text:
    CITY OF ST. LOUIS v. EMMA CLEGG, Appellant.
    Division Two,
    July 19, 1921.
    1. DEDICATION OF STREET: By Grantor’s Conveyance. A dedication of a street to public use may be made in a deed from one individual to another, if sufficiently explicit in terms to indicate the grantor’s purpose. Where the owner sells property within the limits of a city, and in the deed bounds it by certain designated streets, not only does the grantee acquire an easement by the grant, but the deed constitutes an offer of the use declared.
    2. -:-: Call For Street: Estoppel: Available to Public. While the rule is that an estoppel by deed, including an implied covenant, can operate only in favor of the grantee or his privies in estate, and estoppel in pais can operate only when representations have been made to a legal person, who has relied upon them to the . extent that it would be inequitable to allow them to be withdrawn, a call for a street in a deed from one individual to another is more than a mere description, for it is an implied covenant that there is such a street, and where such individual has accepted the deed and acted on it in reliance upon such covenant the general public can avail itself of an estoppel in his favor.
    3. -: -: -: Aided by Other Facts. A deed from the owner of land in a city to an individual grantee designated Glades Avenue as the northern boundary of the property sold and ended the description by metes and bounds as “on the south line of said avenue;” ten days thereafter a survey, made twenty years previously by the grantor’s husband, which declared Glades Avenue to be the northern boundary of the property and designated it as a proposed highway, was filed, and the presumption is reasonable that it was filed at said owner’s instance; said survey remained on record unchallenged for seven years before the suit was brought to open and widen said avenue, and the grantee in said deed testified that Glades Avenue had been open for more than ten years and that 'he had several times driven through it. Held, that the deed, aided by the other facts, constituted a dedication to public use of that portion of the owner’s property designated therein as Glades Avenue, and a formal acceptance was unnecessary.
    4. -: -: Subsequent Revocation. After the dedication oi land to a public use by the deed of the owner, an agreement between the owner and grantee, in which the former, for á consideration, agre.es to sell to the latter ground described in the deed as ' a street, will not effect a revocation of the grant, nor be construed as indicative of another purpose than that expressed in the deed. And after the dedication has become absolute, the grantor cannot change its character by a deed of another lot to another grantee in which she describes the avenue so dedicated as a private street.
    5. -: Fee in Dedicator. The fact that at common law the fee in the soil over which a public highway is established remains in the owner does not affect its common law dedication to public use, which is absolute until the highway is vacated.
    6. --: Opening Street: Damages. Where the owner of property has parted with the fee, she is not entitled to damages for its appropriation by the city in a proceeding to open and widen a street over the same.
    7. -: Nominal Damages. Where the area included within a proposed public street is burdened in favor of adjacent lots with easements in the nature of a street, public or private, the owner, upon condemnation for the formal establishment of a highway thereon, is entitled to recover only nominal damages.
    Appeal from St. Louis City Circuit Court. — Hon. Kent K- Koerner, Judge.

      Affirmed.

      W. B. & Ford W. Thompson for appellant.
    (1) The appellant claims, first, as to dedication, that the authorities are uniform in regard to dedication, viz.: that three things must always inhere in every case of dedication: (a) The question of intent; (b) The fact of dedication; (c) The acceptance. The plat recorded in this case is a private plat, which had been made for a number of years before it was recorded, and it is expressly stated on the plat that this is a proposed street, never was dedicated as a street in any way; nor are there any words of dedication on the plat whatsoever. In other words, the plat does not show the dedication of the property, nor is there any unrecorded plat that shows a dedication of the property; nor is there any dedication in accordance with the statute. It is a mere proposed survey, not signed by the owner or recorded by his authority. It is signed by the surveyor, and put of record without any authority or consent of the owner shown, and there is no authority under the statutes for putting such an instrument of record, so that the instrument itself is no act of dedication. 13 Cyc. 497, 478, 479, 483, 484; Downer v. St. Louis Ry. Co., 23 Minn. 271; Coberly v. Butler, 63 Mo. App. 556; Field v. Mark, 125 Mo. 502; Balmat v. City of Argenta, 184 S. W. 445; 1 Elliott on Roads & Streets, sec. 133. (2) The facts in this case contradict any acceptance by the city of any part or portion of Glades Avenue except the mere fact that a special tax clerk did not assess it, and treated the Cozens survey as a dedication, and it is for the court to determine whether or not after the state and city assessor, whose duty it was under the general laws and the ordinances to assess for taxation all property except public property, had assessed this property for years, the city would be entitled, upon the filing of this plat for record, to treat the filing of the plat as an acceptance and dedication of the strip of land as a public highway, by the authority exercised by a special tax clerk who claimed that the filing of the plat was a dedication. We think there could be no controversy over such a question, and especially when a part of that same plat, on which a fifteen-foot alley is mentioned, was by this same tax clerk assessed as private property. (3) There is no evidence of a public use of this property that would constitute a dedication: (a) Because it is admitted that in 1908 the entire lot 8 of Prather’s subdivision was assessed for the sewer taxes, including the strip in controversy, (b) It is also admitted that all of lot 8, including the strip in controversy, was assessed in 1911 for the paving of Forest Avenue by the system used in the special tax department of absorption., (c) Because there is no evidence that the property was open to public use for any definite time, (d) That the circumstances under which Heil’s deed was made and the fact that he conceded that he fronted on a private street, would not constitute this deed, and the calls in this deed, a dedication of anything except to private use. (e) The contract made by Heil with Mrs. Clegg would be considered nothing more than a dedication to private use, which is not authorized, (f) All the evidence relating, to the assessment and collection of taxes by the city, both general and special, against the land in controversy, and the payment thereof by the owner, is to be considered as circumstances in connection with all other facts in evidence on the issue of whether the public user was permissive or hostile and adverse. St. Louis v. Woodwork Co., 216 S. W. 944; Coberly v. Butler, 63 Mo. App. 556; Fields v. Marks, 125 Mo. 502.

      Charles II. Danes, II. A. Hamilton, and G. Wm. Senn for respondent.
    (1) Upon deed of conveyance for property bounded by a street, the reversion in the fee to the adjacent part of the street passes to the grantee with the fee to the lot described as. conveyed — i. e., in tbe absence from tbe deed of words of expression, or of necessary implication, of the exception by the grantor from the conveyance of the -fee in the adjacent street. Baker v. St. Lonis, 75 Mo. 671; Snoddy v. Bolen, 122 Mo. 479, 485, Grant v. Moon, 128 Mo. 48; Thomas v. Hunt, 134 Mo. 401; Impr. Co. v. Railroad, 255 Mo. 519; 525; Cochrane v. Ry. Co., 94 Mo. App. 473; Restetsky v. Railroad, 106 Mo. App. 387. (2) Where the area included within the proposed public street is burdened in favor of adjacent lots with easements in the nature of a street use, private or public, the owner is entitled upon condemnation for formal establishment of a highway to recover nominal damages only: McKee v. St. Louis, 17 Mo. 191; In the matter of Lewis Street, 2 Wend. 472; Olean v.' Steyner, 135 N. Y. 341; In the matter of Adams, 141 N. Y. 297; Stetson v. Bangor, 60 Me. 313, 321; Bartlett v. Bangor, 67 Me. 464; Crowell v. Inhabitants of Beverly, 134 Mass. 98. (3) (a) Upon, a deed for conveyance of property, describing and bounding the same by a street is a call for a street operating in the nature of a covenant by the grantor for, or operating in the nature of an estoppel of the grantor to deny the establishment and existence of, such street. McKee v. St. Louis, 17 Mo. 191; Moses v. Dock Co., 84 Mo. 247; Heitz v. St. Louis, 110 Mo. 618; Field v. Mark, 125 Mo. 502; Hatton v. St. Louis, 264 Mo. 643; Crowell v. Inhabitants of Beverly, 134 Mass. 98; In the matter of Lewis Street, 2 Wend. 472; In the matter of Twenty-ninth Street, 1 Hill, 189. (b) And in connection with such deed, it is proper to consider a plat or survey of record relating to the property. Buschmann v. St. Louis, 121 Mo. 535; • Longworth v. Sedevic, 165 Mo. 221; City v. Barthel, 256 Mo. 275. (c) And, as further related, are considered in connection with such deed and plat or survey the physical facts, e. g. fences and other structures, existing and adjacent continuations of the same street, as indicating the intention to establish a street. Benton v. St. Louis, 217 Mo. 701; State v. Transue, 131 Mo. App. 330. (d) The element of assessments for taxes and of omission from taxation is likewise, in the premises, considered to have a bearing npon the question of intention to create a street. Móses v. Dock Co., 84 Mo. 247; Hatton v. St. Louis, 264 Mo. 644.
   WALKER, J.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, appropriating certain property for street purposes.

A petition to establish, open and widen Glades Avenue, in the City of St. Louis, was filed by the city in the circuit court. Among other defendants named was the appellant. Commissioners were appointed, who awarded appellant nominal damages for her property taken and assessed her benefits at $210.60. She had owned the property here involved many years. Prior thereto, it had belonged to her 'husband, now deceased, who, on the 3d day of September, 1886, had a survey made*of it. This sxirvey was filed in the office of the Recorder of Deeds of the City of St. Louis, on July 24, 1909. It designates the property as located “on Glades Avenue.” The filing of this survey was subsequent to the making and delivery of a deed by appellant to one Chas. P. Heil, on July 13, 1909, “for a lot on Forest Avenue, extending along the south line of Glades Avenue.” On July 12, 1915, the grantee, Heil, made a contract in writing with appellant, with reference to Glades Avenue, which, omitting superscription and the signatures of the parties, is as follows:.

“This is to certify that I, Mrs. Emma Clegg, residing at Garner and Prather Avenue, in the City of St. Louis, agree to sell to Mr. Chas. P. Heil, residing at Garner and Forest Avenues, City of St. Louis, a strip of ground laying between his property on the southeast corner of Glades Avenue and Forest Avenue and for a depth of 200 feet eastwardly on said Glades Avenue. Said part or parcel of property five feet more or less that may be left between his property and said contemplated forty-foot street, to be opened by the' City of St. Louis as petitioned for by said Mr. Chas. P. Heil, Mrs. Emma Clegg and others, for a consideration of ten dollars per front foot on Forest Avenue and a depth of 200 ft. on Glades Avenue.” Signed by both parties and witnessed.

A deed was also introduced in evidence dated January 29, 1917, from the appellant, to Walter W. Corey and wife, recorded May 28, 1917, which called for a lot of ground having a front of one hundred feet “on the south line of Glades Avenue, a private street fifty feet wide, by a depth southwardly of 174 feet and 7% inches to a private alley fifteen feet wide, the same being east of the property of Heil.” This deed was made and filed for record after the commencement of this suit and the filing of the commissioner’s report.

There was also offered in evidence a plat of a sewer district, which shows that the strip of land in controversy on the north line of the property of appellant, had been assessed for a sewer. A plat was also introduced in evidence showing an assessment district between Forest and Prather avenues, and an assessment for the paving of Forest Avenue against appellant, including one lot adjacent thereto, the property of Charles P. Heil, and also assessing against her one hundred feet further east to the end of the assessment district, and for the paving of the alley along the rear of said property.

It was admitted that the Assessor of the City of St. Louis had assessed city and state taxes against appellant, including the' property, as described on the Cozen’s survey and the property in controversy, during each year of her ownership down to the date of the judgment in this ease, and that she had paid the taxes thereon. It was also shown that the assessor of special taxes had made out the assessment district for the sewer tax and that he had assessed appellant’s property, because there was no deed to Heil, nor was the Cozen’s survey of record in 1908; that when he came to make the assessment for the paving, of Forest Avenue he followed the Cozen’s survey in assessing the cost of the paving of same against the appellant; that he made the assessment for the paving of that avenue against appellant’s property by following the description found in the deed made by her to Heil, but made no assessment against the city for any part of Glades Avenue; that the assessment was made in such a way that the property north of Glades Avenue, as Mell as the property belonging to appellant south of this avenue absorbed the entire assessment of the area contained in the avenue. The plat accompanying this statement shows the location of Forest Avenue on the west and Prather Avenue on the east of Glades Avenue, the property of appellant and of Heil lying south of same. The particular area involved in this appeal is the southern part of the street defined by ordinance, designated as Glades Avenue, and extending from Prather to Forest Avenue, a distance of 530 feet.

I. The complaint of the appellant is on account of the alleged inadequacy of the commissioner’s awards, in that they should have been substantial and not nominal in amount. .The issue as thus presented requires for its determination the status of Glades Avenue, as a public or private highway. The appellant contends that no act of hers can be construed as a dedication. That the recorded plat qf this property, while it may have indicated a proposed survey, bore upon its face no evidence that it was the act of the owners or that its recording had been authorized; that it possessed none of the requisites of a statutory dedication. [Coberly v. Butler, 63 Mo. App. 556; Downer v. St. Paul Railroad, 23 Minn. 271.] That a map- or plat to constitute a dedication must be more than the drawing of lines along property designated as a street. [College v. Cedar Eapids, 95 N. W. 267.] That the passive permission of owners that the public may use lands, although continued for a term of years, does show an intent to dedicate to public use. [Postal v. Martin, 95 N. W. (Neb.) 8; Hartley v. Vermillion, 70 Pac. 273.] Thus the leaving of a lane through a farm to accommodate the owner and his neighbors is a revocable license, but not a dedication. [Field v. Mark, 125 Mo. 502; Balmat v. City of Argenta, 184 S. W. 445.] Furthermore, that there was no acceptance on the part of the city, and that the strip of land at the time of the report of the commissioners was private property, and if so, that more than a nominal allowance should have been, made for its taking. Specific reasons, based upon the testimony, are urged in support of these contentions, which will receive consideration later.

II. In the determination of the question as to whether there was a dedication of this property to a public use, the deeds from appellant to Heil and the Coreys merit more attention in the determination of the matter at issue, than has been given to them. Conceding the correctness of the rules above stated, as to the requisites of a dedication under appropriate facts, do the facts in evidence render these rules applicable in the instant case? In the deed to Heil, the property conveyed was described as follows: “A lot in block forty-six hundred twenty-four A, of the City of St. Louis, beginning at a point in the east line of Forest Avenue at its intersection with the south line of Glades Avenue, thence southwardly along said east line of Forest Avenue one hundred twenty-four feet seven and five-eights inches, more or less, to the north line of property now or formerly owned by C. Moore, thence eastwardly along the north line of lot now or formerly owned by C. Moore, one hundred twenty-five feet, thence southwardly along the east line of lot now or formerly owned by C. Moore, and parallel with said east line of Forest Avenue, fifty feet, more' or less, to a private alley fifteen feet wide, thence eastwardly on north line of said private alley seventy-five feet, thence northwardly and parallel with said east line of Forest Avenue one hundred seventy-four feet seven and five-eights inches, more or less, to the south line of Glades Avenue, thence westwardly along said south line of Glades Avenue two hundred feet to the point of beginning.”

In the deed to the Coreys made and executed after this suit was brought, we find the following description of the property conveyed: “A lot in block No. four thousand six hundred twenty-four A (4624A), having a front of one hundred feet (100') on the south line of Glades Avenue, a private street fifty feet (50') wide, by a depth southwardly of one hundred seventy-four feet (174') seven and five-eighth inches (7%") to a private alley fifteen feet (15') wide; bounded west by a line two hundred feet (200) east of and parallel to the east line of Forest Avenue. Also all right, title and interest in and to that part of the private street known as Glades Avenue which immediately adjoins the above described property on the north.”

A dedication to the public in so many words is rendered difficult on account of the absence of a grantee. However, this has been obviated in some instances by construction. For example, a deed to “the present and future owners of town lots” is construed to be a dedication to the public (Mayo v. Wood, 50 Cal. 171), as is also a covenant in a grant which gave the citizens of a town “the free privilege of drinking water” from a spring on a tract of land adjacent to the town and owned by the grantors (Corbin v. Dale, 57 Mo. 297); likewise a deed “to the inhabitants” of a town has been held to be a dedication. [Browne v. Bowdoinham, 71 Me. 144.] Further than this to effectuate the purpose of the grantor at the time, as indicated by the language employed, it has been held that a dedication may be made in a deed from one individual to another if sufficiently explicit in terms to indicate the grantor’s purpose. [Barney v. Lincoln Park, 203 Ill. 397; Jersey City v. Morris Canal, 12 N. J. Eq. 547; Trerice v. Barteau, 54 Wis. 99.] In such a case while the grantee acquires an easement by the grant, the deed at the same time constitutes an offer of the use declared. [Fulton v. Dover, 6 Del. Ch. 1, 6 Atl. 633.] A.n illustration of a dedication of this character is found in a case where a party sells property within the limits of a city, and in the deed bounds the same by certain designated streets. The implication following this designation which is in the nature of a covenant, is that the purchaser and as a consequence, the public, is to have the use of such streets. [Moale v. Baltimore, 5 Md. l. c. 321, 61 Am. Dec. 276.] To hold otherwise, says in. effect the Supreme Court of Pennsylvania, would enable the proprietor of a body of lands sold in lots to perpetrate a gross fraud. When he sells and conveys the lots according to a plan which shows them to be on the streets, he must be held to have stamped upon them the character of public streets. Not only can the purchasers of lots abutting on such streets thus assert their character, but all others. [In re Opening Pearl Street, 111 Pa. St. l. c. 572, 5 Atl. 430.]

While the Pennsylvania case seems to contravene the rule that an estoppel by deed, including an implied covenant, can operate only in favor of the grantee or his privies in estate (Kitzmiller v. Van Rensselaer, 10 Ohio St. 63; Sunderlin v. Struthers, 47 Pa. St. 411), and although an estoppel in pais can operate only when representations have been made to a legal person, who has relied upon them to the extent that it would be inequitable to allow them to be withdrawn (Stevens v. Ludlum, 46 Minn. 160, 24 Am. St. Rep. 210, 13 L. R. A. 270), there are numerous cases full of references to estoppel that seem to recognize that it can arise in favor of the general public, or that the general public can avail itself of an estoppel in favor of a legal person. [13 Cyc. 478, and notes.] Our own rulings affirm this doctrine. For example, in Moses v. St. Louis Dock Co., 84 Mo. l. c. 247, we held that the call for a street in a deed, is more than a mere description, but is an implied covenant that there is such a street.

The rule announced in the Moses case has, under a like state of facts, never been questioned, but on the contrary has been frequently approved.

In the recent case of St. Louis v. Barthel, 256 Mo. 256, 166 S. W. 267, where commissioners in partition, as shown by their report and acompanying plats, reserved a strip of ground thirty feet wide for a street, and described the property abutting thereon, as allotted to the heirs, which did not include any part of said strip, and the report of said commissioners was confirmed by a judgment, not appealed from, and various lots were thereafter sold to parties who improved them in the belief that the street was a public street, the fact that the commissioners used the words “reserved for street purposes” instead of expressly stating that it was set aside for that purpose, did not deprive their act of the character of a dedication.

In Hatton v. St. Louis, 264 Mo. 634, where a plat was made by commissioners in partitioning land which bounded the respective allotments by certain streets and alleys designated as dedicated to the city, followed by an exchange of deeds between the allottees, in accordance therewith, though not acknowledged or recorded, it was held to constitute a common-law or non-statutory dedication, as efficacious as if legally accepted by the city in any recognized manner, or the owners had, by any act recognized by law, estopped themselves to question the dedication. [P. 644, citing cases.]

In Heitz v. St. Louis, 110 Mo. 618, we held that rights acquired under an incomplete or defective dedication by third parties will operate in favor of the public and such third parties so as to render the dedication valid, although lacking statutory requisites.

The deed from appellant to Heil, designates Glades Avenue as the northern boundary of the property and terminates the description of same by metes and bounds as “on the south line of said avenue.”. These references eliminated and the description would be insufficient to locate the property. It is evident, therefore, that in the mind of the grantor the designation of the avenue was intended as something more than the arbitrary naming of a limit, but rather as a reference to a permanent line of demarcation which was to constitute, as stated, the boundary of the property conveyed. Designated as a street it must be held that the grant- or intended it to be a street. Construed otherwise the words become meaningless and the effectiveness of the transfer fails on account of imperfect description.

A fact persuasive of the correctness of this conclusion is the survey of this property made for the husband of the appellant in 1886, and filed and recorded in the Recorder’s office in the City of St. Louis, in 1909. It declares Glades Avenue to be the northern boundary of the property in controversy and designates it as a proposed highway. The presumption is not unreasonable that the plat of this survey was held at the time of its filing for record by the appellant and that its recording was at her instance. If so, its entry upon the record about ten days after the deed from appellant to Heil may, in the absence of any evidence to the contrary, be presumed to have been her act and as such declaratory of her purpose to dedicate that part designated as an avenue to the public for the use indicated by the term. In any event, it remained upon the record unchallenged at least seven years before this suit was brought. In addition, Charles P. Heil, to whom appellant made the deed to the property, testified as to user, in that Glades Avenue had been opened since 1902 and that he had several times driven through it.

In harmony with the cases cited, we hold that appellant’s deed to Heil, aided by the facts stated, constituted a dedication to public use of that portion of her property, designated therein as Glades Avenue. The terms of the deed are unequivocal, it was accepted by the- grantee, and the use of and dominion over the property has been regulated in accordance with those terms. A formal acceptance to render the dedication complete was, under such circumstances, unnecessary.

For example, we have held that a road opened by a landowner, with the consent of an executor of an estate owning the adjoining lands, which road is to be located on the landowner’s land and that of the estate, constitutes, without more, a dedication. [Borchers v. Brewer, 271 Mo. 137.] To a like effect is' the ruling that by deed, the owner of the ground may dedicate the same to the public for a street. [Duckworth v. City of Springfield, 194 Mo. App. 51, 184 S. W. 476.]

The writing between the appellant and Heil six years or, in fact at any other time after the dedication became complete, in which the former, for a consideration, agreed to sell the ground to the lat- ^ theretofore described in the deed, will not suffice to effect a revocation of the grant theretofore made, nor can it be construed in the face of the terms of the deed, as indicative of another purpose than that expressed in such deed. Besides, the grant, although made for the direct benefit of the grantee, and probably as an inducement to him to buy the land, was intended for the public and when this use was established, the right of revocation ceased.

The fact that at common law the fee in the soil over which a public highway is established, remains in the original owner, does not militate against this conclusion. "While the fee may revert upon the vacation of the highway, until this occurs, the use of same by the public is absolute and can in no wise be affected by any act of the original owner. If it were otherwise, the grant would lose the characteristic of a dedication. The permanent use by the public is the matter of prime importance. [Second Street Imp. Co. v. K. C. Ry. Co., 255 Mo. 519; Worcester v. Georgia, 6 Pet. (U. S.) 515, 8 Law Ed. 483; Marsh v. Fairbury, 163 Ill. 401.]

Incidentally it may be said that if this had been a statutory dedication the fee would have vested in the city upon the recording of the deed. [Sec. 9287, R. S. 1919; Laddonia v. Day, 265 Mo. 383.] The possibility of the ownership reverting adds nothing to the rights of the original owner so long as there is no vacation of the grant.

Eight years after the dedication of this property, and after this snit had been brought, the appellant, in a deed to Corey and wife, attempts to give color to the Heil deed not warranted by its terms and thereby change its nature by designating Glades Avenue as a private street. For the reasons stated in discussing the contract between the appellant and Heil, this attempt is ineffectual for the purpose intended.

Supplemental to the conclusion that it was the evident purpose of the appellant to dedicate the property comprised within the limits of Glades Avenue for pub-use> we come 1° the question of her right to damages as sought to be maintained in this proceeding. This demands the consideration of her legal status from another point of vantage. The effect of her deed to Heil was to divest her of title to the strip of land lying north of and adjacent to the property conveyed and constituting a part of Glades Avenue. Having parted with the fee in this property she was entitled to no damages for its appropriation. By her deed to the Coreys, she transferred her title to the continuation-of this strip lying along the north of the .boundary line of the property conveyed and constituting a part of Glades Avenue. Although designated as a private street in this transfer, so far as she is concerned the same rule applies as to her damages as in the case of a public street, as was held in Restetsky v. Railroad, 106 Mo. App. l. c. 387.

Whatever damages she is entitled to, therefore, is for the appropriation of such portion of Glades Avenue lying north of and adjacent to the property she has not conveyed and comprising the remainder of the avenue between Forest and Prather Avenues.

Where the area included within a proposed public street is burdened in favor of adjacent lots with ease-merits in the nature of a street, public or private, the owner is entitled, upon condemnation for the formal establishment of a highway to recover only nominal damages. We so ruled in McKee v. City of St. Louis, 17 Mo. l. c. 191, in which we held that if a lot in a city is sold, bounded by a street designated as such on a map made by the owner of the lands, a reference to which sales are made, although the street remains unopened', under the authority of the corporation, the owner, when-the street is subsequently opened on the application of the corporation, will be entitled only to nominal damages.

In Bartlett v. Bangor, 67 Me. 460, it is held that where land is taken for a public way, which is already burdened with a private way, the owner is entitled to no more than nominal damages.

In Olean v. Steyner, 135 N. Y. 341, the opening of a street as affecting the value of property adjacent' thereto is discussed, and it is held that the advantage accruing are such as to entitle the owner to no more than nominal damages for the property appropriated.

In conformity with these rulings which, in our opinion, properly state the measure of damages, the judgment of the trial court is affirmed.

It is so ordered.

All concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    CHARLES MEFFERT v. MARTIN E. LAWSON, Executor of Last Will of JOSEPH F. MEFFERT, Appellant.
    Division Two,
    July 19, 1921.
    1. NOTE: Implication of Payment. It would be singular that a physician, actively engaged in the practice of medicine, making money in dealing in real estate, in which transactions he had continuous dealings with local banks, should not only borrow, but retain without any payments for almost ten years, considerable amounts of money from a brother, who, not shown to possess any unusual amount of property, combined the vocation of a barber with that of a druggist in a small town in another state; but these facts, though undisputed, are not substantial proof that the notes, if made, have been paid.
    2.-- — : Indorsements: Other Necessary Proof: Limitations. There • is no presumption that the indorsement of a partial payment on a promissory note was made at the time it bears date; on the contrary, to remove the bar of limitations it is necessary to adduce other proof than the mere production of the note with a credit thereon bearing a date which would have that effect — proof showing that the credit was actually made by the owner of the note, or by his direction at a time when the note was not barred, or, by direct evidence, that the payment was actually made by the maker at such time.
    3. -: -: -: -: Similarity of Handwriting. A judgment against a deceased maker’s administrator on one note for $2950 on which a credit of $50 bearing date twenty days before the note would otherwise have been barred by limitations, and ou another for $500 on which a credit of ten dollars bearing date twenty-three days before the note would otherwise have been barred, cannot stand where the only proof, aside "from the mere production of the notes themselves, that the payments were made when dated or at any other time, was opinion evidence that there was a similarity in the handwriting of the indorsements and that of the purported maker. If there is no evidence aliunde when a credit is indorsed, there must be proof that the payment was, in fact, made.
    4. -: Alterations: Explanations: Presumption. Where an alteration or erasure upon a note appears suspicious — for instance, where chemical and handwriting experts testify that erasures had been made on the face of the notes, indicated by the scratched and roughened condition of the paper; that the ink used at the point of erasure was different in composition and color from that used elsewhere on the notes, and that the effect of the erasures in one instance was to change the sum payable and in another to change the date — they demand explanation. Such changes are material alterations, and in their presence the law does not presume that they were made at or prior to the execution of the notes, but it demands that they be satisfactorily explained.
    5. EVIDENCE: Admission Made In Extremis. Admission of a statement made by the purported maker of the notes sued on at a time when be was in extremis is, error. And a statement that “I have fixed liis notes, and fie will get Ms money,” witli no evidence connecting it with the notes sued on and none identifying the person referred to, even if made in a lucid interval, is inadmissible and prejudicial.
    Appeal from Jackson Circuit Court. — lion. O. A. Lucas, Judge.
    Eeversed and remanded.

      Lathrop, Morrow, Fox é Moore and George W. Bay for appellants.
    (1) The evidence should have been .confined to the issues: (a) Were the notes altered in the respects asserted by defendant, and (b) did the indorsements upon the back of them, evidence an actual payment thereon? It was error, and highly prejudicial to defendant, to permit plaintiff to show that Dr. Meffert had stated that he owed his brother money on notes, without showing that he referred to the notes in question, and without limiting the effect of the evidence to the one question of alleged alteration. Cox v. Mignery, 126 Mo. App. 669; p. 1281, sees. 200, 201. (2) The alterations were what the law terms “suspicious,” and it was incumbent upon plaintiff to explain them. It was also incumbent upon him to show that the indorsements on the two disputed notes, represented actual payments by the maker to the plaintiff, to be credited thereon. In neither of these respects did plaintiff discharge his obligation; therefore, the trial court erred in not sustaining the demurrers to the evidence as to these two notes, and in refusing to direct a verdict against them at the close of all the evidence. E. S. 1909, sees. 1888, 1909, 1911; Clark v. Powell’s Estate, 208 S. W. 31; Cox v. Mingery, 126 Mo. App. 669; Briscoe v. Huff, 75 Mo. App. 288; Elsea v. Pryor, 87 Mo. App. 157; Chapman v. Hogg, 135 Mo. App. 654. (3) It is a partial payment, not the formal credit, that revives a debt barred by the statute, or tolls the running thereof. Clark v. Powell’s Estate, 208 S. W. 31; Elsea v. Pryor, 87 Mo. App. 157; Chapman v. Hogg, 135 Mo. App. 654. (4) If the maker or the holder of a promissory note, makes an indorsement of a payment thereon, when it is against his interest so to do, it will be presumed that a payment was actually made and that it was not done merely to save the instrument from the bar of the Statute of Limitations. On the other hand, if it appears from the indorsement that it benefited the party making it, there must be proof that a payment thereon was actually made, for the statute declares that £ £ a payment of any' principal or interest ’ ’ revives the debt or tolls the running of the statute. Plaintiff’s evidence tended to show that the indorsements were in the handwriting of the maker, Dr. Meffert. If they were, they were for his benefit, inasmuch as the notes were not then barred, and he was thereby reducing the amount of his obligation. No payment was shown. The notes were barred. R. S. 1909, sec. 1911; Haver v. Schwyhart, 39 Mo. App. 303.; Briscoe v. Huff, 75 Mo. App. 288; Crow v. Crow, 124 Mo. App. 120; Brown v. Carson, 132 Mo. App. 371; Smith v. Brinkley, 151 Mo. App. 494; Berryman v. Becker, 173'Mo. App. 346; Wester v. Wester’s Estate, 189 S. W. 608. (5) Ratification of unauthorized acts implies knowledge of such acts. If Dr. Meffert wrote the indorsements upon the disputed notes, after the alterations thereof, it should have been further shown, that he knew of the alterations. It was not so shown. State v. Findley, 101 Mo. 368; Bremen Bank v. Umrath, 42 Mo. App. 525; Paul v. Leeper, 98 Mo. App. 515.

      Kelly, BuchJiols, Kimbrell £ O’Donnell for respondent.
    (1) The trial court did not err in admitting evidence showing that deceased made statements concerning the notes in question against his interest and concerning the amount of the indebtedness to plaintiff existing by virtue of said notes, (a) Tbe testimony concerning tbe notes amounted to admissions against interest, and such admissions were competent in an action against tbe deceased’s estate. McLaughlin v. McLaughlin, 16 Mo. 242. (b) The testimony as to the amount of the indebtedness was limited in its effect, by the court .declaring to the jury that it was not admitted for the purpose of showing the execution of the notes or the indorsement, or for giving them vitality or effect, but simply for what it was worth with reference to the contention of the defendant that one of the notes was originally for twenty-nine dollars and fifty cents instead of for twenty-nine hundred dollars and fifty cents. These statements were admissions against interest which were competent against the estate of deceased on that issue. 1 Ency. Ev. 571-2. (c) In any event the defendant is estopped to complain of alleged error in the admission of said testimony for the reason that the said defendant introduced in evidence the statement of Mrs. Baker, a sister of deceased,. and of Mrs. Meffert, the mother of deceased, concerning the notes and the indebtedness of the deceased to plaintiff, and hence if the admission was erroneous, defendant cannot now complain under the common error doctrine. Thorpe v. Railway, 89 Mo. 650; Aronovitz v. Arky, 219 S. W. 620; White v. Railway, 250 Mo. 476; 2 Ency. PI. and Pr. 519; Christian v. Ins. Co., 143 Mo. 460; Reilly v. Railway, 94 Mo. 611; Holmes v. Braidwood, 82 Mo. 616; McGonigle v. Daugherty, 71 Mo. 259; Smith v. Culligan, 74 Mo. 388; Davis v. Brown, 67 Mo. 315. (2) The court did not err in refusing to give the peremptory instructions requested by the defendant, (a) When defendant admitted that the deceased executed the notes, the law presumed that the alleged alterations were made at or. prior to the time of the execution of the notes, in the absence of a preliminary finding by the trial court that the alleged alterations were suspicious. Matthews v. Coulter, 9 Mo. 411; 1 Greenleaf, Evidence, 564; Lubering v. Kohlbrecher, 22 Mo. 596. (b) The statute required the court to presume, in the absence of evidence to the contrary, that the payments were made at the time they were indorsed and thus changed the rule announced in the decisions cited by appellant. R. S. 1919, sec. 798. (c) When plaintiff introduced evidence showing that the payments were indorsed on the back of the notes by the deceased, and when it was conceded by the appearance of the undisputed $200 note, and by the witnesses put on the stand by the defendant that the deceased was slovenly and careless in writing his notes, and occasionally wrote some of them standing on his head, the trial court had no choice in the matter, but was bound to submit the case to the jury, either by a peremptory instruction to find for the plaintiff or by the instructions 'by which it was submitted. Goddard v. Williamson’s Adms., 72 Mo. 131; Gardner v. Earlejq 78 Mo. App. 346; Rega v. Williams, 185 Mo. 631; Phillips v. Mahan, 52 Mo. 19'7; Ray v. McConnell, 179 Mo. App. 400; Smith v. Brinkley, 151 Mo. App. 494. (d) Anna Meffert, the daughter of deceased, and residuary legatee under the will, and hence the real defendant in the case, notwithstanding she was called as' a witness on the part of the defendant, did not testify or deny that the alleged alterations and the indorsements of payments were in the handwriting of her deceased father, and for this reason alone the finding against defendant’s contention was proper. Keime v. Railway, 254 Mo. 194; 1 Starkey on Ev. p. 54; Moore on Pacts, pp. 571, 574, 575; McCÍanahan v. Railway, 147 Mo. App. 386; Cass Co. v. Green, 66 Mo. 512; Payne v. Railway, 136 Mo. 594; Schooler v. Schooler, 258 Mo. 83. (e) The statute (Sec. 5438, R..S. 1919) authorizes the admission in evidence of any writing proved to the satisfaction of the judge to be genuine and authorizes comparison of such writings with that in dispute by witnesses, and authorizes that such writings and the evidence of witnesses respecting same may be submitted to “-the court and jury as evidence of the genuineness or otherwise of the writing in dispute.” Several of the writings admitted to be genuine and which the trial court and jury examined are not included in this record by photographic copy or otherwise. The omitted writings were admitted to be genuine. Their comparison with the disputed writing by the jury would have been sufficient alone to sustain a verdict even in a criminal ease. State v. Scott, 45 Mo. 302. (3) The complaint against the instructions is that they authorized the jury to find that the bar of the Statute of Limitations applied to the notes, and that it was removed by a mere indorsement of a credit without an actual payment; but the instructions did not authorize the jury to find that if the deceased had merely made an indorsement of a fictitious payment * on the notes they must find for the plaintiff, but the said instructions required the jury to find that the credits were indorsed not as fictitious but as payments, and it so prohibited the jury from finding for the plaintiff on each of the notes if they found an alteration of the notes in amount or date without the knowledge of deceased “after the date of said payment, if any.” These instructions categorically referred to a payment in fact and not in a fictitious payment. (4) But defendant’s instructions numbered 4 and 5 proceeded upon the theory that if the credits were not in- the handwriting of the deceased, the finding should be for the defendant and impliedly authorized a finding for plaintiff if the deceased had merely indorsed the credits. That is to say, the trial theory of the defendant was based upon a concession of the fact that there was an actual payment if the deceased had indorsed the credits. Defendant will not now be permitted to change his trial theory. Mitchell v. Eailways, 125 Mo. App. 11; Drug Co. v. Bybee, 179 Mo. 354; McDonnell v. Bldg. Assn., 175 Mo. 250; Black v. By., 172 Mo. 177; B. & L. Assn. v. Obert, 169 Mo. 507; Hernán v. Larkin, 108 Mo. App. 393; Coal C6. v. Watson, 107 Mo. App. 451; Strother v. Dewitt, 98 Mo. App. 293.
   WALKER, J.

— The plaintiff filed a petition in the Probate Court of Jackson County, for the allowance of a claim against the estate of Joseph F. Meffert, based on three promissory notes alleged to have been made by the latter to the plaintiff. A verdict was rendered by a jury in favor of the plaintiff, from which an appeal was perfected to the circuit court. Upon a trial in that court a judgment was rendered May 2, 1919, in favor of plaintiff, from which the defendant appeals.

The petition on which this action is based is in three counts: The first is on a note made to plaintiff, by Joseph F. Meffert, on November 14, 1901, for $2950 with the following indorsement on the back of same: “By cash, October 24, 1911, on within note $50.” The second'is on a note made to plaintiff by Joseph F. Meffert, November 14, 1902, for $500, with the following indorsement on the back of same: “By cash, October 21, 1912, on within note $10.” The third is on a note made to plaintiff by Joseph F. Meffert, June 8, 1913, for $200. The last mentioned note is conceded to be valid and is not contested.

Thos. A. Hardwicke, a barber, testified for the plaintiff as to his familiarity with the handwriting of the deceased; that he had known the latter for about twenty years and had frequently seen him write; that he was careless in his writing; that he had none of his writing at the time, but had "formerly had one or two prescriptions given him by the deceased, who was a doctor, and that he got one of these from a drug store where he had left it and it was exhibited to the jury; that this prescription was in the handwriting of the deceased; witness then identified the indorsements on the back of the notes as being in the same handwriting.

William Meffert, a brother of the plaintiff and of the deceased, testified to his familiarity with the handwriting of the latter; that the notes sued on and the indorsements thereon, were, in his opinion in the handwriting of the deceased. In response to an inquiry as to whether he had had a discussion with the deceased a few hours before his death, concerning amounts owing on notes signed by the deceased, he replied that the deceased said: “I have fixed his notes and he will get his money.” That this was practically all he said in connection with that matter. Further, that the “hundred and twenty-nine” on one of the notes was in Dr. Joseph Meffert’s handwriting.

On cross-examination this witness stated that except casually on two or three occasions he had not seen the deceased for about twenty-five years; that when the daughter of'the deceased sent the witness word that her father was dying, a day or two before his death, he at first refused to go to see him, but finally went; that the deceased was not conscious when the witness first saw him, but that he brought him to consciousness. Continuing, the witness said: “I say he was conscious and I brought him there purposely. He was unconscious, he was under the influence of hyocene, catcine and morphine and they had been doping him with one shot right after another until I arrived when I changed that formula. I never saw him for probably two hours after I got there, until he became conscious and then they ashed for me to be admitted. I treated him, after I arrived, to restore consciousness. He was really muddled from hyocene,' what we call a mild delirium, due to the action of the drug; he was not normal when I got there. In two hours after, he knew people. He was still partially conscious, practically you might say, in a sub-conscious state, under the influence of a drug. I simply withdrew that, that was early in the evening, after my arrival about ten o’clock as I remember, I saw him about midnight, or possibly earlier, I cannot say the exact hour. I stopped the administration of the drug, he talked to me in the morning about eight o’clock, and died about five that evening. I was with him that morning about three-quarters of an hour; I saw him again, I was right with him when he died. He was not conscious all the time. He became conscious in the afternoon, about two or three 0 ’clock, maybe four. The coma deepened until he became absolutely unconscious.

“There is no scratching or erasure on the $500 note that I can see. The handwriting on the back is Dr. Meffert’s handwriting — the indorsement. So far as my judgment is concerned, I would say absolutely so. My reason, is familiarity with his handwriting; that I haven’t seen it would make no difference. You get an impression of this case, don’t you? You know that as well as 1 do ánd to show you a similiarity in that letter, this front part of the letter is one of the letters I refer to. This is one of the letters I found at home among other letters and I picked' that up to compare this with your notes at the other trial; that is the reason I had this letter in my possession. ’ ’ There were two letters. Another letter was exhibited in regard to which the witness says: “That is also my brother’s handwriting, that was written long years ago, probably twenty or twenty-five years ago.” Then follows a .long statement by the witness wholly irrelevant as to the nature of his personal relations with the deceased. On re-direct examination the witness said: “That note handed to me appears to have scratches on it, also this one, is certainly with those that are scratched. The word 'May’ is written under the word 'June’ in pencil on the $200 note. I cannot make that out, there is some writing there under “2,” the word Juné has been written over that. "It appears there under the words 'Chas. Meffert.’ There has been some writing there that has been scratched out and in the $200 note. I did not visit with my brother, the Doctor, Joseph Meffert, in my mother’s home when I went to Emporia; we never met there.” On further cross-examination, the witness said: “I asked him (deed) in regard to Charley’s note; he remarked, ‘ These notes were all right and would be paid.’ That was the substance of what I testified to in the other trial.”

Thos. A. Hardwicke, recalled for further cross-examination, said: “I never looked for any more prescriptions or receipts, my business is that of a barber; I have nothing to do with handwriting, only just our laundry and writing laundry námes, different names. I am no expert; I saw the Doctor’s handwriting on these prescriptions, which I turned into the druggist and I had two' receipts, and that is all the .familiarity I had with his handwriting. ’ ’

The wife of the witness Hardwicke, testifying for plaintiff, said: “I knew Dr. Joseph F. Meffert in his lifetime, twelve or fourteen years; I knew his brother Charley (the plaintiff) and Charley’s wife; I heard some talk of a trade between Dr. Joseph Meffert and his brother Charley, for real estate in Kansas City. I took two or three trips with my sister-in-law to look at places. After we had looked at two or three places, the Doctor said, ‘Well, if you want the property I will see that you get it. I owe Charley between thirty-six and thirty-seven hundred dollars on these notes and the trade will more than pay for the property.’ I know the handwriting of Dr. Joseph Meffert, the $3674 note dated July 26, 1915, payable to Mary Meffert is in Doctor Meffert’s handwriting and so is the note of September 6, 1915, $2000, payable to Mary Meffert, and the $2950 note of November 14, 1901, payable to Chas. Meffert. In my judgment the words ‘twenty-nine hundred’ are in Dr. Meffert’s handwriting, and s'o is the indorsement. On the $500 note, 1902, the words ‘by cash, October 21, 1912 on within note $10’ in my opinion, Doctor Meffert wrote those words. In my opinion Dr. Meffert wrote the figures ‘2-15,’ and signed his name on the receipt for $10, December 4,1915, reading: ‘Received from Pipps Taylor, rent 3602 East 15th, till December 1, 1915, Joseph F. Meffert.’ I am the wife of Mr. Hardwicke; my husband’s sister is Charley Meffert’s (the plaintiff’s) wife. I have talked with Dr. Meffert; he said he owed Charley some money and would pay it; he said he owed between thirty-six and thirty-seven hundred dollars, with interest. If they did not get the amount I stated in my testimony at the former trial, that is not my fault. I remember it, because the Doctor said it at my house.” Cross-examined as to the appearance of the faces of the notes, the witness found no evidence of any erasure or other indications of a change in the note since it was originally written. Witness has had no experience in the matter of handwriting, or the comparison of same.

A Mrs. Baker testified: “I am the sister of Dr. Joseph and of Charley and William Meffert; I have lived in Liberty practically all my life. I have seen my brother, Dr. Joseph Meffert, sign different papers; I think I know his handwriting. My opinion is that the $2,000 note, payable to the order of Mary Meffert, is in his handwriting. In the last five or six years before his death, I saw him do writing very little. He did not do any writing at our home at all. Only if he wanted a little change from ma, he would make a little note and sign it to her. That is all the writing he ever done— he never gave me a line; I never had any business transactions with him; the only ones I ever saw were some he gave my mother.” Disclaiming any knowledge of the handwriting of the deceased, other 'than as indicated, the witness said: “As far as his name to the notes are concerned, I think he wrote his name. That looks, to my opinion, like his writing in the body of the note, the words ‘twenty-nine hundred,’ and the figure ‘2.’ Of course, that may be his writing or may not; of course, I can’t tell. I didn’t see him do it. I don’t know whether it is or not. I signed the paper at Mr. Lawson’s office, saying I knew nothing about this case. He did not show me the notes. I told him I didn’t know anything about the notes. I told him I had not seen the notes. I have not seen enough of the Doctor’s handwriting to be able to tell about his signature.” She could not remember to have heard the Doctor say anything about my indebtedness to his brother Charley. “I never spoke to him about Ms business at all. Of course, I know t-bat you know that he owed Charley some money. I can’t just remember, it was probably eighteen or nineteen years ago, it was a long time ago since I heard from any source he owed Charley.” This was all the evidence for the plaintiff.

The testimony for the defendant, was as follows:

John S. Major, president of the'First National Bank of Liberty, testified as follows: “I am in the banking business; I have been for twenty-two years. I was acquainted with Dr. Joseph Meffert in his life time. He was a customer of our bank when I came there in 1897; he had been before, but I don’t know how long. He carried an account there up until the time of his death, and I had checks often. I became familiar with Ms handwriting. It is a part of my business to familiarize myself with handwriting, as an active official of the bank. The indorsements on the back of the two notes, the one for $500, and the other for $2950 are, in my opinion, not in the handwriting of Dr. Meffert. .Looking at the word ‘hundred,’ on the note for $2950, it appears that there has been a line drawn thereon and extended out to the word ‘dollars’ and the line erased and the word ‘Hundred’ written over it. There is a character joining the top of the two strokes, forming the letter ‘H,’ in the word ‘Hundred,’ that is the same character as the ‘&’ out at the end of it. Also at the end the ‘100’ under the line is printed and the ‘50’ is written over, as ‘50/100.’ If the line was drawn from the ‘twenty-nine’ it would read ‘twenty-nine: fifty.’

“In the $500 note, the ‘2’ figure in 1902, shows to have been written over an erasure. You cannot make out distinctly what is under there; it looks like it might be a ‘1,’ but I am not sure about that, but the ‘2’ has evidently been written over the other, with a different colored ink. One has turned brown and the other, the ‘2,’ in black ink, has not turned brown. The date seems to me to originally have been 1901. There is a payment ‘by cash, October 21, 1912, on the note for $10.’ I am familiar with Doctor Joseph’s signature. That is his signature on this note. Doctor Meffert was a careless man in his way of writing.” Having read the face of the $200 note, conceded to be genuine, the witness stated: “This reads ‘Two Hundred’ with dollars and then interest; very carelessly and loosely drawn. It is plain that the word ‘May’ was erased and June written over it on this note, and that the handwriting is that of Dr. Meffert, and the ‘Two Hundred’ is written over the erased word “received,” at least, that' is what the face of. the note indicates. There seems to have been an erasure where the name of ‘Charles Meffert’ now appears in the note.” The witness is here examined at length about the distinguishing differences between the similarity and dissimilarity in the figures appearing on the different notes, as indicative of the amounts of same.

John L. Dougherty, cashier of the Commercial Bank, at Liberty, having occupied that position for fifteen years, testified as follows: “In connection with my business, I have had occasion to give attention to the matter of handwriting and the signatures of people and the identification of their writing. We have to know our customers signatures; naturally we pick up information about handwriting. My position has required me to do that kind of work. I knew Dr. Joseph Meffert all my life, nearly; he did most of his banking business while I was with the Commercial Bank, at the First National, but he did some business with us. I had occasion to see his checks and also to pass on them. At times he had an account in our bank. I am familiar with his handwriting. ’ ’ Shown the two notes, one for $2950 and the other for $500, the witness stated: “that the indorsements on the back of same were not in the handwriting of Dr. Meffert; the signatures seem to be in his writing. On the note for $2950, it looks like the ‘Hundred’ had been scratched out between twenty-nine and 50/100 dollars, and the space written over. The top stems of the ‘II’ seem to have been changed. • The ‘Hundred’ and ‘Twenty-nine’ is heavier, as would be natural when written over an erasure. It looks very much as though there had been a line drawn there, running from the ‘ Twenty-nine’ to the cents, 50/100, and the ‘H’ looks like it had been made with two strokes and then afterwards another added. At first glance, if it was by itself, you would not know whether it was intended for an ‘IT’ or not. On the $50C note, it looks to me like the ‘2’ had been erased and written over with a different colored ink.” On cross examination, witness stated: “that if he was called on to pay a check for ‘Two Thousand, Nine Hundred Fifty’ he would not pay it, because there is nothing there to indicate that it is dollars. There is nothing to indicate that there is dollars, except the dollar mark in front of it and that is imperfect. It is not ‘$29.50’ in figures and it ain’t ‘$2950.’ There is no symbol or anything to indicate to me what it was. It looks to me like the figures ‘$2950’ are Joseph Meffert’s, but I couldn’t tell without a good many more of them to compare with it, than I have. I would not say that those figures following the dollar mark ‘2950’ were written by Joseph Meffert, for $2950. This note which you show me as having been madeJ o his mother looks like the Doctor’s handwriting. I would swear to it as well as I can swear to anything. The word ‘Hundred’ in the $200 note is written over an erasure. The signature to that note is in his writing. It looks as though the $200 note had been written on some kind of a blank receipt. The Doctor was a slovenly man in making his checks and notes, at times. I knew Dr. Joseph Meffert all my life and I don’t know whether he ever drank or not. I think the Doctor wrote the note which you have shown me, to his mother, and also the $200 note. I think he wrote the word ‘Hundred’ in the $500 note. I don’t recall that he ever borrowed money from our bank.”

James H. Southwell, director of a Microscopical Pharmacy in Kansas City, testified: “That he had about thirty years experience in this line of work.” Shown $500 note, he stated: “That this note is written in the common ink used, called finid or as chemists called it, iron nutgall ink, except the figure ‘2’ which is written in common black or logwood ink. I tested this note in different places, first the figures, then the signature, and found that the ‘9’ and ‘0’ were written in iron nutgall ink, common writing fluid, such as Carter’s, Sanford’s or Arnold’s, while the £2’ is written in logwood potassium ink, or common black ink. These are the two kinds most commonly used for business purposes. The body of the note and all of the date except the £2’ is in one kind, and the £2’ is in another kind.” This is followed by a long statement of the witness as to the constituent elements of the different kinds of ink and the test used in determining their nature. Continuing, the witness said: “I put the $2950 note through these tests. I found that it was entirely written in one kind of ink and examined the word ‘Hundred’ microscopically, and found a line of erasure that ran from a little this side of the ‘&’ to nearly the end of the ‘u’ upon the paper. This examination disclosed that the paper fiber was disturbed and that it ran over to the ‘50/100.’ ” The witness demonstrated the manner in which the erasure was disclosed, by illuminating the same under an electric light. Following this exhibition, the witness said: “Well, you can see at the end of the ‘d’ there, that the erasure or disturbing of the paper runs up to the ‘d’ and beyond. The paper is scored or picked into a little bit where the erasure was made. By moving the paper along here, you can see, it shows plainly. The erasure I find is discernible up to the first part of the ‘u’, and from there on clear on before the small ‘r’ in the word ‘Hundred.’ I have had a great deal of experience in the matter of examining handwriting in one way or another. I have made a study of this subject. I think these indorsements were written by the same person. It seems as though they were done by a writer, more or less expert than the person who did the writing on the face of the notes. I discover no common characteristics between the writing on the faces of the notes and the two indorsements, bnt the latter have the same characteristics.” Further dissimilarities between the writing on the faces of the notes and the indorsements were brought out on cross-examination, as well as points of difference not necessary to be detailed here.

Anna Meffert, daughter of the deceased, testified as follows: “I was present at the time of my father’s death, in 1916. I was not living with him at the time, but was with him from Sunday until after he died on Wednesday. There was in his house when I went there and until Iris death» the housekeeper, and Mrs. Charles Meffert was out there part of the time; a nurse was with him all the time. When I saw my father on Sunday, before his death, he was very low and seemed to recognize' me a little; he kind a smiled, but was not able to talk. I don’t remember of his saying anything to me. I walked up to him and took hold of his hand and he just pressed mine and I could tell from the way he wap acting that he knew who I was. He seemed to be in rather a dazed condition, and he was lying with his eyes closed; he was conscious on Monday and a little conscious on Tuesday, but after Tuesday evening he did not seem to know anything. On Tuesday night I went out to Mrs. Baker’s and stayed all night. Wednesday morning, as soon as I could come back, I went to his sick room and was there until he died. I may have gone out to lunch, I don’t remember; I may have gone into the dining room now and then and came back after lunch and came back and sat there before he died and when the nurse came into the kitchen and told us he was dying. During the last day, Wednesday, he did not converse with anyone; he was not conscious; I was present along from early in the morning until when I just stepped out. If my uncle, Dr. William Meffert, from Emporia, had any conversation with him that morning about notes, I did not see him and did not hear him. He was there on Wednesday afternoon and I think it was then he went in there; I was there sitting in the room and he wanted father to take some nourishment; he was lying at the time in a semi-conscious condition — I don’t know whether it was a stupor or not. He did not open his eyes or say anything. They put something into his mouth, and Dr.- William Meffert took his face and patted it and said, ‘Swallow, swallow, swallow.’ That was all, there was no response on my father’s part.” Cross-examined, she said her father was about 59 years of age, and that he left her the greater part of his property in his will. Portions of the will were then read over to the witness. “I cannot say wh'at the relationship was, or had been between my - father and his brother William as manifested when the latter came to, my father’s bedside, because he was unconscious. I cannot say that it was friendly; I am sure that he was unconscious from Tuesday evening on. I was in the room off and on.”

C. W. Ransom, author of a system of penmanship in different forms, for thirty years, testified: “I have written text-books on the subject, and have had occasion to examine handwriting and disputed documents for the purpose of ascertaining the genuineness of the writing. I have made a study of that matter. I have examined these two notes, one for ‘twenty-nine hundred dollars’ in writing and ‘$2950’ in figures, and one for ‘$500’ in figures, and I have had an opportunity to examine these writings you hand me and which are marked as exhibits in this case.. In my opinion, the indorsement on the back of the note for $500, to-wit, ‘By cash, October 12, 1912, on within note $10 ’, is not in the handwriting of the party who wrote the face of the note, excluding the date there or the ‘2’ in said date. The indorsement on the note for $2950 is, in my opinion, not in the handwriting of the party who wrote the face and body of that note and the signature.” Witness then explains his reasons for that conclusion, based upon the manner in which the writing was done and the formation of the letters. Taking the $500 note, the witness stated: “that it was very evident that underneath the ‘2’ in the date 1902, there had been an erasure.” The reasons for this conclusion are also given, not necessary to be detailed. Continuing, the witness said: “It looks very much like the ‘twenty-nine’ in this note for $2950 was written, but the ‘&’ was made and then a straight line extended to the ‘50’ and then this line was erased. This erasure seems to have been made clear across and right over the top of the ‘Hundred’ and the loop or the top of the uprights of the ‘H’ are the remnants of the old ” Cross-examined, the witness said: “ I understand that all the signatures are admitted to be genuine on these different notes. I think I could pretty definitely determine whether the handwriting was that of Joseph Meffert.” The witness then proceeds to define the distinguishing characteristics between the different writings on these notes. The conclusion being that the changes made were not in the handwriting of Dr. Joseph Meffert, or more correctly perhaps, that the signatures and the other writings on the notes were not by the same person who made the erasures and the changes. On re-direct examination, the witness stated “that the $200 note was apparently written on a piece of paper that-had theretofore been used for something else and was dated ‘May 1st’ with an indelible pencil.” What are called the characteristics of handwriting were explained, and while they were stated to vary in some degree, according to the position of the writer and the conditions under which they were written, the characteristics would be the same. r

Martin E. Lawson, testifying on behalf of the defendant, said: “I live in Liberty; I am the administrator of Dr. Meffert’s will. I had known him about twenty-five or twenty-six years before his death, and had acted as his attorney for twenty-one or twenty-two years. He was in my office on an average of once a month during that time. Frequently he was there twice a week, oftentimes I would have him sign deeds, contracts or papers, and he would sit down and make some rough sketch of agreement he was about to make with someone, for me to put in legal form. I have seen him write a great many tinaos and have had his handwriting before me frequently. I had seen the note dated June 8,1913, payable to Charles Meffert, for $200, before the Doctor’s death. Mv recollection is I saw it before it was delivered to Charles Meffert. I first saw these two notes, one, Twenty-Nine Hundred Dollars, in writing, $29.50, and the $500 note, the two that are in controversy in this case, shortly before the Doctor’s death. Sometime after his death, Charley Meffert and his wife brought the notes to my office. I then saw the indorsements or credits on the backs. From my experience and acquaintanceship with the Doctor’s handwriting and having seen him write, I am of the opinion that these indorsements were not written by him. I formed that opinion when I first saw the aaotes and took them to his banker, Mr. Major, that same day. At the time this suit was instituted and after these notes were brought to me’ and my suspicions were aroused about them, I took a statement to Mrs. Baker and Mrs. Meffert, the mother and sister, and asked what they knew about it. I took their statements in writing, Mrs. Baker signed it and Mrs. Meffert, who was blind, made her mark.”

Cross-examined, the witness said: “I do not attempt to account for the slovenly or careless way in which the ,$200' note is written. The Doctor had a way of picking up most any sort of paper and writing on it. T notice this note is written on a receipt blank. I don’t know anything abouf his writing, rubbing out and writing over it. He was careless in the formation of letters; he did not form his letters fully and completely at all times. I never saw him rub out and write over anything. This note looks like he started, or somebody started, to write the Avord 'Received’ here and this had been rubbed out and the note written over the top of it. It is Avritten on a loose piece of paper.” The witness then explains the conditions under which the $200 note, conceded to be genuine, was made by the deceased to his brother, the plaintiff.

This was all of the evidence.

The setting forth at length of the relevant testimony of the witnesses for the respective parties is not deemed inappropriate to assist in determining the greater credence which should be given to their testimony if, in its examination, the rule is kept in mind as to the province of the jury where there is substantial evidence to sustain any issue. In no other way than by a presentation of the testimony of witnesses in their own words can the same be weighed and measured so as to satisfactorily determine its probative force. In the application of this test, the intelligence, experience and familiarity with the matter in controversy and the interest or lack of interest of the, witnesses in the result of the action,, may be fairly taken into consideration.

The payment of the notes in controversy is contested: (1) on the ground that they have been paid; (2) that they are barred by the Statute of Limitations; (3) that they are void because of material alterations; and (4) that the credits on the backs of same are not in the handwriting of the alleged maker.

I. Other than by implication, there is nothing to sustain the contention that the notes have been paid. The facts, not-disputed, are that Joseph F. Meffert, in addition to being actively engaged in the practise of medicine, made money in dealing in real estate, in which transactions he had continuous dealings with local banks. These facts lend persuasive coloring to the conclusion that while thus engaged, it would be rather singular that he should not only borrow, but retain without any payments thereon, for almost ten years, the amounts of these notes, from a brother not shown to have been possessed of any considerable means, who combined the modest vocations of a barber with that of a druggist in a small town in Kansas. In the face of these facts, the impartial mind which draws its conclusion from the known and well recognized conduct of men under, like circumstances might reasonably hesitate to give ready credence to the creation of these debts. If created, however, no substantial proof has been adduced as to their having been paid.

II. A more serious question confronts us in the contention as to the bar of the Stature of Limitations. On the back of the note for $2950, there appears a credit or the indorsement of a payment for $50; dated October 24, 1911, which was twenty days before the no^e would have been barred by the statute. On the back of the note for $500 there appears a credit or the indorsement of a payment of $10, dated October 21, 1912, or twenty-three days before this note would have been barred by the statute. Waiving the rather unusual circumstances that these notes wore made by a business man, who, judging from his pecuniary successes or superior acquisitive ability, must have realized the importance and be reasonably held to have pursued the course of proinptly meeting his obligations, it is rather unusual, to say the least, that he.would borrow these small amounts from a brother, who is not shown to have had any money, and thereafter completely ignore the obligations thus incurred, for almost the entire legal life of the debts and then make these nominal payments in the manner in which their entry upon the backs of the notes indicate that they were made.

However, the absence of proof as. to these payments having been made other than their entry on the backs of the notes is the matter with which we are primarily concerned. Aside from the opinions of certain of the witnesses for the plaintiff, shown to have been non-experts, that the handwriting of these entries of payments was the same as that of the signatures of the payer or the alleged maker of the notes, there was no evidence offered on this subject.

It is the well settled law of the State that there is no presumption that an indorsement of a payment on a promissory note was made at the time it bears date, and to remove the bar of the Statute of Limitations it is necessary to adduce in evidence other proof than the mere production of the note with a credit thereon, bearing a date which would have that effect. A contrary rule was announced in Carter v. Carter, 44 Mo. 195, and in Smith v. Perry, 69 Mo. 142, to the effect that in indorsements of payments on promissory notes, it is presumed that they were made at the time they bear date; but these rulings, as shown by later cases, do not correctly declare the law, in that it is now held to be necessary, in order to remove the bar of the statute, to show that the credit was actually made by the owner of the note, or by his direction at a time when the note was not barred by the statute, or, by more direct evidence, that the payment was actually made by the maker at such time. If it be shown that the credit was indorsed on the note by the holder at a time when the same was not barred and was, consequently, against his interests to have made it, this will furnish prima-facie proof that payment was made at that time and in the absence of a showing to the contrary the note will not be barred, but in such cases there must be proof that the credit was, in fact, made at such time. There was no such showing. Aside from mere opinion evidence as to a similarity in handwriting, which was subjected to serious question by strong counter proof, no effort was made by the plaintiff to support the claim that these payments were made when dated or at any other time. If the rule regulating this matter were otherwise, ample opportunity would be afforded for fraud, in that the holder of a note .would have it in his power to toll the running of the statute by simple dating a payment prior to the bar, especially where, as in the instant case, death had closed the mouth of the maker. The countenancing of payments so entered without proof, would result in destroying the rule heretofore recognized, that payments antedating the bar of the statute are held to be against the holder’s interest, in that an antedated entry of payment would redound to his interest. Hence, the wisdom of the requirement that there must be proof aliunde of such payments.

In Phillips v. Mahan, 52 Mo. 197, it is held that an indorsement of partial payment made on a note by the holder without the privity of the maker is not of itself sufficient evidence of a payment to repel a defense created by the Statute of Limitations.

In Goddard v. Williamson’s Admr., 72 Mo. 131, it is held that when the Statute of Limitations is relied on as a defense to a note, the plaintiff should not be permitted to read in evidence credits indorsed on the note without first proving when the indorsements were made.

In Regan v. Williams, 185 Mo. l. c. 631, it is held that it is not the indorsement of a credit, but the payment that operates as a renewal of a promise and removes the bar of the Statute of Limitations; that the party relying on a payment to stop the statute must not only establish that it was made, but that it was •made by the authority of the defendant; that a part payment does not take a debt out of the statute unless made under such circumstances as to warrant the inference that the debtor thereby recognized the debt and signified his willingness to pay it.

In Zaring v. Bauman, 223 S. W. (Mo. App.) 947, in which the facts disclosed that the holder of a note had indorsed payment thereon before the note was due, it is held that the mere indorsement of a credit on a note does not prove that such credit was entered before the note was barred, but there must be evidence aliunde of the indorsement of such payment to show that it was in fact indorsed as a credit before the note was barred.

In Berryman v. Becker, 173 Mo. App. 346, it is held that where there is proof that a credit-was indorsed on a note by a holder at a time when it was not barred, this being against his interest, is prima-facie evidence that payment was made at that time, and, in the absence of any showing to the contrary, the note will not be barred, but where there is no evidence aliunde as to when the credit was indorsed, there must be. proof that the payment was, in fact, made.

III. The testimony of chemical and handwriting experts was to the effect that erasures had «been made on the faces of the notes: that same was . , indicated by the scratched or roughened condition of the paper and that the ink used at the points of erasure was different in composition and color from that used elsewhere on the notes.

The ancient rule of evidence, as stated and discussed by Mr. Greenleaf (1 Gr.- Ev., sec. 564), was that alterations and erasures of written instruments were presumed to have been made at or prior to the time of their execution. The trend of authority is still in favor of the rule as thus declared. Plowever, where an alteration or erasure appears suspicious on it's face; for example, where a different ink has been employed at the point of erasure from that elsewhere used in the instrument, it demands explanation. In the presence of this, or equally cogent circumstances of a suspicious nature, the law presumes nothing and the question as to the time when, the person by whom, or the interest for which, the alteration was made, are matters of fact to be found by the jury upon proof adduced by the party offering the instrument in evidence.

Commissioner Railey, in Collison v. Norman, 191 S. W. 60, with commendable care, has recently discussed the question here under consideration and has reached the conclusion above indicated, supported by a wealth of authority from our own and other courts. The erasures here testified to by experts as having been made, were, in one instance, such as to change the sum payable; in the other, to change the date. Such changes are classified by our statute as material alterations. [Sec. 911, E. S. 1919.] As such, they should have been explained. [Mech. Am. Nat. Bank v. Helmbacher, 201 S. W. (Mo. App.) 383.]

We have heretofore discussed. the question as to whether or not there was any evidence that the indorsement of the payments on the notes was in the handwriting of the deceased.

IY. Error was committed in the admission in evidence, without more, of the testimony of a brother of the deceased as to a statement alleged to ^aye ^een ma<te by the latter when under all the attendant facts and circumstances he was in extremis. This statement was as follows: “I have fixed his notes, and he will get his money.” In the absence of evidence connecting this statement with the notes in controversy, or an identification in some manner of the person referred to, this statement, under the most elementary rules of evidence, was inadmissible. Its admission, unexplained, was irrelevant and could only have been prejudicial to the defendant.

For the. reasons stated, this cause will have to be reversed and remanded. In the' absence, upon a re-trial, of more substantial proof than has heretofore been adduced, a judgment for plaintiff cannot be sustained.

All concur.