author: LAMM, J.

text:
    LILY B. WHITECOTTON, Administratrix, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant.
    Division One,
    May 31, 1913.
    1. ATTORNEY’S LIEN ACT. The constitutionality of the Attorney’s Lien Act is no longer an open question, its validity having been determined in numerous decisions.

      2. --: Sum Recoverable. Where the attorney’s written contract with his client was that he was to receive one half the sum collected, and after suit brought the defendant settled with the client for $400, the trial court erred in entering judgment for $400 for the attorney’s administratrix on the theory that the true compromise sum was $800, and that defendant had paid over to the client her $400 and held back the attorney’s half. The Attorney’s Lien Act does not take away from the client the right of making a settlement of the lawsuit and giving an acquittance, subject to his attorney’s right to the value of his lien; it merely protects the non-consenting attorney against ultimate loss by the deforcement of his statutory lien to the extent of the value thereof. So that where a settlement is made by the client prior to final judgment, which is not affirmatively shown to have been covinously intended as a fraud on the attorney, which covers the litigant’s whole claim or cause of action, and which does not show that the client had only settled and received his own part, the measure of the attorney’s recovery against the settling defendant is the attorney’s contractual percentage of the compromise sum received by the litigant.
    3. -:---: Deduction of Costs. In arriving at the sum to be paid the attorney, the costs of the compromised litigation should not be deducted from the gross sum paid the client. The attorney’s share is his contractual percentage'of that gross sum.
    Appeal from Hannibal Court of Common Pleas.— Hon. David H. Eby, Judge.
    Reversed and remanded (with directions).

      Mahcm, Smith S Mahan and Hostetler é Haley for appellant.
    (1) The court erred in finding for the plaintiff in the sum of $400. Plurr v. Eailroad, 141 Mo. App. 217; Stevens v. Eailroad, 157 Mo. App. 656. Assuming that the authorities hear out the contention that the bringing of a suit and service of process on a defendant dispenses with the service of a notice by the plaintiff’s attorney that he has a lien on his client’s cause of action, yet it must be conceded that there is nothing which would impart notice to the defendant of the aliquot part of the client’s recovery the attorney would be entitled to under his contract. (2) In the case at bar Mrs. McCune, the client, received from the defendant $400 less $75 costs, so that her recovery from the company was in reality $325 instead of $400. It would be grossly inequitable in any event to award an attorney working on a fifty per cent basis, the full gross amount realized by the client, without taking into consideration the burden incident to the recovery. The attorney must share the burdens incident to the recovery. In the case at bar he is getting more than his client. (3) The decisions which seem to bear out the contention that the attorney under a fifty per cent contract is entitled to recover as much as the settlement yields to the client, predicate such holding on the existence of an agreement between the defendant and the client who makes the compromise, that the defendant would pay off and discharge the attorney’s fees. Under the agreed statement of facts no such agreement either express or implied was entered into between the defendant and Mrs. McCune.

      Wliitecotton & Wight for respondent.
    Under the contract “in this case the respondent was entitled to recover the sum of four hundred dollars, under the authority of the admitted facts in this case and the case of Curtis v.DRailroad, 118 Mo. App. 341. Undqr the stipulation to dismiss the pending suit there was no agreement as to the payment of the costs of the case. The amount paid Mrs. McCune under the agreed statement of facts, was understood by the parties making the settlement, to be her personal and individual property, not in any way impressed with her attorney’s lien for his fee. If this be true, this sum so paid did not include the percentage compensation due and owing her attorney under this contract. Mr. 'Whitecotton was, under his contract, to have an equal amount to that'received by Mrs. McCune, his client, and this the defendant company well knew when it made the settlement. The agreed statement of facts filed in this case admits that Mrs. McCune received said sum of four hundred dollars from the appellant as her own individual share of the proceeds of the suit, and it was intended by the parties making the settlement, that the proceeds of the four hundred dollars should in no way be affected or diminished by any claim or lien of her attorney. In order for the settlement to be valid against her attorney, the same must have been made by the parties without any intention of a repudiation of her attorney’s lien on the sum paid. The facts in this case clearly show that there was no intention to impress said sum with any lien of her attorney in any way, and therefore was paid and accepted as her absolute interest in said cause of action, and this being so the parties fixed the amount due and owing by appellant to her attorney at the sum of four hundred dollars. Curtis v. Railroad, 125 Mo. App. 369.
   LAMM, J.

Plaintiff, administratrix of her deceased husband, George W. Whitecotton, sued defendant to recover $400 under the Attorneys’ Lien Act.

The case is this: One McCune, a woman, employed decedent, an attorney, to collect damages for personal injuries claimed to have been received by hei while a passenger on one of defendant’s trains. The terms of the agreement were that he had full charge of the claim and of its- compromise, prosecution or settlement by suit or otherwise, on a contingent fee of one-half collected, and no compromise, settlement or other disposition was to be made except through his supervision or agency and by his consent and agreement.

Presently, failing to obtain settlement out of court, decedent brought suit for McCune, laying her damages at $6000. After petition filed and service of process, McCune and defendant put their heads together, and, without consulting decedent or obtaining any release from him, settled the claim and suit, dismissing the latter by stipulation signed by them, for the agreed compromise sum of $400. The compromise settlement was a writing, reading:

St. Louis & Hannibal Railway Go.,
To Lula J. McCune, Hannibal, Mo., Dr.
March 20, 1905.
For and in consideration of the sum of four hundred dollars to me in hand paid and receipt of which is hereby acknowledged this 20th day of March, A. D. 1905, I, Lula J. McCune, release and discharge the St. Louis & Hannibal, Railway Company fro-m all claims and damages which I may have, or may he entitled to have, against the aforesaid railway company, for any and all loss, damage or right of action which has resulted or accrued, or which may hereafter result or accrue to me by reason of injury to myself on March 25, 1903, at Center, Missouri, while a passenger on a train of the above railway company, and for which claim and injury I now have a suit against the St. Louis & Hannibal Railway Company pending in the circuit court of Ralls county, Missouri. It is further agreed that my said suit shall be dismissed at the next term -of said court, and I hereby authorize the said railway company to have such entry of dismissal properly made.
Correct, and when properly receipted, Bank of Hannibal is hereby authorized to pay and charge to account of the St. Louis & Hannibal Railway Co.
Approved: J. M. Wobland, Auditor.
Paid out of Auditor’s funds. Signature of claimant,
Lula J. McOu:te.

No notice in writing of the McOnne-’Whitecotton contract was served on defendant at any time as provided by Revised Statutes, 1909, section 965. But defendant did have the notice implied by the bringing of the suit and service of summons, decedent appearing as attorney of record, under section 964.

{Note: It is not contended, nor could-it be under such circumstances, that the Attorneys’ Lien Act was not operative in favor of decedent. Taylor v. Transit Co., infra, 198 Mo. 715.)

Defendant, by answer and instructions in the instant case, challenged the constitutionality of the Attorneys’ Lien Act in a bristling array of particulars. So, in one refused instruction it asked the court to declare the law as follows:

“The court declares the law to be that under the pleadings and agreed statement of facts, plaintiff is not entitled to recover an amount in excess of $200.”

The cause was tried on an agreed statement of facts, the substance of which (except as to a provision relating to the payment of costs in the original suit, of which more presently) we have given.

The court, sitting as a jury, found for plaintiff in the sum of $400 and rendered judgment therefor — that is, the court indulged the theory that in fact the true compromise sum was $800, and that defendant had paid over to McCune her $400 and held back decedent’s half.

On due steps taken, defendant appealed. Thereat the trial court ordered the appeal sent to the St. Louis Court of Appeals. That court on motion transferred it here. And here it is.

The foregoing is sufficient statement for appellate purposes.

I. The constitutionality of the Attorneys’ Lien Act on grounds presented nisi (which for brevity we omit) is not a new or an open question; contra, it has passed into the realm of a thing adjudged. [O’Connor v. Transit 198 Mo. 622; Taylor v. Transit Co., 198 Mo. 715; Wait v. Railroad, 204 Mo. 491; Taylor v. Railroad, 207 Mo. 495.]

Indeed-appellant’s counsel frankly concede in substance that, like the bumble bee, tlieir defense on constitutional phases was biggest when first hatched; that, to change the metaphor, the life is out of their constitutional points. Accordingly in their last brief they no longer ask us to reopen those foreclosed questions, but impliedly agree that the maxim stare decisis applies. Accordingly we pass those questions by.

This disposition of them would put a question mark on our jurisdiction, if it were not that appellant seems to justify jurisdiction (and respondent seems silently to agree thereto) on the ground that the interpretation of the Attorneys ’ Lien Act, from certain constitutional angles, remained somewhat open at the time of the appeal. In that view of it, and because the St. Louis Court of Appeals certified the case to this court for that, in its opinion, constitutional questions were in it, we retain jurisdiction — whether ex gratia or ex debito justitiae, we say not.

II. We hold that defendant’s instruction limiting recovery to not more than $200 should have been given, hence the judgment for $400 must be reversed —because:

To avoid an improper interference with freedom of contract, it has been uniformly held that the Attorneys’ Lien Act does not take away from a ciieut the right of making an adjustment and giving an acquittance, subject to attorney’s right to the value of his lien. A litigant under that act may still, as before, heed the scriptural admonition, Agree with thine adversary quickly whilst thou art in the way with him, and thus by compromise avoid or discount certain uncertainties (and other ills) of litigation. Not only does every scheme of law in every refined nation favor settlements of disputes, but the very adages of the fireside run on all-fours, to-wit (for example): A lean compromise is better than a fat lawsuit; Fond of lawsuits, little wealth — fond of doctors, little health; He who is fond of maintaining an action will soon be without means of maintaining himself. So, I remember. to have read somewhere in an idle moment that old Plautus said: Little do you know what a gloriously uncertain thing the law is; and again: You little know what a ticklish thing it is to go to law.

But (and much closer home) the act merely protects the non-consenting attorney against ultimate loss by the deforcement through such settlement of his statutory lien (his security, or right in the cause of action) to the extent of the value thereof. [Taylor v. Transit Co., 198 Mo. l. c. 730; and cases supra.]

Courts, however astute and liberal in allowing remedies and in enforcing the act to its full intendment in advoidance of mischiefs it was intended to prevent, have been constrained to rule that, present a settlement prior to final judgment (which is not affirmatively shown by the proofs to be convinously intended as a fraud on the attorney) which settlement covers and disposes of the litigant’s whole claim or cause of action (aiid which does not show that the client had only settled and received his own part of the claim, leaving the attorney’s part back, buttoned up in the unfriendly pockets of defendant) — we say, absent a showing of such particular Mnd of fraud or partial settlement, as here,, and present a complete and undisturbed settlement between the client and his adversary of the whole claim, as here, then the measure of the attorney’s recovery against the settling defendant is the attorney’s contractual percentage of the compromise sum actually received by the litigant — no more and no less. [Hurr v. Railroad, 141 Mo. App. 217; Stephens v. Railroad, 157 Mo. App. 656; Curtis v. Railroad, 125 Mo. App. 369; Wait v. Railroad, 204 Mo. 491; Boyd v. Mercantile Co., 135 Mo. App. 115.]

On re-examination, we find the reasoning of those cases to be satisfactory. The rule laid down works out practical justice, and but follows cases in New York from whence in great part we borrowed the act. [Morton v. Forsee, 249 Mo. 409.]

On the authority of the eases cited, supra, this judgment must be reversed and the cause remanded with directions to the lower court to enter judgment for plaintiff in the sum of $200.

We see no substance in appellant’s contention that there should be first taken from the gross compromise sum of $400 the costs of the original litigation before getting at the attorney’s share by dividing by two. Should the value of the attorney’s lien take color or be in aught abated because of the after uses his client put her money to? If so, wherefore? Or because the settling defendant paid costs? That would be a novelty of small value in administering the law. Besides that, decedent and McCune did not so agree. Non hciec in foedera veni. Indeed defendant’s learned counsel had little faith in that theory when they asked the quoted instruction. Their theory then apparently was that their client owed decedent fifty per cent of the $400 paid McCune, if any thing.

Let the judgment be reversed and the cause remanded to be disposed of as directed. It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    ALICE BYRNE v. JAMES BYRNE et al., Appellants.
    Division One,
    May 31, 1913.
    1. WILL CONTEST: Incapacity not Pleaded: Eliminating Instruction Necessary. Where the petition in the suit to set aside a will does not count upon mental incapacity to malte a will, but charges mental and physical weakness as producing a mind easily influenced, in connection with the charge of undue influence, fraud and deception, the court should give an instruction asked by proponents telling the jury that “there is no evidence of mental incapacity submitted for your consideration.” The issue of incapacity should have heen taken out of the case.
    2. -: Fraud: Gift Subject to Burden: Prior Information: Not Paid. The fact that testator told one of his sons that he intended by his will to give him certain lands and require him to pay to a grandchild a few hundred dollars in gross and an annual sum during her minority, and that said sums were not paid by said son, is not evidence of fraud, and the court erred in not giving an instruction asked by proponents telling the jury that they did not constitute fraud.
    3. -: Fiduciary Relation: Burden. Where there is evidence that a son was managing the testator’s business for a year or more before the will was made, there is such a showing of a fiduciary relation as shifts to such son the burden of showing the will, in part drawn by him, was not the result of his undue influence.
    4. -: Undue Influence: By Wife. Where the evidence does not show that testator was incapacitated to make a will, but does show a mental weakness that would place him largely in the hands of those surrounding him, testimony that he wrote three items of the will, and that his wife after much coaxing persuaded him to permit a son who was managing his business to finish it, and that she coaxed testator to cut down a gift of six hundred dollars to a grand-daughter to four hundred, is evidence that the wife unduly influenced the testator whilst he was in the very act of drawing the will.
    5. ---: -: Unequal Distribution. An unequal distribution of testator’s property among his heirs is a circumstance to be considered in connection with the issue of undue influence.

      Appeal from Jefferson Circuit Court. — Now. Joseph J. Williams, Judge.
    Beversed and remanded.

      John H. Reppy and By ms & Bean for appellants.
    There was no evidence of fraud on the part of James Byrne, as charged in the amendment made to plaintiff’s petition, and the court erred in giving instruction 5. McAtee v. Yalandingham, 75 Mo. App. 53; McQuillin’s Instruction to Juries, p. 67, par. 95. (2) The amount given to Alice Byrne was a charge on the real estate devised to James Byrne. Murphy v. Carlin, 113 Mo. 113. The failure of James Byrne to pay Alice Byrne sis dollars annually during her minority did not tend to establish fraud and such evidence was not competent. Schierbaum v. Schemme, 157 Mo. 17. (3) The court erred in permitting William Delaney to testify that Peter Dunnigan had told him that Alice was to receive sis dollars a month and that the will had been scratched by John. McPadin v. Catron, 120 Mo. 263. (4) “The influence denounced by the law must be such as amounts to an over-persuasion, coercion, or force, destroying the free agency of the testator. It must not be merely the influence of affection or attachment nor the desire of gratifying the wishes of one beloved and respected.” Jackson v. Hardin, 83 Mo. 183; Eiley v. Sherwood, 144 Mo. 368; Tibbe v. Kamp, 154 Mo. 579; Sehr v. Linderman, 157 Mo. 11; McPadin v. Catron, .138 Mo. 218; Seibert v. Hatcher, 205 Mo. 83; Martin v. Bowderman, 158 Mo. 392; Ginter v. Ginter, 22 L. E. A. (N. S.) 1024. (5) The court erred in refusing the instructions requested by defendants. Hughes v. Eader, 183 Mo. 708; Tibbe v. Kamp, 154 Mo. 579; Eiley v. Sherwood, 144 Mo. 366; Martin v. Bowderman, 158 Mo. 392; Carl v. Gabel, 120 Mo. 294.

      George Safford and R. A. Frazier for respondent.
    (1) Absolute or partial disinheritance is evidence of undue influence. “Where the will is unreasonable in the provisions, and inconsistent with the. duties of the testator with reference to his property and family— this, of itself, will impose upon those claiming under the instrument the necessity of giving some reasonable explanation of the unnatural character of the will.” Mowry v. Norman, 204 Mo. 192; McFadin v. Catron, 120 Mo. 271; Gray v. Gillilan, 92 Mo. 264; Benoist v. Murria, 58 Mo. 312; 1 Redf. on Wills, 537; 1 Redf. on Wills (2 Ed.), 520-521; Lynch v. Clements, 24 N. J. Eq. 431; Harrell v. Harrell, 1 Duv.°(Ky.) 203. (2) While the courts have gone to great lengths in sustaining the full abstract and concrete power of testamentary disposition, they also recognize the evil that springs from the itching and meddlesome disposition of outsiders, to make wills for others — to make a wiser distribution of their property than they have done— and have, in many cases, shown their inclination to check that evil by curbing that disposition, and by upholding the right of the owner of an estate to dispose of it as he elects. Meier v. Butcher, 197 Mo. 86. (3) In all transactions between persons occupying relations, whether legal, natural or conventional in their origin, in which confidence is naturally inspired, is presumed, or in fact reasonably exists, the burden of proof is thrown upon the persons in whom confidence is reposed to show affirmatively that no deception is practiced, no undue influence used, and that all was fair, open, voluntary and well understood. Egger v. Egger, 225 Mo. 137; Adams v. Adams, 81 111. App. 639; Mott v. Mott, 49 N. J. Eq. 192; 1 Story, Eq. Jur., secs. 246, 311; Malin v. Malin, 2 J'ohns. Ch. 238; Bigelow on Fraud, 265; Simpler v. Lord, 28 Ga. 52; Allore v. Jewell, 94 U. S. .511; Harding v. Handy, 11 Wheat. 103; 8 Am. & Eng. Ency. Law, p. 1310; Yoakum v. Yoakum, 77 111. 85; Martin v. Martin, 57 Tenn. 654; Thomas v. Whitney, 186 111. 225; Walker v. Shepard, 210 111. 110. (4) Mere acquiescence in the fraud or undue influence of another is sufficient. Cowan v. Shaver, 197 Mo. 214. (5) A son may stand in a fiduciary relation to his own father. Mowry v. Kettering, 204 Mq. 191. (6) There may he a fiduciary relation between husband and wife. Egger v. Egger, 225 Mo. 144. (7) Where a devise or legacy has been given by a testator to one occupying a fiduciary relation to him, proof of the existence of such a relation raises the presumption of undue influence which will be fatal to the bequest, unless rebutted by proof of full and free deliberation and spontaneity on the part of the testator, and good faith on the part of the devisee or legatee. Bradford v. Blossom, 207 Mo. 177; Dausman v. Rankin, 189 Mo. 703; Carl v. Gabel, 120 Mo. 297; 1 Woerner’s Amer. Law of Adm. (2 Ed.), sec. 32. (8) It is a suspicious circumstance that the principal beneficiary writes the will, and undue influence may be inferred therefrom; Berg v. Moreau, 199 Mo. 431; Roberts v. Bartlett, 190 Mo. 702; Harvey v. Sullens, 46 Mo. 151; Barry v. But.lin, 1 Curteis Ecc. 637; Crispell v. Dubois, 4 Barb. (N. Y.) 393; Carl v. Gabel, 120 Mo. 297. (9) .The change from $600 to $400 can be most naturally explained as the result of an interested, not to say mercenary mind of a person or persons having dollars rather than paternal love in mind, and it is not likely to have been a thought originating with the devout Catholic grandfather in extremis. Berg v. Moreau, 199 Mo. 431. (10) A failure to provide for dependent children, while providing for independent ones, is competent evidence of testamentary incapacity, as well as undue influence. Mowry v. Norman, 223 Mo. 470; Thompson v. Ish, 99 Mo. 160; Schouler on Wills (3 Ed.), p. 262; 28 Am. & Eng. Ency. Law (2 Ed.), pp. 106-7; Meier v. Butcher, 197 Mo. 87. (11) Advanced age, long physical suffering, great mental anxiety, rheumatism, and a. stiff knee, a decline in general health, the keeping of a rough and incorrect account book, failing memory, and a contract to give a tenant one-half of the crops, each party to pay half of the expenses, is evidence of unsound mind. McFadin v. Catron, 120 Mo. 267. The provisions of the will tend to show mental incapacity. Mowry v. Norman, 223 Mo. 470. (12) As the physical condition has much to do with the mental, the physical condition of the testator may be considered. Roberts v. Bartlett, 190 Mo. 701; Meyers v. Hanger, 98 Mo. 438. (13) Statements of the testator, either before or after executing the will, are admissible to show mental condition and the state of his affections. McFadin v. Catron, 120 Mo. 266; Bush v. Bush, 87 Mo. 485. (14) Moral command asserted and yielded to for the sake of peace and quiet, or escaping from distress of mind or social discomfort, if carried to a degree in which the free play of the testator’s wishes is overborne, will constitute undue influence, though no force is either used or threatened. Gay v. Gillilan, 92 Mo. 261. (15) A promise to provide for a third party by a devisee not intending to do so, is fraudulent, and avoids the will. Gordon v. Burris, 153 Mo. 229. (16) The testimony of James Byrne that he did not pay plaintiff the money the will required him to pay her during her minority, is admissible, as tending to show bad faith. Gordon v. Burris, 141 Mo. 618. (17) A will contest is a civil cause, and the court is not required to instruct the jury of its own motion. Farmer v. Farmer, 129 Mo. 539. (18) The instructions should not be closely scanned, because even if there were error, that would not justify reversal, because the verdict is for the right party. Von De Veld v. Judy, 143 Mo. 367; Vogg v. Railroad, 138 Mo. 172; Greer v. Bank, 128 Mo. 559; Fox v. Windes, 127 Mo. 514; McFarland v. Heim, 127 Mo. 327; Fitzgerald'v. Barker, 96 Mo. 661; Brobst v. Brock, 10 "Wall. 519; Osborne v. Morgan, 127 Mass. 1; Norton v. Paxton, 110 Mo. 462. (19) There v/as ample evidence of fraud on tlie part of James A. Byrne, as charged in the amendment made to plaintiff’s petition, and the court did! not err in giving instruction 5. Silence when one is under obligation to speak, is as much fraud as active misrepresentation, and this is true, even though the duty to speak be only a moral duty. McAdams v. Cates, 24 Mo. 223; Manter v. Truesdale, 57 Mo. App. 435. (20) The case clearly should have been submitted to the jury. Smith v. Hutchison, 83 Mo. 691. (21) “The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed; or affected by reason of such error or defect.” R. S. 1909, secs. 1850, 2082; Friedman v. Williamson, 220 Mo. 217; Mann v. Doerr, 222 Mo. 1; Berry v. Railroad, 214 Mo. 593; Stumpe v. Kopp, 201 Mo. 412; Cross v. Gould, 131 Mo. App. 585; Armelio v. Whitmann, 127 Mo. App. 698.
   GRAVES, J.

Action contesting the last will of Patrick Byrne, who died in Jefferson county, Missouri, July 5, 1891. The instrument was executed June 20, 1891, and probated August 8, 1891. Plaintiff is the grand-daugliter of the deceased, and the defendants are his widow and surviving children. All (with plaintiff and defendants) are mentioned in the will as devisees. We construe the grounds upon which the will is contested to be (1) undue influence, (2) fraud, (3) deceit. Mental incapacity is not a specified ground of this contest, although the physical and mental condition is pleaded as tending to show that the testator could be unduly influenced, or easily tricked, defrauded or deceived. Such are taken to be the pleadings, but out of abundant caution, we will give the language of the petition. For grounds the petition avers:

“That at the time at which said pretended will was executed, for several years prior thereto, and at all times thereafter during the life of said testator, the said Patrick Byrne was physically delicate, weak and infirm; and that during all that time he was suffering with asthma, physical weakness, mental debility and other derangements; that at the time the said Patrick Byrne executed and signed the said paper purporting to be the last will of the said Patrick Byrne, and for a long time prior thereto, as aforesaid, the said Patrick Byrne was by reason of his'affliction and condition dependent upon others in the management of his affairs; and at the time said Patrick Byrne executed and signed said purporting will, and for some time theretofore, the said Patrick Byrne advised with, confided in and trusted the management of his affairs to the defendants, John Byrne, James Byrne and Rose Byrne, and that said John Byrne and James Byrne were at all such times strong, active, intelligent, shrewd men, in the prime of life, living with the said testator, Patrick Byrne, and; in the general charge of his affairs; and that the said Rose Byrne was at all such times the wife of the said Patrick Byrne, a woman in good health, and in general charge of the said testator and his home; that the said alleged will was prepared and drawn, or procured to be prepared and drawn by the said defendants, John Byrne, James Byrne and! Rose Byrne, to whom unreasonably large poidions of said estate purport to be bequeathed and devised, as aforesaid; and the execution thereof was procured by fraud and undue influence of the said defendants, John Byrne, James Byrne and Rose Byrne, upon the said tesiator, Patrick Byrne, in fraud of and to deprive this plaintiff of her rights as an heir' at law of the said deceased, Patrick Byrné, testator; that both the execution of said instrument and the probate thereof as and of the last will and testament of the said Patrick Byrne were brought about by fraud,'deception and undue influence of the 'said John Byrne, James Byrne and Rose Byrne for the benefits and privileges given tliem and each of them by the said will; and the plaintiff further states that by reason of the premises, the said instrument purporting to be the last will and testament of the said testator, Patrick Byrne, deceased, is not his last will and testament.
“Plaintiff further states that said alleged will is the result of fraud, in this, that said will and the provisions thereof was procured by James Byrne, son of Patrick Byrne, deceased, by intentionally causing and permitting the said Patrick Byrne, deceased, to hope and believe that he, the said James Byrne, would pay Alice Byrne, this plaintiff, the sum of six dollars from time to time during her minority, when in fact the said James Byrne did not intend to pay the said Alice Byrne said sum or any other sum or sums during her minority, and that the said James Byrne by said will fraudulently, by the acts aforesaid, induced the said Patrick Byrne, deceased, to execute the alleged will, and thereby will him, the said James Byrne, a large tract or tracts of land and improvements thereon, and an undue portion of the alleged testator’s estate, exceeding in value by several thousand dollars the property to be received under said alleged will by the brothers, and sisters of said James Byrne, said acts of fraud contributing with the said undue influence used by said James Byrne, John T. Byrne and Rose Byrne in causing the execution of said alleged will. ’ ’

The answers are such as would be expected' under such a petition, and raised the issues aforesaid. Upon a trial before a jury the plaintiff had a verdict, and judgment was duly entered thereon. The paper writing was found not to be the last will and testament of the deceased Patrick Byrne. Prom such judgment the defendants (proponents of the will) have appealed. Error is alleged in the giving and refusing of instructions, and in the admission and rejection of evidence. Further details will be noted in connection with the points raised.

I. The verdict in this case will have to be reversed for several reasons. These we will take in order after detailing more of the pertinent, facts. The deceased at the making of the will was aged about seventy-one years, and had been a sufferer from asthma and other troubles. He was a strong-minded man, and had held the positions of judge of the county court, and justice of the .peace. The plaintiff was the only child of a deceased son, which son at the time of his death (a year or so prior to the death of the father) was well liked by the father. The whole estate was worth from $35,000 to $50,000 — say to be safe $35,000. The will is short, and will speak best for itself. It reads:

“In the Name of God, Amen.
“I Patrick Byrne being of lawful and disposing mind, do make known this as my last will and testament.
“ First, I give to my son James all my land in survey 3059, township 43, range 4 east together with mill machinery and all appurtenances thereto belonging, with the understanding that he gives Thomas daughter $400 when she becomes of age and six dollars a year during her minority.
“ Second, I give to my son Pat 150 acres in survey 1999 together with eleven acres given to me by Elias Burgess in said survey.
“ Third, I give to my son John the balance of my land in survey 1999 said to contain ninety acres together with sixty acres in section 36, township 43, range 3.
“Fourth, the upper third of sur. 908 together with 40.24 acres 3 W. Fr. 31 — township 43, range 4 together with 27 55/00 aeres N. W. Fr. sec. &, township 42, range 4 also 4 76/00 N. E. Fr. sec. 1, township 42, range 3. Also balance of section 36, township 43, range 3 which constitutes the home farm I give to my wife Eose during her natural life to manage as she pleases.
“Fifth, I give to my daughter Mary Jane the sum of $1200; to my daughter Anna $1200 and to my daughter Ellie $1200 in lieu of lands given to my sons. I give to my son Christopher the sum of $500. .
“Of all my other personal property I give to my wife two-thirds and to my son John one-third.
“After my wife’s death the home place to belong to all my children share and share alike. ' I also appoint my beloved wife Eose and my son John as executors to execute this my last will without bond.
“In testimony whereof I have hereunto set my hand this 20th day of June in the Year of Our Lord, 1891.
‘ ‘ Patrick Byrne. ’

At the home there resided with the deceased his wife and his son John, who had received a college education, and a year and one-half in a law school. The last year the deceased was so afflicted that the son John attended to his farm, and other business. This we take from the testimony of John himself. The first three items of the will were written by the testator, and there is evidence that the wife after much coaxing got the deceased to permit John to finish the will. It is also in evidence that the deceased directed that the present plaintiff be given" six hundred dollars upon attaining her majority, and that the wife coaxed him to cut it down to four hundred. There is expert evidence that this change of six to four is in the handwriting of John. The plaintiff was born in 1889, and was very young at the death of the grand-father. It is also in evidence that the testator was very fond of her and stated at one time that she would get the father’s share of the estate. Other facts will be detailed in connection with the points discussed.

The first error we discover is the refusal of defendant’s instruction numbered 2, which reads:

“The court instructs the jury that under the evidence adduced in this case there is no evidence of mental incapacity submitted to your consideration in this case.”

This instruction should have been given, because the petition, which we have set out in the statement, does not count upon mental incapacity to make a will. At most this petition charges mental and physical weakness as tending toward producing a mind that could he more easily influenced. This is all we can make out of the charges in this petition. Mental incapacity to make a will is not charged. Now, whilst it devolves upon the defendants, as proponents of the will and in making their prima facie case, to show mental capacity to make a will, yet we have never understood it to be a rule that such question is to be submitted to the jury, unless it ig charged as a ground for setting aside the will. It is also true that the proponents carry the burden of showing mental capacity, when the plaintiff in a will contest avers mental incapacity. [Mowry v. Norman, 223 Mo. 463.] Of course if in making the prima facie case the evidence discloses mental incapacity, the court should direct a verdict rejecting the paper writing as the last will and testament. But such is not the case here. The prima facie case showed mental capacity, and even the evidence for the .plaintiff is not sufficient to show mental incapacity. Under the pleadings and'under the evidence there is no question that this issue, if it was an issue, should have been taken out of the case by the instruction aforesaid. We do not think it was a live issue, either by proof or pleading, hut the petition is so peculiarly worded that the jury may have been misled, although no instruction was asked by plaintiff upon mental incapacity. To the end that the issues under the pleadings should he clearly drawn, we think this instruction' numbered 2 was proper. Standing alone, under the facts of this case, it might not be such error as would necessarily work a reversal, but its refusal evidently contributed its mite to the result, in an exceedingly close case.

II. Defendant’s instruction numbered! 3 should have been given, and its refusal was error. • This instruction reads:

“The court instructs the jury that there is no evidence in this case that the will of Patrick Byrne, deceased, was procured by the fraud of James Byrne, and you cannot find against the will on that issue. ’ ’

James Byrne was not present at the making of the will. Upon two occasions the father had told him that he was- going to will him certain lands, and would require him to pay the plaintiff Alice Byrne, some money, the amount not stated. During the course of the trial the petition was amended to charge fraud upon the part of James Byrne in procuring the will. Counsel for the plaintiff has diligently searched the record for the evidence of this fraud practiced by James Byrne, and we quote from that all that was found upon the subject.

“James Byrne, one of the defendants, on behalf of plaintiff, testified:

“That Patrick Byrne, deceased, just because he felt disposed to do so, went to witness on more than one occasion and told witness what disposition he was going to make of his property- — told him about the same thing each time — told witness that he was going to leave property to him and require him to pay Alice Byrne money.
“Q. Did he tell you that he was going to leave property to you and require you to pay money to Alice? A. Yes,-sir.
“Q. And did you-promise him that you would pay her that money if he left the property to you as he said? A. I don’t know as I promised. He told me, of course, I—
“Q. Did you promise him that you would pay her? A. He did not exact any promise from me.
“Q. How is that? A. He did not exact any promise from me.
“Q. I don’t suppose he would exact a promise, but you assented to what he said, did you? A. I did; yes, sir.
“Mr. Safford: Q. "What did you say to him? A I don’t remember what answer I made him at the time. I think I listened to what he was saying.
“Q. You can’t give the exact language? Will you in substance — can you tell us substantially the language that you used, if you can tell the exact language? A. That I used?
“Q. Yes. A. No, I can’t, because I don’t know that I said anything. I listened.
“Q. Do you want us to understand he talked to you on such .a subject on two different occasions, and that you did not say anything to him at all? A. I listened to him, he—
“Q. What’s that? A. I don’t know that I made any answer. I listened to what, he had to say.
“Q. How does it remember — how does it come that you can remember what he said to you, and can’t remember what you said to him? . A. I don’t know how it comes.
“Q. Now, what did he say about what portion, if any, Alice would get — Thomas’s child? A. The same thing he said to me the first time, about it; a few hundred dollars.
“Q. A few hundred dollars — did not fix the amount? A. No, sir.
“Q. Did you— A. He said, ‘whatever I would put in the will, a few hundred dollars; whatever I would put in the will.’
“Mr. Salford: Q. What’s that? A. ‘Whatever I would put in the will — a few hundred! dollars; whatever I would put in the will. ’
‘ ‘ Senator Byrns: Q. Whatever it was he would put it in his will? A. Put it in his will.
“Q. Now, did you visit your father during his last sickness? A. Yes, sir.
“Q. How often? A. Well, not every day, but probably every second clay; sometimes, went every day, and sometimes would not go for two or three days.
“That witness did not pay Alice Byrne any money during her minority because she was a minor — in charge of her mother — it was a small amount — there was no curator appointed; there was no demand made upon him for it; he always intended to pay it, and does intend to pay it.”

Upon these facts, recited most favorably for the plaintiff by her counsel, it is urged that the question of fraud upon the part of James Byrne should have been submitted to the jury. We have'taken the resume of the evidence made by counsel rather than our own. This evidence only shows two things: (1) that James remained silent, when his father spoke of the subject, and (2) that afterward he did not pay the six dollars per year as mentioned in the will. He in a way explains why he did not pay. This evidence, nor any evidence of this character is sufficient to show fraud in the making of a will. In the first place this allowance to the grand-child is a charge upon the estate devised to James, and such charge can be enforced. [Murphy v. Carlin, 113 Mo. 112.]

James Byrne when he accepted under the will became bound to pay the charges made by the will. His acceptance under the will made him to speak, when theretofore he had been silent, as runs the evidence. His conduct thereafter in not paying the sums annually is not evidence of fraud in procuring the will. This instruction asked by James Byrne should have been given, and the instruction numbered 5- given for plaintiff submitting the alleged fraud upon the part of James Byrne should have been refused. For this error the judgment must be reversed and cause remanded.

III. As the cause will have to be retried some further suggestions should be made.

(a) There is evidence in the record that John Byrne was managing his father’s business for a year or thereabout before the making of the will. This shows a fiduciary relation, and shifts the burden as to the question of undue influence, so far as John is concerned.- With this suggestion proper instructions can be drawn upon a retrial. [Mowry v. Norman, 204 Mo. 173 and 223 Mo. 463.]

(b) There is some evidence in the record that the wife unduly influenced the husband whilst in the very act of drawing the will. He was weak mentally and physically and was a fit subject for influence from stronger minds. The evidence does not disclose his incapacity to make a will, but it does show a mental condition that would place him largely in the hands of the stronger minds surrounding him at the time.

(c) There may be enough in the record tending to show a wrongful change of the will, in so far as plaintiffs’ share is concerned, and this should be the subject of a proper instruction, but we do not approve of plaintiff’s instruction numbered 6 on that question.

(d) The evidence does not disclose any undue influence upon the part of James Byrne, and this point should be properly guarded upon retrial, unless the evidence is different and develops more facts. In this connection the unequal distribution made by the will would be a circumstance.

(e) Upon a retrial many of the objections made by counsel for plaintiff during .the examination of the witness to the will should be obviated. These objections, many of them, reached the very pinnacle of extreme technicality, and then some. Strange to say the learned trial judge was as profuse in sustaining these as the counsel was in making them. A reading of the examination of Patrick McDermott, one of the attesting witnesses, covering eighty printed pages, would be conclusive proof that the period of legal reforms in some direction has arrived. Upon retrial counsel as well as court should see that there is at least some substance to objections made..

There are other matters in the brief, but the issues being as we have indicated, all questions can be covered by approved instructions upon a retrial, and we will not go further.

Let the judgment be reversed and the 'cause remanded. It is so ordered.

All concur.


author: BOND, J.

text:
    H. C. RILEY and LIVINIA BEACH v. H. H. O’KELLY, JACE FISHER and JOHN PIGG; H. H. O’KELLY and JACE FISHER, Appellants.
    Division One,
    May 31, 1913.
    1. TITLE: Common Source: Assumed. In actions to quiet title and in ejectment, where the adversary parties hinge their title upon that of a common grantor or ancestor, th.e only issue is which of them acquired that title; and the case will he determined on the theory of a common source of title, if a common ancestor is proved, admitted or assumed.
    2. -: -: How Assumed and Conceded. Where the evidence shows that the title vested in John Q. Oormaclc in 1858, who died in 1865, defendant both assumed and conceded a commoa source of title by offering a deed from John J. Cormack to defendant, dated in 1909, upon the theory, as defendant’s counsel announced, that “there is no evidence to show that John J. Cormack is not an heir of John Q. Cormack, who entered this land,” and- by asking an instruction reciting that “one John Cormack obtained title to the land in 1S'58” and “the deed offered in evidence by defendant to himself from John Cormack makes a prima facie case that defendant is the owner of said land.”
    3. -: Demurrer to Evidence: Waived. Defendants waive their demurrer to plaintiffs’ evidence, if after it is offered and overruled, they put in evidence of their own; and, though plaintiffs’ case at its close does not show title in them, yet if defendants put in evidence which show they attempt to claim through a common source, but fails to show that any of them acquired any interest from the common ancestor, they cannot complain that the court overruled their demurrer to plaintiffs’ case interposed at the close of the entire case, if that evidence shows plaintiffs have acquired the title of the common source.
    4. SWAMP LANDS: Register's Books as Evidence: Statute Requiring Governor to Transmit Certificates. Whether or not the original books kept by the land register and receiver of public moneys of the county from swamp lands are admissible in evidence, in view of the statute requiring the Governor, after November 4, 1857, to transmit the certificates issued by such officers to the counties, which thereafter were empowered to patent such swamp lands, is adverted to, but not decided in this case, because the decision of that point is not necessary to a proper disposition of the case.
    5. ATTORNEY: Power to Represent Party. The power of a duly licensed and practicing attorney to represent one of the plaintiffs in whose name he has brought the suit, is presumed until challenged in some adequate way — by motion supported by affidavit if made by defendant — and the burden of disproving the existence of such authority is upon the party making the challenge, unless the client has denied the authority, in which case the burden is on the attorney to establish it.
    Appeal from Pemiscot Circuit Court. — Eon. Robert Q. ° Ranney, Special Judge.
    Affirmed.

      Ward & Collins for appellants.
    (1) The court erred in rejecting competent evidence offered by defendants. The defendant H. H. O’Kelly offered a warranty deed to the land in controversy, made to him on the 26th day of January, 1909, by one John J. Cormack, consideration $500; duly acknowledged and recorded. Of course, since plaintiff showed no title, the demurrer ought to have been sustained and judgment rendered for the defendants, or at least plaintiffs’ case dismissed, but the defendant had a right to show that he was a bona-fide claimant to this land under a warranty deed since plaintiffs had charged in their petition that defendant claimed some right, title or interest in this land, the nature and character of which was unknown to plaintiff. And since plaintiff had shown no title it was wholly immaterial whether defendant connected a chain of title back from his grantor to the Government or not, there being no common source assumed, agreed upon or proven. The defendants had demurred at the close of plaintiffs’ case and that demurrer being overruled they were entitled to show that they had some claim to this land and show what that claim was. (2) The court erred in refusing defendants’ demurrer and in giving the peremptory instruction for plaintiff at the close of the whole ease. There is absolutely no proof of title in plaintiffs, but the showing made puts the title in Pemiscot county, but it absolutely fails to get the title out of Pemiscot county. Whitman v. Geising, 224 Mo. 616. Of course, if plaintiffs had shown that John Q. Cormack purchased the land from Pemiscot county, and paid for same, then his heirs would have an equitable title to this land; but to do this, plaintiffs must have shown the following: (a) That John Q. Cormack selected this land and purchased it, and obtained a register’s certificate therefor, (b) That he took the register’s certificate and presented it to the receiver of land and paid the money (not less than $1.25 per acre) and obtained a receiver’s receipt therefor, (c) Then, with the register’s certificate and receiver’s receipt, he could have applied to the register of land at Jefferson City and obtained a patent. This be did not do. Laws 1855, p. 154; Nall v. Conover, 223 Mo. 47.7; Whitman v. Geising, 224 Mo. 660; Bishop v. Bloker, 235 Mo. 618; Hunter v. Pemiscot L. & C. Co., 246 Mo. 135. (3) Eespondents cannot claim in this case that there was a common source of title. Of course, if there was a common source of title agreed upon, assumed or proven, then the defects in the title prior to the common source would he defects common to both titles, plaintiffs’ and defendants’, and neither could take advantage of it. Machine Works v. Bowers, 200 Mo. 235; Stewart v. Land Co., 200 Mo. 291; Charles v. White, 214 Mo. 211; Gage v. Cantwell, 191 Mo. 698; Nall v. Conover, 223 Mo. 477. There is no common source of title either assumed by the above parties, or admitted or proven. Then under Sec. 2535, E. S. 1909, in the suit to ascertain and quiet title, plaintiff if he relies upon his paper title must prove his interest in the land by a continuous chain beginning with the Government. Nall v. Conover, 223 Mo. 477. Now in this case the record shows that there was no common source of title agreed upon, neither was any common source of title assumed, nor was there any common source of title proven. Plaintiff undertook to deraign title from the Government down to them; that is, the paper title, and they failed. They cannot now say that John Q. Cormack was the common source of title, because we are not claiming under John Q. Cormack and because we objected (as this record shows) to every entry and every offering purporting to show that John Q. Cormack ever had any right, title or interest in this land; we deny him ever having any right to it; we objected to the register’s books with his name in it, and to the receiver’s book to Carleton’s abstract; to the testimony of his working on the levee; and we showed by plaintiffs’ own witness that the man they were talking about was John Q. Cormack; and in fact the record shows that John Q. 0 or mack never had any right, title or interest in this land.

      Brewer & Riley for respondents.
    (1) While the act creating the offices of register and receiver does not expressly require they shall keep a record, yet, if they do keep such a record and the keeping of such a record is necessary or proper and convenient to the adequate discharge of their duties, it is an official book and admissible to prove such facts therein stated. Groesbeck v. Seeley, 13 Mich. 329; Underhill on Ev., sec. 142c; Rollins v. Board of Comrs., 90 Fed. 575, 33 C. O. A. 181; Daly v. Webster, 56 Fed. 483, 4 C. C. A. 10; Cooper v. People, 28 Colo. 87; White v. United States, 164 U. S. 100; Evanston v. Gunn, 99 U. S. 660; Kybnrg v. Perkins, 6 Cal. 674; Bell v. Kendrick, 25 Fla. 778; Commonwealth v. Tate, 89 Ky. 587; Seminary v. Paine, 3 Mon. 161; Pembroke v. Allanstown, 41 N. H. 365; Little v. Downey, 37 N. H. 355; State v. Yan Winkle,, 25 N. J. L. 73; Knott v. Raleigh & G.- R. C. N. O., 98 N. C. 73. While the statute creating the offices of register and receiver of land does not expressly require that each should keep a record of his proceedings, it is not to be presumed that the Legislature contemplated that the only record kept should be the certificate issued by each. How could the register and receiver especially in a county like Pemiscot, where 90 per cent of the lands were swamp and overflowed lands, keep track of what particular lands and to what particular persons they were sold without keeping a book showing these facts ? If no such books had been kept the register and receiver would' no doubt in a good many instances have sold the same tract to different and various people. (2) The appellants having contended on the trial of this case and tried it on that theory that they had the John Q. Cormack title to the land in question cannot now assume a contrary position. Kilpatrick v. Wiley, 197 Mo. 171; Gordon v. Park, 202 Mo. 248; Parrar v. Railroad, 162 Mo. 469. That the appellants tried this case on the theory that John Q. Cormack had title to the land in question at the time of his death is clearly evident from instructions “D” “B” and “C” offered by appellants. The appellant had a deed signed by one “John J. Cormack” and claimed in the trial of this cause by these instructions that their John Cormack was the man that entered the land from the county, and again to an objection to a question Mr. Collins says: “We have some other reasons; the first is, John Q. Cormack, who entered this land, has been dead for forty years, and not John J. Cormack, who purports to convey this land; for the further reason that there is no evidence to show that John J. Cormack is not an heir of John Q. Cormack.” Here the attorneys for the appellants admit that John Q. Cormack entered the land in question, here again they claim that John J. Cormack is an heir of the said John Q. Cormack. While the appellants objected to the introduction of the register’s and receiver’s book and the entry from Carleton’s abstract, yet at the same time, they tried the case upon the theory that John Q. Cormack was the owner of the land and that appellant O’Kelly had this title. The record in this case shows that John Q. Cormack lived on the land in question for five or six years and was well known in that community and there is no proof in the record as to who John J. Cormack was, from whence he came or where he went. (3) In a suit under Sec. 650, R. S. 1899, it is not a question as to who has the title, but who of the parties to the suit has the better title. Graton v. Land & Lumber Co., 189 Mo. 332; Maynor v. Land & Timber Co., 236 Mo. 728.
    STATEMENT BY THE COURT.
    This is a suit to quiet title to eighty acres of land lying in Pemiscot county, Missouri, and which is a part of the donation, of swamp and overflowed lands made to this State by the United States through an act of Congress, approved 28th of September, 1850, and subsequently granted by the State to the said county.
    By an act of the General Assembly of this State (Laws 1855, p. 154), provision was made through the instrumentality of registers of lands and receivers of public moneys within certain counties of the State for the acquisition of title to such lands under a patent to be issued by the Governor of the State upon compliance by the purchasers with the provisions of said act. This statutory rule obtained in such matters until February 27, 1857 (Laws 1856-7, p. 271) when the Legislature provided for the issuance of patents to such lands to purchasers after that date in certain counties, including Pemiscot, by authorizing and directing the patents to be made in the name of the State and under the seal of the county court of said counties “signed by the president thereof, and attested by the clerk” whenever it was shown that the grantee had made full payment for such lands according to the terms of sale and in conformity with the statutes authorizing the sale. Said act further provided (sec. 3): “Such patent shall be recorded before delivery in the office of the clerk of the courts issuing the same, and such patent, and the record thereof, by such clerk, or by any other officer authorized to record deeds and other instruments of writing, and copies of such records, duly -authenticated, shall be received in evidence in all courts, and other places, in the same manner, and with like effect, and- may be used as fully for all purposes as patents'for lands issued by the United States, or deeds duly proven or acknowledged, or the record of the same are received, or can be used in this State, and shall, at all times, and in all courts, and other places, be received as prima-facie evidence of title to the lands and real estate therein named. ’ ’ The statute also made it the duty of the Governor to furnish to the said counties a list of the same swamp lands lying therein which should be recorded in the office of the recorder of deeds and filed in the office of ' the clerk of the county court and should be made a public record, and that copies of said list or the record thereof should be prima-facie evidence that the lands therein described were granted by Congress to this State and by this State donated to such counties. The act further provided that it should be “a public act and in force from its passage.” In order to carry out the provisions of this act, and at the same session, the General Assembly, on November 4, 1857 (Laws of Adj. Sess. 1857, p. 269), passed an act entitled “An Act supplementary to an act entitled ‘An Act in relation to the disposal of Swamp Lands in the counties of Cape Girardeau, Dunklin, Mississippi, New Madrid and Pemiscot, approved February 27, 1857. ’ Be it enacted by the General Assembly of the State of Missouri, as follows: Sec. 1. That the Secretary of State is hereby required to return by due course of mail, all the certificates of entry and payment of and for said lands, to the respective county courts named in said act, and that the county courts of the respective counties so named shall have the entire control of the matters contemplated in said act, any law to the contrary notwithstanding. This act to be in force from and after its passage. Approved November 4, 1857.”
    The public records of Pemiscot county were destroyed by fire in 1882.
    Carleton’s Abstract was offered in evidence on the trial of this ease and contains the following recitals: “Dáte January 25, 1858; No. of entry, 815; to whom sold, John Q. Cormack; Besidence, Pemiscot county, Missouri; Description of land, East Half of the Southeast Qr., Section 7, Township 20, Bange 13 East; Number of acres 80; Price per’ acre, $1.25; Amount received, $100; Total $100, Script No. 791.”

      The plaintiffs adduced evidence that John Q. Cormack, who was spoken of by some of the witnesses by the surname of Cormack or McCormack, lived upon this land five or six years after the date (January 25, 1858) mentioned in the above excerpt from Carleton’s Abstract, when, about 1865, he died, leaving a widow and five children, four of whom died without issue, and one died leaving as his sole heir the plaintiff Lavinia Beach; that the widow subsequently married a Mr. Earner, to whom she bore several children, and died leaving these and her granddaughter, plaintiff Lavinia Beach, as her heirs; that plaintiff IT. E. Riley, Jr., has acquired by deeds all the interest of the said Earner children in and to said lands. Plaintiffs adduced oral testimony tending to prove that McCormack purchased the land in question by script which had been given him for work done upon the construction of a levy built in Pemiscot county prior to the Civil War.
    There were three defendants to the cause of action brought by said Henry C. Riley and Lavinia Beach, two of whom answered, claiming title in fee to the -land. The other answered separately also claiming title in .fee to the land, and denying that his’ co-defendants had any interest or title therein.
    At the close of plaintiffs’ case, defendants filed a demurrer to the evidence, which was overruled. Thereupon, defendants introduced J. R. Brewer, who testified that he was one of the attorneys in the case and that he made Lavinia Beach a co-plaintiff in’the case prior to going.into trial; that he had no communications from her on the subject but that he discovered that she was one of the heirs and was requested to do so by a Mr. Earner, who was her half cousin. The defendants further introduced an admission that a suit is now pending in the circuit court of Pemiscot county, wherein defendant John Pigg is plaintiff and defendant H. H.' O’Kelly is defendant, for the purpose of determining title to this land. The defendant 0 ’Kelly then offered in evidence what purported to he a warranty deed to him, dated January 25, 1909, wherein the grantor appeared to he John J. Cormack, and which purported to convey this land for a consideration of five dollars. This deed was objected to by counsel for plaintiff on the ground that there was no evidence that the grantor therein ever owned or had any interest or title in this land, but that the evidence showed the title was originally in John Q. Cormack. Thereupon, counsel for defendant^made this statement and the court made the following reply:
    “Mr. Collins: We have some other reasons; the first is, John Q. Cormack, who entered this land, had been dead for forty years, and not John J. Cormack, who purports to convey this land; for the further reason that there is no evidence to show that John J. Cormack is not an heir of John Q. Cormack.
    “Court: If this is all the evidence you have I will have to exclude the deed from the jury. The proof here yesterday shows very clearly that the man who owned this land died in 1865; a good many years before the execution of this deed which yon are offering here to-day. There is some variance in the name among the different witnesses, but it has been clearly shown that the man is dead, whether Cormack or McCormack, and that being the case he could not make a deed to your man in 1889 [1909].
    “To the exclusion of the deed the defendant O’Kelly'.excepts.
    “Mr. Brewer: We would like for the record ter show that the attorney announced that he had no other evidence.
    “Court: Yes, sir.”
    Thereupon, defendants IT. IT. O’Kelly and Jace Fisher prayed the court to give an instruction that under the pleadings and evidence plaintiffs could not recover, which the court refused, and instructed the jury, upon request of plaintiffs, to bring in a verdict for them, which was accordingly done. The defendants requested and the court refused their instructions B, C, D, two of which attempted to connect the deed to O’Kelly with the title which John Cormack obtained from the county in 1858, and the third conceded that Car'leton’s Abstract showed title in said John Cormack in 1858. After the overruling of their motion for new trial, two of the defendants (the third not appealing) appealed to this court. The errors assigned will be noticed in the opinion.
   OPINION.

BOND, J.

(after stating the facts as above).

I. The learned counsel for appellants concede in their brief that the title to the land in suit was well vested in Pemiscot county. They are justified in this admission because the record shows this was accomplished as provided by law and that a formal patent, regular m all respects from the State to the county was introduced in evidence. But they insist that there is no adequate proof in the record that the county ever parted with its title to John Cormack or John Q. Cormack, the ancestor under whom the plaintiffs claim. And they further insist that the record does not show that their clients claim title under said Cormack or assumed that, he had title to the land in question.

We will dispose of these contentions in the inverse order, for if it should appear that the parties to this case as they stand upon the present appeal, claimed under a common ancestor or assumed title to be well vested in a common ancestor, then it will be wholly unnecessary to inquire as to the validity of the title of such ancestor. For the only question will be upon whom that title was devolved.

The rule is settled in this State that where the adversary parties in actions to quiet title as- well as in actions of ejectment hinge their claims of title „to the property in controversy upon that of a common grantor or ancestor, then the court and jury have but one issue to solve, to-wit, which of the adversary parties acquired the title under which they respectively claim? And in determining’ this issue, it is sufficient if the record shows that the contending parties proved, admitted or assumed a common source of title. [Harrison Machine Works v. Bowers, 200 Mo. l. c. 235; Charles v. White, 214 Mo. l. c. 211, 212; Maynor v. Land & Timber Co., 236 Mo. l. c. 728; Toler v. Edwards, 249 Mo. 152.]

In the case at bar, the defendants offered evidence of no title, paper or possessory, to the land in dispute other than what purported to be a deed to one of them (O’Kelly) dated the 26th of January, 1909, signed by one John J. Cormack; and in connection with the offer of this deed counsel for defendants stated that he did so upon the theory that it had not been shown by the evidence that the purported grantor was not an heir of the John Q. Cormack “who entered this land, and has been dead for forty years.” As this.was the sole evidence of the title of the appealing defendants, and as the concomitant admission made by their counsel at the time it was proffered, shows that its purpose was to connect the claim of thesé defendants with John Q. Cormack, the conclusion is unavoidable that unless they could thereby deralgn title from John Q. Cormack, they had none whatever to rely on in this case. This deed was excluded from the evidence, but its proffer and the reasons given therefor demonstrate that the title of John Q. Cormack as a common ancestor was assumed by the appealing defendants. But they did not stop there, J)or the record shows that they endeavored by instruction B, refused by the court, to submit that issue to the jury. The instruction is, to-wit:

“B. The court instructs the jury that one John Gormaclc obtained title to the land in controversy from Pemiscot county, Missouri, in the year 1858, and that the deed offered in evidence by defendant H. H. O’Kelly to himself by John Cormaek makes a prima facie case that said defendant is the owner of said land, and places the burden of disproving said prima facie case upon the other defendants and plaintiffs; and Unless such prima-facie case is overcome to your reasonable satisfaction by the preponderance of greater weight of evidence your verdict should be for the defendant H. H. 0Kelly.” (Italics ours). And sought to submit the same questions by instructions D and C framed upon the theory that Carleton’s Abstracts disclosed the title to the land in controversy to have vested in the year 1858 in John Cormaek, and that the deed proffered by them “was prima facie evidence that said land title passed to said defendant H. H. 0 Kelly.”

It is evident from what has been said that the appealing defendants not only assumed but conceded on the trial of this case that all the title they had depended upon the acquisition of the title of the John Cormaek who died over forty years before the signing of the deed, which they offered to sustain their claims, by a person whom the evidence did not connect with the original purchaser from the county either as heir, devisee or grantee.

We, therefore, rule that the doctrine of common ancestor applied to the appealing defendants.

II. The learned counsel for defendants argue that the instructions requested by them upon the theory that the title to the land in dispute, was well vested in the John Q. Cormaek under whom plaintiffs claim were not intended to be so understood but were offered after the court had erroneously overruled the demurrer to the evidence at the close of plaintiffs’ case, wherefore such instructions were framed to make the best they could out of the theory of the court that the recitals of Carleton’s Abstracts were sufficient to show that the John Q. Cormack (or, as some of the witnesses called the same person, John McCormack) had acquired the title of the county to the land in dispute. But this contention of the counsel overlooks the well settled law, that if they intended to rely upon the infirmities of the plaintiffs’ case, it was their duty to stand upon their demurrer to the eviden.ee interposed at the close of plaintiffs’ testimony. For if they failed to do that and subsequently introduced testimony on their own behalf, that amounted to a waiver of their previous demurrer to the evidence. [Hilz v. Railroad, 101 Mo. l. c. 42; Frye v. Railroad, 200 Mo. 377; Kirkpatrick v. Pease, 202 Mo. 471; Crawford v. Stockyards Co., 215 Mo. 394.] And while it would not deprive them of their subsequent right to demur to the evidence at the close of the entire testimony for both parties, it did make it the duty of the court in the consideration of their last demurrer to give the plaintiffs the benefit and aid of any and all testimony and proceedings had in the case, and made it the duty of the court to overrule the second demurrer to the evidence, if from a view of the entire testimony and proceedings and all and every reasonable inference to be drawn therefrom the jury would be entitled to find for the plaintiffs. [Knorpp v. Wagner, 195 Mo. 637; Charlton v. Railroad, 200 Mo. 413; Von Trebra v. Gas Light Co., 209 Mo. 648; Phelan v. Paving Co., 115 Mo. App. 423.]

In this case the appealing defendants did not stand upon their demurrer interposed at the close of plaintiffs ’ case but proceeded to put in testimony upon which their claims rested. As has been shown, the only conclusion which could have been drawn at the close of the entire case was that the adversary parties were contending only for the title of John Q. Cormack or John McCormack, as all of the witnesses said the same man was called. The record shows by undisputed testimony that none of the defendants got any part of the title of this man, and that the title of his heirs and distributees was acquired by the two plaintiffs. The court therefore did not err in overruling their demurrer interposed by the appealing defendants at the close of the entire ease. And whether or not he might have erred in overruling the demurrer interposed at the end of plaintiffs’ case is not a question for review since appealing defendants did not stand on that demurrer.

III. This renders it wholly unnecessary to pass on the ruling of the court in the admission of the recitals from Carleton’s Abstracts or to rule on the admissibility in evidence of the original books kept by the land register a,nd receiver of public moneys in Pemiscot county which were excluded by the court.

The question as to the admissibility of these books is discussed in the briefs of the respective counsel, and attention is directed to the fact of the practical necessity for the keeping of such books (although not specifically required by the statute) in order that 'the registers of land should retain knowledge of locations in counties where, as in Pemiscot, most of its territory is swamp or overflowed lands, and it is further suggested, that in some rulings heretofore made as to the admissibility of such books or their contents in evidence, the mind of the court was not directed to the statute, set out' in the statement, requiring the Governor after November 4, 1857, to transmit the certificates issued by such officers to the counties who thereafter were empowered to patent swamp and overflowed lands. And, hence, parties desiring the evidence to be afforded by such, certificates could not after that date obtain them in Jefferson City; and where they were burned after being sent to the counties (as in some eases) no first hand evidence might be in existence.

The discussion of these questions by counsel, though illuminating and entertaining, does not present any matter necessary for immediate ruling, since the present case is determinable on the grounds heretofore stated..

IV. Some complaint is made of a want of authority of the attorneys for plaintiffs to represent one of the parties. The authority of an attorney who is duly licensed and practicing is presumed until challenged in some adequate way, and the burden of disproving such authority is imposed upon the party questioning it unless the client has denied the authority of the counsel — in which case, the burden is shifted upon the attorney. [4 Cyc., 931b.] During the trial of this case it appeared in evidence that one of the co-plaintiffs (Lavinia Beach) was joined as such before the trial began at the request of her cousin; that she was a non-resident and did not directly communicate with the attorney for respondents. She has not questioned the authority of respondents’ attorney to represent her, neither did the trial court do so, nor did the defendants directly challenge the authority of respondents’ attorney to represent her by motion supported by affidavits as is the proper practice, but seek to do so in a collateral way. This they cannot do. Hence, nothing is presented for review by the point attempted to be made in this way. [4 Cyc. 930, sub-section 5; Miller v. Assurance Co., 233 Mo. l. c. 95; Scott v. Royston, 223 Mo. 568; State ex rel. v. Crumb, 157 Mo. l. c. 557; Cochran v. Thomas, 131 Mo. 258.]

Under the entire record in this case, the court was justified in directing the quieting of title of plaintiffs to the land in controversy against the appealing defendants. The judgment is therefore affirmed.

All concur.