author: BURGESS, P. J.

text:
    THE STATE ex rel. ASHBY, Collector, v. THREE STATES LUMBER COMPANY, Appellant.
    Division Two,
    July 3, 1906.
    1. LEVEE DISTRICT: Assessment. An assessment of such lands within the levee district as the assessor believed subject to overflow and as would be benefited by the levee, is not invalid because it did not cover all the lands in the district. The questions as to the liability of all lands embraced in the levee district to overflow or as to all being benefited by a common levee, were not settled by the county court when the district was formed; but the question of assessment for benefits was left to be determined by the assessor, as provided in section 8441, Revised Statutes 1899.
    2. -: -: Unassessed Lands. The assessment of lands benefited is not impaired by the fact that several thousand acres of land within the levee district not benefited by the levee were not assessed.
    3. -: -: -: Uniformity. The statute requiring the taxes to be extended on the tax book of the county on real estate benefited situated within the levee district, does not violate the rule of uniformity. The rule of equality and uniformity, prescribed ih cases of taxation for state and county purposes, does not require that all property or all persons in a county or district shall be taxed for local purposes. Taxation for a local improvement should be made against the persons or property benefited.
    4. -: -: -: Invalidity. The mere fact that all lands within the levee district benefited by the levee were not assessed with the benefit tax, would not, ipso facto, render invalid assessments against other lands that were benefited by the levee and that were legally and properly assessed fcr levee purposes.
    5. -: -: Raised by Board: Collateral Attack. The county board of equalization has jurisdiction over lands taxed for levee purposes and the authority to raise the assessments for benefits against all the lands, and in so doing it acts judicially, and being judicial its acts in raising assessments cannot be collaterally attacked; for instance, complaint against such action by a defendant sued for the unpaid benefit tax, cannot be heard.

      Appeal from Mississippi Circuit Court. — Now. Henry C. Riley, Judge.
    Affirmed.

      Russell S Heal for appellant.
    (1) The assessment is invalid for the following reasons: 1st. It was not made at the first annual assessment to he made under the general revenue laws of the State after the district was organized. R. S. 1899, sec. 8441. 2nd. It did not cover all the lands in the district, but only such land as the deputy assessors thought would be benefited by the levee or a system of levees that existed at the time the assessment was made only in the imagination of the officers of the district. Stotts v. Wall, 153 Mo. 216. 3rd. The assessment was not made by the assessor at the first annual assessment made under the general revenue laws, but by four deputies appointed who did not assess the value of the lands without the work contemplated, but took the valuation from the assessment book of the preceding year. R. S. 1899, sec. 8441. 4th. The deputies in mailing the assessments gave the landowners no opportunity to be heard before making the assessment. (2) The taxes sued for are not based upon the assessment made by the assessor and submitted to the landowners’ meeting held in July, 1900, but upon the valuation of benefits as fixed by the board of equalization in April, 1901. After the landowners had met and had ascertained the valuation of the land fixed by the assessor as improved by the work proposed and had determined the rate per cent to be levied on that valuation, it was beyond the power of the board of equalization to make any change in that valuation, and a tax based on the valuation as fixed by the board of equalization is invalid.

      Boone <& Bee for respondent.
    The assessment was valid, having been made by the assessor at the first annual assessment after he was ordered to make it. R. S. 1899, sec. 8441. What the assessor may do himself he may do by deputy, Ibid, sec. 9140. The assessment covered all the lands that were in the district, the assessor fixing benefits according to his judgment, and if lands could not be benefited, of course no benefits were assessed; this was in compliance with sections 8437 and 8441, Revised Statutes 1899. The case of Stotts v. Wall has no reference whatever to this question of assessment. The board of equalization had the same jurisdiction over this assessment as over assessments for state and county purposes. R. S. 1899, sec. 8449. The duties of the board of equalization are judicial. Black v. McGonigle, 103 Mo. 198; Ward v. Board of Equalization, 135 Mo. 310; Ins. Co. v. Charles, 47 Mo. 466; Railroad v. McGuire, 49 Mo. 483. Appellant had its day in court, there is no pretense that the board of equalization failed in any of its duties; its proceedings were regular, proper notice given, and the result legally published and certified as required by the statutes. If its actions were wrong or unjust, they could have been reviewed on appeal or by certiorari. If the landowners’ meeting was legal and the assessment valid, then even if the board of equalization did exceed its authority in 1901, only that part of the tax resulting from the increase of assessment would be invalid and before one can obtain relief from that which is illegal he must offer to pay that which is legal. Overall v. Ruenzi, 67 Mo. 207; Dickhaus v, Olderheide, 22 Mo. App. 79. In a suit for delinquent taxes the vital question is, were the taxes legally assessed and extended on the tax books and have they been paid? No informality in the assessment will invalidate a tax. R. S. 1899, sec. 9179. While this is not a tax in the true technical sense of the word, yet it is levied and collected in the same manner and the same principles govern as are applicable to the levy and collection of other taxes and it is a burden which the majority of the landowners have the right to charge against the lands of the district. Morrison v. Morey, 146 Mo. 545. In assessing the benefits the assessment does not have to charge all the lands in the district, but only such as are benefited. Land Co. v. Miller, 170 Mo. 255.
   BURGESS, P. J.

This is an action at the relation of the collector of Mississippi county to enforce the Hen of the State and of Levee District No. 1, of Mississippi county, for back taxes for levee purposes. The petition states a case of a levee district duly formed, embracing defendant’s lands, an assessment thereon made for levee construction according to the provisions of chapter 124, Revised Statutes 1899, default in payment by defendant, and prays judgment. The answer is a general denial.

The case was submitted to the court on an agreed statement of facts, from which it appears that at the August term, 1892, of the circuit court of Mississippi county, upon petition and notice as required by law, said county court duly organized a levee district designated as Levee District No. 1, embracing within its area about three-fourths of the county. At the same time the court appointed three directors of levees, who duly qualified, and the board was organized as required by the statute.

At the May term, 1893, of said county court, a majority of the board of directors presented to the court a petition representing that, after due consideration, they had agreed to build a levee on a certain line therein designated, subject to the approval of the majority of the landowners within a certain part of the district, specifying by metes and bounds an area of about one-third of District No. 1, and stating that in the opinion of the petitioners the land so designated would be greatly benefited by a levee to be built as they proposed, and praying that the assessor be directed by the court to assess the value of the lands included in that boundary, as required by sections 6679, 6680 and 6681, Revised Statutes 1889. The assessment for the purpose indicated was made according to the order of the court.

Thereafter, on December 7, 1899, said county court ordered the county assessor, at the first annual assessment to be made by him under the general revenue laws of the State, to assess the value of all lands in. said levee district subject to overflow or inundation from the Mississippi and Ohio rivers or other water courses, and to be benefited by said work, having reference to the value of said lands without the work contemplated. In obedience to said order the assessor, after he had collected most of his assessment lists for state and county purposes from the landowners, appointed four deputies to do the work so ordered. Said deputies, in making said assessment, took no lists from the landowners, but used books which had been prepared by the assessor and in which the value of the lands, without reference to the work contemplated, was taken from the assessment books of the preceding year, and assessed the value of the lands as improved by said work. These books were returned to the assessor, and from them he prepared the assessment books which he filed in the office of the county clerk on January 20, 1900, delivering a copy thereof to the secretary of the board of directors of the levee district. This assessment did not include all of the lands in the district, but only such lands as the deputies thought would be benefited by the work contemplated.

On June 11, 1900, the board of directors of the levee district called a meeting of the landowners thereof to be held on the 21st day of July, 1900, for the purpose of submitting to the landowners the reports, specifications, surveys, profiles and estimates made by the engineer, also the assessment returned by the assessor, the notice of which meeting described the boundaries of the entire levee district, and was published as required by law. Said meeting was held, and the reports and estimates of the engineer and the assessment of the assessor were laid before the landowners, who voted a tax of forty per centum on the valuation of said lands as fixed by the assessor against the lands, to pay for the work authorized.

In April, 1901, the county board of equalization met, and undertook to readjust the assessment made by the assessor, increasing the valuation of some of the lands and lowering the valuation of others. The board also increased the total valuation of the lands in the district fifteen thousand dollars, about two thousand dollars of which increase was on the lands of the defendant. Thereafter, the board of levee directors ordered that a tax of forty per cent be levied upon the benefits assessed on all lands in the district, to be paid in twenty annual installments of one and one-half per cent each, until the whole forty per cent was paid. This suit was brought to recover of defendant the installment for 1902.

At the trial the plaintiff produced the original tax books for 1900 and 1902, showing that the taxes sued for were levied and extended on the books, and also produced the assessment lists returned by the assessor, properly certified.

The finding and judgment of the circuit court were for the plaintiff. In due time defendant filed motion for new trial, which was overruled, and the case is brought to this court for review.

The first question presented for adjudication upon this appeal is as to the validity of the assessment, which defendant insists is invalid because not made at the first annual assessment after the levee district was organized, as required by section 8441, Revised Statutes 1899. That section provides that after the formation of any levee district the county court of the county in which such district lies shall cause the county assessor, at the first annual assessment to he made under the general revenue laws of the State, to assess the value of all lands in said levee district subject to overflow or inundation from rivers, and to be benefited by said work, having reference to the value of said land. The assessment in question was made in accordance with the order of the court.

Defendant insists that the assessment was void because it did not cover all the lands in the district, but only such lands as the deputy assessors thought would be benefited by the levee or a system of levees, which did not exist at the time the assessment was made. State ex rel. Stotts v. Wall, 153 Mo. 216, is relied upon as sustaining this contention, but in our opinion it does not do so. The assessment in the case at bar embraced all the lands in the district to be benefited by the levee, the assessor fixing the benefits, and if in his judgment there were lands in the district which could not be benefited by the levee, then no benefits were assessed against them. This was done in accordance with the provisions of sections 8437 and 8441, Revised Statutes 1899. In State ex rel. Stotts v. Wall, supra, there had. been a division of the levee district, and a meeting was held at which only a part of the landowners were notified to appear, only about one-third of the district proposed to be levied, all the landowners in the other two thirds of the district being excluded. The question under discussion in that case was as to the validity of that meeting and its actions, and in passing upon the question it was held that all the acts of that meeting were void, and that no tax could be legally assessed or collected, as the result of such acts. In this case, the landowners’ meeting was held after proper notice to all the landowners in the district, in conformity to the rule announced in State ex rel. Stotts v. Wall, supra. But it is said for defendant that the assessment was invalid because the assessors determined for themselves what lands wonld be subject to overflow in the district and what would not, and assessed only such lands as they thought would be benefited, leaving others unassessed, thus usurping the functions of the county court when it formed the district. It is true that it is said in State ex rel. Stotts v. Wall, supra, that “the questions as to the liability of all the lands embraced in the district to overflow from a point of danger common to all, or as to all being benefited by a common levee, are no longer open. These were questions for the consideration of the county court.” The assessors in this case had nothing whatever to do with these questions. They simply assessed the value of all lands in said levee district subject to overflow and to be benefited by said work, having reference to the value of said lands without the work contemplated by the statute, and assessed the value thereof as improved by said work, which they were expressly authorized to do by section 8441, supra. We do not understand the decision in said case to go any further than to hold that the questions as to the liability of all the lands embraced in the district to overflow from the point-of danger common to all, or as to all being benefited by a common levee, were settled by the county court when the district was formed; but left the question of assessment for benefits to be determined by the assessor, as provided by section 8441, supra.

A further contention is that it was the duty of the assessors to assess the value of all, not part, of the lands in the levee district subject to overflow, etc., which they failed to do, and assessed only such lands as they thought would be benefited. It would have served no useful purpose to assess the value of lands in the district which would not be benefited and could not be taxed for levee purposes, nor does the statute contemplate any such thing; so that it makes no difference that several thousand acres of land, not benefited by the levee although in the levee district, were not assessed.

Section 8437, Revised Statutes 1899, says that the taxes shall be extended on the tax book of the county on the real estate to be benefited, situated in said levee district, clearly implying that there may be lands in the district not assessed because not benefited. In Hagar v. Reclamation District, 111 U. S. 701, it is said: “Whenever a local improvement is authorized, it is for the Legislature to prescribe the way in which the means to meet its cost shall be raised, whether by general taxation, or by laying the burden upon the district specially benefited by the expenditure. [County of Mobile v. Kimball, 102 U. S. 691, 704.] The rule of equality and uniformity, prescribed in cases of taxation for state and county purposes, does not require that all property, or all persons in a county or district, shall be taxed for local purposes. Such an application of the rule would often produce the very inequality it was designed to prevent. As we said in Louisiana v. Pilsbury, 105 U. S. 278, 295, there would often be manifest injustice in subjecting the whole property of a city, and the same may be said of the whole property of any district, to taxation for an improvement of a local character. The rule, that he who reaps the benefit should bear the burden, must in such cases be applied. ’ ’ [Land & Stock Co. v. Miller, 170 Mo. 240.]

But even if benefited by the levee, the mere fact that all such lands may not have been assessed would not, ipso facto, render invalid the assessment against other lands that were benefited by the levee and that were legally and properly assessed for levee purposes.

In April, 1900, the board of equalization of said county examined the assessment or returns by the assessors, and took no action thereon, but in April, 1901, the board met and readjusted the entire assessment, raising the assessed benefit on some lands and lowering it upon others. It increased the sum total of the benefits to the land in the district to about fifteen thousand dollars, fifteen hundred dollars of which increase went against the lands of defendant. The defendant contends that the acts of the board of equalization are such violations of the statute, and so out of line with the case of State v. ex rel. Stotts v. Wall, supra, that the judgment should not be permitted to stand. But the county board of equalization had jurisdiction over, the lands taxed for levee purposes (sec. 8449, R. S. 1899), and the authority to raise the assessments for benefits against all the lands (sec. 9131, R. S. 1899), and in so doing it acted judicially. [Black v. McGonigle, 103 Mo. 192; St. Louis Mutual Life Ins. Co. v. Charles, 47 Mo. 465; Railroad v. Maguire, 49 Mo. 483; Cooley on Taxation (1 Ed.), 291; Ward v. Board of Equalization, 135 Mo. 309.] In raising the rate of taxation against the lands in the levee district it was sufficient for the board to designate a percentage of increase. [1 Cooley on Taxation (3 Ed.), 786.] It is not claimed that the board of equalization failed in any of its duties. Its proceedings were regular, proper notice given, and the result legally published and certified as required by the statute. The act of the board in raising the assessment being judicial in its character is not subject to attack in this collateral way. There is nothing in Stotts v. Wall which seems to be in conflict with what we have said.

It is admitted that the taxes sued for are unpaid. The taxes seem to have been regularly assessed, levied, extended on the tax books and certified to the collector. Our conclusion is that the judgment should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    MARY M. KELLER v. HOME LIFE INSURANCE COMPANY, Appellant.
    Division Two,
    July 3, 1906.
    1. LIFE INSURANCE: Warranties: Application of Statute. The statute which provides that “no misrepresentations made in obtaining or securing a policy” of life insurance shall avoid the policy unless concerning facts material to the risk, etc., applies to warranties and representations alike. There is no more reason why a warranty not material to the risk should vitiate the policy than there is that a misrepresentation as to a non-material matter should do so. Neither the one nor the other will avoid the policy.
    2. -: Vexatious Delay: Ten Per Cent Statute: Constitutional. The statute (sec. 8012, R. S. 1899) authorizing a jury to assess ten per cent damages, in addition to the amount of the policy and interest, for vexatious delay in paying the policy, is constitutional.
    3. -: -: Proof. The question of vexatious delay on the part of the insurance company in paying the policy is a matter of fact to be determined by the jury. They must make up their verdict from the facts and circumstances of the case. The statute does not require the plaintiff to explicitly prove that the delay or refusal to pay was vexatious.
    4. -: New Issues on Appeal. Where the instructions asked by defendant company did not include a direction that the policy was void if the insured falsely stated that he had had no other physician except the one named, the judgment cannot be reversed on appeal on the ground that his answer to a question on that point was false.
    5. -: Material Misrepresentation: Quick Consumption. Where the physician who examined the deceased in October testified that at that time he was physically sound, and that in December he had pneumonia, and as a result of that disease quick-consumption set in, from which he died in June, it is proper to submit to the jury the question whether or not the insured, in stating in his application that he did not have and had not had consumption, falsely misrepresented a fact material to the risk, even though two other physicians testified that they had previously notified him that he had consumption.

      6. -: -: Fraud: Question for Jury. After the death of the insured the question of whether the policy can be avoided because of false and fraudulent misrepresentations of facts material to the risk made by the insured is, under the statute, one for the jury.
    Appeal from Cape Girardeau Circuit Court. — lion. Henry G. Riley, Judge.
    Affirmed.

      W. H. Miller and T. D. Hines for appellant.
    (1) The refusal of the court to give instruction ■3 asked by appellant was error. This instruction directed the jury to disregard plaintiff’s claim for. a ten per cent penalty as damages, and was, in effect, the opposite of instruction 2 given on behalf of respondent. (2) Appellant brought itself fully within the requirements of sections 7890 and 7891, Revised Statutes 1899, by pleading and proving many gross misrepresentations of assured in his application for'the policy concerning the condition of his health, his habits, his past personal history, the physicians, he had consulted; these representations were warranties; they were fraudulent in character, in that they induced the contract and were offered for that purpose; the matters' misrepresented actually contributed to Keller’s death; defendant tendered the first annual premium, the only one paid, back to plaintiff before the institution of this suit and by depositing this, with the interest to date of trial in court for plaintiff before the trial; there being no question about these answers of assured being absolutely false, the judgment is without evidence to support it, and this cause should be reversed and not remanded. (3) While section 7890, Revised Statutes 1899, provides that no misrepresentation made in obtaining a policy of insurance in an old line company such as this shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the event on which the policy is to become due, and, whether it so contributed, shall be a question for the jury; yet, in this ease, there was absolutely not one scintilla of evidence upon which the verdict of the jury could or can rest. The misrepresentations were admittedly about Keller’s having had consumption. The testimony of Dr. Blomeyer and of Dr. Kiehne that Keller had had consumption in the spring previous to his being insured by appellant was not denied or questioned by any one. That they told Keller the nature of his disease is not pretended to be denied by any witness. That he successfully concealed these damning facts by misrepresentations, which were sweeping and wilful, stands unchallenged by testimony of any kind or character in the case. That Keller died of consumption within about six months after the policy in suit was issued, is admitted by everybody. Hence, appellant now charges that the trial court should have set aside the verdict, and it not having done so upon proper motion, with exception properly saved, this court should reverse and not remand this case. (4) Instruction 2 for respondent submitted to the jury the question of a ten per cent penalty for a “vexatious” defense and defined the term “vexatious.” This is clearly error, first, because the evidence will not justify such a conclusion; and secondly, because the statute itself is violative of article 5 and article 14 of the amendments to the Constitution of the United States. Paddock v. Railroad, 155 Mo. 524; State v. Loomis, 115 Mo. 307; Thompson v. Ins. Co., 169 Mo. 30; Brown v. Railroad, 169 Mo. 30; Brown v. Railroad, 104 Mo. App. 697; "Williamson v. Ins. Co., 105 Fed. 31. (5) A warranty must be strictly true, as it defines the limits -of the obligation assumed by the insurer, and if it is false in any part, whether that part affects the risk or not, there can be no recovery on the contract. MeDermott v. M. W. A., 97 Mo. App. 647; Aloe v. Ins. Oo., 147 Mo. 561; Reid v. Ins. Co., 58 Mo. 421; Mers v. Ins. Co., 68 Mo. 127; Boyle v. Ins. Co., 95 Wis. 312; Jefferies v. Ins. Co., 22 Wall. 47; Ins. Co. v. France, 91 U. S. 510. An untruthful answer by an applicant for insurance, where the answers are warranted to be true, has been held to be a breach of warranty and to avoid the policy of insurance. Ins. Co. v. Reutlinger, 58 Ark. 528; Cobb v. Ins. Co., 153 Mass. 176; Caruthers v. Life Ins. Co., 108 Feb.' 487; Life Ins. Co. v. McTague, 49 N. J. L. 587; Ins. Co. v. O’Hara, 120 Pa. St. 256; Phillips v. Life Ins. Co., 9 N. Y. Supp. 836; Ins. Co. v. Van Wald, 49 Pac. 782; Ins. Co. v. Arhelger, 36 Pac. 895; Brady v. Life Ins. Co., 60 Fed. (C. C. A.) 727-; Sladden v. Life Ins. Co., 86 Fed. 102; White v. Ins. Co., 103 N. Y. 341; Life Ins. Co. v. Llewellyn, 58 Fed. 940; Scharzbach v. Ins. Co., 25 W. Va. 622; G-each v. Ins. Co., 20 N. Y. 293; Aloe v. Ins. Co., 147 Mo. 561; McDermott' v. Ins. Co., 97 Mo. App. 636.

      Wilson Cramer for respondent.
    (1) Section 7890, as contrued by the more recent decisions of this court, abolishes the distinction formerly made between warranties and representations and places them on an equal footing. Jacob v. Life Ass’n, 146 Mo. 523; Aloe v. Fidelity Mut. Life Ass’n, 164 Mo. 675; Scheurmann v. Life Ins. Co., 165 Mo. 641; Kern v. Legion of Honor, 167 Mo. 471; Jenkins v. Life Ins. Co., 171 Mo. 383; Williams v. Ins, Co., 189 Mo. 70. (2) In the court below defendant recognized the applicability of section 7890 by asking an instruction based upon it. (3) Since the decision in the case of Railroad v. Ellis the Supreme Court of the United States has directly passed upon and upheld as constitutional statutory provisions relating to insurance companies, which authorize the collection of damages for refusal to pay promptly, and attorney’s fees in actions against such companies. Fidelity Mut. Life Ass’n v. Mettler, 185 U. S. 308; Ins. Co. v. Lewis, 187 U. S. 335; Ins. Co. v. Dobney, 189 U. S. 301. (4) The question of vexations delay is a question of fact to be determined by the jury from all of the facts and circumstances in the case, and two juries have decided that issue against the defendant. Brown, Admr., v. Ry. Passenger Ins. Co., 45 Mo. 221. (5) The defense set up in the answer is strictly a legal defense and the burden of proof is upon the defendant. Scheurmann v. Ins. Co., 165 Mo. 641.
   FOX, J.

This canséis brought to this court by appeal on the part of the defendant from a judgment of the Cape Girardeau Circuit Court in favor of the plaintiff for the sum of $2,475. This was a suit by plaintiff, who is the widow of August W. Keller, deceased, against the defendant insurance company of New York, an old line company, upon a policy dated October 30, 1899, for $2,000.

The sufficiency of the petition stating the cause of action is not challenged, but it is conceded by appellant that the petition is in the usual form in cases of this character.

The main contentions in this cause arise upon the defenses set up in the answer and the evidence introduced upon such defenses and the instructions given by the court applicable to such evidence; therefore, to fully appreciate this controversy it is important to state at least the substance of the defenses interposed by the answer.

The answer contained three counts. The first count was an admission of the character and business of defendant as charged in the petition, coupled with a general denial.

The second count set out at length the facts leading up to the issuance of the policy; set out fully the application of assured to defendant upon which the policy was issued; also set out fully the declarations of Keller to the company’s medical examiner, and charged that by the terms of the policy the said written application of assured, together with his answers and his declarations to the medical examiner of defendant, were a part of the policy and constituted the basis upon which said policy was issued. This count of the answer charged .that assured’s answers to questions propounded to him in these two papers were replete with false statements and misrepresentations concerning the condition of his health, Ms history, Ms haMts and his treatment by other physicians, etc., and charged that assured did not make these misrepresentations innocently, but knowingly, and with the specific intent to deceive the company; that they did deceive the company into issuing the policy in suit; and that but for said false representations and answers said policy would never have been issued. This count of the answer also charged that in the said application, so made, as well as in Ms said declarations to the medical examiner, Keller, over his own signature, expressly warranted in his own behalf and on behalf of all persons who might claim any interest in said policy, that all of his said answers to said questions therein were true, full and complete. The second count further charged that these said misrepresentations, false and fraudulent in character, were warranties and were about matters which contributed directly to the death of Keller. That the first annual premium had been tendered in return to plaintiff before suit was brought, and it was accompanied with a deposit in court of the premium and the accumulated interest on it. This count specifically charged that Keller was a consumptive long before he applied for this insurance. That he had been treated for it, advised that he had it, and that he died with that disease.

The third count in the answer charged that the statute which provides for a ten per cent penalty for a vexatious defense to a suit upon an insurance policy was void and of no effect as contravening the 14th amendment of the Constitution of the United States, and section 20 of article 2 of the Constitution of Missouri.

The replication was a general denial.

The testimony upon the trial of this cause on the part of the plaintiff tended to substantially prove the following state of facts: That August "W. Keller was a farmer about 38 years of age, owning and -operating a large farm, of which about 125 acres were cleared, and doing the greater part of the work himself. In the fall of 1899 he was hunted up by Baird Palette, the agent of the defendant insurance company, and prevailed upon to take out a policy of insurance on his life. On the 18th day of September, 1899, he made application on a blank furnished by the agent, and on the same day was examined by Dr. A. L. Franklin, the medical examiner for the company. In connection with the medical examination he was required to sign a paper entitled: “Declarations made to the Medical Examiner of the Home Life Insurance Company.” The medical report being favorable, a policy for $2,000, payable to Mary M. Keller, wife of the insured, was issued and delivered October 30, 1899. During the same fall, after the date of his application for insurance, Keller put in 40 or 45 acres of wheat, doing most of the work himself, and attended to all of his farming operations. In December he took pneumonia and from this on continued in bad health until he .died in the following June of quick or galloping consumption, an after-effect of the pneumonia. Dr. A. L. Franklin, who was still the medical examiner of the defendant, attended him while he had pneumonia and he treated him for some time thereafter, and in testifying in this cause attributes the quick consumption to this disease. The report of Dr. Franklin, the medical examiner of the defendant, was introduced in evidence, in which the following questions and answers appeared:

1 ‘ How long have you known him ? Seven years.
“Does his facial aspect indicate health and vigor?
Yes.
“Is there anything unfavorable in his general appearance? No.
“Figure — state whether it is erect or stooping? Erect.
“Is the respiratory murmur clear and distinct over the lungs? Yes.
“Do auscultation and percussion show an entire absence of any signs of past or present disease of respiratory organs? Yes.
“State the rate and other qualities of the pulse? Seventy-two, full and regular.
“Is it irregular, or intermittent? No.
“Are the sounds and rhythm of the heart regular and normal? Yes.
‘Ts there any evidence of undue strength or weakness of the heart action? No.
“Are there any indications of disease of the heart or blood vessels? No.
“Is the apex-beat in the usual place? Yes.
“Is there any evidence of derangement of function of the stomach or other abdominal organs? No.”

It was further shown in evidence that after the death of plaintiff’s husband defendant without awaiting formal proof of death or any action on the part of beneficiary sent a messenger down into the country to Mrs. Keller’s home with directions to tender her $79.72, the amount of the premium paid by her husband, and to deliver to her a letter from the company denying liability under the policy. The plaintiff, the widow of the deceased, August W. Keller, refused this tender.

The claim for this insurance was placed in the hands of Wilson Cramer, an attorney at law, and he notified the proper agents of the company of such fact and requested of them to know as to whether or not they would pay such policy or refuse to pay it. The response to this inquiry by the attorney was that for good reasons the company would refuse to pay the policy, and referred Mr. Cramer to their attorney, Mr. T. D. Hines, of Jackson, Missouri, for further information.

The policy of insurance issued by the defendant on October 80, 1899, on the life of August W. Keller, for $2,000, on which this suit is based, was introduced in evidence. We deem it unecessary to reproduce such policy as there is no controversy as to its contents, and such portions of it as have application to the controverted questions involved in this suit will be given due consideration during the course of this opinion. The policy contained this clause: “In consideration of the statements and agreements made in the application for this policy, which are hereby made a part of this contract. ’ ’ A copy of the application was written upon the back of the policy, and this language used in such application: “Iwarrant on behalf of myself and of any person who shall have or claim any interest in any policy issued under this application that all the foregoing statements and answers are true, full and complete, whether written in my own hand or not, and are offered to the company together with those contained in the declarations of the Home Life Insurance Company’s medical examiner as a consideration for, and as the basis of the contract with said company under any policy issued under this application.”

The defendant offered in evidence the declarations made by August W. Keller to the medical examiner, which were signed by August W. Keller, and witnessed by A. L. Franklin, the medical examiner. It is unnecessary to reproduce all of the questions and answers contained in such declarations, but it is sufficient to refer to those which are applicable to the defenses set up in the answer, that is, to such questions and answers as have reference to any lung trouble pri- or to the issuance of this policy. Such questions and answers were as follows:

“Are you in perfect health so far as yon know and believe? A. Yes.
“Has any physician ever given an unfavorable opinion on your life? A. No.
“Have yon ever had, or have you ever been subject to spitting or coughing? A. No.
“Of blood? A. No.
“Chronic hoarseness? A. No.
“Chronic cough? A. No.
“Difficulty of breathing? A. No.
‘ ‘ Have you ever had any serious illness, disease or injury, not named above? A. No.
“Pías change of climate for your health ever been made or advised? A. No.
“Do you ever drink wine, spirits, or malt liquors? A. No.
“If so, which of these and to what extent? A. No.
“Has there ever been in your family, among your parents, brothers or sisters, uncles or aunts, any consumption, etc? If so, state particulars? No.
“Is your wife, or other member of your household, tuberculous? A. No.
“What is the name and residence of your physician? A. Dr. A. L. Franklin, Dutchtown, Mo.
“When and for what have his services been sought? A. For my family.
“YTrat other physicians have you consulted? A. None.”

Doctors Blomeyer and Kiehne, physicians residing in Cape Girardeau county, Missouri, both testified in behalf of the defendant. Dr. Blomejmr’s testimony may thus be briefly stated: That on the 7th of April, 1899, Keller came to the doctor’s office and was examined aud treated by the doctor for consumption; that he advised Keller what was the matter with him, saying, “In my opinion you have incipient tuberculosis, which you know means consumption;” that he continued to treat Keller through the months of April and May and up to'June 3rd, and Keller was on each visit advised by the doctor that he was in the first stages of consumption. The doctor also advised him to change climate; that Keller then had chronic hoarseness and a chronic cough, difficulty of breathing, hectic fever and a cavity in the right lung. Dr. Blomeyer testified that Keller’s disease had a tendency to progress. That Keller on his last visit, on June 3rd, said he would consult Dr. William Kiehne. Dr. Kiehne testified that on June 6th, Keller came to his office for examination and treatment; that he saw Keller again on June 10th and 17th; that he came to the conclusion that Keller had consumption and told Keller so; that he was Keller’s family physician for four years and had treated Keller himself before that. That when Keller came to him in June Keller had a continuous cough, was hoarse, had difficulty of breathing, and hectic fever. Neither of these physicians had made a microscopical examination of the septum of Keller; but both, upon independent examinations, had diagnosed Keller’s disease to be tuberculosis of the lungs.

The deposition of Dr. Prank W. Chapin, who was defendant’s physician and medical director, was also read in evidence, as well as that of Mr. St. John, vice-president of defendant company. Their testimony was substantially this: That they assumed that Keller’s answers in his application for insurance were true and had they known that Keller had a bad personal history or bad family history, or that he had been treated for consumption, and had suppressed the information, and had been subject to spitting and coughing, or had been subject to chronic cough, they would have declined to take the risk.

This is a sufficient indication of the facts elicited upon the trial in order to determine the legal propositions involved.

At the close of the evidence the court instructed the jury as follows at the request of the plaintiff:

“1. The court instructs the jury that by the policy of insurance offered in evidence defendant promised and agreed to pay $2,000.00 to Mary M. Keller, if living, immediately upon receipt and approval of proof of death of the said August W. Keller, provided the policy was then in force.. That if you shall find from the evidence that the said August W. Keller died on the 15th of June, 1900, and that plaintiff, Mary M. Keller, is his widow, and shall further find that proof of death was furnished to defendant, or that defendant, after the death of said Keller, offered to return to plaintiff the premium or advance payment made to it by him for said policy and refused to pay plaintiff the amount specified in said policy, then plaintiff is entitled to recover the amount of said policy, with six per cent interest from the time of such refusal to pay, unless you shall find from the evidence that the execution of said policy was procured by said August W. Keller by misrepresentations made by him to defendant or its agent of matters which actually contributed to cause his death. And the court further instructs you that no misrepresentations in securing said policy of insurance are material or sufficient to avoid said policy, unless it shall be shown by the evidence that the matters misrepresented actually contributed to produce the death of said Keller.
“2. And the court further instructs the jury that if you shall find from the evidence that the defendant before the institution of this suit refused to pay plaintiff the amount of said policy, and shall further find from all the facts and circumstances shown by the evidence that its refusal to pay was vexatious, that is, without reasonable cause, then you may allow her, in addition to the amount of the policy, and interest, a sum not exceeding ten per cent of the amount of the policy, and should return a verdict for that aggregate sum if you find the issues for the plaintiff.”

To the giving of the aforesaid instructions the defendant at the time objected and excepted.

At the request of the defendant the court instruct-, ed the jury as follows:

“1. The court instructs the jury that the written application of August "W. Keller, together with his written declaration to the defendant’s medical examiner, are a part of the policy sued on.
“2. The court instructs the jury, if you believe and-find from the evidence that in his application for the policy or contract in suit the deceased, August W. Keller, in answer to questions stated to defendant’s medical examiner, that he had never been subject to asthma or to spitting or coughing, or to spitting or coughing of blood, or to chronic hoarseness, or to chronic cough, or to difficulty of breathing, or been subject to malaria; that he did not drink wine, spirits or malt liquors, except a drink of beer once a week, and that he had never used them to excess; and you further find from the evidence that any one or all of said answers were untrue and that defendant relied upon their truth in issuing the policy in suit and that any one or all the matters which were misrepresented, should you find any of them to have been misrepresented, contributed actually to the death of assured, then your verdict will be for defendant, notwithstanding you may find that such false representations, if any, were innocently made. ’ ’

The court refused the following instructions asked by defendant:

“1. Now, at the close of all the evidence, the court instructs the jury that under the pleadings and the evidence your verdict must be for defendant.
“2. The court instructs the jury that if you believe and find from the evidence that in his application for the policy, or contract in suit, deceased, August W. Keller, in answer to questions, stated to the medical examiner of defendant that he did not drink wine, spirits or malt liquors, and had never used them freely or to excess; that he was in perfect health so far as he then knew and believed; that no physician had given him an unfavorable opinion on his life; that he had never been subject to asthma or to spitting or coughing, or to spitting or coughing of blood, or to chronic hoarseness, or to chronic cough, or to difficulty of breathing, or had never been subject to malaria; that he had consulted no physician other than Dr. A. L. Franklin, of Dutchtown, Mo., and him only for his family; that he did not drink wine, spirits or malt liquors, except a drink of beer once a week, and that he never used them freely or to excess; and you further find and believe from the evidence that all or any of the statements so made were false and were known by said August W. Keller to be false at the time of making them; and that they were made for the purpose of obtaining the policy in suit and that defendant company relied upon the truth of such allegations in issuing the policy in suit; then, in that event, your verdict must be for the defendant, and this notwithstanding you may find and believe from the evidence that none of the matter embraced in such false answer or answers contributed directly to his death. In other words, you are instructed that the applicant warranted his answers in his application to be true, and if you find any of them were untrue and that applicant knew them to be untrue at the time of making them and that they were relied upon by defendant in issuing the policy such false representations were fraudulent and render the policy in suit void.
“3. The court instructs the jury that under the evidence and pleadings you will disregard the claim made by plaintiff for ten per cent damages.”

To which ruling of the court in refusing the last three instructions defendant at the time objected and excepted.

The cause was submitted to the jury upon the evidence and instructions as heretofore indicated and they found the issues for the plaintiff and assesed her damages in the sum of $2,475. A timely motion for a new trial was filed and by the court overruled. Judgment was entered in accordance with the verdict and from this judgment the defendant in due time and proper form prosecuted its appeal to this court and the record is now before us for review.

Opinion.

The record in this cause discloses the assignment, of numerous complaints of error committed by the trial court, but it is apparent from the brief of learned counsel for appellant that the contentions in respect to such errors are mainly directed to the giving, at the request of plaintiff, of erroneous instructions, and the refusal, at the request of defendant, to give proper instructions. The complaints of appellant may thus be briefly stated:

First. That instruction number 1 given by the court at the request of plaintiff, was erroneous, and that the court committed error in its refusal of instruction number 2 requested by defendant.
Second. That instruction number 2 given by the court at the request of plaintiff, was improper and erroneously declared the law.
Third. That the court improperly refused instruction number 3 requested by defendant.
Fourth. That the court erroneously refused to give the peremptory instruction in the nature of a demurrer to the evidence, requested by defendant.

We will treat of these complaints of appellant in the order as above indicated.

I. Instruction number 1, the correctness of which is challenged by appellant, is predicated upon section 7890, Revised Statutes 1899, which provides that “no misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this State, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case shall be a question for the jury. ’ ’

That section has been in judgment before this court in numerous eases, and its force and effect have been fully recognized; hence it must be treated as a yalid, subsisting statute, applicable to the subject it was designed to cover. [Jacobs v. Life Association, 146 Mo. 523; Aloe v. Life Association, 164 Mo. 675; Schuermann v. Ins. Co., 165 Mo. 641; Jenkins v. Ins. Co., 171 Mo. 383; Williams v. Ins. Co., 189 Mo. 70.] This section, in the cases cited, received at the hands of the court most careful consideration, and the reasons for its enactment are clearly stated in Schuermann v. Ins. Co., supra, wherein it is said: “The act in question was in no sense intended as a general restraint upon the power of courts of equity by proper proceedings to relieve against actual fraud, perpetrated or attempted against insurance companies doing business in this State, by parties seeking insurance; but its manifest aim and object was to check and prevent the wrongs and injustice that too frequently befell the relatives and friends of the insured .after their death, resulting from the growing evil practiced by life insurance companies, of calling for answers to all manner of immaterial questions from the applicant for insurance, bearing in the remotest degree, if at all, upon the risk to be assumed, and then by a general provision, incorporated in the policy to be issued, declaring that if any one of the answers be untrue, or not, as stated, it should avoid the policy, which condition, without legislative aid, the courts were compelled to enforce without regard to whether the particular answer that was shown to be untrue was material to the risk or not,' or whether the untrue answer was the result of an innocent mistake or an intentional wrong.”

Appellant is in no position in this cause to challenge the applicability of section 7890, for the reason that it requested and obtained instruction number 2, which is clearly predicated upon the provisions of this section. This must be treated as a clear recognition by appellant of the applicability of the provisions of second 7890 to the facts in this case. However, it is insisted by appellant that the declarations to the medical examiner, which are contained in the application for insurance, by the insured, should be treated as warranties under the provisions of the policy, and it is contended that the failure of such warranties avoids the policy, and the instruction was erroneous in treating such warranties as mere representations. We are unable to give our assent to this insistence. In the very recent case of Jenkins v. Ins. Co., supra, Burgess, J., speaking for this court, left no doubt as to the views of the court upon this proposition, and in plain terms announced that there was no reason for making a distinction between warranties and representations. In discussing this subject, it was said: “It is indisputable that before the passage of the act in question and up to the time of the decision in Jacobs v. Life Assn., supra, it was always held by the Supreme Court that there was a very material distinction between warranties and representations, and where a policy was applied for and the applicant warranted some matter, however immaterial to the risk and whether or not the assured died of any disease warranted against, if the warranties were shown to he untrue, the policy was held to he void. [Loehner v. Home Mutual Ins. Co., 17 Mo. 247; Mers v. Franklin Insurance Co., 68 Mo. 127; Aloe v. Mutual Reserve Life Assn., 147 Mo. 561.] But they were by that case placed upon the same footing, and rightly held to be embraced within the provisions of section 7890, supra. There is no more reason why a warranty not material to the risk should vitiate a policy than there is that a misrepresentation as to a non-material fact should do so. In speaking of this statute in the Schuermann case, supra, it is said: ‘As said before, life insurance companies in this State, pri- or to the adoption of section 7890, could, and by a practice almost universal, did, insert,in their policies a stipulation to the effect that any untrue statement or answer made by the applicant for insurance (regardless of its materiality or regardless of the intent of the applicant in making the same) should avoid the policy, and too frequently when demands were made upon them for the obligations of the policies the companies availed themselves of these harsh provisions without a return by them of the money which they had obtained from the insured in his lifetime, and when the untrue statements made had little, if any, effect upon the risk undertaken by the insurer. This doctrine of warranties, in the extent to which it had grown and was applied, was something peculiar to insurance companies, and was therefore thought the subject of special legislation, in a law which properly undertook to affect insurance companies alone in that particular. By a long and hurtful practice of a given policy peculiarly their own, insurance companies had stamped themselves as a class to which alone legislation might properly address itself in that regard.’ ”

Following the rules so clearly announced in that case and in view of the fact that appellant, by its instruction number 2, fully recognized that the provisions of section 7890 were applicable to the representations in this case, it must be held that there was no error in giving instruction number 1 at the request of the plaintiff and refusing instruction number 2 requested by defendant.

II. It is next earnestly contended and ably argued that instruction number 2 given at the request of plaintiff, was erroneous.

This instruction complained of is predicated upon section 8012, Revised Statutes 1899, which provides: “In any action against any insurance company to recover the amount of any loss under a policy of fire, life, marine or other insurance, if it appear from the evidence that such company vexatiously refused to pay such loss, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not exceeding ten per cent on the amount of the loss, and a reasonable attorney’s fee; and the court shall enter judgment for the aggregate sum found in the verdict.”

The contention of appellant respecting the error complained of in the giving of instruction number 2, is based upon two theories: First, that the section is unconstitutional ; second, that there was no evidence upon which to predicate such an instruction.

As sustaining the contention that section 8012 is unconstitutional, our attention is directed to Paddock v. Railroad, 155 Mo. 524, and Thompson v. Traders’ Ins. Co., 169 Mo. 12. It will be observed that the Paddock case is based upon the ruling of the Supreme Court of the United States in Railroad v. Ellis, 165 U. S. 150, and in the case of Thompson v. Traders’ Ins. Co. it was held that the Constitution and laws of Missouri had no application to the facts in that case, for the reason that the property insured was located in the State of Kansas. The contract was entered into in that State; the property was destroyed in that State; the cause of action accrued in that State and the parties to the proceeding were residents of the State of Kansas ; however, the court did refer to the case of Ry. Co. v. Ellis, and said that as long as that case was not overruled it was the duty of this court to follow it. The Ellis case has not been overruled, hut the Supreme Court of the United States has held valid and constitutional a statutory provision relating to the prompt payment of the amount of death losses designated in insurance policies, very similar to the provisions of the section now in judgment before us.

In Fidelity Mut. Life Assn. v. Mettler, 185 U. S. 308, the constitutionality of a statute of the State of Texas was involved. It provided as follows: “In all cases where a loss occurs and the life or health insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be- liable to pay the holder of such policy, in addition to the amount of the loss, twelve per cent damages on the amount of such loss, together with all reasonable attorney’s fees for the prosecution and collection of such loss.”

In that case it was earnestly and ably argued that the Ellis case was a controlling authority in support of the contention that the statute above indicated was unconstitutional and was decisive of the question; however, the Supreme Court of the United States, speaking through Mr. Chief Justice Fuller, ruled otherwise, after reviewing all the authorities held that the Supreme Court of Texas, as well as the Court of Appeals of that State properly distinguished the Ellis case, and it was expressly ruled that the statute of Texas, applicable to this subject, was constitutional.

In Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, the constitutionality of the Texas statute was again challenged, notwithstanding the recent ruling of that court in case of Life Assn. v. Mettler, supra. The court disposed of this effort to have the question reconsidered, by simply saying in substance that it was entirely satisfied with the Mettler case and the reasons assigned for the conclusions announced. It will be noted that both the Ellis and Mettler cases involved the constitutionality of the Texas statute, and Mr. Justice Brewer, who wrote the opinion in the Ellis case, concurred with Chief Justice Fuller in the judgment in the Mettler case.

The lawmaking power in the enactment of the Texas statute, as well as the Missouri General Assembly in the enactment of the statute in the case at bar, doubtless, as was said in the Mettler case, “had in mind also the necessity of the prompt payment of the insurance money, in very many cases, in order to provide the means of living of which the beneficiaries had been deprived by the death of the insured.”

We are of the opinion that the Mettler case clearly and correctly'announced the true rule applicable to the Texas statute, and the rules announced in that case being equally applicable to the Missouri statute treating of the same subject, it becomes our duty to follow that case; hence it must be held that section 8012 is a valid and subsisting law, and may be enforced by the courts of this State; and there was no error in giving instruction number 2 on that ground.

It is however insisted that there was no testimony upon which to base such instruction. The question of vexatious delay on the part of the defendant in paying this death claim, was one of fact to be determined by the jury.

It was said by this court in Brown v. Ry. Passenger Assurance Co., 45 Mo. 1. c. 227, that “the whole question of vexatious refusal or delay is a matter of fact to be determined by the jury. They must make up their verdict on this issucTby a general survey of all the facts and circumstances in the case; and if, upon a full consideration, they conclude that the refusal was unjustifiable and vexatious, the law authorizes them to assess the damages. The' statute will not admit of the construction contended for by the counsel for the plaintiff in error, that before damages are allowed it must be explicitly proved by the plaintiff that the delay or refusal was vexatious.”

In our opinion th*e record discloses sufficient evidence to warrant the court in submitting the question of vexatious delay in the payment of this claim to the jury, and we shall not undertake to usurp the province of the jury and retry such question upon this appeal.

III. Instruction number 3 requested by defendant was properly refused by the court. It substantially told the jury to ignore the claim of plaintiff for damages by reason of vexatious refusal to pay the death claim, the recovery of which was sought by this action.

Section 8012, which provides for the recovery of such damages, has been heretofore fully discussed, and it is sufficient to say that there was no error in the action of the court in its refusal of this instruction.

IV. This brings us to the final contention of appellant, that the evidence in this cause is insufficient to support a recovery and that the court erred in its refusal of the peremptory instruction requested by defendant, declaring that under the pleadings and evidence in this cause plaintiff is not entitled to recover.

Upon this contention appellant earnestly insists that the statements of August W. Keller to the medical examiner of defendant, that he had not been treated by any other physician, when in fact the testimony of the physicians shows that this statement was untrue, should avoid this policy, and the court should have so declared to the jury. Defendant is in no position to complain that the question as to whether the insured had ever been treated by another physician prior to the time he made his declarations to the medical examiner was not submitted to the jury, for there was no request made to submit that question. Instruction number 2 given at the request of defendant includes numerous declarations of the assured, charged in the answer to be false, and submits to the jury those questions; but we nowhere find that defendant requested the submission of the question upon which it now bases its complaint. Our attention is directed to the case of Aloe v. Life Assn., 147 Mo. 561, as supporting this contention. An analysis of that case will demonstrate that it has no application to the case"at bar. In that case the business of the defendant was limited to insurance on the assessment plan. The policy in the ease at bar is conceded to be an old-line policy. It was expressly ruled in that case, the court speaking through Burgess, J., that section 5849, Revised Statutes 1889, which is substantially the same as section 7890, Revised Statutes 1899, had no application to insurance policies on the assessment plan; it therefore follows that the respresentations of which appellant now complains, that the insured had been treated by other physicians, is covered by section 7890, and unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, it would be of no avail to appellant, and whether it so contributed was a question for the jury. While the dise'ases for which the insured sought other physicians for treatment may have contributed to his death, yet we are unable to understand how a false statement as to the mere fact as to whether he had consulted or had been treated by other physicians, could do so. This is a civil case, and if appellant desired to have the question of the truth or falsity of the statements made by the assured, that he had not consulted or been treated by any other physician, submitted to the jury, it was clearly its duty to make such request.

We have read in detail the evidence in this cause as disclosed by the the record and in our opinion it was a case for the jury. The jury had the doctors who testified in this cause before them at the trial, and it was specially the province of the jury to determine their credibility and the weight to be atached to their testimony. Dr. Franklin was the medical examiner and agent of the defendant; he examined plaintiff’s husband for insurance and made report to the defendant. He was physically sound then. He testified that Mr. Keller died of quick consumption, which was the result of pneumonia, contracted after the issuance of the policy. If the jury believed his testimony then there is nothing remarkable in the finding of the jury that the matter misrepresented by the insured did not contribute to his death. It may be conceded that the physicians testifying for the defendant are gentlemen of high standing in their profession, and doubtless they are, and that the jury were bound to believe their testimony (which under the well-settled rules of practice, they were not bound to believe), yet it was a question for the jury to answer as to whether the matter misrepresented contributed to the death of the insured.

The defendant in this cause, as was ruled in Schuermann v. Ins. Co., supra, might have maintained a proceeding in equity prior to the death of August W. Keller to annul the contract of insurance, on the ground of false and fraudulent statements charged in the answer; but after the policy had been duly issued and all liability under it had matured on account of a contingency therein provided against, it is clear that the question of false and fraudulent representations in securing such policy in an action to recover the amount of the death claim, must be governed by the provisions of section 7890, and as to whether the misrepresented matters in the application for insurance contributed to the happening of the contingency insured against, are questions of fact to be determined by the jury to whom such facts are submitted.

The defendant in this cause had the sole power of selecting its medical examiner; it selected Dr. Franklin. He made the examination of Mr. Keller, reported the same to the defendant; it at least placed sufficient reliance upon such report to enter into the contract of insurance. The testimony of Dr. Franklin, together with his report of the examination of the insured, and other facts and circumstances developed at the trial, clearly authorized the trial court to submit this cause to the jury, and we know of no rule which would warrant the ignoring of the testimony of defendant’s own medical examiner and taking the case from the jury, simply on the ground that defendant now seeks the opinion of other physicians, and whose testimony tends to establish misrepresentations alleged in the answer as to certain matters in his application for insurance.

It was doubtless the dominating thought in the legislative mind by the enactment of section 7890, to meet and cover just such cases of the nature and character here presented.

We have indicated our views upon the legal propositions disclosed by the record. The issues of fact in this cause were fully and fairly covered by the instructions of the court, and finding no reversible error the judgment of the trial court should be affirmed, and it is so ordered.

Burgess, P. J., and Gantt, J., concur.


text:
    FARMERS’ BANK OF POLO v. W. O. BARBEE et al., Appellants.
    Division Two,
    July 3, 1906.
    1. FINDING OF FACTS: After Judgment: Ejectment. The finding of facts made after judgment in ejectment does not constitute a part of the record, and is not before the appellate court for review on appeal.
    2. EJECTMENT: Admissions of One in Possession: Explanatory: Limitations: Title. The declarations or admissions of one in possession of property, explanatory of his possession, as that he holds it in his own right, or as the tenant or trustee of another, or as tending to show that his possession was adverse to other parties joined with him as defendants, are admissible on the part of the plaintiff in ejectment, as explanatory of'his possession. And in this case it is held that the statement made by one defendant in the absence of the others, that they had delivered a deed to him for the land in suit, was competent as against them, not to show title, but to establish adverse possession in the defendant making the statement.
    3. LAW CASE: Theory of Trial: No Instructions. Where no declarations of law were asked by appellants or given by the court of its own motion in a law case, the presumption will be indulged on appeal that the judgment was based on that theory which authorized it.
    Appeal from Ray Circuit Court. — Ron. J. W. Alexander, Judge.
    Affirmed.

      J. M. Davis <& Sons for appellants.
    (1) Statements of ~W. O. Barbee, made in tbe absence of W. L. and Martba J. Barbee, that they had delivered to him a deed to the premises in controversy, were hearsay, and inadmissible in favor of plaintiff, who is privity in' estate with "W. O. Barbee. Turner v. Belden, 9 Mo. 797; Watson v. Bissell, 27 Mo. 220; Darrett v. Donnelly, 38 Mo. 492; Morey v. Staley, 54 Mo. 421; Railroad v. Clark, 68 Mo. 374; Railroad v. View, 156 Mo. 618; Diel v. Stegner, 56 Mo. App. 539; State ex rel. v. Croschke, 16 Mo. App. 557; Dodge v. Freedman’s S. & T. Co., 93 U. S. 383; Gilbert v. Odom, 69 Tex. 670; Osgood v. Coates, 83 Mass. 77; Morrill v. Titcomb, 90 Mass. 100; Sangutuck Con. Ass’n v. School District, 53 Conn. 478. These self-serving statements are the only evidence in this record of the delivery of the deed to W. O. Barbee and upon them is based the finding of the court, “that in July, 1894, W. L. and Martha J. Barbee delivered to W. O. Barbee a deed for said premises.” (2) The evidence conclusively shows that in 1885, W. L. Barbee was the owner of this land, that W. O. Barbee then became a tenant thereof by sufferance. This relation continued, as defendant’s evievideuce shows, until the day of trial. W. O. Barbee’s possession was in its inception friendly and permissive. This is also the presumption of law. Meier v. Meier, 105 Mo. 431. The burden of proof was on plaintiff to show that it became and was adverse and hostile, when it became so, that W. O. Barbee gave actual notice of such adverse claim, and that thereafter and before the institution of this action such adverse and hostile possession had continued for ten consecutive years before the same had ripened into a title. Wilson v. Lersche, 90 Mo. 477; Wilkerson v. Thompson, 82 Mo. 316; Estes v. Long, 71 Mo. 609; Stevenson v. Black, 168 Mo. 561; Handlan v. McManus, 100 Mo. 124; Pitzman v. Boyce, 111 Mo. 392. (3) Any acts of W. O. Barbee consistent with the rights which he had to the premises as tenant by sufferance of his father, did not start the running of the Statute of Limitations. Downing v. Dinwiddie, 132 Mo. 99. The payment of taxes was not sufficient to show adverse possession. Chapman v. Temple-ton, 53 Mo. 463; Cashman v. Cashman, 123 Mo. 647.

      J. E. Ball and M. M. Bogie for respondent; W. E. Fowler of counsel.
    (1) This court will assume that the rulings of the trial court were correct, until the contrary be made to appear; and, when it tries a case like this, sitting as a jury, the appellate court will not weigh the evidence and determine whether the finding of the trial court was correct on the evidence. Minton v. Steele, 125 Mo. 190; Fohy v. Gordon, 133 Mo. 426; De Lassus v. Faherty, 164 Mo. 361. No declarations of law were asked by either party nor were any made by the court. Nor were any exceptions saved to the admission of evidence during the trial. As was said by Philips, 0., speaking for the court in Miller v. Breneke, 83 Mo. 163: “It is, therefore, manifest that there are no errors presented in this record for this court to review.” Weilandy v. Lemuel, 47 Mo. 322; Altum v. Arnold, 27 Mo. 264; Con-ran v. Sellew, 28 Mo. 320; Wilson v. Railroad, 46 Mo. 36; Harrison v. Bartlett, 51 Mo. 170; Cunningham v. Snow, 82 Mo. 587; Clark v. Railroad, 127 Mo. 255. (2) W. O. Barbee, being in possession of the land in controversy at the time he made the statements in regard to the ownership of the land and the deed thereto, his statements were competent. Crawford v. Ahrnes, 103 Mo. 94; Railroad v. Clark, 68 Mo. 374; Martin v. Bonsack, 6.1 Mo. 556; Burgert v. Berchert, 59 Mo. 80; Dunlap v. Griffith, 146 Mo. 294. They were admissible for the reason that they were statements of the defendant, W. O. Barbee, a party to the proceeding; and because it is well settled that statements by a party in possession of property are admissible to prove the nature of the possession and whether he holds it as owner, tenant, or otherwise. Foster v. Nowlin, 4 Mo. 18; Turner v. Beldin, 9 Mo. 533; State to use v. Schneider, 35 Mo. 533; Burgert v. Berchert, 59 Mo. 80; Thomas v. Wheeler, 47 Mo. 363.
   BURGESS, P. J.

This is an action of ejectment for the possession of an eighty-acre tract of land in Ray county. The petition is in the usual form, and the answer is a general denial.

The trial was by the court, a jury being waived. No declarations of law were asked or given. The court rendered judgment in favor of plaintiff, and against all of the defendants, for the possession of the land sued for, and for one cent damages.

Within four days after judgment defendants filed motion for a new trial, assigning as grounds therefor the following:

“1. The judgment of the court is against the weight of the evidence.
“2. The court erred in admitting illegal and incompetent testimony on the part of plaintiff.
“3. The court erred in excluding legal and competent evidence offered on part of defendants.
“4. The judgment of the court is against the law and the evidence.
“5. He gave erroneous declarations in the cause. ’ ’

The said motion was overruled, and defendants appeal.

After the judgment was rendered, but upon the same day, the court, at the request of defendants, made a finding of facts, as follows:

“That about the year 1885, W. L. Barbee, father of W. O. Barbee, purchased the premises in controversy, taking the title thereto in his own name. That soon thereafter he placed the defendant, W. O. Barbee, on said premises. That in the year 1889, by directions of said W. L. Barbee, the assessor of Ray county, Missouri, assessed said premises to the defendant, W. O. Barbee, and that said premises since that date have been assessed to and the taxes thereon paid by said W. O. Barbee. That said W. O. Barbee, from 1889', claimed to be the owner of said premises; that knowledge of said claim was general in that community and that knowledge of said claim was at divers times brought home to the defendants, W. L. Barbee and Martha J. Barbee. That said W. O. Barbee, in 1894, and prior thereto, made lasting and valuable improvements on said premises and exercised all the rights incident to the ownership of said premises, and has continued to do so since, of all of which the defendants had knowledge. And that before the institution of this suit said W. O. Barbee’s title had become absolute by adverse possession as against the defendants, W. L. Bar-bee and Martha J. Barbee.
‘ ‘ The court further finds that in July, 1894, the defendants, W. L. Barbee and Martha J. Barbee, made, executed and delivered to defendant, W. O. Barbee, a general warranty deed for said premises and that said deed has never been filed for record.”

To this finding of facts the defendants excepted. The exceptions were overruled, but defendants did not except to the action of the court in overruling their said exceptions, nor do they make any point thereon in the motion for a new trial. Moreover, the finding of facts was made after judgment was rendered, and does not, therefore, constitute a part of the record, and is not before us for review. [Hamilton v. Armstrong, 120 Mo. 597; Loewen v. Forsee, 137 Mo. 29.]

Plaintiff, over the objection of defendants W. L. and Martha J. Barbee was permitted to introduce in evidence statements of the defendant W. O. Barbee, made in the absence of his co-defendants, the said W. L. and Martha J. Barbee, that they had delivered to him a deed to the premises in controversy. The objection to this testimony was upon the ground that it was mere hearsay, and inadmissible in favor of plaintiff, who is privy in estate with the defendant W. O. Bar-bee.

It is well settled that the declarations of a person in possession of property are not admissible as evidence in his favor, or of those claiming under him, to show title in him. [Turner v. Belden, 9 Mo. 797; Watson v. Bissell, 27 Mo. 220; Darrett v. Donnelly, 38 Mo. 492; Morey v. Staley, 54 Mo. 421; Railroad v. Clark, 68 Mo. 371; Railroad v. View, 156 Mo. 608.] But it is equally well settled that the declarations or admissions of one in possession of property explanatory of his possession, as that he holds it in his own right, or as tenant or trustee of another, are admissible in evidence, because explanatory of his possession. [Darrett v. Donnelly, supra; Railroad v. View, supra.] It is clear from these authorities that the statements of W. O. Barbee, under consideration, were inadmissible against his co-defendants for the purpose of showing title in himself. They were, however, admissible as tending to show that his possession was adverse under the Statute of Limitations; and the judgment should not be reversed upon the ground of their admission.

In Martin v. Bonsack, 61 Mo. 1. c. 559, it is said: “The tendency of recent adjudications is to admit explanations of a possessor of property as to his title, not with a view to set up such title, but to show whether his possession was adverse under the Statute of Limitations, or otherwise. All the evidence in the case tended to show that Mrs. Lee’s possession was hostile to all the world, and not as dowress or tenant for life. This question was left to the jury by the instructions, and they found for plaintiffs.”

That case was cited with approval and quoted from in Mississippi County v. Vowels, 101 Mo. 225, in which it was also expressly ruled that such evidence was admissible. The Statute of Limitations was one of the issues involved in this case, and the judgment of the court may have been, and probably was, bottomed upon the theory that W. O. Barbee’s possession was adverse to all others for more than ten years before the institution of this suit.

No declarations of law having been ashed by defendants, or given by the court of its own motion, the judgment will be presumed to be predicated upon that theory of the case which authorizes it. We are not called upon to determine the weight of the evidence.

For the reasons stated the judgment is affirmed.

All concur.


author: GANTT, J.

text:
    BARNES, Appellant, v. STONE, Sheriff and Acting Trustee.
    Division Two,
    July 3, 1906.
    1. APPELLATE JURISDICTION: Title to Real Estate: Trustee’s Sale: Injunction of Resale: Specific Performance. The purpose of the suit was to obtain an injunction to prevent the resale by the trustee of certain lands, already bid in by plaintiff, on the ground that a resale will cast a cloud upon plaintiff’s title, and to compel defendant to accept certain notes in payment of a bid made by plaintiff for said lands at a sale by defendant as trustee, and make plaintiff a deed. Held, that, if the only purpose of the bill was to obtain an injunction to restrain a further sale, since the amount involved is less than $4,500, this court would have no jurisdiction; but as the bill also prays for specific performance of the contract of sale, and the necessary result will be that one party will win or lose the title to real estate, this court has jurisdiction of the appeal.
    2. COPARTNERSHIP: Deed of Trust: Application of Proceeds. When a member of a partnership dies, the partnership is dissolved, and its assets remain for the liquidation of the partnership debts. The trustee at a foreclosure sale of partnership lands under a deed of trust made by the partners cannot accept in part payment a note made by the surviving partner and the wife of the deceased partner and secured by a second deed of trust on the same lands. The right of the administrator of the partnership estate to the excess of the purchase money in the hands of the trustee, after satisfying the first valid deed of trust and debt, cannot be excluded in that way.

      3. -: -: Payment By Note of Deceased Partner's Wife. Two partners gave a deed of trust on partnership lands, and that note plaintiff acquired. Thereafter one of the partners died, and a third person was appointed administrator of the partnership estate. Thereafter the surviving partner and the wife of the other executed a second note and secured it by a deed of trust on the same lands, and this note plaintiff also acquired. Held, that plaintiff could not compel the trustee, who sold the land under the first deed of trust, to accept this last note as part payment of his bid made at the trustee’s sale.
    4. -: -: -: Resale. Where the bidder at the trustee’s sale refuses to pay the amount of his bid, although the bidder may be the owner of the notes secured thereby and does not desire a resale, the trustee can readvertise and resell.
    Appeal from New Madrid Circuit Court. — No». E. O. Riley, Judge.
    Aeejbmed.

      E. F. Sharp and Robt. Rutledge for appellant.
    (1) The right of the surviving partner to settle up the partnership estate existed at common law and has never been taken away from him by statutes of this State; consequently, it remains in full force, and he may proceed to wind up the partnership estate without administration or any action of the probate court. At common law the title to all partnership property is invested in the surviving partner for this purpose. Having the right to settle up the partnership estate, his acts, done in the pursuance of that right, must be legal. Easton v. Courtwright, 84 Mo. 37; Crook v. Tull, 111 Mo.' 288; Goodson v. Goodson, 140 Mo. 215; State v. Withrow, 141 Mo. 69; Bredow v. Mutual Savings Assn., 28 Mo. 181; Holman v. Nance, 84 Mo. 674; Scudder v. Ames, 142 Mo. 188; Hargadine v. Gibbons, 114 Mo. 561. (2) The above is the generally accepted doctrine in this country. Mathews v. Hunter, 67 Mo. 295; Hartnett v. Fegan, 3 Mo. App. 1; Delinenice v. Guillaume, 2 Sand. Ch. 366; Andrews’ Heirs v. Brown’s Admr., 21 Ala. 437; Murphy v. Abrams, 50 Ala. 293; Cobble v. Tomlin-son, 50 Ind. 550 ; Merrell v. Dickey, 38 Mich. 45; Pierce’s Admr. v. Trigg’s Heirs, 10 Leigh (Ya) 423; Dyer v. Clark, 5 Met. (Mass.) 577; Tallyhurst v. Champlin, 4 R. I. 209. (3) The surviving partner may exhaust the partnership estate in order to pay claims against it. Authorities cited under points 1 and 2. (4) The trustee under a trust deed is authorized to pay all debts which are liens subsequent to the trust deed. Notes, so secured by subsequent liens, are equivalent to cash in his hands. Mead v. McLaughlin, 42 Mo. 198; Cooney v. Laird, 153 Mo. 433. (5) A mortgagee has the right to pay taxes and the mortgage secures the same, and this, whether the mortgage gives this specific power or not. Chrisman v. Hough, 146 Mo. 102; Brown v. Brown, 124 Mo. 85; 1 Jones on Mortgages, sec. 358.. (6) A sale of land under a trust deed without authority of the owner of the debt is absolutely void. Magee v. Burch, 108 Mo. 336; Cutler Investment Co. v. Duns-worth, 146 Mo. 361. (7) The act of the sheriff in selling land under a deed of trust is not an official act. Dunham v. Hartman, 153 Mo. 632.

      J. V., Conran for respondent.
    Upon the petition of the appellant it is apparent that he had no right to demand of the respondent trustee the acceptance of the note made, executed and delivered by Albert Maynard, Prona Maynard and Huida Stanley after the death of J. H. Stanley. After the sale of the said premises by respondent trustee, he became liable to Barnes for the amount of the Himmelberger note and the taxes advanced by Barnes and to the creditors of the estate of Stanley and Maynard for the balance. Appellant having requested respondent to sell the property, and then purchasing thereunder, and then refusing to pay, cannot complain that said acting trustee did readvertise and sell. Respondent was solvent under the proof. R. S. 1899, see. 3649; Mc-Kinzie v. Mathews, 59 Mo. 99; Schuster v. Myers, 148 Mo. 422; Skrainka v. Oertel, 14 Mo. App. 374; Dickhaus v. Oderheide, 22 Mo. App. 76; Wilcox v. Walker, 94 Mo. 88; Lockwood v. Lunsford, 56 Mo. .68; Echelcamp v. Schrader, 45 Mo. 505.
   GANTT, J.

This is an appeal from the circuit court of New Madrid county, Missouri, dissolving the temporary injunction which had been previously granted by said court restraining and enjoining the defendant Stone from selling certain real estate in said county, under and by virtue of a certain deed of trust made and executed on the 10th of November, 1899, by J. H. Stanley and Albert Maynard as co-partners in the saw-milling and timber business at Conran, Missouri.

The petition for the injunction in substance stated the following facts: That on the 10th of November, 1899, J. H. Stanley and Albert Maynard were the joint owners in fee simple of 354.66 acres of land specifically described, all situated in New Madrid county, Missouri. That on the 10th day of November, 1899, said Stanley and wife and said Maynard and wife made, executed and delivered their certain deed of trust to the above-described lands to John H. Himmelberger, as trustee, to secure $1,241.31 to the HimmelbergerLuce Land & Lumber Company, as evidenced by their notes for that amount; that the said notes secured by the said deed of trust were past due and wholly unpaid and were the property of the plaintiff Barnes. It is then alleged that on the......day of March, 1903, the defendant at the request of the plaintiff proceeded to sell the above-described lands at public sale to satisfy said debt; that at the said sale, the said land was sold, and plaintiff was the highest bidder therefor at the sum of $3,010. It is then alleged that on the 23rd of February, 1901, the said Maynard and wife and Mrs. Stanley, the widow of J. H. Stanley, the deceased co-partner, made, executed and delivered to one J. M. Morrow, as trustee, their deed of trust on the same lands above described to secure the payment of $1,210, to one L. F. LaFont, and that plaintiff had also become the owner of the notes secured by said deed of trust. It is also alleged that on the 20th of December, 1902, in order to preserve the security, the plaintiff paid the taxes on said lands, to the amount of $122.64. It is then alleged by the plaintiff that on the 5th of March, 1903, he tendered to the defendant as trustee in the first-mentioned deed of trust and in payment of his bid of $3,010,

Four notes secured by the first above-described deed of trust dated November 10th, 1899, amounting to........ $1,607.72
The unpaid note secured by the second above-described deed of trust dated - February 23rd, 1901, amounting to.. 690.11
The three tax receipts above described amounting to.................... 322.64
Money of the U. S. for publishing notice of sale per bill.................... 6.00
Lawful money for trustee’s fees of defendant as agreed.............. 40.00
Cash............................. 583.53
Making a total of............... $3,010.00

And that the defendant refused to accept in satisfaction of said bid and refused to make and deliver to plaintiff his trustee deed to said lands. It was then alleged that the defendant had re-advertised said real estate for sale under the first above-described deed of trust, although not requested so to do by plaintiff, the holder of the note secured thereby; that if such sale is permitted, it will cast a cloud on the title of plaintiff to said lands, and that the defendant unless restrained will again sell said real estate, and plaintiff will suffer great and irreparable injury, that the security of his notes will be impaired and lost, that an adequate remedy cannot be afforded for damages; that the said J. H. Stanley is dead and his estate is insolvent, and that the defendant S. B. Stone and Albert Maynard are insolvent. The prayer of the petition was that the defendant be restrained from selling the lands by virtue of said deed of trust, and that he be ordered to make and deliver to plaintiff his trustee’s deed and receive the notes, money and receipts above described in full payment therefor.

The temporary writ of injunction was granted, and at the March term, 1903, the defendant filed his an-sewer to the petition, in which he admitted the conveyance of the lands by Stanley and Maynard to Himmelberger to secure the $1,241.31. Admits that at the request of the plaintiff on the 4th of March, 1903, defendant advertised and proceeded to sell the lands in said deed of trust described, in all respects as required by law, and did sell the same to plaintiff for the sum of $3,010. Defendant states that previous to the acquiring by plaintiff of the various notes described in plaintiff’s petition, J. II. Stanley had departed this life; that the second deed of trust secured in favor of L. F. La-Font, was executed after the death of said Stanley. It is then alleged that on the 28th of February, 1901, L. F. LaFont was duly appointed administrator of the partnership estate of Stanley and Maynard, and qualified as such, and that the said estate was still pending and unsettled in the probate court of New Madrid county at the time of the institution of this suit for injunction. Defendant states that when the plaintiff bid off the said lands at the sale thereof by defendant, under the deed of trust to said Himmelberger, the plaintiff promised the defendant to pay the said sum of $3,010, the amount of his bid for said lands, as soon as he came to town, and defendant did not at once resell said lands on account of having failed to receive the amount of the bid therefor, but applied, to plaintiff for the said sum of $3,010. The plaintiff failed and refused to pay the same, and that thereupon the defendant did immediately proceed to advertise the said lands for sale. The answer denies that plaintiff will suffer any great and irreparable injury. Denies that plaintiff’s security will be impaired or lost. Denies that plaintiff has no adequate remedy hy action at law, and says that the insolvency of J. H. Stanley and Albert and Frona Maynard in no way affects the parties to this action. Defendant alleges that at the time of the institution of this suit, ' he was, and still' is solvent. Having fully answered, he prays to have the injunction dissolved.

Afterwards, on the same day, the defendant filed his motion to dissolve the injunction. Both parties having consented to the trial of said cause at the March term, 1903, it was submitted to the court and after hearing all the testimony, the court dissolved the injunction and dismissed the bill.

I. Has this court jurisdiction of this appeal? It is evident that the amount involved does not give this court jurisdiction, and there is no Federal question in the case. Indeed it is obvious that unless it can be said that the title to real estate is involved, this court has no jurisdiction of the case.

The bill has two objects in view, one to obtain an injunction to prevent a sale of lands, on the ground that it will cast a cloud on the title of the plaintiff, and the other to compel defendant to accept certain notes in payment of a bid made by plaintiff for said lands at a sale by defendant as trustee, and make plaintiff a deed. The pleadings on both sides assert and confess title in the lands to be in the partnership of Stanley & Maynard, and that the debt for which the Himmelberger deed of trust was given was executed for a partnership debt of said firm.

If the only purpose of the bill was to obtain an injunction, we should hold that the title to real estate was not involved. [State ex rel. v. Court of Appeals, 67 Mo. 199.] But the bill also prays for a specific performance of the contract of sale and this presents a different phase of the case. The necessary result of the suit must be that one party will win or lose the title to the real estate involved. If this court should hold that plaintiff was entitled to pay for the land in the way he offered to do, a decree must be entered directing defendant to execute and deliver him a proper conveyance thereto. On the other hand, if we should hold that the plaintiff’s tender was insufficient, then he is not entitled to a deed or the land in equity, and he loses it. In this latter view of the case we think the title to real estate is involved in the meaning of our Constitution defining the jurisdiction of this court.

The jurisdiction of the Supreme Court of Illinois on appeal attaches when the title to a freehold is involved and that court has often ruled that in suits to enforce the specific performance of contracts for the conveyance of freehold estates the title is involved, upon the principle that where the necessary result of the judgment or the decree is that one party gains and the other loses a freehold estate, the title is involved. [Banking Ass’n v. Bank, 157 Ill. 576; Ryan v. Sanford, 133 Ill. 291; Railroad v. Watson, 105 Ill. 217.]

II. On the merits of the case we find no error. The plaintiff, as the owner of the Himmelberger deed of trust, had the right to have it foreclosed, and it is conceded by both sides that he requested the defendant as substituted trustee in place of Himmelberger, the trustee, who had refused to act, to advertise and sell the lands and thus foreclose the deed of trust, and the defendant at his request did sell the lands in suit to satisfy said deed of trust, and plaintiff became tbe purchaser for $3,010, and promised to pay the defendant the amount of said bid that day, but when defendant applied to him for the amount of his bid, he tendered defendant the amount of the note and interest thereon, which had been secured by the deed of trust, in part payment of his bid. This he had the right to do as he owned the said note, but he also tendered the amount, of a note and interest executed by Maynard, the surviving partner, and his wife, Mrs. Frona Maynard and by Mrs. Stanley, the wife of the deceased partner, after the death of Mr. Stanley, and secured by a deed of trust on the same lands, which note plaintiff owned and held, which note and interest defendant refused to accept as part payment of said bid. Did plaintiff have the right to have said note and interest accepted in part payment of his bid in the circumstances'? To answer intelligently, further facts must be taken into account, and they are that it is conceded on all sides that the land in question was partnership assets of the firm of Stanley & Maynard and the Himmelberger note was a co-partnership debt; that Stanley, one of the partners, died, and Maynard, the survivor, waived his right to administer, and LaFont on the 4th of March, 1901, was the duly appointed and legally qualified administrator of said co-partnership estate. It is obvious that J. H. Stanley was not a party to the note and deed of trust executed after his death. In support of his claim to have the said note and deed of trust applied in payment of his bid plaintiff invokes the doctrine that a trustee may apply the proceeds in his hands arising from a sale under a prior deed of trust to subsequent junior deeds of trust on the same lands, and thus satisfy all liens against the lands. [Mead v. McLaughlin, 42 Mo. 198; Coney v. Laird, 153 Mo. 408.] But it is apparent that neither of these cases reaches the point now under consideration, which is, can the surviving partner and his wife and the wife of the deceased partner voluntarily create a lien on the partnership estate after the death of one of the partners when a third party is duly appointed administrator and in charge of the partnership estate, and thus exclude the right of the administrator of the co-partnership estate to the excess of the purchase money in the hands of the trustee, after satisfying the debt and mortgage created by the partners in the life time of both of them? We think they cannot. When Mr. Stanley died the partnership was dissolved and its assets remained for the liquidation of the partnership debts.

Counsel invokes the law that a surviving partner may administer the partnership estate in right of his survivorship and this is ordinarily true, but there is not a word of evidence in this record that Maynard undertook as surviving partner to administer on the partnership estate of Maynard & Stanley, and there is no such allegation in the petition. There is neither allegation nor proof that the note and deed of trust given by Maynard and wife and Mrs. Stanley was for a co-partnership debt.

Whatever may be the rights of a surviving partner, it is clear that when, as in this case, he waives his right to administer on the partnership estate, and another administrator is in charge when the lands of the co-partnership are sold to satisfy a lien created when all the partners are alive, the surplus over and above the secured debt is assets of the copartnership estate, and the administrator thereof is entitled to administer the same and apply it to the liquidation of the unpaid debts of the partnership. [Carlisle’s Adm’r v. Mulhern, 19 Mo. 56.]

It appears to us that the discussion of Maynard’s powers as surviving partner under the facts disclosed upon this record, is dehors the record. As the surplus over and above the Himmelberger note and interest belonged to the administrator of the partnership- estate, LaFo-nt, the defendant as trustee was right in refusing tó accept the note of Maynard and wife and Mrs. Stanley in part payment of the bid. The defendant having by authority of the deed of trust assumed the duties of trustee and at the request of the plaintiff, he must be held to the accountability of a trustee with corresponding powers and having accepted the bid of plaintiff for $3,010, and plaintiff having refused to pay the same, the trustee could readvertise and resell the property to satisfy said Himmelberger note and deed of trust. [Davis v. Hess, 103 Mo. 31; Dover v. Kennerly, 38 Mo. 470; Barnard v. Duncan, 38 Mo. 170.]

We do not think the plaintiff is in a position to say that such a resale would be without his consent or request, after inducing the trustee to act, but be that as it may, the burden of this appeal is the right of plaintiff to require defendant to accept the note of Maynard and wife and Mrs. Stanley, executed after the death of Stanley as part payment of his bid, and we are of the opinion that neither his bill nor the proofs required the defendant to accept the same, and the circuit court properly so held. There was no error in dismissing the injunction on the other facts developed.

Burgess, P. J., and Fox, J., concur.