source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    MOTT STORE COMPANY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    In Banc,
    February 10, 1914.
    1. APPELLATE JURISDICTION: Change in Court of Appeals District: Transfer of Pending Causes: Act of 1913. The Act of March 21, 1913, Laws 1913, p. 204, by which certain counties were taken from the St. Louis Court of Appeals district and added to the Springfield Court of Appeals district, made no provision for the transfer of causes already appealed from the ■circuit court of one of the counties so transferred and then pending in the St. Louis .Court of Appeals. Consequently the Springfield Court of Appeals has no jurisdiction to hear and determine a cause already appealed from a county so transposed and pending in the St. Louis Court of Appeals at the time the act took effect, and the St. Louis Court of Appeals has no authority to transfer such a cause to the Springfield Court of Appeals, nor does the latter court acquire jurisdiction by such transfer.
    2. -: -: -: -: Legislative Power. The amendment to the Constitution of 1884 gave to the General Assembly power to transfer counties from one court of appeals district to another, and also power to transfer cases pending in one court of appeals to another; but the Act of 1913, transferring certain counties from the St. Louis Court of Appeals to the Springfield Court of Appeals, was silent as to cases “now pending,” and made no provision whatever for the transfer of a cause already appealed from the circuit court of a county transferred by the act to the Springfield Court of Appeals and then pending in the St. Louis Court of Appeals; and the St. Louis Court, having already acquired jurisdiction of the cause so appealed from one of said counties, its jurisdiction continues until it is exhausted by a final determination of the cause or taken from it by a valid legislative enactment.
    S. JURISDICTION: Statute: Retrospective Operation. Unless such intention is clearly expressed,, a statute depriving a court of jurisdiction does not operate retrospectively to suspend proceedings then pending, and a statute conferring jurisdiction does not operate to give jurisdiction over causes of action arising before the enactment of the statute unless such power is clearly expressed.
    Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge.
    Transferred to St. Louis Court oe Appeals.

      W. F. Evans, Moses Whybark and A. P. Stewart for appellant. -

      Ward é Collins for respondent.
   GRAVES, J.

This cause reaches this court because there is a question between the Springfield Court of Appeals and the St. Louis Court of Appeals, as to which court has jurisdiction thereof. Each court has filed a per curiam opinion, and both are before us. The opinions say about all that can be said upon the respective sides of the controversy. The Springfield Court of Appeals has- transferred the ease and all the original files to this court, and the sole question for us to determine is as to which court the case should be remanded by us for a trial and determination. "We have examined both opinions with interest and care, but we believe that the law of the case lies along the lines of the opinion filed by the Springfield Court of Appeals. We cannot ' add to that carefully written opinion, and adopt it as the opinion of this court. Suck opinion reads:

“This cause was originally appealed from tke circuit court of Pemiscot county to tke St. Louis Court of Appeals prior to tke passage of tke act approved March 21, 1913 (Laws 1913, p. 204), wkick took effect June 23,1913. The St. Louis Court of Appeals, acting under tke enactment, transferred tke above-entitled cause to this court and filed an opinion on June 24, 1913. Tke sole question arising at' this time is concerning tke right of this court to hear and determine tke appeal.
“Section 3 of tke amendment of 1884 to tke Constitution by wkick tke Kansas City Court of Appeals was established, invested power in tke General Assembly to create a third court of appeals. Acting under this provision, tke General Assembly in 1909 created tke Springfield Court of Appeals, giving it a territory comprising thirty-three counties selected from tke districts of tke St. Louis and Kansas City courts as then established as is set out in section 3926, Revised Statutes 1909. At tke same time, by section 3927, Revised Statutes 1909, it was provided (1) that tke Springfield Court of Appeals would have jurisdiction of appeals and writs of error in all cases appealed from counties included in said district of wkick tke St. Louis Court of Appeals and tke Kansas City Court of Appeals formerly had jurisdiction; (2) that all cases ‘now pending’ in tke two last named courts of appeals arising in counties which had been given to tke Springfield district should be certified and transferred to tke Springfield Court of Appeals. In 1913 tke General Assembly saw fit to increase tke territorial jurisdiction of tke Springfield Court of Appeals by adding twelve counties, eleven of wkick were taken from tke St. Louis district and one from tke Kansas City .district. Pemiscot county was one of those wkick were taken from tke St. Louis district and added to tke Springfield district by this amendment of 1913. This amendment merely added these counties to the territorial jurisdiction aforesaid and further provides the time and place of holding court in the Springfield district. There was no act passed or amendment made providing for the transfer to the Springfield Court of cases ‘now pending’ on appeal in the other two courts of appeals originating in the counties last added to the Springfield Court of Appeals district. The question here is, does the amendment vest us with jurisdiction over cases which arose in and were appealed from those counties to the St. Louis Court prior to June 23, 1913, the date on which the Act of 1913 took effect.
“The St. Louis Court of Appeals by its opinion of June 24, 1913, holds that such cases must be transferred to this court and accordingly ordered the transfer of the above entitled cause. We are unable to agree with their opinion.
“The failure of the General Assembly to provide in the amendment now under consideration for a transfer of the cases appealed and then pending in the St. Louis Court prior to June 23, 1913, we think clearly shows that it intended that this court would take jurisdiction only of cases arising in those counties subsequent to the taking effect of the act. It will be noted that section 3927, Revised Statutes 1909, of the act creating the Springfield Court, did not stop by giving the court jurisdiction of appeals and writs of error in cases thereafter arising in the counties which had formerly been in the other two districts, but included in said section a provision for the transfer of the cases then pending in those courts, showing clearly to us that the mere changing the territorial jurisdiction of the counties would not change the jurisdiction of the courts concerning those cases which had arisen in those counties prior to the taking effect of that act. The General Assembly in 1909 when creating the Springfield Court evidently thought that it was necessary to provide for the transfer of cases which had already been appealed to the respective courts in the other two districts, because the amendment to the Constitution provides for the creation of a new district, the designation of the time of holding court, the increase or diminution of the pecuniary limit of the jurisdiction of such courts, also empowers the Legislature to ‘provide for the transfer of cases from one court of appeals to another court of appeals,’ recognizing that something more than the mere establishing or changing of the territorial district is necessary in order that cases then pending in one court might be transferred to another court of appeals.
“Again, the statute (section 3927, Revised Statute 1909) passed in 1909 speaks only as of that date ' and shows for itself that the General Assembly had in mind only the transfer to the Springfield Court then 'created of'such cases as were ‘now pending’ in the courts unsubmitted. This section was dealing with conditions and cases at that time. It does not deal with future conditions or future times. This is shown from the fact that it is speaking of the transfer of cases only to the Springfield Court of Appeals. The General Assembly has the right to take counties from the Springfield district and add them.to the St. Louis district or to the Kansas City district, but surely no authority could be found in the above statute authorizing this court to transfer cases appealed to this court from the counties thus taken and to transfer them to either the St. Louis or Kansas City Courts, thus showing that section 3927, Revised Statutes 1909, was only intended to cover those cases on appeal at that time. The amendment to the Constitution of 1884 gave the Legislature power in transferring counties from one court of appeals district to another, to also provide for transferring cases then pending in the one court to the other, but the Legislature did not_do so in this instance. For the courts to do. so is judicial legislation.
“The words ‘now pending’’ were used in section 3927, because in the absence of further legislation no cause could thereafter be pending in the other courts of appeals originating in the counties of the Springfield district. Should there be further legislation placing other counties in the Springfield district or vice versa the Legislature might or might not want to exercise its power to transfer cases then pending in the one court to the other. The jurisdiction of the courts of appeals is under our Constitution territorial as well as of the subject-matter. That is, the cause must go on appeal to that court of appeals within whose territorial district the county is situated and it alone has jurisdiction of the appeal. [State ex rel. v. Nixon, 232 Mo. 496.] Jurisdiction of an appeal means the right to hear and determine the appeal. The present case properly went on appeal to the St. Louis Court of Appeals because Pemiscot county was then part of that district and that court unquestionably acquired jurisdiction of the same. That jurisdiction adheres until it is either exhausted by a final determination of the appeal or is taken from it by a valid legislative enactment. That the Legislature did not see fit to do.'
“At different times when the jurisdictional amount of the courts of appeals has been increased the Legislature has invariably provided for a transfer to the courts of appeals of the cases unsubmitted and pending in the Supreme Court which would fall within the amendment. [Laws 1901, p. 107.]
“By an act of February 15, 1893, Laws 1893, p. 131, the county of Audrain was transferred from the Kansas City Court of Appeals to the St. Louis Court of Appeals. No emergency clause was passed, so that this act went into effect and Audrain county became a part of the St. Louis district on June 21, 1893. No provision was made for transferring cases then pending and undetermined in the Kansas City Court to the St. Louis Court. We find by reference to the Missouri Appeal Reports that the Kansas City Court did retain jurisdiction and rendered opinions in cases pending there from Audrain county after the act transferring that county to the St. Louis district went into effect. [Hellman & Co. v. Bick, 55 Mo. App. 168, opinion rendered Nov. 20, 1893, by the Kansas City Court; and State v. Morse, 55 Mo. App. 332, opinion rendered December 4, 1893, by the same court.] The first case from that county in which the St. Louis Court rendered an opinion is Logan v. Woolwine, 56 Mo. App. 453, decided February 13, 1894, and the appeal in this case was evidently granted after the act transferring the county to the St. Louis district went into effect.
‘ ‘ There is another principle of law applied to the construction of statutes, which we think settles the question in this case, and that is that unless such intention is clearly expressed in the act, a statute depriving a court of jurisdiction does not operate retrospectively to suspend proceedings then pending, and a statute conferring jurisdiction does not operate to give jurisdiction over causes of action arising before the passage of the act. In the absence of such clearly expressed intention a statute will not be construed to deprive a court of jurisdiction then possessed by it or to confer jurisdiction over causes of action arising before its passage. We think, therefore, that before the St. Louis Court of Appeals is divested of jurisdiction of this cause, which it undoubtedly had up to June 23, 1913, there must be a statute containing some prohibitory words or words that would exclude its jurisdiction, and unless such words are found in the statute, which we are unable to find, that court, having acquired jurisdiction, would retain it, and before we could assume jurisdiction we must be able to find tbat tbe St. Louis Court bas lost. it.
“Judge Wagner in the case of State ex rel. Renick v. St. Louis County Court, 38 Mo. 402, 407, used tbe following language wbicb is applicable bere: ‘There is but one question to be determined bere, and tbat is whether tbe Act of March 19, 1866, divested tbe county court of its jurisdiction, and conferred exclusive jurisdiction on tbe probate court. Tbat tbe county court possessed full and complete jurisdiction when tbe proceedings were initiated, is too clear to require any consideration. Where a tribunal originally obtains and exercises jurisdiction, tbat jurisdiction will not be overturned and impaired by any legislative enactment unless express prohibitory words are used. Indeed, it has been held by high authority, and tbe doctrine is well supported by reason, tbat jurisdiction depends on tbe state of things at tbe time the action is brought; and if tbe circumstances be such then as to vest jurisdiction, tbe same cannot be ousted by any subsequent event. ’
“At tbe time tbe appeal in this case was taken, and even up to June 23, 1913, all cases appealed from Pemiscot county must necessarily have been lodged in and be determined by tbe St. Louis Court of Appeals. In other words, tbe St. Louis Court bad jurisdiction over certain causes of action, of wbicb this is one, arising in a certain territorial district. It obtained jurisdiction of those cases on appeal, and having acquired jurisdiction of them on appeal it would only be divested of tbat jurisdiction by an act clearly denying it tbe right to try those particular cases on appeal.
“Again, tbe law as announced in 36 Cyc. 1223, in dealing with tbe subject of amendatory acts, is as follows: ‘Unless required in express terms or by clear implication, an amendatory act will not be given a retrospective construction. Proceedings instituted, orders made, and judgments rendered before the passage of the amendment will therefore not be affected by it, but will continue to be governed by the original statute. Where a statute, or a portion thereof, is. amended by declaring* that, as amended, it shall read as follows, and then setting forth the amended section in full, the provisions of the original statute that are repeated are to be considered as having been the law from the time they were first enacted, and the new provisions are to be understood as enacted at the time the amended act takes effect.’
‘ The case of State ex rel. Renick v. St. Louis County Court, supra, has been followed in this State, by numerous decisions. [See St. Louis v. Hollrah, 175 Mo. l. c. 85; Lackland v. Walker, 151 Mo. l. c. 262; Tackett v. Vogler, 85 Mo. l. c. 483.] Although the cases just cited dealt with jurisdiction of subject-matter, the Supreme Court in the case of State ex rel. Dunham v. Nixon, 232 Mo. l. c. 102, in dealing with the same subject that is before us, to-wit, the transfer of causes from one court of appeals to another, used this language: ‘Unless expressly authorized to do so a court has no authority to transfer a cause from it to another court and thereby give the other court possession of the case “to hear and determine it,” although the other court would have had jurisdiction of the case if it had come to it by due process. The conferring-of jurisdiction belongs to the law-making power of the State. ’ This language was quoted in the case of State ex rel. v. Nixon, 232 Mo. l. c. 503.
“It being conceded that the.cause now transferred to this court was originally lawfully lodged in the St. Louis Court of Appeals, which court had jurisdiction, we must look for something more in the amendment than a clause providing for a retention of that case by the St. Louis Court of Appeals. We find the authority for that-jurisdiction in the law as it was written prior to June 23, 1913, and unless in that amended law we can find an intention of the General Assembly clearly expressed to divest the St. Lonis Court of Appeals of jurisdiction in this case, we know of no authority that would give us a right to try and determine the cause. We, therefore, hold that the transfer of this cause to this court was without authority of law, and it is ordered that this cause and all files and papers pertaining thereto be and the same are transferred to the St. Louis Court of Appeals.
“As our opinion is in conflict with the opinion of the St. Louis Court of Appeals of June 24, 1913, in this sáme cause, it is ordered that the cause be certified to the Supreme Court for final determination as to-the jurisdiction ofithis court to hear and determine the same. ’ ’

Prom this it follows that we should certify this case to the St. Louis Court of Appeals for final determination. It is so ordered.

All concur.


author: BROWN, J.

text:
    In Re CHARLES DIXON, a Minor; CORNELIUS B. BAKER and SUSAN M. BAKER, as Guardians, Appellants.
    In Banc,
    February 10, 1914.
    REMOVAL OF GUARDIAN: On Religious Grounds. For the reasons stated in State ex rel-. Baker v. Bird, 253 Mo. 569, the judgment of the circuit court, affirming a revocation of the-appointment of certain persons as guardians of a minor, on the sole ground that they are raising him in a religious faith different from that of his deceased father, is reversed.
    Appeal from Jackson Circuit Court. — Hon. Daniel E Bird, Judge.
    Reversed (with directions).

      E. Wright Taylor for appellants..
    (1) The complaint does not allege and the proof ■does not show an express statutory ground or other good cause for the removal of the guardians. R. S. 1909, secs. 50, 424, 462; King v. King, 73 Mo. App. 78; Nicholson’s Appeal, 20 Pa. St. 50. (2) A person cannot be rendered ineligible to an office of trust under this State on account of his religious opinion. A religious test as a qualification for tenure of office is unconstitutional. U. S. Con. Amend., arts. 1, 14; Mo. Con., art. 2, sec. 5; Cooley, Con. Lim. (7 Ed.) C. 13, p. 659; Maxey v. Bell, 41 Ga. 183; In re Clements, 12 Mo. App. 592. (3) A guardian pf the person holds an office of trust as defined by the statute and Constitution of Missouri. R. S. 1909, secs. 50, 462; State ex rel. v. Walker, 132 Mo. 210; State ex reí. v. Valle, 41 Mo. 29; State ex rel. v. Bus, 135 Mo. 332; State ex rel. v. Harter, 188 Mo. 527; State ex rel. v. Rombauer, 101 Mo. 499 ; State ex rel. v. May, 106 Mo. 506; 23 Am. & Eng. Ency. Law (2 Ed.), pp. 322-327 ; 29 Cyc. 1361-1364. (4) The personal relation created by the act of adoption between the parties thereto, is substantially that of parent apd child, with all the reciprocal rights and duties incident or necessary to that relation. R. S. 1909, secs. 1671, 1673, 1675, 1678, 5425, 4492; In re Clements, 12 Mo. App. 592; In re Charles B. Clements, 78 Mo. 352; Church, New Probate Law, chap. 1, sec. 12; 1 Ross, Probate Law and Practice, sec. 126; Tiffany’s Persons and Domestic Relations, sec. 112; Woemer, Am. Law of Guardianship, sec. 10, pp. 24 to 30; Rice, Am. Probate Law and Practice, pp. 551 to 554; Gary’s Probate Law, secs. 871-872; Schouler, Domestic Relations (3- Ed.), sec. 232; Stimpson, Am. Statute Law, secs. 6640-51; Reinders v. Koppelmann, 68 Mo.-482; Hockaday v. Lynn, 200 Mo. 456; Ross v. Ross, 129 Mass. 243; In re Scarritt, 76 Mo. 565; Weir v. Marley, 99 Mo. 484; Reeves v. Massey, 25 Ga. 612; Tilly v. Harrison, 91 Ala. 295; Cofer v. Scroggins, 98 Ala: 342; State v. Koonse, 123 Mo. App. 635; Sarazin v. Railroad, 153 Mo. 479; 1 Am. & Eng. Ency. Law (3 Ed.), p. 726; •‘Whitmore, Law of Adoption, 3 Cen. L. J. 397; 1 Cyc. 914, 930. (5) The interest of the child is to he considered first, and that viewpoint demands that he remain in the home of his adoptive father and mother, Mr. and Mrs. Baker.

      Monroe & Roark and Hogsett & Boyle for respondents.
    (1) The pleadings allege and the proof abundantly shows sufficient statutory grounds to justify and demand a removal of Mr. and Mrs. Baker as guardians. R. S. 1909', secs. 50, 420, 424, 462; King v. King, 73 Mo. App. 78 ; In re Ford, 157 Mo. App. 141; In re Doyle, 16 Mo. App. 159; Voullaire v. Voullaire, 45 Mo. 602; In re Kellar’s Minors, 5 Ir. Ch. 328; In re Mc-Grath, 1 Ch. 143; In re Clark, 21 Ch. D. 817; In re Nevin, 2 Ch. 299; In re Scanlon, 40 Ch. D. 200; In re McConnon, 112 N. T. Supp. 590'; Matter of Jacquet, 82 N. T. Supp. 986; In re Crickard, 102 N. Y. Supp. 440; Underhill v. Dennis, 9 Paige (N. Y.) 209; In re De-Marcelin, 24 Hun, 207; In re Anne Turner, 19 N. J. Eq. 433; 15 Am. & Eng. Ency. Law (2 Ed.), 50, 52; Cozine v. Horn, 1 Bradf. (N. Y.) 143; Woerner on Am. Law of Guardianship, sec. 36, 114; In re Nicholson’s Appeal, 20 Pa. St. 50; Park’s Estate, 7 Pa. Dist. 700; McCann’s Appeal, 49 Pa. St. 304. (2) Appellants’ constitutional rights are not violated by their removal; and the section of the statute in question, Sec. 420, R. S. 1909, is not in conflict with the Constitution either of this State or the United States, but is in furtherance of religious freedom. Cases cited under point one; U. S. Con. Amend., arts. 1, 14; Mo. Con., art. 2, sec.' 5; 8 Cyc. 884; Spies v. Illinois, 123 U. S. 131; Lloyd v. Dollison, 194 U. S. 445. (3) The welfare of the minor will he best subserved by following the judgment of the probate court and placing this child in the custody of George Dixon. The probate court exercises a wide discretion in such matters and unless it is .manifest that such discretion has been-abused, it will not be interfered with on appeal. See cases under point 1; King v. King, 73 Mo. App. 78; Jones v. Jones, 34 N. C. 98; 21 Cyc. 43, 60; In re Ford, 157 Mo. App. 141.
   BROWN, J.

This is an appeal from the judgment of the circuit court of Jackson county affirming an order of the probate court of said county revoking the appointment of appellants as guardians of the person of one Charles Dixon, Jr., a minor.

Charles Dixon, Sr., the father of the subject of this litigation, and two of his. three children were drowned somewhere in the northern states during the summer of 1911. Dixon, Sr., was a prominent business man of Kansas City, and a member of the Roman Catholic church, while his late wife, a daughter of ex-Governor Morrill of Kansas, was in her lifetime a Unitarian.

It may be inferred from-the evidence that there was an antenuptial agreement entered into at the time of the marriage of Mr. and Mrs. Charles Dixon, where- , by they mutually agreed that their children should be instructed in the Roman Catholic faith.

During the lifetime of Mrs. Charles Dixon the antenuptial agreement was, in a large measure, abandoned. Dixon’s children were sent to a public school and allowed to attend the Unitarian Sunday school. After the death of his wife, and during a period of ■about one year, Charles. Dixon caused his children to attend a Catholic Sunday school and Catholic church. At the time of the trial, the minor, Charles. Dixon, Jr., was attending a nonsectarian day school.

On the part of the Dixon family the evidence indi- ' cates that the present guardians, are unwilling to allow the ward to attend a Catholic school or a Catholic .church, and are trying to estrange him from his paternal relatives. This is denied by the guardians who testify that their ward does not wish to visit the Dixons or go to the Catholic church, and that the Dixons have been trying to prejudice their ward against his guardians; that the boy is afraid to visit the Dixons lest they take him away from the Bakers, with whom he desires to remain.

The court refused to receive the evidence of the ward, although the plaintiffs offered him as a witness. John T. Dixon and George Dixon, uncles of the ward, were present in the probate court and nodded their assent when asked by the probate judge if they had any objection to the appointment of the Bakers as guardians of Charles Dixon, Jr. The evidence quite fully established the fact that the Bakers (appellants) have a good home; have only two children — two grownup daughters — who are amiable, respected and cultered. That the ward’s home surroundings are everything that could be desired is admitted by all members of the Dixon family who gave evidence. Their only complaint is that the Bakers are not Roman Catholics, and are not rearing him in that faith, nor permitting him to visit his paternal relatives.

The evidence further shows that George Dixon, whom the probate court attempted to appoint as guardian when the Bakers were removed from that position, is a moral, sober and high-class citizen. He owns a good home and has a highly respected family, composed of a wife and two children.

The ward is peculiarly fortunate in that all his relatives, both paternal and maternal, are excellent people, and capable of rearing a minor in such manner as to give him the best of opportunities for his own advancement. The present guardians are worthy of the trust reposed in them, and the probate court can ■only remove them for some one or more of the causes designated in the statutes.

At the trial of this case in the circuit court the minor, Charles Dixon, Jr., was nearly thirteen years-of age, so that within a few short months he will have the right to terminate this disputed guardianship in the manner which the laws of the State have provided. It will not he a long period until he can exercise the right guaranteed by the Constitution to select his own religion.

It is needless to give a more detailed statement of the pleadings and evidence here. They will be found in the case of State ex rel. Baker v. Bird, 253 Mo. 569, tried with this case, and determined at this term.- The legal conclusions reached in that case necessarily work a reversal of the judgment in this cause.

The judgment of the circuit court will be reversed with directions to enter a new judgment on the pleadings, reversing the order of the probate court, wherein Cornelius B. Baker and Susan M. Baker were removed as guardians of Charles Dixon, Jr., and George A. Dixon appointed in their stead, which said judgment of the circuit court, when so entered, shall be certified to the probate court of Jackson county, as required by law.

It is so ordered.

Lamm, G. J., Woodson, Walker and Faris, JJ., concur; Graves, J., concurs in the result; Bond J., dissents.


author: WALKER, J.

text:
    HENRY BECKER, Appellant, v. GEORGE BECKER et al.; WILLIAM R. ORTHWEIN, Administrator, Appellant.
    In Banc,
    February 10, 1914.
    1. COTENANCY: Dissolved by Foreclosure Sale: Trustee. A bid by one of tie heirs at a public sale of land under a deed of trust placed thereon by their ancestor, after formal notice of foreclosure at the instance of the holder of the unpaid notes, and in no wise brought about by the bidder, is in law the bid of a stranger; and where no unfair or undue advantage is taken by him of his cotenants, and they refuse to make any effort to pay the debt and disclaim any interest in the property, he is not turned into a trustee for them by buying for himself and receiving a deed; and in such case another cotenant does not have the legal right, upon tender to the purchaser or into court for him of his aliquot part of the foreclosure price, to have a decree of court vesting such cotenant with the title to an equal aliquot part of the land.
    2. -: Suit to Establish Trust Relation: Brought by Another: Good Faith. A suit brought by an heir of <the debtor to have himself declared a cotenant in land sold under a deed of trust to secure a debt created by his deceased father and bought in by and conveyed to his brother, is not brought in good faith, if in fact brought and prosecuted by the holder of an unsecured note given by the same debtor, for the purpose of having both the heir and brother declared cotenants, in order that he may subject the land to the payment of his debt, there being no enforceable agreement' between the brother and said heir that the brother would purchase the property at the foreclosure sale and hold it as trustee for himself and the other heir as cotenants, and the debt having never been allowed by the probate court against the debtor’s estate and no administrator appointed until after the foreclosure sale, which was seventeen years after the debtor’s death. Nor can the administrator maintain such a suit, under the circumstances.
    Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Affirmed.

      Barclay, Fauntleroy, Cullen & Orthwein and William B. Gilbert for appellants.
    (1) One cotenant cannot buy in an outstanding title to tbe exclusion of tbe other cotenants. Kohle v. H'obson, 215 Mo. 213; Hinters v. Hinters, 114 Mo. 29; Allen v. De G-roodt, 105 Mo. 452, 98 Mo. 161; Tisdale v. Tisdale, 2 Sneed, 596. (2) And when sucb a purchase is made, it inures to the others upon contribution. Nalle v. Parks, 173 Mo. 625; Allen v. De Groodt, 105 Mo. 452; Hinters v. Hinters, 114 Mo. 26. (3) And equity will declare the purchasing cotenant to have purchased for the benefit of all. Nalle v. Thompson, 173 Mo. 616; Howard v. Scott, 225' Mo. 718; Peak v. Peak, 228 Mo. 536'. (4) A purchase of an outstanding interest by one cotenant is. a redemption from the lien of the outstanding charge. Kohle v. Hobson, 215' Mo. 219.

      George F. Beck for respondent.
    (1) Where real estate is sold at public* auction under a deed of trust, the purchaser in no sense buys an equity of redemption, an incumbrance, or an outstanding title; it is a purchase of the entire title as it existed at the time the deed of trust was executed. Starkweather v. Jenner, 216 U. S. 524; Aubuchon y. Aubuchon, 133 Mo. 260; Kennedy v. De Trafford, A. C. (1897) 180. (2) Where the common property was sold under a paramount title, owned in good faith by a third person, at a public sale, either under legal process or a power in a deed of trust, the sale being in nowise the result of collusion, fraud, or deceit, the co-tenancy is destroyed, and either one of the cotenants is, and ought to be, free to act for himself, and purchase the paramount title for his own exclusive benefit. Aubuchon v. Aubuchon, 133 Mo. 260; Starkweather v. Jenner, 216 U. S. 524; Kennedy v. De Trafford, A. 0. (1897), 180; Hunter v. Allen, Irish Reports (1907), 212; Jackson y. Baird, 148 N. C. 29; Coleman v. Coleman, 3 Dana (Ky.), 398; Alexander v. Sully, 50 Iowa, 192; Biss v. Biss, 2 Chancery, 40; Stephens v. Ells, 65 Mo. 461. (3) Tenants in common do not, as such, stand in a fiduciary relation towards each other; a fiduciary relation, or a partnership, may be shown to have arisen, or to have been created, among them by conduct or by agreement; but, if so, the inference must be drawn from other facts than the mere existence of a tenancy in common in the lands or premises. Hunter v. Allen, Irish Reports (1907), 212; Kennedy v. De Trafford, A. C. (1897), 180; Biss v. Biss, 2 Chancery (1903), 57. (4)' Administrators are forbidden from in any way interfering with the rights-of the heirs to the real estate until they have been ordered to take charge of the real estate by an order of the probate-court. It is not enough that it is shown that the personal property is insufficient to pay debts and that the real estate must be sold for that purpose. It must appear that the probate court has made the order. Grant v. Hathaway, 215 Mo. 141; R. S. 1909, sec. 139; 2 Woerner on Administration, p. 715; sec. 338; Thorp v. Miller, 137 Mo. 231; Hall v. Bank, 145 Mo. 418. (5) The object of the petition or cross-bill of the administrator is to subject the real estate of defendant George Becker to the payment of debts of the deceased. The circuit court has no jurisdiction to order the sheriff to sell real estate to pay claims allowed by the probate court. Jurisdiction is conferred by statute exclusively in the probate court, and the laws of administration relating to the sale of real estate for the payment of debts provide fully the procedure whereby such sales are to be made. Jarvis v. Russick, 12 Mo. 63; Matson v. Pearson, 121 Mo. App. 120; Scott v. Rovston, 223 Mo. 579; Macey v. Stark, 116 Mo. 494; Camedon v. Plain, 91 Mo. 117; French v. Stratton, 79 Mo. 560; Priest v. Spier, 96 Mo. Ill; Dodson v. Scrogg, 47 Mo. 285; Strode v. Gilpin, 187 Mo. 383. (6) Administrators’ powers are conferred upon them by statute, and there is no statute authorizing administrators to institute suits to recover possession of real estate, or to clear the title thereof that the same may be sold for the payment of debts. In selling real estate to pay debts, the administrator sells whatever right, title and interest the deceased may have had in the same, and' his deed conveys only such title. A purchaser at an administrator’s sale has the right to sue in equity, to" remove a cloud upon the title, and in ejectment, for' possession. Grant v. Hathaway, 215 Mo. 141; Thorp' v. Miller, 137 Mo. 231; Aubuchon v. Lorey, 23 Mo. 99. (7) A creditor may institute a proceeding to set aside. a sale on account of fraud, and if successful, the administrator may treat the property thus uncovered as assets of the estate. Mill Co. v. Sugg, 169 Mo. 130. (8) The charge of fraud is a mere conclusion of the pleader and states no cause of action. Hardwicke v. Hamilton, 121 Mo. 465; Jopling v. Walton, 138 Mo. 485; Phillips v. Stewart, 59 Mo. 491; Keith v. Browning, 139 Mo. 190. (9) Fraud is never presumed, but must be alleged and proved. The relief sought by appellant is not based upon the charge that respondent misled him to prevent his bidding at the sale, and he is limited to the fraud alleged. Hardwicke v. Hamilton, 121 Mo. 465. (10) The administrator can maintain his suit only upon the cause of action stated in his cross-bill. As the cross-bill is not based upon the theory that the defendant George Becker bought in the property for the administrator or for Mrs. Haesle, he is not entitled to maintain the same. (11) If Mr. Becker bound himself by any agreement to pay Mrs. Haesle her claim, she only would be entitled to assert her right, and that, too, only by an independent suit. (12) If the declaration of George Becker is held to be an agreement to pay Mrs. Haesle her claim, it is void because there was no evidence of an agreement in writing. It is nothing more than a declaration of intention to pay the debt of the father out of the proceeds of the sale of the real estate owned by Henry and himself as he'irs of the deceased. R. S. 1909, sec. 2783; Hammond v. Cadwallader, 29 Mo. 170. (13) It was a mere parol declaration and is null and void under the laws, of this State which provide that an express trust in lands can be created only by an instrument in writing. R. S. 1909, sec. 2868; Hammond v. Cadwallader, 29 Mo. 166; Mansur v. Willard, 57 Mo. 347; Ewing v. Parrish, 148 Mo. App. 492; Woodford v. Stephens, 51 Mo. 443; Taylor v. Yon Schraeder, 107 Mo. 206. (14) Even if the declaration of intention of Mr. Becker ■amounted to a promise to pay Mrs. Haesle’s claim or a promise to buy in the property for her, and that he thereby constituted himself a trustee for her, still it was a mere gratuitous statement founded upon no consideration.
   WALKER, J.

Henry Becker brought suit in equity in the circuit court of the city of St. Louis against his brother, George Becker, for an accounting and permission to pay into court for the benefit of the latter, one-half of whatever amount might be found to be due on account of the foreclosure of a deed of trust on a lot in said city claimed by plaintiff to be owned by himself and deféndant as tenants in common as sole heirs of their father George Becker, Sr., and which lot had at said sale been bought by defendant; that plaintiff be decreed to be the owner in fee of one-half of said lot and same not being susceptible of partition that it be sold and the proceeds divided between the parties.

Rufina Becker, the mother of said parties, was also made a defendant, but her subsequent death eliminates from consideration whatever interest she may have had in said property.

One William R. Orthwein, one of the counsel for plaintiff, asked and was granted leave to be made a party defendant, alleging in his application that as administrator of George Becker, Sr., to which position it appears he had been appointed by the probate court of the city of St. Louis, he had some interest in said property and his application was by the court granted-.

George Becker, the principal defendant, filed an answer to plaintiff’s petition, and defendant Orthwein filed what is termed “an answer and a cross-bill,” to which defendant filed a reply.

Upon the pleadings thus filed, the case was heard by the circuit court and the petition of the plaintiff and the answer and cross-bill of the defendant Orthwein were dismissed, and a decree rendered in favor of the defendant George Becker; the plaintiff, and defendant Orthwein, as administrator, thereupon appealed to this court.

The material allegations of the pleadings are sufficiently set forth in the statement of facts.

In March, 1888, George Becker, Sr., the father ot‘ plaintiff and defendant, borrowed $400' from the St. Paul Benevolent Society, hereinafter referred to as the Society, and gave a deed of trust on a small lot or parcel of ground having a frontage of twenty-five feet by a depth of 100 feet on Lyons street in the city of St. Louis, on which there was a building numbered 2853. The sons were then grown men and the house referred to was occupied as a homestead by the father and mother. The $400 was borrowed to enable the plaintiff to engage in a business enterprise and was used for that purpose. The father died in 1893 and at the time of his death the loan was; unpaid. Plaintiff paid the interest on same until 1897, and from 1896 until the suit was brought to foreclose the deed of trust in 1910, plaintiff, who was a widower with a half-grown son, lived on the premises with his mother without the payment of rent, and contributed nothing to the repair of the property. The last payment of interest on the loan was made during 1907 by the mother of plaintiff. At the time of the foreclosure of the deed of trust, four years’ interest remained due and. unpaid on the loan.

In January, 1909, the Society, through its secretary, repeatedly notified the plaintiff and his mother of the default in the payment of interest, but nothing was done in the matter. Plaintiff was solicited by the defendant to assist in paying the debt, either by a sale or the making of another loan, but plaintiff refused to do so, and defendant requested the secretary of the Society to defer the foreclosure to enable defendant to have an opportunity to sell the property and pay the loan; failing in this, the Society again notified the parties that no longer time would be given and that steps would be taken to foreclose the deed' of trust and sell the property to satisfy the debt.

The defendant thereupon again notified the plaintiff of his inability to sell the property or to procure a second loan, and that defendant in the event of a foreclosure, intended, if possible, to borrow money and buy in the property to protect his own interest therein. The plaintiff replied that he, plaintiff, had received his share of the property and that the defendant could proceed as he thought best. The said Society on the 13th day of April, 1910, after complying with the conditions of the deed of trust and giving actual notice to all the parties, proceeded to sell and did sell the lot in question to satisfy its loan. The property was bought at the foreclosure sale by a Mr. Gframann, who paid the trustee the amount of the debt and received a deed to the property. The purchaser then executed a deed of trust on the property for $725-, and conveyed1 same by quitclaim deed to George Becker, the defendant.

On April 30, 1910, the plaintiff and the defendant George Becker went to a Mr. Hannauer’s ofiice, who was the agent of the Society, where the plaintiff was fully advised of the foreclosure sale and that the property had been transferred to the defendant-and that be was to secure a loan with which to pay the bid and costs. The loan, costs and expenses of the foreclosure were checked over and explained to the plaintiff, and he gave the trustee his receipt for his share of tbe surplus amount of the bid after the payment of the debt and costs. At this time, in the presence of the plaintiff, the defendant George Becker executed a new deed of trust on the lot in question, for $1100, $725' of which was to be in payment of the purchaser’s bid at the foreclosure of the deed of trust, the additional $375 was to be expended in repairing the property and putting it in a condition for renting. The deed of trust made at the time of the sale and purchase of the property by G-ramann was released when defendant gave the new deed of trust for $1100 on the property. The defendant then proceeded to repair the property, using the $375 for that purpose, and in paying the delinquent taxes. In making the repairs defendant employed the plaintiff and paid him for his time and labor. Plaintiff’s, attitude throughout the entire transaction was indicated by him in the remark to defendant that he had received his share in the property and manifested no further interest in it. Plaintiff’s lack of interest may be best determined by reference to his testimony at the trial. The plaintiff upon being examined by his counsel was. asked:

“Q. Please tell the court what George Becker said, if anything, to you, before this sale came off— where he said it — as to what he was going to do in regard to buying it up.” To which plaintiff replied: “A. I will throw my name out of it.”
“Q. What did he say? A. Pie says, ‘I will buy in the property.’ ”

Counsel for defendant then interjected this question: “When was this conversation? A. Right after the sale.”

At which juncture the court interposed this inquiry of the plaintiff: “Q. What did he say before the sale? A. He (defendant) says, ‘I will divide up with your mother-in-law, Mrs. Haesle; I will buy the property in, and I will pay your mother-in-law, and whatever comes out of it I will divide with you, amongst the both of us; ’ that is what he said; that is what my brother, George Becker, said.”

“Q. (By counsel for plaintiff): “When was the first time that George Becker claimed to own the property by himself? A. After the sale was made, and we got the papers from Mr. Hannauer.

“Q. When did he tell you that he claimed to own it? A. When I met him up at Mr. Hannauer’s. office.

“Q. That was after the sale had been made? A. That was after the sale had been made; yes, sir.

“Q. What did he say to yon, Mr. Becker? A. He says, ‘I bought the property, and you and I will go to work and get the property fixed up and we will sell it and divide it up.’

“Q. That was after the sale? A. Yes, sir.

“Q. When did he first claim that he bought the property in for himself, and you didn’t have any interest in it? A. Some time in May, last year.

“Q. On May 21st (1910) what did he say? A. ‘We will fix it up and after we get it straightened out we will go to work and sell it and divide up amongst the both of us, and pay Mrs. Haesle off;’ he says, ‘I will crack my whip; I have got what belongs to me now. I will crack my whip and let somebody else come and look after the things.’ He says, ‘Let them all crack their whips, the property belongs to me.’

“Q. What did you do when he told you that? A. I thought I would leave the thing go as it is, then, and I would not bother about itj and I told my son about it, and I went up. to see Mr. Cullen about it. ’ ’

On cross-examination plaintiff in answer to the question: “You have no further interest in this litigation, now, have you?” answered: “Not that I know of.”

This is in the main the testimony of the plaintiff in regard to this transaction. The defendant on his direct examination stated in substance: That he had received notice from the Society demanding payment of the deed of trust; that his first notice of the demand for payment was sent to him by the secretary of the Society, stating that four years’ interest was due on. the debt. Subsequently, the plaintiff told defendant that he had also received notices that four years’ interest was due on the property, and that the Society was going to sell it if they did not come and pay the interest; that defendant went down to see the plaintiff, who was living on the premises, and told him unless the interest was paid the property would be sold; this was in November, 1909, and defendant said to plaintiff: “What are you going to do about it?” Plaintiff replied, “I am not going to do anything about it.” Defendant said, “Why?” To which plaintiff replied: ‘ ‘ I will let everything go to h-. ’ ’ To which defendant said: “There is no use of doing that. The debts must be paid, and something has to be done.” To which plaintiff replied: “You do as. you please about it — whatever you think is best. ’ ’ On further examination defendant testified that when the Society was insisting on the payment of the debt he talked to plaintiff, and the latter said: “I ain’t got nothing to do with it any more. You see you get yours; I have got mine; I haven’t got any more to do with the property.” On cross-examination the defendant was asked: “Q. Now, when the property was going to be sold, you-made arrangements to buy it in, didn’t you— for somebody to put up enough money to buy it in for you; that is a fact? A. I didn’t make no arrangement — I could not sell it anywhere else, and then I made arrangements with them. Q. Now,'you didn’t have any agreement with Henry, did you, that you should buy that property in for yourself? A. I did. Q. You did? A. Yes, sir. I told him that if I could not sell the property to the breweries, I says, ‘I-will buy it in for myself, Henry;’ and he says, ‘All right; you do as you please and whatever you think is best. ’ Q. ‘Do whatever you think is best?’ A. Yes. Q. That was before the sale was had? A. And before the property was sold. Q. Now then, the property was taken in Mr. Reising’s name, wasn’t it, at the sale, and there was a deed of trust for seven hundred and twenty-five dollars put on it, and later it was quit-claimed to you, and then you put a deed of trust of eleven hundred dollars on it, and three hundred and seventy-five dollars were spent under Mr. Hannauer’s directions for repairs, is that correct? A. Part of it was spent, yes, sir. Q. Most of it was spent for repairs? A. Most of it was spent for repairs, yes, sir.”

In regard to the claim of Mrs. Haesle, to which reference has been made in the testimony, it appears that in 1888 a Mrs, Haesle, the. mother-in-law of the plaintiff, loaned George Becker, Sr., the father of plaintiff and defendant, $1000. It does not appear whether this was evidenced hy note or was an open account. It is clear, however, that the property in question was not pledged to secure its payment. On this debt no interest had been paid since 1898. While the claim has properly nothing to do with the case at bar, much of-the testimony was in regard to it and to an attempt to show that defendant had agreed to pay same. It is not improper to note in this connection that letters of administration were not taken out on the estate of George Becker, Sr., until April, 1910, about two weeks after the foreclosure and sale of the lot in question, at which time, as before stated, they were granted to William R. Orthwein, one of. the counsel for plaintiff. The claim of Mrs. Haesle, in the sum of $1000, was allowed in the probate court against his estate, it being the only demand presented. There is nothing in the'record to show that any' order was made by the probate court in regard to the real estate belonging to the estate of George Becker, Sr.

I. Cotenants Purchasing Common Property. Plaintiff’s contention is that the defendant bought the lot in controversy at the foreclosure sale under the deed of trust as a tenant in common with the plaintiff, and that he, therefore, holds the same in trust for the plaintiff to the extent of the latter’s interest upon his contributing to the defendant his just proportion of the amount necessarily expended in the acquisition of the title through the removal of the incumbrance. In the absence of any qualifying facts, the application of this rule would he appropriate in this case, it having been so announced by this court in many cases from Jones v. Stanton, 11 Mo. 433, to Peak v. Peak, 228 Mo. 536. The foundation of this rule is the good faith and duty required of persons sustaining such relations of trust as should exist between tenants in common. Their rights in the .property being severable, the interest of each may be sold by the owner’s voluntary act or under process of law, yet all are entitled to joint possession and control, and good faith forbids either by any act of his own to disseize or dispossess another.

Following this rule to its legal conclusion, the heirs of an intestate, upon' his death, take the land of which he died seized in common, and their duties, which are reciprocal, immediately arise. The fact must not be lost sight of, however, that the estate does not vest in them absolutely, and it may be divested entirely if the land is taken into the custody of the courts and subjected to the payment of the debts of the deceased, the appropriation of the title of the land in such an instance being as it came directly from the ancestor and not as it came from the heirs. An order of a court for the sale of land for the payment of debts will sever the relation of cotenancy, and one who purchases at a sale under such order thereby acquires the entire title regardless of the equity of redemption or the incumbrance. This is true for the reason that the order of the court for the sale of the land takes precedence over the cotenancy and subordinates the lights of the cotenants to the paramount right to appropriate the property for the payment of debts-This was what was held by this court in Aubuchon v. Aubuchon, 133 Mo. 260; an appropriate illustration deduced from the reasoning in the Aubuchon case is that “the right of one heir to purchase for his exclusive benefit is analogous to that of a tenant in common to purchase at a sale of the property under an order of sale in partition,” a right -which is recognized in Stephens v. Ells, 65 Mo. 456, in which it was held that a sale under an order of partition dissevered the cotenancy. In such a case, says the court, “all the world is invited to bid, and among others the co-tenants, or any one of them. A bid from one of them occupies the same footing as a bid from a stranger.” Judge Napton also, in Stephens v. Ells, supra, in discussing this question, says in effect that the payment» of money to remove a tax or lien by a cotenant during the cotenancy, or the expenditure of money to preserve the common property or a voluntary partition presents entirely different considerations, citing Jones v. Stanton, supra, and Picot v. Page, 26 Mo. 398. Nothing is said, however, as to the application of the rule in a case where the realty is sold at' public sale after formal notice at the instance of the holder of the notes to foreclose a deed of trust, and is purchased by a cotenant. No valid reason seems to exist why the exception should not apply to a cotenant purchasing under such circumstances as in a sale under an order of court. The mere order of the court for the sale of land belonging to an estate to pay debts or in partition can afford no more opportunities for a fair and free sale than are offered by a sale to foreclose a mortgage or deed of trust. In fact, equal opportunities are afforded bidders in either- case, as publicity, which fosters equal opportunity, and is the moving cause of the exception in the one class of eases, is present with equal force in the other. The Supreme Court of the United States in passing upon this question in Starkweather v. Jenner, 216 U. S. 524, held that the rule which turns a cotenant into a trustee who buys for himself an outstanding title, does not apply so as to prevent a tenant in common from purchasing the common property at a public sale under a power in a deed of trust where no undue or unfair advantage is taken of cotenants.

Oases decided by our own court in which cotenants have been held to become trustees for others upon the purchase by the former of the common property, will be found, upon examination, to present other features than mere cotenancy to create the trust relation. To illustrate: In Peak v. Peak, 228 Mo. 536, a life tenant bought an outstanding deed of trust on the common property, caused the trustee to foreclose, and took the title in a third person, who afterwards conveyed to the life tenant. One of the remaindermen was insane and at the time confined in an asylum. Held, generally, that it was a fraud for the life tenant to cause the deed of trust to be foreclosed and buy at the sale, thus cutting out the remaindermen.

In Howard v. Scott, 225 Mo. l. c. 718, the parties were joint owners of a tract of land incumbered by a mortgage to secure the payment of three notes. Scott paid Howard one-half of each of the notes, with the understanding that the latter would pay them in full. Howard paid one note, caused the mortgage to be foreclosed to pay the others, had the land sold and bought by another, who transferred it to him. The court held that Howard’s conduct was a fraud on Scott and that the former held the land in trust for the latter to the extent of his interest.

In Kohle v. Hobson, 215 Mo. 213, the life tenant in possession permitted land to be sold for taxes. The husband of one of the tenants in common procured a third person to buy the property, and before the time for the redemption of the certificate of purchase had the certificate assigned to him. Suit was brought to redeem by one of the cotenants who was a minor at the time of the tax sale. Held, that the purchase of the certificate of redemption did not confer title- and that its purchase by a husband of one of the cotenants before the time for redemption created a trust which inured to the benefit of all of the cotenants.

Nalle v. Thompson, 173 Mo. 595, and Nalle v. Parks, 173 Mo. 616, are companion eases. Nalle and Cahoon, lawyers, held title to certain lands conveyed to them in payment of a fee, subject to deeds of trust. Cahoon agreed to pay off the incumbrances and that they would hold the land as tenants in common, share and share alike. Cahoon bought the deeds of trust, caused them to be foreclosed and bid in the land for his own benefit, but never notified his cotenant of his purchase nor asked him to contribute. The latter knew nothing of Cahoon having acquired the title until long afterwards. Cahoon secured an unfair advantage over Nalle by buying the deeds of trust, foreclosing same and acquiring title to the land for his own benefit without notifying Nalle and giving him an opportunity to -contribute. Held, that Nalle was entitled to relief in equity.

In Hinters v. Hinters, 114 Mo. 26, a cotenant in possession who was receiving all the benefits of real estate neglected to pay the interest on notes secured by deed of trust and induced the holder to foreclose and sell. All the other cotenants were minors. Upon the sale, the holder of .the notes bought and subsequently conveyed the land to the contenant in possession. Held, it was a fraud for the cotenant in possession not to protect the property from sale and that upon his purchase he held title in trust for the other coten ants.

These cases show that grounds of relief existed in each other than the interest of cotenancy.

There was no semblance of fraud or even unfairness in the conduct of the defendant in this transaction. The foreclosure of the deed of trust was made, not on his initiative, but by the holder of the note (the St. Paul Benevolent Society) after a four years’ default in the payment of interest. Formal notice was given as required by the deed, and the property was sold at a public sale free and open to all bidders. Under this state of facts, it is straining the rule to hold that the purchase of the property by the defendant was in trust for the plaintiff to the extent of his interest. However, we are not required to except the case at bar from the general rule in regard to the purchase of the common property by a cotenant, to hold that defendant did not take title to same in trust for plaintiff. Defendant sought repeatedly when notified that the deed of trust would be foreclosed, to secure the assistance of plaintiff, either in selling the property at private sale, or in securing a loan to remove1 the St. Paul Benevolent Society’s incumbrance. Plaintiff absolutely refused to render any assistance, saying at times that defendant “should go ahead and do as he pleased in. regard to the matter, that he [plaintiff] had gotten his interest out of the property and defendant could now get his; ’ ’ and at other times that he (plaintiff) “was not going to do anything; that he would let everything go to h-He makes no direct denial of these statements, but says that before the sale defendant said he would buy in the property and after it was straightened up they would sell it and divide the proceeds; and that after the sale defendant said he had bought the property for himself and they could crack their whips. Under all these facts, plaintiff’s testimony in regard to defendant’s, statements does not bear the impress of truth, especially in view of his subsequent conduct and testimony. When the defendant went to secure the loan with which to pay off the bid and take a transfer of the property, the plaintiff accompanied him and stated to the agent of the St. Paul Benevolent'Society and counsel that he understood the entire matter, made no objection to same, joined defendant in receipting the agent for the surplus, of the purchaser’s bid left after the payment of the incumbrance and costs, and, when defendant subsequently had repairs made on the property, plaintiff was engaged to make them and was paid for same by'defendant. At no time until this suit, did plaintiff raise any question as to defendant’s absolute title to tbe property. At the trial, plaintiff testified that lie “bad no further interest in the litigation,” referring to the case then on trial. This conduct and testimony, coupled with the fact that plaintiff did not bring this suit to establish his interest in the property, but that same was brought to facilitate the collection of the Haesle claim against the estate of George Beefier, Sr., will appear as the facts are developed in their order.

Plaintiff’s repeated declaration to defendant when the latter was endeavoring to secure his assistance to sell1 the property or remove the incumbrance that he (plaintiff) “had gotten his interest out of-the property and defendant could now get his,” is explained by the fact not disputed that the debt contracted by Becker, Sr., with the St. Paul Benevolent Society and secured by deed of trust on the property, was for plaintiff’s benefit and was in fact plaintiff’s debt. This debt having been paid by defendant upon the foreclosure of the deed of trust as a last alternative, without any unfairness or fraud, and the property thus freed from the lien, the plaintiff will not in equity and good conscience be now heard to complain that he is entitled, after his refusal to assist in the removal of the incumbrance on the property and his renunciation of any claim thereto, to establish an interest in the property. The maxim that he who seeks equity must do equity, finds appropriate application in this case.

II. The Haesle Claim. There is not only express testimony but a succession of obviously pertinent facts which show that the suit at bar was not brought primarily to establish plaintiff’s interest in the property in question, but to afford an opening wedge for the payment of the claim of Mrs. Haesle out of any surplus that might be left after the sale of the property and the payment of the incumbrance thereon, if such sale was decreed or partition ordered in the suit at bar. The Haesle claim was based on the alleged loar of $1000 claimed to have been made in 1888 by a Mrs. Haesle, plaintiff’s mother-in-law, to his father, George Becker, Sr. Whether evidenced by note or open account the record does not disclose. Certain it is that it was secured by no lien upon the property in. controversy and the interest thereon had not been paid since 1898, or about thirteen years before the institution of this suit. We are not urging the bar of time against this claim, being mindful of the rule that the statute does not run on a demand between the debtor’s death and the commencement of administration, i. e., it did not, until the enactment in 1909 of sections 188 and 189, Eevised Statutes 1909, but the facts connected with the administration of the estate of Becker, Sr., plaintiff and defendant’s father, the commencement of administration thereon seventeen years after his death and the prompt allowance of the Haesle claim as the only demand against the estate, render reference to the lapse of time during which this- claim lay dormant peculiarly appropriate to a discussion of the facts in this case. During all of the time intervening between the death of Becker, Sr., in 1893, to the date of the sale of the property in 1910, Mrs. Haesle lived in the immediate neighborhood of the property and no effort was made by her or anyone for her to collect the alleged claim. On April 13, 1910, the St. Paul Benevolent Society, unable to collect the interest on the loan it had made on the property, foreclosed its deed of trust, and upon defendant’s securing a loan, the property was transferred by the purchaser to him. Presto! Activity is evident all along the line in regard to the Haesle claim. One Flotman, a son-in-law of plaintiff, flits upon the scene. Introduced as a witness for plaintiff at the trial, he testified that he had a talk with defendant about a year before the sale of the property and the latter said he was going to take care of Mrs. Haesle; that a couple of weeks after the sale or about April 27, 1910, witness was informed by plaintiff that defendant had bought the property in for himself, and witness then went to see a law' firm about the matter. On the 29th day of April, 1910, two days later, an administration is commenced on the estate of George Becker, Sr., and one William E. Orthwein is appointed administrator and the claim of Mrs. Haesle, the only one presented, is allowed against the estate. Later the suit at bar is brought by the law firm which plaintiff had consulted, to establish plaintiff’s interest and said' William E. Orthwein comes to the fore with an answer and cross-bill as administrator of the estate of George Becker, Sr. — under what authority is not indicated in the record or suggested in the statement or brief. In the pleadings said Orthwein appears as administrator, in the briefs as one of the counsel for plaintiff, and during the trial in the like latter capacity, but solicitous, as evidenced by the examination of witnesses and argument, to establish the fact that defendant has agreed to pay the Haesle claim. This is, in truth, the burden of the inquiry made by counsel' for plaintiff throughout the trial. These facts, trivial under other circumstances, are vital in this ease because they show beyond question the prime purpose of this suit.

But this succession of obvious incidents is not all. The witness Flotman testified that he “had been attending to Mrs. Haesle’s affairs since the matter of the.property had been going on;” that she asked him to “see what he could do;” that while “Mr. Henry Becker [plaintiff] had not made any assignment to witness of his interest in the property he [plaintiff] just told witness the same, that Mrs. Haesle should be paid. ’ ’ Witness further stated that he had caused the administration to be commenced against the estate of George Becker, Sr., and that he (witness.) had authorized the bringing of the suit at bar. This testimony gives a peculiar clarity and significance to plaintiff’s statement on the stand that he “had nothing further to do with the litigation.”

The trial court properly dismissed the administrator’s answer and cross-bill, as there was no authority for his intervention in this. suit.

Plaintiff’s repeated refusals to assist in the removal of the incumbrance on the property, his renunciation of his interest in same, his express declara- • tion that he had no interest in the litigation, supplemented by the testimony of Flotman, that he, not the plaintiff, commenced this proceeding, as we think is evident, to collect the Haesle claim, together with the entire atmosphere of the case, are ample -to authorize a court of equity to determine that the evidence does not warrant the decree prayed for, and that this suit was not brought in good faith to establish the interest of plaintiff as a tenant in common in the property in question. From all of which it follows that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: WOODSON, J.

text:
    THE STATE v. A. J. McKINNEY, Appellant.
    In Banc,
    February 10, 1914.
    1. CHALLENGES: Sick Member of Panel: Substitution: Twenty-Four Hours for Rechallenge. After the panel of forty bad been qualified and the list submitted to the defendant twenty-four hours before the trial, and each party had made' his proper challenges, and a trial jury of twelve had been selected but not sworn, and both sides had announced ready for trial, and all the jurors answered to their names except one, who was sick, and who was excused, the sheriff was directed to summon another man, which was done, and the man being found to be qualified was directed to take his seat with the other jurors. Thereupon defendant demanded twentyrfour hours in which to challenge the jury as then constituted. Meld, that it was error to refuse the demand. The statute (Sec. 5227, R. S. 1909) provides that after forty jurors have been qualified, a list of their names shall be delivered to the defendant at least twenty-four hours before the beginning of the trial, in order that he may have ample time to make his challenges; and to excuse one of the jurors and substitute another and require defendant to go to trial instwnter is to deprive him of his statutory right. [WALKER, J., dissenting, in a separate opinion.]
    2. HEARSAY: Non-prejudicial. The admission of hearsay tes-' timony, though wholly irrelevant, if nonprejudicial, is not material error.
    3. CARNAL KNOWLEDGE: Election of Offenses. Where the prosecutrix gives general testimony as to a number of prior acts of carnal knowledge committed against her before she was fourteen years of age, yet if the evidence of those acts is not introduced to prove substantive offenses upon which a conviction may be made to rest, but in corroboration and explanation of the particular offense charged, and the instructions given limit the jury to that one definite offense and the proof is directed to it, there is no error in the court’s refusal to require the State at the close of the testimony to elect upon which offense it will rely for conviction.
    4. REMARKS OF PROSECUTING ATTORNEY. The meaning.of remarks by the prosecuting attorney in his argument to the jury to the effect that “if it were not for the secret of the prison bars you would not have any doubt or trouble in arriving at your verdict,” is not discernible, but they contain nothing prejudicial, and are therefore not reversible error.
    Appeal from Dunklin Circuit Court. — Mon. J. L. Fort Judge.
    Reversed and remanded.

      Virgil McKay and J. T. McKay for appellant.
    (1) Where in a trial for rape committed on a female under fourteen years of age on a date specified, the prosecutrix testifies to the commission of the offense on that day and to subsequent offenses during a period of nearly a year, it is the duty of the court to confine the consideration of the jury to but one of the offenses, and the State, at the close of its case, should have been required to elect upon which act it would rely for conviction. State v. Palmberg, 199 Mo. 233. (2) Defendant was entitled to a trial before the twelve men who had been selected according to law or at least he was entitled to twenty-four hours in which to make his challenge as to the last juror selected and sworn. R. S. 1899, secs. 2623, 2624; State v. May, 142 Mo. 135; State v. Hunter, 181 Mo. 316; State v. Holme, 54 Mo. 153; State v. Clark, 121 Mo. 500; State v. Steeley, 65 Mo. 218; State v. Degonia, 69 Mo. 485.

      John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
    (1) Under the laws there was no ground for asking the State to elect in this case. But one completed act was proved, viz., August 17, 1907, and the court instructed as to that alone. It was' the last act referred to; others only explanatory. State v. Palmberg, 199 Mo. 233; State v. Scott, 172 Mo. 542; State v. Hyde, 234 Mo. 226. (2) Defendant was entitled to twenty challenges (Sec. 5223); the State had eight (Sec. 5224). List of jurors to be furnished defendant twenty-four hours before trial (Sec. 5227). State v. Hunter, 181 Mo. 316. (3) The jury referred to in the statute is a jury of twelve men. Sec. 28, art. 2, Mo. Constitution. (4) Can one not selected as a member of the panel of forty become one of the twelve men constituting the jury? Goodwin v. State, 102 Ala. 87. (5) The testimony of Dave Nelson may have been incompetent; in the light of defendant’s cross-examination, and the facts, it cannot warrant a reversal. (6) The appellant objects to the remarks of the prosecuting attorney. State v. Allen, 174 Mo. 698; State v. Rasco, 239 Mo. 579; State v. Fenton, 248 Mo. 482. (7) The trial court cannot be convicted of error in such cases, when he has done all requested by appellant. State v. Hull-man, 225 Mo. 632; State v. Chenault, 212 Mo. 137; State v. Murphy, 201 Mo. 697.
   WOODSON, J.

This case came into Banc from Division No. Two, on a divided opinion of the judges, as to paragraph four thereof, regarding the rights of the defendant tó rechallenge the jury after one of the panel of twelve had become too ill to serve, as will be subsequently stated.

Upon the assignment of the case it fell to my lot to write the opinion of the court.

After a careful reading of the record and briefs of counsel for both parties in the case, as well as the opinion written by Judge Walker, I fully concur therein, except as to paragraph IV regarding the selection of the jury, as previously stated, to which I dissent.

This view of the case dispenses with the necessity of a restatement of the facts and a reconsideration of all the other errors assigned by appellant.

By permission, I hereto attach said divisional opinion and adopt it as my view of the law of the case, save and except said paragraph IV to which, as previously stated, I am unable to agree.

Regarding the proposition there stated, I will here state my views of the law governing it.

The simple question is, did the court err in refusing to grant appellant twenty-four hours in which to rechallenge the jury after Conyers had been excused from the panel of twelve and Powell had been substituted?

In my opinion that question must be answered in the affirmative, and my reasons for so stating will follow : . .

This question is governed by section 2623, Revised Statutes 1899, the same as section 5227, Revised Statutes 1909, which provides that after a list of forty jurors has been found to be qualified to try the case, it shall be delivered to the defendant at least twenty-four hours before the beginning of the trial, in order that he may have ample time in which to make his challenges.

Counsel for appellant insist that by excusing Conyers from the list and substituting Powell in lieu of him, and compelling him to go to trial instanter, the court deprived him of his statutory right of twenty-four hours in which to make his challenges.

On principle it seems to me that if the court can legally excuse one of the panel of twelve selected to try the case, and can immediately before the trial begins substitute another, and thereby deny the defendant the statutory time in which to make his challenges, after the substitution is made, then by parity of reasoning it seems to me that the court with equal authority could discharge the other eleven of the panel and order the sheriff to summon a new panel from the bystanders and proceed at once with the trial; and if that could be legally done, then why give the defendant twenty-four hours, or any other time, in which to make his challenges'? I submit there would be no reason therefor.

Bishop in his New Criminal Procedure (2 Ed.), volume 2, page 747, section 948, in discussing this question says:

“When a juror during the trial becomes too sick to proceed, the case may be taken from the panel, and tried before another at the same or a subsequent term. Or another juror may supply his place, but the prisoner should be given his challenges over again as to the eleven, they should be sworn de novo, and the trial' begin anew.”

And the Supreme Court of California, in the case of People v. Stewart, 64 Cal. 60, in discussing this question said:

“That .being so, it follows that the defendant was entitled, after the change had been effected, to all the challenges which the law gives him in the first instance. Within that limit he not only had a right to challenge the new juror, bnt likewise any or all of the original eleven. Bishop says, in snch a case, ‘the prisoner should be offered his challenges over again as to the eleven,’ and they ‘should be sworn de novo, and the trial begin again.’ In this case the ‘new juror’ only was challenged, and if the defendant had a right to challenge the eleven over again, he certainly had a right to challenge the new one.
“Instead of having a new juror sworn, the court might have discharged the original jury and impaneled an entirely new one. If that had been done, the right of the defendant to peremptorily challenge any of them would be no clearer than it is to so challenge the new juror called to supply the place of one discharged.”

In the case of Rex v. Edwards, 1 Russell & Ryan, 224, “The Twelve Judges of England,” in discussing the same question, used this language:

“In Easter term, 25 of April, 1812, this case was argued by Clifford for the prisoner, and Taunton for the Crown, before the judges (except Lawrence, J.) when all the judges were clearly of opinion that Mr. Baron Wood had the power of discharging the jury-in the manner above stated, and of charging a new jury with the prisoner.
‘ ‘ There appeared some doubt at first, whether the prisoner had had an opportunity afforded him of again challenging the eleven jurymen who had been sworn on the first jury; but, on inquiry, it came out that he had been asked whether he had any objection to any of them, and he said ‘No, he liked them all very well;’ and the conviction was held right.”

The same rule is stated in Rex v. Edwards, 4 Taunton’s Report, 309.

There are many other cases of like import in England and America.

This rule in the former country was laid down and established about the middle of the seventeenth century, and has been adhered to ever since.

After a careful investigation of this question I am clearly of the opinion, based upon both principle and authority, that the trial court erred in abridging appellant’s statutory time in which to make his challenges after Powell was placed upon the panel of twelve; and so believing I am of the opinion that the judgment of the circuit court should be reversed and the cause remanded for. a new trial. It is so ordered. •

All concur, except Walker, J., whose views are expressed in the following opinion filed in Division Two, in which all the judges concur except paragraph TV, which is not adopted by the Court in Banc:

“Defendant was convicted in the Dunklin Circuit Court at its November term, 1907, for carnally knowing a female child under the age of fourteen years, and sentenced to twelve years’ imprisonment in the penitentiary, from which' judgment he appeals to this court.
“Before the trial began, the record shows that after the panel of forty jurors found qualified to sit in the cause had been submitted to the defendant twenty-four hours before the trial, and each party had made his proper challenges and a trial jury of twelve men had been selected but not sworn, the State announced ready for trial, but defendant -announced not ready on account of the absence of material witnesses. The court thereupon at the request of defendant, it then being Saturday, continued the hearing of the cause until Monday, and said- jurors were permitted to go to their respective homes under the usual cautionary instructions of the court, and directed to return on the following Monday. Upon the convening of count on Monday, the State and the defendant announced ready for trial and all of said jurors answered to their names when called except one Conyers, who was reported by the sheriff and admitted by the defendant to be too sick to attend. The court thereupon asked counsel to agree upon another juror and defendant announced that he would not so agree. The court then instructed the sheriff to summon another man, and return him into court as such juror, and one Powell was so summoned and returned, and upon examination was found qualified, and directed to take his seat with the other jurors.
“Defendant objected and excepted to this action of the court, and upon being asked if he was ready to proceed with the trial, demanded twenty-four hours in which to challenge the jury as then constituted, and to that end filed a motion embodying the facts above set forth and asking, first, that the court order a new venire out of which a panel of forty qualified jurors may be empaneled, from which twelve jurors may be chosen by challenges to try said cause, and, second,, that the court quash the panel and grant him twenty-four hours in which to ascertain whether he shall peremptorily challenge the juror so chosen. This motion was by the court overruled, and the defendant was required to proceed to trial before the twelve jurors so-chosen.
“A detailed statement of the facts will serve m> good purpose.
“The latitude permitted by the trial court in the admission of testimony was as broad and comprehensive as that of a French Court of Assizes. Hearsay, Rumor and Opinion jostled elbows with each other on the witness stand frequently, both at the behest of the State and the defendant. Much of this testimony, however, was irrelevant rather than prejudicial; when prejudicial, exceptions thereto were not saved except as noted in the assignment of errors. The principal evidence for the State is that of the child who testifies unequivocally in support of the truth of theallegations in the information, fixing the date of the offense on August 17, 1907. Her testimony is corroborated as to her physical condition subsequent to the time the offense was committed, by physicians who, on cross-examination, gave it as their conclusion as experts that the absence of evidence of virginity found in the person of the child, ‘might have been due to another cause than sexual contact. ’ In addition a number of circumstances were shown to corroborate her testimony, some pertinent, others not so. The defense consisted in the •denial by the defendant of the crime; testimony contradicting several of the State’s witnesses on collateral matters; proof of defendant’s former good character; and testimony in the attempt to show a motive for the prosecution on the part of others than the child, based on ill-will towards the defendant.
“The defendant assigns as error: The admission of hearsay testimony; refusing to require the State to elect upon which of the alleged offenses it would rely for conviction; requiring the defendant to go to trial before a jury not selected according to law; and in not rebuking the prosecuting attorney for improper remarks.
'“The first clause of section 4471, Revised Statutes 1909, denounces the crime upon which this prosecution was based, viz., the carnal and unlawful knowing of a female child under the age of fourteen years.
“Preliminary to the discussion of the errors assigned by defendant, upon which he asks a reversal, a few general observations may not be inappropriate.
“I. No offenses known to the calendar of crime are more repugnant to the normal mind than those involving the sexual relation. Murder in any form unattended by provocation, arouses indignation and prompts a desire free from personal prejudice, that certain justice be meted out to the offender; while rape anc^ kindred crimes for the punishment of which modern statutes prescribe heavy penalties, are regarded not only with indignation but horror and disgust. Certain jurists, cognizant of this condition of the public mind and prompted somewhat perhaps by the admonition of Lord Hale that crimes-of this character ‘are easy to he made, hard to be proved, and still harder to he defended,’ have indicated a tendency in their opinions to require on the part of the State a greater quantum of proof and to apply a stricter measure to the credibility of witnesses, for the prosecution in these cases than in others.
“Fortunately for the wholesome administration of the criminal law, the tendency indicated has not fettered the State’s hands or increased the latitude allowed defendants. In State v. Sechrist, 226 Mo. 574, syl. 4, in discussing the credence to be given the uncorroborated testimony of a child, the prosecutrix in a rape case, this court, speaking through Gantt, J.,. said: ‘The statutes on incest and rape attest that these crimes are within the experiences of courts and legislatures, and to authorize the Supreme Court to reverse the judgment because of the weakness of the testimony, the verdict must he irreconcilable with human experience; and though the record presents a case that challenges credulity, yet if the testimony of the prosecutrix is true, and is not irreconcilable with human experience, and if true defendant is guilty, the Supreme Court will not interfere.’ State v. Tevis, 234 Mo. 276, announces a like doctrine. These whole-, some general deductions and others of like nature to be found in our reports, have been potent in neutralizing whatever of ill is to he found in the opinions referred to.
“II. The defendant complains of the admission of hearsay testimony. A witness for the State, named Dave Nelson, was asked on direct examination this question: ‘Q. I will ask you if your wife told you that Altha McKinney told her how her father was treating Altlia? To which he replied: ‘Yes, sir, she did.’ After his answer, counsel for defendant said: ‘Defendant objects to that as hearsay.’ The court’s response was: ‘Proceed.’ The only effect of this testimony was to elicit the source of the witness’s information in regard to the offense with which the defendant was charged. That it was wholly irrelevant is without question, but in what manner defendant was injured by its admission we are unable to determine either when considered alone or in connection with all of the other testimony. The admission of non-prejudi■cial testimony is not material error. This contention is, therefore, ruled against the defendant.
‘ ‘ III. The defendant contends that error was committed in not requiring the State at the close of the testimony to elect upon which offense it would rely for conviction. While the . 1 , . , prosecutrix gave general testimony as to a nilmber of prior offenses committed by defendant against her of the character named in the information the last and the only one in which the time was definitely fixed was that of August 17,1907. ‘There is,’ as was said in effect in State v. Palmberg, 199 Mo. l. c. 248, ‘no hard and fast rule as to when the State shall elect and each case must be ■determined upon its merits.’ When several acts are put in evidence to make out a case, it is not error that an election is not compelled. Primarily an election as to offenses rests in the sound discretion of the court. [State v. Green, 66 Mo. l. c. 644; State v. Hargraves, 188 Mo. l. c. 348; Whar., Cr. Pl. & Pr. (9 Ed.), sec. 295.]
“Evidence of other acts of a like character was not introduced in this case to prove substantive offenses upon which a conviction might be had, but in corroboration and explanation of tbe evidence of the act charged. [Mitchell v. People, 24 Colo. 532.]
“The necessity of an election is not apparent when; as in the case at bar, bnt one .offense was clearly proved. In its instructions the court limited the jury to the 17th day of August, 1907, as the date of the alleged of: fense to be considered by them in arriving at their verT diet. "With the proof and the instructions both pointing to one definite date, the refusal of defendant’s request for an election is not prejudicial error. A case in point is that of State v. Sechrist, supra, in which it is held that while evidence of acts, if any prior to that definitely proved, may be admitted as tending to prove or disprove the act on which the conviction is sought, their admission in evidence does not require the State to elect upon which act of intercourse it will seek a conviction. In view of all of the facts, defendant’s contention in this regard is without merit.
“IV. Defendant complains of the manner in which the jury was selected. He made no objection to the array but challenged peremptorily the number to which he was entitled, the State did likewise and. a qualified trial panel of twelve was thus selected. Defendant’s motion thereafter to quash the array was too late (State v. Jeffries, 210 Mo. 302); if it had been filed in-time, no reason was assigned therefor except that the array had been improperly selected. This was insufficient, the motion should have specified in what the improper selection consisted; it not appearing what right of the defendant was violated by the alleged improper array, the overruling of his motion in this was not error. [State v. Brennan, 164 Mo. 487.]
“But defendant contends that although he assented to the selection of the trial jury and announced ready for trial, before the jury was sworn, the court, upon being apprised that one of the panel was ill and unable to attend, which defendant admitted, another juror was directed to be summoned by the court, who upon being found qualified was seated in the jury box, thus completing the trial panel. After which, against defendant’s objections, the jury was sworn to try the issue and the cause was proceeded with.
“Unless some constitutional or statutory right was violated in the selection of the last juror, defendant’s contention is not tenable.
“The Constitution requires, first, that the right of trial by jury as heretofore enjoyed shall remain inviolate; and, second, that the accused shall be given a speedy public trial by an impartial jury of the county. The first provision has reference to the right of trial by jury as it existed at the time of the adoption of the Constitution. [State v. Bockstruck, 136 Mo. 335.] This provision is found in the same words in the Constitutions of 1820, 1865 and 1875, and must, therefore, refer to the right as it existed at the time of the adoption of the first Constitution. The words ‘heretofore enjoyed’ employed in the provision, do not apply to common law juries only, but to such as were authorized before and at the time the Constitution was adopted. [State ex rel. v. Holtcamp, 235 Mo. l. c. 237.] Prior thereto it was provided in the Territorial Laws (p. 123, sec. 62) that ‘in all criminal cases the trial shall be by a jury of twelve good and lawful men of the vicinage;’ this, therefore, is the ‘right heretofore enjoyed’ which the Constitution prescribes shall remain inviolate. The second provision is nothing more than a declaration, in express terms, of the right granted in the first, with the addition of the words ‘a speedy public trial.’ What difference, as affecting the right granted, can there be between an ‘impartial jury of the county’ and ‘twelve good .and lawful men of the vicinage ? ’ The only difference, therefore, between the two provisions is as to the manner in which their mean-i-ng is to be determined; tbe first requiring reference to other laws, the second defining itself by its own terms. There is nothing in this case to indicate that the defendant was not fully accorded the right granted him under the Constitution, viz., to a trial by an impartial jury. This being true, his contention so far as the Constitution is concerned, is without foundation.
“Was any statutory right of the defendant violated in the selection of the twelfth juror? Defendant contends among other things that he should have been given twenty-four hours within which to determine whether he would peremptorily challenge said juror. There is no statutory authority for this contention. After defendant had participated in and consented to the selection of the trial jury, upon the necessity subsequently arising for the selection of another than one of the twelve impaneled, defendant’s right was limited to a challenge of the substituted juror for cause. This he did not exercise and he raises no objection to the juror’s qualifications. Early in the judicial history of this State it was held that after a trial panel had been selected, and before it was sworn, a juror might be excused or discharged, and another substituted in his stead, for reasons satisfactory to the court. [State v. King, 1 Mo. 717.] This power is not questioned unless it is shown that the defendant has thereby been prejudiced. If precedents were needed to support this conclusion, many are to be found in our reports construing different phases of the law in regard to the selection of juries and showing the large discretionary power given to trial courts in this regard. A recent cage which may stand as a type for the others is State v. Yandell, 201 Mo. l. c. 659. In this case in the impaneling of the jury, the sheriff returned into court a special venire of forty, from which a panel of thirty men qualified as jurors was selected; the respective parties made their challenges and from this panel of thirty, twelve jurors were selected to sit upon the trial of the cause; thereafter one of said jurors was excused by the court from further service because of the sudden illness of his wife; thereupon the court adjourned until the next morning when they again convened and another was submitted as a juror instead of the one excused; the substituted juror was duly qualified and the jury sworn to try the cause. Before the trial began, the defendant filed a motion to discharge the jury upon the ground that he was entitled to twenty peremptory challenges, whereas he had only been allowed twelve. The court held that his objection was not timely, the motion was overruled, and upon appeal the action of the trial court was held not to be reversible error.
“The rule announced in the Tandell case is well established in other jurisdictions. It is stated generally by Bishop that ‘if a juror becomes ill after he is selected on the trial panel, and before the jury is sworn, the court may excuse him and select another in the usual course.’ [2 Bishop’s New Cr. Proc. (4 Ed.), sec. 948.]
“A case decided by the Supreme Court of Georgia is pertinent. After a trial panel had been selected but not sworn, and a day and a night had elapsed before the proceeding was resumed, one of the jurors became sick and unable to servé. The court upon being satisfied as to the juror’s illness, discharged him and proceeded until another juror was selected and the panel completed. The court held that this was not error; that it was immaterial how the fact of the sickness was shown, if the trial judge was satisfied that it existed, and that the consent of counsel was not necessary to the validity of the court’s action. [Ozburn v. State, 87 Ga. l. c. 177.]
“In Michigan a like rule prevails and ‘before a juror has been sworn in the cause, the judge may excuse him for any reason personal to the juror which seems to the judge sufficient.’ [People v. Carrier, 46 Mich. 442.] In a later case, the same court declares that ‘the circuit judge is invested with a certain degree of discretion in the selection of jurors for. a panel. Such discretion is to he exercised in seeing that proper and competent men are selected; and so long as the case of the parties is not prejudiced by the exercise of such discretion, they cannot complain.’ [People v. Barker, 60 Mich. l. c. 289, 1 Am. St. l. c. 506.]
“In short, the generally accepted view is that the defendant in a criminal case is not prejudiced by even the rejection of proper jurors, so long as an impartial jury is obtained. [Hurley v. State, 29 Ark. 17, 22; People v. Arceo, 32 Cal. 40; Stratton v. People, 5 Colo. 276.] In People v. Arceo, supra, Sawyer, J., said: ‘A party is entitled to a lawful jury,' but no decision has been brought to our notice to the effect that under all circumstances he is, as a matter of absolute right, entitled to have the first juror called who has all the statutory qualifications. ’
“Prom all of the foregoing it is evident that defendant has no valid ground for objecting to the impaneling of the twelfth juror.
“V. Defendant assigns as error the remarks of the prosecuting attorney in his closing argument to the jury, which were as follows: ‘ Gentlemen of the jury, if it were not for the secret of the prison bars you would not have any doubt or trouble in arriving at your verdict. ’ What is meant by this remark we are unable to ■ determine, but it certainly contains nothing which could have prejudiced the defendant in the minds of the jury. This is the test to be applied to such remarks and unless they disclose matter which may tend to injure the accused, they do not merit consideration. Besides, when the remark complained of was made, the court promptly admonished the prosecuting attorney to keep within the record. This was sufficient to remove any sting in the remarks if they had not heen utterly meaningless. The character of this case would have justified strong denunciation by counsel for the State. The bestiality of the defendant disclosed by the testimony, has fortunately few parallels.”