAUD: Clean Hands: Deed In Escrow: Excluding Other Beneficiaries. To say that plaintiffs have committed an act that the law condemns as fraudulent, merely because it was unlawful and wilfully done, does not always imply that they are not to have a redress of the wrong connected with the same property done by another, or that they come into court with such unclean hands that the court will not hear them. A corporation owned a tract of land and owed debts, and executed its note for $12,500.59 to one of its directors, and secured it by a deed of trust on the land in suit. The note was given to secure a debt of $9,903.15 due four of the directors, and a debt due a bank for $1,724.90 on which they were sureties, and 36 other small debts aggregating $2,597.44, due to as many other stockholders. The deed of trust provided that when the land was sold the proceeds should be used to pay all debts pro rata. The property was sold under the deed of trust to one of the four who is a plaintiff, who held it for nine years, under a like agreement, and during that time the four directors spent between five and six thousand dollars in taking care of the property, the other 36 contributing nothing, and are not parties to this suit, but apparently have abondoned any claim to the proceeds. At the end of that time the property was conveyed to another of the four directors, under an agreement that he was to sell it and divide the proceeds pro rata among the four,thereby cutting out the other 36. Thereafter this grantee entered into an option agreement for the sale of the property and made out and signed a warranty deed naming the option-holders as grantees, and delivered it to_a depositary, who was to deliver it to them on the payment of the money, which was never paid, and the escrow deed became a dead instrument. After the death of the grantor in that deed, one of the four, representing himself to be the grantor’s agent, induced the depositary to hand over the escrow deed to him, and he thereupon, upon a representation that a deed was necessary to clear the title of record, obtained from the option-holders a quitclaim deed, put it and the other of record, and for a small sum sold the property to a stranger, who is not an innocent purchaser, and the remaining director and the widow and heirs of the deceased one bring this suit to set aside the deed. Held, that the deed by the one director to the other for the benefit of the four was in law a fraud, because wilfully done, but under the circumstances was not moral turpitude,- and plaintiffs do not come into court with such unclean hands as forestall them from maintaining the suit.
    8. FRAUDULENT CONVEYANCE: Improvements. A purchaser of land cannot, by placing improvements upon it, infuse any force into his void title; and if he took possession, .charged with knowledge of plaintiffs’ interests and made the improvements in defiance of those interests, he is not entitled to have their value taken into consideration in a suit to have his void deed set aside, unless they can be removed without injury to the property. And where the real estate is mining property, the injury meant is injury that cannot be repaired by replacing other improvements or equipments of like character at the cost of their present value.
    Appeal from Crawford Circuit Court. — Eon. L. B. Woodside, Judge.
    Reversed and remanded (with directions).

      Ed. L. Gottschalk and A. II. Harrison for appellants.
    (1) A deed delivered without the consent of the grantor has no more effect to pass title than if it were a forgery, or had been stolen. Houston L. & T. Co. v. Hubbard, 85 S. W. 474. (2) Where a deed is delivered as an escrow, it is of no force till the condition is performed. G-off v. Roberts, 72 Mo. 572. (3) A deed left in escrow, and grantee obtained possession of same fraudulently, and then transferred by deed to innocent purchaser, conveys no title to grantee or those claiming under him. Taylor v. Davis, 72 Mo. 291. (4) Where grantor signs and acknowledges a deed and places it among his papers, and it falls into the hands of the grantee, it does not constitute a delivery as to convey the title. Pitts v. Sheriff, 108 Mo. 110. (5) To make a deed effective there must be a delivery, actual or constructive, to the grantee, .or to some person for his use, during the lifetime of the grantor. Standiford v. Standiford, 97 Mo. 231; Ehersole v. Rankin, 102 Mo. 488; Crowder v. Searcy, 103 Mo. 97; Sneathen v. Sneathen, 104 Mo. 201; Allen v. McUroodt, 105' Mo. 442; Hall v. Hall, 107 Mo. 101; Cravens v. Rossiter, 116 Mo. 338. (6) A deed takes effect only from proper delivery. Saunders v. Blythe, 112 Mo. 1. (7) And must be in the lifetime of grantor. Sneathen v. Sneathen, 104 Mo. 201; Allen v. McUroodt, 105 Mo. 442. (8) Where a voluntary conveyance is delivered to a third person, with instructions to deliver it to the donee in case of the donor’s death, and is, after all danger of the don- or’s death is past, put on record by one who wrongfully obtains possession of it, this does not constitute a delivery, and no title passes. Boyle v. Boyle, 6 Mo. App. 594. (91) Acceptance by the grantee is also essential to the taking effect of the deed. Ehersole v. Rankin, 102 Mo. 488'. (10) The maxim “He who comes into equity must come with clean hands” is confined to misconduct in regard to, or at all events connected with, the matter in litigation. Johnson v. Ewald, 82 Mo. App. 286; 1 Pomeroy, Eq. Jur., secs. 399, 403. (11) Nor does it furnish protection to wrong or fraud. Axman v. Smith, 156 Mo. 286; Turner v. Overall, 172 Mo. 271; Bell v. Campbell, 123 Mo. 1; Poston v. Balch, 69 Mo. 115. (12) Notice is actual when the purchaser knows of the existence of the adverse claim or title, or is conscious of having the means of knowing, although he may not use them. Taafe v. Kelley, 110' Mo. 137; Eick v. Hatcher, 58 Mo. 235. (13) Where one cannot make out his title to land except through a deed or other instrument which leads him to the knowledge of another fact, he will be deemed to have knowledge of the. fact. Loring v. Groomer, 110 Mo. 644; Mason v. Black, 87 Mo. 341. (14) Where one has the equitable title to land and another obtains the legal title with knowledge of such equity, the former has the superior equity and the latter will be held to hold such legal title in trust for him. Notice of an adverse claim of title is actual when purchaser knows of its existence or is conscious of having the means of knowledge, although he may not use them. Sensenderfer v. Kemp-, 83 Mo. 581. (15) A purchaser-by a quit-claim deed acquires only the title the vendor had, and the land remains subject in his hands to the equity attaching to it in the hands of the grantor. Schradski v. Albright, 93 Mo. 42. (16) The burden of proving it is a bona-fide purchaser is on the defendant. ' Connecticut M. Life Ins. Co. v. Smith, 117 Mo. 261. (17) Upon the death of a trustee, the legal title descends to his heirs. Newmann v. Newmann, 152 Mo. 398.

      Xenophon P. Wilfley and Harry Glymer for respondents.
    (1) He who comes in a court of equity must come with clean hands. Pomeroy’s Equity Jurisprudence, secs. 397, 404. (2) A deed delivered by the grantor to a third person to be delivered to the .grantee, and by such third person delivered to the grantee, will constitute good delivery, though the grantor is dead at the date of the last delivery; for the delivery takes effect by relation as. of the date when first made to the third person. Sneathen v. Sneathen, 104 Mo. 201; Marshall v. Hartzfelt, 98 Mo.. App. 178. (3) A subsequent purchaser in good faith acquires good title, though his grantor has received his deed from a depositary without performing the conditions upon which such deed was to be delivered. The depositary of the deed is the agent of the grantor as well as the grantee. Jones on the Law of Real Property and Conveyances, sec. 1316.
   VALLIANT, J.

This is a suit in equity to set aside certain deeds to land in Crawford county, alleged to have been procured by fraud.

There is little, if any, dispute as to the facts. The land in question is mining property. The Copper Hill Mining & Smelter Company, a corporation, is the source of title. The affairs of that corporation were under the management of a board of directors composed of Phillip Seibel, John Boepple, Conrad H. Meyer and Charles C. Higham. John Boepple has since died and his widow Christine and two children Emma and John ar.e, together with Phillip. Seibel, the plaintiffs in this suit, and Meyer and Higham are two of the defendants. The other defendants are Douglas, Thompson, Barnard, Scoble and the Missouri Copper Mountain Mining Company; their respective interests will be shown in the course of the opinion. August 9, 1892, the corporation executed its promissory note for $12,500.59 payable to Phillip Seibel and secured it by deed of trust on the land in question. The note was made to cover various sums of indebtedness, among which were thirty-six items of small amounts aggregating $1,234, owing to. persons not parties to this suit; also one note held by Lafayette Bank for $1,724.90, one note to Meyer $3,207.84, one to Higham $1,567.37, one to Boepple $1,877.41, one to Seibel $1,516.53 and three for smaller sums to persons not parties to this suit. When the $12,500.59 note matured it was not paid and the deed of trust was foreclosed. At the foreclosure sale the property was bought in by the plaintiff Phillip Seibel under an oral trust agreement (so the petition says) that he would hold it for the sole use and benefit of himself, and Boepple, Meyer and Higham, but there was no proof of that alleged agreement; on the contrary the proof shows that the agreement was that he would hold it in trust for the benefit of all the creditors whose debts were covered by the deed of trust, and when the note secured by the deed of trust was delivered to him he agreed in writing to “devote the proceeds of said note when paid, or all that may be realized upon a sale of the property” under the deed of trust, to the payment pro rata of all the several debts which the note was designed to cover and which were enumerated in the agreement. The deed from the trustee to Seibel bears date October 15, 1892, it recites a consideration of $1,700, but in fact it was merely nominal. March 8, 1901, Seibel conveyed the title to John Boepple by deed of that date wherein the consideration recited is $5,000, but in fact there was no consideration, except the agreement presently mentioned. Boepple at the same time executed a written acknowledgment that the property was conveyed to him in trust for Seibel, Higham, Meyer and himself in equal parts, and that in case of sale he would account to them in that proportion. Those four agreed to that. During the period in which Seibel held title, that is, from October, 1892, the date of the foreclosure sale, to March, 1901, when the title was transferred to Boepple, the evidence shows that the four parties, Seibel, Meyer, Higham and Boepple expended a considerable sum of money, five or six thousand dollars, in taking care of the property, of which Seibel testified that he had expended about seven hundred dollars more than either of the other three.

March 14, 1901, Boepple executed a lease of the property to defendants Douglas and Thompson, and gave them possession, and at the same time entered into a written agreement to sell them the property on certain terms. The agreement amounted to what in real estate trade circles is commonly called an option; Douglas and Thompson having the right to purchase the property on or before April 30, 1901, for $7,000, or on or before September 15, 1901, for $10,000. In furtherance of that agreement Boepple signed and acknowledged a document purporting on its face to be a warranty deed conveying the land to Douglas and Thompson, and placed the same in escrow in the hands of the St. Louis Trust Company, to be delivered to Douglas and Thompson if they should by April 30, 1901, pay to the Trust Company $7,000, or by September 15,1901, $10',000, for Boepple. On placing the document in the hands of the Trust Company Boepple also placed in its hands a paper signed by himself declaring that the money to be paid to the Trust Company by Douglas and Thompson pursuant to the option agreement would, when paid, belong equally to Meyer, Higham, Seibel and himself, and the Trust Company was authorized to so distribute it. All this transaction with the Trust Company was done with the knowledge and consent of Seibel, Meyer and Higham. Before the option expired, that is to say, June 23, 1901, Boepple died testate, leaving his property in proportions named in the will, to his widow and two children who are plaintiffs in this suit. Douglas and Thompson concluded they did not want to purchase the property, they let the period of their option expire. A year after the death of Boepple, to-wit, June 26, 1902, Higham went to the Trust Company and representing himself as agent of Boepple requested that the escrow be delivered to him and it was done; he signed the name of “John. Boepple hy W. C. Higham” to the receipt. He did not inform the Trust Company that Boepple was dead and the Trust Company did not know that fact. After Higham got possession of the escrow, he wrote to Douglas and Thompson, saying that ás the option had expired and the title was in them it would be necessary for them to execute a deed conveying back the title, and he enclosed in his letter a draft of a quitclaim deed to C. H. Meyer, which he requested them to execute and return to him, which they did. Both Douglas and Thompson testified that they had no desire to purchase the property and that after the option had expired it was represented to them by Mr. Higham that it would be necessary for them to quitclaim in order to clear the title on the record, and they thought it was a friendly transaction in which all the parties interested were agreeing, therefore they executed the quitclaim to Meyer.

After the escrow and the quitclaim deed had been obtained in the manner above mentioned, they were put on record, and then Meyer and Higham undertook to find a purchaser for the property. They made a contract with one Graham whereby they gave him an option on the property for $2,200, he paying $200' down, for the privilege. After some delay Graham negotiated a sale to one Barnard who paid him the $200 he had already paid and paid Meyer the remaining $2,000 and took from him a warranty deed. After his purchase Barnard organized the Missouri Copper Mountain Mining Company, a corporation of which he is the president. He then conveyed the property by deed to Mrs. Scoble and she to the corporation, there was no consideration for the deed to Mrs. Scoble or from her to the corporation, these deeds were merely made for the purpose of passing the title from Barnard to the corporation.

The evidence shows that neither Seibel, nor Mrs. Boepple, nor her son, nor her daughter, knew anything about the obtaining of the escrow from the Trust Company, nor of the procuring of the quitclaim .deed from Douglas and Thompson. While Meyer and Higham were negotiating to sell to Graham they tried to get Seibel and Mrs. Boepple to consent to the proposed sale to Graham, but they refused, and the grant of the option to Graham was made without the consent of Seibel or Mrs. Boepple. Graham procured the purchaser, Barnard, and at Graham’s request the deed was made direct to. Barnard, the latter paying to. Meyer $2,000, which with' the $200’ already paid by Graham for the • option made the total consideration received by Meyer $2,200. Barnard testified that he knew nothing of the title except what was shown by the record, that he had’ an abstract of the title which he examined and which his attorney examined. All his information about the property he derived from Mr. Graham. He said: ‘ ‘ Mr. Graham explained what the property was and Mr. Meyer was. I do not know whether he explained about Mr. Higham or not; I know when the transaction was made Mr. Higham was there at the time and seemed to have something to say, but I was not doing business with Mr. Higham at all. I did not know he was in the transaction at all. I don’t think Mr. Graham mentioned Mr. Higham and Mr. Meyer and Mrs..Boepple and Mr. Seibel.” The evidence showed that Mr. Graham knew that these four, Seibel, Meyer, Higham and Mrs. Boepple, had interests in the property, but he testified that he did not give that information to Barnard.

The findings of facts by the court are stated in the bill of exceptions, from which it appears that the court was of the opinion that Boepple, at the time of placing the Douglas and Thompson instrument in the hands of the Trust Company as an escrow, held the legal title in trust for all the creditors whose claims were covered by the $12,500.59 note secured by the deed. of trust and the conduct of the four persons, to-wit, Boepple, Seihel, Meyer and Higham, showed a conspiracy to convert the proceeds of the property to the payment of the* sums due themselves respectively to the exclusion of the other creditors; that the escrow, obtained as it was from the Trust Company and put on record, was inoperative to pass title; that the doctrine of innocent purchaser was not involved in the case, but that the plaintiffs were seeking to enforce an equitable title which originated in a fraudulent and inequitable transaction, therefore they came with unclean hands and were not entitled to equitable relief; therefore their bill was dismissed.

I. Before proceeding to adjust the equities in the case let us find where the legal title to the property in question now is. It was in Boepple in his lifetime, subject to pass to Douglas and Thompson upon the delivery of the escrow to them by the Trust Company. Did the title pass when Higham obtained possession of the escrow under the circumstances above stated? Blackstone defines a deed to be <£a writing sealed and delivered by the parties.” [2 Blackstone, *p. 295.] Delivery is not only essential but it is the final act that consummates the deed. Delivery by the grantor to the grantee with the intent to pass the title and acceptance by the grantee with the intent to take the title are absolute essentials in the execution of a deed. Delivery may be made through the hands of an agent and acceptance may be made through the hands of an agent, but, in whatever form it is done, there must be a giving by the grantor and a receiving by the grantee, with the mutual intent to pass the title from the one to the other. [McNear v. Williamson, 166 Mo. 358.]

If a deed be delivered by the grantor to a third person to be delivered to the grantee, without condition or contingency, and be by that person delivered to the grantee, even after the death of the grantor, the title will pass; the transfer of title will take effect as of the date of the delivery to' the third person. But in such case it must appear that the grantor at the time he delivered the deed to the third person intended it to take effect as a present transfer. [Sneathen v. Sneathen, 104 Mo. 201, 1. c. 209.] And if a deed be delivered to a third person to' be delivered to the grantee on the death of. the grantor, and it be by that person so delivered, the title will pass. ■ [2 Jones on Real Property, see. 1309.] But in neither of those cases was the instrument an escrow, because the delivery to the third person to be delivered to the grantor was without condition and the instrument was beyond the recall of the grantor. “The distinctive feature of an escrow is the delivery of a deed to a third person to await the performance of some condition whereupon the deed is to be delivered to the grantee and the title is to pass.” .[Id., sec. 1302.] In such case it is not a deed until the condition is performed. The depositary of an escrow is sometimes spoken of as the agent of the grantor and sometimes as the agent of both parties, and whilst that may be correct, in a limited sense, yet strictly speaking he is not an agent at all, he is a trustee of an express trust, with duties to perform for each which neither can forbid without the consent of the other. If he were the agent of the grantor his agency would cease on the grantor’s death and he would have no authority to receive the purchase money from the grantee and deliver the deed. But the death of the grantor does not annul the depositary’s authority to do what he was appointed to do and it does not impair the right of the grantee to perform the condition and take down the deed. [2 Jones on Real Prop., sec. 1312.] Boepple in his lifetime could not have withdrawn the escrow from the Trust Company without the consent of Douglas and Thompson before the expiration of the period of their option, but after that period had elapsed he could have done so. Boepple died Before the period of the option expired. Douglas and Thompson declined to avail themselves of their privilege to purchase and allowed the option to expire. The paper in the hands of the Trust Company then lost its vitality, and the Trust Company might have destroyed it without injury to anyone or it might have given it to Boepple’s heirs to be destroyed, but, in whosesoever hands it was, it was a dead instrument. In that stage of the case Higham went to the Trust Company and representing himself to be the agent of Boepple, concealing the fact that Boepple was dead, demanded and received the paper from the Trust Company, signing Boepple’s name to the receipt. That of course he had no right to do. Even if he had, by false representation during the life of Boepple, obtained possession of the paper and had delivered it to Douglas and Thompson, without the performance of the conditions by them, it would have conveyed to them no title; in such event the legal effect on the title would not have been different if the paper had been stolen from the desk of the depositary. [2 Jones, R. P., sec. 1315.] By what we have just said in relation to the legal effect of the paper after it had come into the possession of Higham, it is not intended to say that there was no difference, viewed from a moral standpoint, between the act done and the stealing of the paper, for, from that standpoint, in this ease there is a difference. Higham testified that he thought he had a right to do what he did, and if he really thought so his opinion was not altogether without foundation, because he owned a considerable interest in the property, was active in negotiating the Douglas and Thompson option and in the placing of the paper in the hands of the -Trust Company; he was perhaps ignorant of the law and did not know that if he had ever been the agent of Boepple the death of Boepple terminated his authority. But, whatever he may have thought as to his rights or his authority, his act was unlawful. Even after he received the paper from Douglas and Thompson he did not deliver it to them, they have never had it in their possession, they never authorized him to receive the deed for them and they have never claimed to have any title under it; they were induced to execute the quitclaim to Meyer on the statement to them by Higham that it was necessary to clear the title on record. All this may have been done under a mistaken view of the law, but if so it was all unlawful. We hold that no title passed to Douglas and Thompson and none by their quitclaim to Meyer. The legal title therefore remained in Boepple until his death and at his death it passed to his heirs or devisees in trust for the same purposes that he had held it.

II. Respondents contend that even if Meyer had no- title, the present corporation, the Missouri Copper Mountain Mining Company, is an innocent purchaser for value and its title must be protected.

The argument in support of that claim proceeds on the theory that the Trust Company was the agent of the grantor and if wrong has been done it was the fault of the grantor in selecting a careless agent, and that if one of two innocent persons must suffer it should be that one through whose act the wrong was permitted. As we have already said, the depositary of the escrow is not, strictly speaking, the agent of either of the parties, thmigh in a limited sense he may be considered the agent of both, but the law of agency is too remote from the status of the depositary of an escrow to govern the case. In this instance the depositary did not, wrongfully or otherwise, deliver the escrow to Douglas and Thompson. The circumstances indicate that the Trust Company considered it a dead instrument and returned it to one who appeared to be acting for the grantor and interested only in its destruction. A case might arise, between a grantor and the assignee' of a grantee who had fraudulently obtained possession of the escrow, in which the grantor’s conduct might he condemned as so negligent that he could not in good conscience gainsay the assignee’s title derived from the fraudulent grantee, hut no such case now occurs to us, nor do the facts of this case justify any such inference.. Here the grantor was dead and there was no misconduct or neglect on his part to be inferred.. There is no hint of an improvident or careless selection of a depositary. This court has held that where a grantee in an escrow fraudulently obtained possession of the instrument and placed it on record, no title passed to him, nor to an entirely innocent purchaser under him. [Taylor v. Davis, 72 Mo. 291.] There was more cause to consider the purchaser an innocent one in that case than in this. We hold that under the circumstances of this case the title of the defendant corporation is not beyond accountability to the plaintiffs for their interests in the property even if the defendant had bought without notice of those interests.

III. Is the defendant corporation that now holds the title an innocent purchaser? Whatever right it has to that distinction is derived from Mr. Barnard; the deeds from Barnard to Mrs. Scoble and from her to the defendant corporation were without consideration, and were designed only to pass to the corporation the title which Barnard acquired from Meyer.

After Higham had acquired possession of the escrow and had obtained from Douglas and Thompson the quitclaim deed to Meyer and had put both instruments on record, he and Meyer undertook to find a purchaser for the property and at last negotiated an option to Graham for $2,200, for which option Graham paid $200 down, that is, he paid that much of the proposed purchase money, to be forfeited if he should fail to pay the balance. He let the period of his option pass without exercising it, then he asked for an extension which, after some negotiations was finally agreed to and the right to purchase at that price was extended ten days. During that extended period he induced Barnard to buy the property at the option price. In his testimony, referring to Mr. Graham, Mr. Barnard said: “He (Graham) paid two hundred dollars on this option and I paid him that back; I was not continuing the option, I was buying the property.” And Mr. Graham testified: “I claim that Mr. Barnard purchased that altogether independent with my rights in the premises and he simply repaid me or made me good for what I paid on account.” These quotations from their testimony are made to show that they both tried to convey the idea that Barnard’s purchase was independent of Graham’s option, but that is only their opinion of the legal effect of the transaction, the facts do not justify the opinion. The facts are that after Graham obtained the extension and within that extension he approached Barnard and solicited him to advance the money to purchase on the terms of the option, and within that extension Barnard closed the transaction by paying Meyer $2,000 and Graham the $200 he had paid on the option. Barnard testified that when Graham spoke to him about buying the property he told him he had an option on it, and showed him the paper, it was signed by Meyer. Graham testified, “When this option was finally closed out the title to the property was taken in the name of Mr. Barnard. ” Graham had the right, under his option, to buy the property by paying $2,000 in addition to the $200 he had already paid, and at the closing of the transaction he was there prepared with the -help of Barnard to exercise that right of purchase at that price, and he did exercise it, directing the deed to be executed to Barnard instead of himself. Whether Barnard could at that time have bought the property for that price, if Graham had not had the option, we do not know; we only know that with the option he did obtain the property by paying $200 to Graham and $2,000 to Meyer, and that he availed himself of the Graham option in the transaction to get the property at that price. That put him in Graham’s shoes. "When Graham bought his option he knew that Meyer held the title in trust for himself, Higham, Seibel and the Boepple heirs or devisees, as their respective interests might appear, and he also knew that Seibel and Mrs. Boepple were not consenting to the sale to him. If Graham had first concluded his purchase and had placed his deed on record and had afterwards negotiated an independent sale to Barnard, who had bought knowing nothing except what the record showed, we would have had a different case. Under the circumstances of this case we hold that Barnard was not an innocent purchaser. In fact instead of being an innocent purchaser, he and Graham are rather in the attitude of conspiring with Meyer and Higham to wrong Seibel and the Boepple heirs.

IV. The learned chancellor was of the opinion that the plaintiffs’ claims, which they were seeking by this suit to enforce, were founded on a conspiracy between Seibel, Boepple, Meyer and Higham to defraud the other creditors of the Copper Hill Mining Company whose claims were covered by the deed of trust and for that reason dismissed their bill.

There is no maxim which a court of equity more unequivocally insists upon than that he who comes asking its aid must come with clean hands. A court of equity will not aid a party to commit a fraud. One difference between a court of law and a court of equity is that in the one tribunal legal rights usually prevail while in the other something more is required; the cause, besides having the law on its side, must commend itself to good conscience and justice; if it have only law on its side, equity will generally leave it to be disposed of in a court of law. But a court of equity will look into the very spirit of the transaction and decide for itself whether a cause, otherwise meritorious, is based on such a dishonest purpose as to justify a refusal to entertain it.

On the 9th day of August, 1892, when the $12,500.-59 note was delivered to Seibel he signed a paper agreeing to devote the proceeds of the note when paid, or the proceeds of the sale under the deed of trust, to the payment pro rata of all the claims of creditors covered by the note. He became the purchaser at the foreclosure sale in October, 1892, and held the title until March, 1901, nearly nine years, when he transferred it to Boepple. This transfer to Boepple was pursuant to an agreement between the four, Seibel, Boepple, Meyer, and Higham, to the effect that Boepple should hold the title in trust for them, and Boepple signed a trust agreement to that effect, agreeing to divide the proceeds of a sale of the property equally between the four. To the extent that that agreement was designed to cut out the other creditors it was fraudulent in the sense that it was a wilful doing of an unlawful act and, as between themselves, Seibpl and Boepple were no more or no less to blame than Meyer and Higham. But to say that one has committed an act that the law condemns as fraudulent, merely because it was unlawful and wilfully done, does not always imply that the party was guilty of moral turpitude. In the every-day struggle for gain in business transactions, men, morally blinded by their own interests, often excuse themselves by construing the circumstances under which they are placed as justifying acts which if viewed from a disinterested standpoint they would condemn. There were circumstances in this case which, if not justifying these four men in what they did, at least offered a not unreasonable excuse for their act, in a moral if not a legal sense. Of the $12,500.59 note covered by the deed of trust $9,903.15 were owing to these four men. In that estimate is included a note of $1,724.90 held by the Lafayette Bank, but on which Boepple, Seibel and Meyer were endorsers. The rest of the $12,500.59' note, to-wit, $2,597.44, was made up of small sums owing, to thirty or forty different persons who were also stockholders in the Copper Hill Corporation. The corporation was insolvent and in a had way financially. The property required care and expense to preserve it and the evidence showed that between the date of the trustee’s foreclosure sale at which Seibel became the purchaser in October,_1892, and the date of the transfer of title from Seibel to Boepple in 1901, these four men had expended five or six thousand dollars in taldng care of the property. During all that time these other creditors took no notice of the property and contributed nothing to its care. In fact, those creditors are not complaining now so far as the record shows. If we may assume that they have paid any attention to it, we must conclude that they are tacitly acquiescing in what has been done. If the amount that these four men expended in taking care of the property be added to the amount due them in the mortgage note, the sums would aggregate considerably more than the total debt covered by the deed of trust.

The amount so advanced to take care of the property was approximately twice as much as was owing to all the thirty or forty other creditors, and considering the comparatively small sums due each of those it is not to be wondered at that they did not take any further notice of the property or trouble themselves to preserve it. We are not intending to convey the idea that we find any excuse for crowding them out on account of the smallness of their claims, but we are intending to say that if these four men came to the conclusion that they ought in justice to be paid for their outlays for taking care of the property before those other creditors and, knowing that the property would not bring enough to pay them and pay the others also; if they concocted a plan to appropriate to themselves all that they could get for the property, whilst the plan was not legal and therefore was a technical fraud, yet we find no moral wrong in the act. In fact, if these four men, instead of taking the remedy in their own hands, had come with their petition into a court of equity stating the facts and asking that, when the property' came to be sold, they should be reimbursed for necessary expenditures made for its preservation out of the proceeds of the sale before the debts secured were paid, the chancellor would have been apt to consider their prayer a reasonable one. The last bottomry bond on a ship and its cargo is given priority over former ones in courts of admiralty on the theory that the last was necessary to preserve the property for all interested. That is a principle of equity. The-fact of those advancements to preserve the property .during the nine years the title was held by Seibel, during all which time they were trying to sell but could not, came out in the trial rather incidentally than purposely, but it was shown by the evidence and was not disputed. If the price paid by Barnard is to be taken as the fair value of the property it was not sufficient to pay for its keeping, much less to pay anything on the mortgage debt. Under all the circumstances we do not think that the plaintiffs’ cause is so lacking in merit or so darkened with fraud as to justify a dismissal of their bill.

V. Defendants introduced- evidence over plaintiff’s objection, tending to show that since the defendant corporation has been in possession of the property it has placed on it improvements to the .value of twenty thousand dollars or more. The nature of the alleged improvements, whether they consisted of permanent buildings or moveable machinery, whether or not they really added value to the property, was not shown. Defendant corporation could not, by placing improvements on the property, infuse- any force into its void title, and since the defendant took possession charged with knowledge of plaintiffs ’ interests and made whatever improvements it did make in defiance of those interests, it is not entitled to have those improvements taken into account in the adjustment of the equities growing out of these complicated transactions, unless the improvements can now be removed without injury to the real estate as mining property. Of course, if they are valuable improvements or equipments to the mining plant their removal would necessarily reduce the value of the plant as it now stands, taking the improvements or equipments into account, but by the term injury to the real estate as mining property used in connection as above we mean injury that cannot be repaired by replacing other improvements or equipments of like character at the cost of their present value.

As we have already said, the legal title to the property was in John Boepple subject to the trust agreement signed by him that he would divide the proceeds of the property when sold equally between Seibel, Meyer, Higham and himself. He died holding that title subject to that trust and the title descended to his heirs or devisees and there it remained when this suit was begun. As to the numerous other creditors whose claims were covered by the original deed of trust, they are not parties to this suit and can take no part in the decree. They have never asserted any claim, have given no attention to the property, have never even made any demand on the trustee. The circumstances indicate that they have abandoned whatever original rights they may have had. It has now been fifteen years since the foreclosure of the deed of trust. It is probable that each thought his claim was not worth the trouble and cost of a lawsuit. At all events they are not here asking for anything and any decree that may be rendered in this cause can neither benefit nor injure them. As to defendants Meyer and Higham, they are asking nothing at the hands of the court and they would be entitled to nothing if they were asking, because they have already helped themselves. They sold the property (or attempted to do so) to Barnard and got from him the purchase price; that transaction closed out all their interest. But whilst their deed to Barnard conveyed no title to the property, yet it did convey to him whatever rights they had in the proceeds of the property when it should be sold, which were two-fourths, the other two-fourths being one in Seibel and one in the Boepple heirs or devisees. The debts due to Meyer and Higham in the original deed of trust were somewhat larger than those to Seibel and Boepple, but when the property was conveyed by Seibel to Boepple the four parties agreed that their respective interests should be equal; it'may be that in equalizing their interests they took into consideration the advances made to preserve the property during the nine years the title was held by Seibel, but however that may have been they agreed to- equality and that is sufficient.

In so far as any claim that either party may have to especial favor at the hands of a court of equity,we do not discover that one stands in any better light than the other. The conduct of each shows that he was seeking his own interest and leaving every one else to take care of himself. Therefore when it comes to making an equitable division of the property among them we find neither entitled to especial consideration over the others. It would neither be right to- give the plaintiffs the benefit of the defendant’s improvements if it can be avoided, nor would it be right to allow the defendants by tearing away and removing their improvements to injure the real estate as mining property. Besides, as against these alleged improvements is to be considered the fact that the defendants have been in possession of the property several years and if they have made profit out of it, the property has-to that extent paid for the improvements.

The most equitable adjustment that we can make of these interests is as follows:

The judgment is reversed and the cause remanded to the circuit court with directions, to cause an account and inventory to be taken showing in detail the character, quantity, original cost, present value and present condition of the improvements, machinery and equipments placed on the property by the defendant corporation since it came into its possession; showing also the present value of the property with the improvements and its present value without the improvements, and whether or not the improvements are in their nature permanent and enhance the value of the property ; showing also whether or not in whole or in part, and if in part what part, the improvements can be removed and the effect on the land as mining property of the removal; and showing also the profits, if any, made by the defendant corporation out of the property since it came into possession. And if on the coming in and confirmation of the account it should appear that the present value of the improvements is greater in value than the profits so found, the court will by an appropriate order permit the defendant corporation, if it sees fit to do so, to remove the improvements to the extent of the present value thereof over the profits so found, provided the court finds that the same can be removed without injury to the land as mining property as that term is above explained in this opinion, such removal to be made at the defendant corporation’s expense and within such time as the court may name. But if on such accounting the profits so found equal or exceed the present value of the improvement, machinery and equipments, no removal will be allowed. After removal in part as above prescribed, if there should be such removal, the court will estimate to what extent the improvements not removed enhance, if at all, the value of the land as mining property or, if there should be no removal, then the court will estimate that to what extent the improvements as a whole enhance, if at all, the value of the land as mining property, and then the court will enter a decree that the property in question, describing the land as it is described in the petition, and the improvements remaining (or the improvements as a whole if there should be no removal) be sold by the sheriff of the county at public auction to the highest bidder for cash and after deducting the court costs and costs of sale divide the proceeds of the sale as follows: find the proportion that the value of the improvements that are sold with the property, bears to the present value as the court may find it, of the whole property and set apart to defendant corporation the same proportion of the net proceeds of the sale and the rest of the proceeds divide into four parts, giving one-fourth to the plaintiff Seibel, one-fourth to Mrs. Boepple as executrix of the will of John Boepple and the remaining two-fourths to the defendant corporation; provided, however, that if the court on the accounting should find that the profits derived from the operation of the property equal or exceed the value of the improvements no part of the proceeds of the sale will be set apart to defendant corporation on account of the improvements, but the proceeds will be divided in four equal parts as above prescribed, one-fourth to plaintiff Seibel, one-fourth to Mrs. Boepple as executrix, and two-fourths to the defendant corporation. The sale to be made within sixty days-from the date of the decree and on such notice as to time, terms and place as are prescribed by law for sales of real estate by.the sheriff under execution; the sale is to be by the sheriff reported to the court for its rejection or confirmation, and if rejected the court will order a resale; on confirmation of the sale by the court the sheriff will execute to the purchaser a good and sufficient deed of conveyance.

Graves and Woodson, JJ„ concur; Lamm, P. J., not sitting.