author: GOODE, J.

text:
    GERALDINE H. CARSON et al., Appellants, v. CHARLES L. LEE.
    Division One,
    March 2, 1920.
    1. Deed as Mortgage: Right of Redemption: Limitations. A conveyance in the form of a warranty deed, made and accepted as security ' for a debt, is a mortgage, and leaves in the mortgagor an equity of redemption which cannot be clogged or abridged by a stipulation in it that redemption must occur within ten years.
    2. -: The Word Redeem: Intention. Whether or not a deed, otherwise absolute, is to be construed to be a mortgage, is not to be determined by the use of the word “redeem” used in a stipulation clause ■ therein by which the grantee agrees that the grantors “may at any time within ten years redeem said land” and upon the payment of a named sum of money, he “will reconvey” to them, for though the word is appropriate to express an equitable right of redemption, it is not of fixed meaning, and the nature of the instrument, whether mortgage or conditional sale, is not determined by its use, but by the intention of both parties at the time it was made. If made to be a mortgage it retains the character then intended; otherwise, a deed absolute on its face, with an agreement to reconvey upon conditions, cannot be construed to be a mortgage, but is a conditional sale or deed of purchase.
    3. -: Intention: Extraneous Evidence. The terms of a deed may show so clearly on its face the real understanding of the parties, that no aid from extranepus circumstances is required or permitted to interpret it. On the other hand, it may leave the question whether it is a mortgage or deed of purchase in such doubt, that extraneous evidence is necessary to determine its character, and then such evidence is competent.
    4. --: Debt. A condition indispensable to a holding that a warranty deed was intended to be a mortgage is that there must have been a debt to secure, or some liability against which the grantee is to be guarded; for the purpose of a mortgage is security.
    5. -: -: To ‘Day Debts. Where the grantee was surety for one of the grantors on notes to the amount of a few hundred dollars, but neither was otherwise indebted to him, the notes were paid out of the $4000 named as the consideration for the deed, as was an existing mortgage for $800, and no assignment of any of the notes was made to the grantee, and there is no evidence that the balance of the consideration was advanced as a loan to either grantor, and no loan evidencing a debt was taken and no debt was mentioned in the deed, there was no debt secured by the instrument, and to hold there was would be to run counter to all ordinary experience in business transactions.
    6. -: <-: Repayment. The fact that the stipulation in the deed permitting the grantors to redeem and obligating the grantee to reconvey on the payment of a named sum, contained no agreement binding the grantors to pay the sum named or any part of it, is a circumstance of weight, though not conclusive, in determining whether or not the instrument was a mortgage.
    7. -: Possession: Taxes: Surplus After Paying Debts. The facts that the grantee was put into possession when the instrument was executed, that he was by it required to pay the taxes thereafter, and where the grantors were financially embarrassed, that the consideration was more than grantors’ debts paid by him and the balance was turned over to them, without note or other evidence of a loan, all likewise point significantly to a conclusion that 'the instrument was not a mortgage.
    8. -: Subsequent Indemnifying Bond. The fact that the purchaser from the grantee in a deed which contained a stipulation that the grantors might redeem upon the payment of a named sum of money, exacted of the surviving grantor and the grantee a bond to indemnify himself against loss because of an apprehended possible right in the heirs of the deceased grantor to redeem, and that of the purchase price paid by said purchaser a part was paid to said surviving grantor, whose ten-year right to repurchase had not expired, sheds no light on said original transaction and has no tendency to prove that said original deed was a mortgage, for the character of the transaction was fixed when said deed was made.
    9.Conditional Sale: Right of Heirs to Repurchase. Some authorities holding an option to purchase property creates no interest that is either assignable or transmissible to heirs of the option-holder, are cited in the opinion, but the point is not ruled, because it is unnecessary to a proper adjudication of the issues.
    Appeal from Mississippi Circuit Court. — Hon. Frank Kelly, Judge.
    Aeermed.

      Haw & Brown for appellants.
    (1) The court, upon the objection of defendant, refused to permit plaintiffs to show that at the time the conveyance from Addie Howlett and her husband was miade to Luke Howlett, Price Howlett, husband of Addie, was being hard pressed and even sued on¡ claims against him. Such testimony was proper. 27 Cyc. 1006' (c); Brightwell v. McAfee, 249 Mo. 579; Powell v. Crow, 204 Mo. 487; Book v. Beasley, 138 Mo. 455; .Cobb v. Day, 106 Mo. 278. It does not matter that the evidence was concerning the husband’s debts, as the wife may mortgage her lands to secure her husband’s debts. ’ Hack v. Hill, 10G Mo. 26. (2) The court erred in failing and refusing to hold that the conveyance from Addie Howlett and Price Howlett to Luke Howlett, was a mortgage and that plaintiffs, the heirs of Addie Howlett, had a right to redeem the land therein described. The suit was brought in time. Lipscomb v. Talbott, 243 Mo. 28; Sheppard v. Wagner, 240 Mo. 437; Wilson v. Drumrite, 21 M,o. 325'; Ballinger v. Chouteau, 20 Mo. 89; 27 Cyc. 1029 (e); R. S. 1909, sec. 1881; Rutte v. Carothers, 223 Mo. 647; Gray v. Yates, 67 Mo. 601. (3:) The instrument sued on is a, mortgage and should have been so construed. Where a deed absolute in form contains a clause reserving to the grantors a right to redeem the premises by the payment of a specific sum within a limited time, this will generally convert the transaction into a mortgage, being taken as manifesting the intention of the parties to create a security only. . 27 Cyc. 997 (IV); Sheppard v. Wagner, 240 Mo. 437; DesLoge v. Ranger, 7 Mo. 330. (a) The intent as expressed in the instrument itself should control. 13 Cyc. 604, 604-D, 606 (b); 34 Cyc. 766; 3 BouvieiYs Law Dictionary (81 Rev.), p. 2858; 27 Cyc. 997 (IV);. 7 Words and Phrases, p. 60231. (b) Even where the intention is doubtful, and the court is to determine whether the transaction is a mortgage or a conditional sale, it will be held a mortgage, as that construction is the more just and equitable. Phillips v. Jackson, 240 Mlo. o. 382, Powell v. Crow, 204 Mo. 490; Turner v. Kerr, 44 Mo. 434; Bender v. Maride, 37' Mo. 246; Brant v. Robertson, 16 Mo. 145; White v. University Land Co., 49 Mo. App. 464. (4) A deed absolute on its face may be a mortgage. 27 Cyc. 991, 994 (b) 996 (b); Chance v. Jennings, 159 Mb. 554; Book v. Beasley, 138 Mo. 455; Hack v. Hill, 106 Mo. 18; Sharkey v. Sharkey, 47 Mo. 543; Tibeau v. Tibean, 22 Mo. 77; Wilson v. Drumrite, 21 Mo. 325; McDowell v. Morath, 64 Mo. App. 297. (5) The fact that there is no agreement to pay interest in this case is more than offset by the grantee taking- possession and retaining the rents and profits. Lipscomb v. Talbott, 243: Mo. 1; Bender v. Zimmerman, 122 Mo. 194; Towner v. Johnson, 95 Mo. 431; Ely v. Turpin, 75 Mo. 83.

      Russell & Joslyn for respondent.
    (1) The petition states no cause of action. Jones v. Hubbard, 193 Mo. 163; Branham v. Peltzer, 177 S. W. 374; Donovan v. Boeck, 217 Mo. 87. (2) The death of Addie Howlett before the expiration of the ten-year period could not extend the time limit for more than three years after her death. R. S. 1909 sec. 1888; Smith v. Settle, 128 Mo. App. 382; Reed v. Painter, 145 Mo. 341; Schradski v. Albright, 93 Mo. 42. (3) There was no existing- debt alleged or proven, therefore the maxim “no debt, no mortgage” should be applied. Donovan v. Boeck, 217 Mo. 87. (4) A,t the time she executed the deed, Addie Howlett was a married woman, and in law deemed a femme sole so far as to enable her “to contract and be contracted with.” R. S. 1809, sec. 4335; R. S. 1909, sec. 8304. (5) The deed itself and all of the evidence shows the transaction to be a complete sale,, with the right reserved in the grantors, or “either of them,” to repurchase within a specified time. Turner v. Kerr, 44 Mo. 433; Slowey v. McMurray, 27 Mo. 113; Bobb v. Wolff, 148 Mo, 335.; Dunaway v. Kerr, 163 Mío. 415; Bailey v. Trust Co., 188 Mo. 486; Powell v. Crow, 204 Mo. 481. (6) The sale was a conditional .one, and oven if there had been no redemption by Price Howlett, Addie Howlett, had she lived, could not have redeemed after the expiration ■of the ten-year- period. Bobb v. Wolff, 148 Mo. 349. (7) The burden was on the appellants to show by clear and convincing proof that the deed was a mortgage. Cobb v. Day, .106 Mo. 278 ; Book v. Beasley, 138 Mo. 455; Bobb v. Wolff, 148 Mo. 335. (8) “Redeem,” as defined by the law writers, means to purchase back; to buy back; to repurchase in a literal sense. 3 Bouvier’s Law Dictionary (3 Rev.) p. 2852; 34 Cyc. 76'6. (9) In order to show that a deed absolute in form was intended as a mortgage, the evidence must be satisfactory as to its credibility, unequivocal as to its terms and meaning, and clear and convincing beyond a reasonable doubt. Gerhart v. Tucker, 187 Mo. 46; Brightwell v. McAfee, 249 Mo. 562.
   GOODE, J.

Plaintiffs, who are the children and only heirs of Addie Howlett and Sterling Price Howlett, both deceased, filed this action to obtain a decree that they be allowedi to reedeem a parcel of land, consisting of seventy acres, from the operation of an alleged mortgage made by tbeir parents. The instrument said to be a mortgage, executed and recorded July 6, 1903, was to Luke Howlett, a. brother of said Price, and was in form a warranty deed, except that it contained this paragraph:

“And said Luke Howlett agrees that said Price and Addie Howlett may at any time within ten years redeem said land and he will upon payment to him of said sum of $4,000 reconvey to them or either of them the said land without payment of any interest. Subject to the. easement of public and railroads, if any, over said land. Purchaser assumes payment of all taxes falling due after the year 1903.”

When that conveyance'was made the title to the land was in Mrs. Addie Howlett, subject to a deed of trust given by Addie and S. P. Howlett, her husband, October 17,1901, to E. J. Deal, trustee, to secure the payment of a note >for eight hundred dollars, due in three years, to J. J. Russell, which incumbrance the deed to Luke Howlett bound the latter to pay, as later he did. Price Howlett had conveyed the land to Addie in consideration of love and effection, September 18, 1805, or eight years before the conveyance to Luke. He was in embarrassed circumstances when the latter conveyance was made by himself and wife; creditors were pressing him and judgments had been rendered against him. Neither of the' grantors owed Luke anything at the date of the deed, but he was surety for Price on four notes to three banks, the notes ranging in amount from two hundred to sixty dollars, Luke testified. These notes and other debts of Price, to the amount of $3500, were paid by Luke, and as a balance of $440 of the purchase price of $4000 remained, this was paid to Addie and Price Howlett, the grantors. Mrs. Addie Howlett died March 30, 1006, and after-wards, on December 30, 1907, Luke Howlett and his wife Mable and S. Price Howlett sold and conveyed the land in question to defendant, Charles L. Lee, for five thousand dollars, of which sum Luke HoWlett received four thousand dollars and Price one thousand. By. the advice of his attorney, Lee exacted from the grantors a bond dated January 10, ISO'S, with sureties, in the sum of two thousand dollars, wherein the aforesaid deed by Addie and Price Howlett to Luke Howlett was referred to, with the statement that in the deed “there was" given said Addie Howlett and Si. P. Howlett the right to redeem said land within ten years from the date of said deed.”1 The condition of the bond was this:

“Now if the heirs of said Addie Howlett, deceased, or any one of them, shall have the right to redeem said land, as it is claimed they have, and do redeem said land, then if in that event said Luke Howlett and S. P. Howlett shall pay the said Charles Lee all the sums paid by him for said land and the feasonajble value of all permanent improvements put on said lands by him and hold him safe and harmless from any and all loss on purchase price and permanent improvements biy reason of said property being redeemed and taken from him, than this obligation to be void, otherwise to remain in full force and effect.

“It being fully understood and agreed that if the said land be redeemed the sum paid by the parties redeeming it shall be applied to paying said Lee and protecting him from loss on account of said purchase and redemption. ’ ’

Price Howlett died December 24, 1911. The petition states facts to show the deed in question was executed as a mortgage to secure Luke Howlett in the payment of debts Price owed him, as surety for Price, and in the reimbursement of judgments and other debts of Price he (Luke) agreed to pay out of the consideration of four thousand dollars mentioned in the deed; avers defendant purchased with actual notice of the right and intention of plaintiffs to redeem the land; that they had offered to pay defendant four thousand dollars, with interest at six per cent from July 6, 1913; when, it is averred, interest began to run on the instrument, concluding* with a prayer to be allowed to redeem and for an accounting to ascertain the amount due to defendant, taking into consideration the rents and profits he had received while the land had been in his possession. The answer of defendant admitted the truth of some of the statements of the petition and denied others, to-wit: that Addie and Price Howlett owed any debts to Luke when they conveyed to him; that he was surety for Price; that there were judgment liens on the land at the date of said conveyance.; that defendant had knowledge or information sufficient to form a belief concerning* anyi agreement which might have been made between Addie and Price and Luke concerning the land, other than the agreement contained in the deed; averred Addie died without exercising the right given her by the deed to redeem, referred to the conveyance to defendant, after Addle’s death, by Luke Howlett and wife and Price for five thousand dollars, and said one thousand dollars of the sum “was paid to the said S. Price Howlett as and for the equity of redemption which Addie Howlett and S. Price Howlett, or either of them, had reserved in the conveyance to said Luke Howlett.”

The answer sets up that Luke Howlett took possession of the land as soon as it was conveyed to him, paid all the taxes on it and exercised rights of ownership over it until he conveyed it to defendant, and that since then the defendant “has been in the open, notorious, continuous, hostile and adverse possession,” claiming to be owner, and since July 6,1913, has continued in the like possession. Other matters are stated, but they are 'propositions of law rather than facts, as are some of the things averred in the reply of plaintiffs, among them a denial that defendant’s possession was adverse to plaintiffs and an averment that it was simply the possession of a mortgagee before foreclosure.

The allegations are made in the replication that this action was begun within less than twenty-four years after the cause of action (i. e. the right to redeem) descended to plaintiffs; that when it descended both plaintiffs were under twenty years of age and the action was ¡filed before Norman Howlett was twenty-one, and within three years after the disability of G-eraldine Howlett Carson was remioved. She was twenty-three years old February 10, 1916, and Norman was twenty December 12, 1916, or throe months after the petition was filed on September 8, 1916. The attorney who drew the deed1 asserted to be a mortgage, was Hon. J. J. Bussell, and several items of his testimony touch upon the intention of the parties:

“I remember in an indefinite way that they said Price might want to get the place back and Luke had agreed that if he wanted to redeem the place he could do so at any time within, ten years, and the deed was written to express their intentions the best I knew how to express them at the time. To my best recollection the . whole agreement was to the effect as expressed in the deed. ...

“Luke and Price Howlett told me how to write the deed, if there was any outside agreement other than stated in the deed, I do not now recall it, hut there may have been agreements between them of which I knew nothing, but, as stated in the deed, I am sure both gave that to me as their agreement. . . .

“There was nothing said to me at that time by either Luke or Price that the deed was anything other than what it purported to be. My recollection of it is that it was a bona-fide conveyance. It seems that from all that was said that it was a bona-fide sale, but that Price hoped to be able to redeem it, and Luke agreed to give him ten years in which to do it. . .' .

“I got the impression that Price owed debts and was going to sell the land to Luke, but that he hoped to redeem the land, and Luke consented that he should have ten years in which to do so, and Luke was assuming some of his debts. I don’t think that Mrs. Addie Howlett took any part in the conversation, but she was there. ’ ’

Defendant said regarding the bond:

“I took the bond upon the suggestion and advice of Mr. Deal, my attorney, and that is the reason I had him do it. That was before the expiration of the ten-year period mentioned in the deed from Price Howlett and wife to Luke Howlett.

“You knew, then, what the bond was about and what it was for? A. Yes; they read it to me.

“And you had been told what was in the deed — the right to redeem that land was reserved by Mrs. Addie Howlett and Price Howlett? A: Inside of ten years.”

Luke Howlett testified, among other matters:

“When I started to sell the place to Mr. Lee, I told hi mi I couldn’t sell the place as I had a rédeeming clause there.”

The land was worth from fifty to fifty-five dollars an acre in 1903.

Judgment was given for defendant and this appeal was taken by plaintiffs.

Plaintiffs ’ petition is framed for relief on the premise that the deed , of their parents, Addie and Price Howlett, to Luke Howlett, was made and accepted as security for a debt; therefore was a mortgage, which left in Addie Howlett, as the real mortgagor, an equity of redemption which, descended to plaintiffs as her heirs and could not be clogged or abridged by stipulation as to the time in which redemption might occur. [Reilly v. Cullen, 50 Mo. 322; Wilson v. Drumrite, 21 Mo. 325, 328.] The fact principally relied on to prove the transaction between the parties was a loan by the grantee and the instrument intended as security for the loan, instead of what it purports to be, a sale with the right of repurchase, is the word “redeem,” in, the clause of the deed we have quoted. The premises usually found in warranty deeds, and found in this one, are; that the grantors, in consideration of a stated price ($4,000 paid and received) granted, bargained, sold and conveyed and confirmed unto the grantee, the land, describing it. So, too, there are the usual habendum clause and a covenant of warranty. The word “redeem” was appropriate to express the equitable right left in, Addie Howlett, if the instrument was a mortgage made to secure a debt to the grantee, as the word “purchaser” was the proper designation. of the grantee if the conveyance was pursuant to a sale. Neither word fixes, necessarily, the nature of the instrument, and both have more than one meaning in law. A “purchaser, ” for example, might be one. who took by gift or a will, whereas “redeem” is used in a wider sense than retrieving the title to mortgaged land and as signifying11 “to purchase back.” In two cases decided by this court wherein the question was, as it is now, whether a conveyance was a mortgage or a sale with a right to repurchase,retained by the vendor, the documents depended on, among other matters, to show the transaction was a mortgage, contained the word “redeem,” but that fact was not alluded to. as- evidence the transaction was a mortgage. [Bobb v. Wolff, 148 Mo. 335, 341, 343:; Bailey v. St. Louis Union Tr. Co., 188 Mo. 483, 488, 489.] In the first of those eases the grantee in the warranty deed wrote two letters to the grantor, in one of which he said: “Do you desire to redeem or purchase the property on Olive Street? Although the time is out, I have no objection to do as you wish now upon the terms originally agreed upon.” In the other letter, in answer to the inquiry of the grantor as to what he would give “for miy equity of redemption,” the grantee said: “Don’t want to buy; I have calculated on your redeeming in September.” In the second case, in an agreement extending the original arrangement between the parties, the Trust Company said the grantor or his assignee “should have the right to redeem the property described in the within contract, subject to its terms, at any time prior to November 24, 1898;” etc. In both eases the contract between the parties was held to have been a sale with the right of repurchase, but, as stated, the effect of the word “redeem” was not discussed.

We are cited at this point to two other decisions of this court: Desloge v. Ranger, 7 Mo. 327, and Sheppard v. Wagner, 240 Mo. 409. In both opinions the effect of a clause for redemption in a case like the present was considered, and in each the ruling was against the view that the provision was conclusive. In the first case this was expressly stated and also that the circumstances attending the transaction must be considered to ascertain the real intention of the parties* The circumstances noticed were the price in comparison with the value of the property (a negro slave), the retention of possession of the negro by the assignor, and that the slave was assigned to a mercantile firm which did not deal in slaves, and to which the assignor was indebted. In the second case the opinion, in order to determine whether the transaction was a sale or mortgage, considered whether the relation of debtor and creditor existed previous to or was created at the time 'of the conveyance, and found a debt was created; next, the grantees became tenants of the grantors after the conveyance, a relation inconsistent with a sale; and, third, the grantors were to pay the liens and special taxes on the property, as the grantees naturally would do if they were' purchasers. Those facts, along with the provision for redemption of the property by the grantors within three years, were held to establish a mortgage.

That technical terms which, according to their established meaning indicate either a sale or a mortgage, are not always decisive of the question, appears forcibly from a decision where the deed asserted to be a mortgage, spoke of the “indebtedness as aforesaid,” of the maker to the grantee, and yet, because of other facts which showed there' was no debt, the conveyance was held a sale. [Donovan v. Boeck, 217 Mo. 70, 90.]

In another jurisdiction, a conveyance in the form of a warranty deed of certain property, contained a clause which recited that it was given in satisfaction of a note and mortgage and that the grantors should have the right “to redeem or repurchase” the premises within one year, by paying the amount of the note with interest until said redemption, at the rate of fifteen per cent per annum, and all costs and taxes paid by the grantee; the grantors to have possession for said year. [Swarm v. Boggs, 12 Wash. 246, 248.] In an action to have1 the conveyance treated as a mortgage, after saying the instrument must be construed as an absolute deed unless the intention of the parties to treat it as a security appeared from the cited clause, the court said there was nothing in the language of the instrument to constitute it a mortgage, except that, in connection with the right to repurchase, the word “redeem” was used, and in another place, the words “redemption of the property.” The decision was that in as much as the evident intention of the parties was that the conveyance should operate to pay the debt existing when it was made, those words were not sufficient to continue the debt in force and render the instrument a security.

The effect to be given to deeds like the one in hand, is determined by the intention of the parties, and of both parties, be it noted (Holmes v. Fresh, 8 Mo. 201, 208), at the time of the transaction, and if the deed was made to be a mortgage or a conditional sale, in either event, it retains the character then intended and the rights of the parties are determined accordingly. [Phillips v. Jackson, 240 Mo. 310, 332; Brant v. Robertson, 16 Mo. l. c. 145; Powell v. Crow, 204 Mo. 481, 487; 1 Jones, Mortgages, (7 Ed.), sec. 263; Knowles v. Williams, 58 Kan. 221; Elliott v. Conner, 63 Fla. 408; Conway’s Exrs. v. Alexander, 7 Cranch (U. S.) 218; Tucker v. Witherbec, 130 Ky. 269; Cornell v. Hall, 22 Mich. 377.]

Probably because of the tendency of courts of equity to favor the theory of a mortgage (Slowey v. McMurray, 27 Mo. 113, 115), their jurisdiction is invoked frequently for relief against conveyances absolute in form, and a body of rules by which to determine the nature of the instrument has grown up. What the agreement was having been established, it is to be enforced like any other contract, whether it was a conditional sale or a mortgage ; for a grantee is as such entitled to have his rights protected in the former case, as a grantor would have if it were a mortgage. [1 Jones, Mortgages (7 Ed.), p. 537, sec. 262.] The terms of the deed may show so clearly on its face the real understanding of the parties, that no aid from extraneous circumstances is required to interpret it; or it may leave the question in doubt, when resort will be had to other evidence. [Desloge v. Ranger, 7 Mo. l. c. 329, 330; 1 Jones, Mortgages, sec. 261 and cases cited in notes.]

In the present instance the intention of the parties cannot be ascertained certainly from the.deed, hence we must look to facts beyond it. A, condition indispensable to hold a deed to be a mortgage is that there must have been a debt to secure, or some liability against which the grantee is to 'be guarded. On this proposition all the cases agree, and in all of them will be found statements which show the decision in favor of the mortgage theory was based on evidence to show the instrument was given as security of some kind; for the purpose of a mortgage is security. [Brant v. Robertson, 16 Mo. l. c. 143; Donovan v. Boeck, 217 Mo. 70, 87; Flagg v. Mann, 2 Sumner, 533,] Neither Addie nor Price Howlett was indebted to Luke at the date of the conveyance in question, but Luke was surety for Price on notes to the amount of four or five hundred dollars. These notes were paid out of the price named in the deed, as were the prior deed of trust on the land, in favor of J. J. Russell, and several-other debts of Price Howlett. Thus it appears the liability of Luke Howlett as- Price’s surety, was extinguished and the liabilities for which Luke was not surety were dicharged; therefore there was no indebtedness of Addie or Price Howlett to Luke, or liability of Luke for them left in force, unless the four thousand dollars was advanced as a loan to one or the other of the grantors, and that this was so there is no evidence. To hold there was a debt still subsisting or created between the parties, would be to “run counter to all ordinary experience in business transactions,” as was said in a similar case (Bobb v. Wolff, 148 Mo. l. c. 345), for if there was a debt, then if business usage was followed, the obligation taken up by Luke Howlett would have been transferred to him or a new note given by Price Howlett for $4,000.

We refer to these other circumstances as pointing to the conclusion that the transaction was a sale with the right accorded to the vendors to repurchase, all of which circumstances the courts have held tend to establish that fact. None of the obligations of Price Howlett, which were paid out of the consideration, were assigned to Luke. [Brant v. Robertson, 16 Mo. l. c. 139, an early but thoroughly considered opinion; Slowey v. McMurray, 27 Mo. l. c. 116; Turner v. Kerr, 44 Mo. 429, 431.]

No note or other evidence of a loan by him to Price or Mrs. Howlett. was taken, and no debt was mentioned in the deed, nor did it contain a stipulation binding either of the grantors to pay the grantee $4,000, or any other sum; a circumstance of weight, though not conclusive. [Conway’s Exrs. v. Alexander, 7 Cranch, (U. S.) 218; Justice Story in Flagg v. Mann, supra, as quoted in Brant v. Robertson, 16 Mo. l. c. 144.]

Luke Howlett was put in possession of the premises at once. [Desloge v. Ranger, 7 Mo. l. c. 331; Cobb v. Day, 106 Mo. l. c. 297.]

Luke, the grantee, agreed to pay the taxes on it which would fall due after the year 1903. [Bobb v. Wolff, 148 Mo. l. c. 344, 345.]

The consideration was more than enough to pay the debts of the grantors, and the surplus left after paying those debts was turned over to the grantors. [Fort v. Colby, 144 N. W. 393; Powell v. Crow, 204 Mo. l. c. 488.]

We think those facts considered along with the terms of the instrument itself, plainly show that the transaction between the parties was intended by both sides as a sale with the right in the vendors to purchase back, if they were able, within ten years;-an arrangement entered into by Luke Howlett to help his brother out of his financial embarrassments; and that they were kin is to.be remembered. [Powell v. Crow, 204 Mo. l. c. 487.]

We may add that the oral testimony points to the same conclusion as the other facts we have noticed.

Let us look at the case from another point of view: if the conveyance was in fact a mortgage, Luke Howlett had the right, after ten years, to insist on the payment of his loan, and in default of payment to foreclose the mortgage, have the property sold and if he did not realize thereby enough to discharge the debt, to maintain an action against Addie and Price Howlett for the balance. [Slowey v. McMurray, 27 Mo. 113, 116; 1 Jones, Mortgages (7 Ed.), sec. 264; Henley v. Hotaling, 41 Cal. 22; McNamara v. Culver, 22 Kan. 661.]. Can it be thought such was the intention of the parties? Or, is not the conclusion irresistible that an option was given, to the grantors to buy back? We accept the latter as the proved nature of the transaction, without invoking the rule that the evidence, to show a deed absolute in form is a mortgage, must be cogent and convincing. [Gerhardt v. Tucker, 187 Mo. 46.]

Plaintiffs emphasize the fact that defendant, when he purchased the land from Luke Howlett, required a bond to indemnify him against a possible claim by the plaintiffs, and that Price Howlett was paid one thousand dollars or the difference between the price defendant was to give and the sum for which Addie and Price Howiett might repurchase from Luke. As stated before, the character of the deed was fixed by the intention of the parties Avhen it was made; and that Lee, by way of precaution, exacted security against a possible right in plaintiffs to redeem, sheds no light on the original transaction and has no tendency to prove it was a loan secured by a mortgage ; but simply shows defendant was apprehensive and wished to guard against contingencies. The one thousand dollars paid to Price Howlett was for his right to repurchase, the ten-year period for which the right was reserved not having expired when defendant purchased in 1907. By the terms of the deed to Luke Howlett, the right was accorded to Addie and Price Howlett, and the former being at the time of full legal capacity, was competent to make that arrangement. [R. S. 1909, secs. 4335, 8804; Rice, Stix & Company v. Sally, 176 Mo. 107.]

We have held, the transaction in question was a conditional sale to Luke, and as the only issue raised by the pleadings and briefed and argued was as to whether it was a sale or a mortgage, it is unnecessary to ascertain the respective rights, under the clause which provides for a repurchase, of Price Howlett and plaintiffs, as the heirs of Mrs. Howlett, or whether plaintiffs acquired any rights thereunder at the death of their mother; but we refer to some authorities which hold an option to purchase property creates' no interest that is either assignable or transmissible to the heirs of the holder of the option. [Sutherland v. Parkins, 75 Ill. 338; Newton v. Newton, 11 R. I. 390; Rease v. Kittle, 56 W. Va. 269.]

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SMALL, C.

license: Public Domain

text:
    AMELIA NICHOLAS, Appellant, v. EVANGELICAL DEACONESS HOME & HOSPITAL
    Division One,
    March 2, 1920.
    1. CHARITY: Shown by Articles: Parol Evidence. An association whose purposes are to nurse the sick and establish and support a home where deaconesses are to be educated and trained to serve as nurses for sick and aged persons admitted to the home, whose members are required to believe in the creed of the Apostles and are to pay annual dues and receive no dividends or compensation, and whose directors have no power to distribute funds to its members as profits or otherwise, but only to use them to carry out its charitable and benevolent objects, is a charitable association. And all these facts appearing from its articles of association, parol evidence to show its charitable character is not necessary, but ■ evidence to the effect that its funds, whether received from dues or donations or derived from pay patients, were held in trust for the charitable and benevolent purposes of the organization, does not destroy or alter its character as a charity.
    2. -¡Personal Injury to Patient: Recovery of Damages. A charitable association is not liable in damages for personal injuries to its patients caused by the negligence of its trustees, servants or employees. The funds of a charitable hospital or association are trust funds devoted'to the alleviation of human suffering, and cannot be diverted or absorbed by claims arising from the negligence of the trustees or employees.
    3. -: -: -: Pay Patient. The fact that the patient at the hospital for the charitable, association was not a charity patient, but paid for all the services rendered by the nurses and for the medicines and supplies furnished by the association, does not entitle her to recover damages for injuries caused by the negligent application by a nurse of carbolic acid, instead of alcohol, to her skin, during the course of a massage prescribed by her physician.
    Appeal from St. Louis City Circuit Court. — Eon. Thomas C. Hennings, Judge.
    Affirmed.

      Jour dan, Rassieur $ Pierce for appellant.
    (1) Where one is permitted, temporarily in the absence of the regular servant or agent, to take the place and charge of matters committed to such absent agent or servant, he has for the time being the same authority as if he were the regular agent or servant. 21 R. C. L. sec. 34, pp. 855-856; Storage Co. v. Cox, 74 Ohio St. 284, 78 N. E. 371. (2’)1 The owner of a grocery store or retail business (or a drug store, as at bar) placing another in charge thereof-is held to have authorized such person so placed in charge to make sales and dispense the goods (or drugs) in tlie usual course of business. Henson v. Keet & Rountree, Mer.' Co., 48 Mo. App. 214. (3) In determining whether plaintiff should be non-suited the testimony must be viewed in the most favorable aspect for plaintiff. This deprives the defendant of the right to urge on the court that it assume a fact or facts to exist upon which there is a complete absence of evidence.

      Watts, Gentry & Lee for respondent.
    (1) The judgment should be affirmed, because the relation of master and servant was not shown to exist between the respondent and any persoii who committed, any negligent act which resulted in injury to the plaintiff. The burden was upon1 the appellant to make that proof, and, the appellant having wholly failed to do so, the judgment should be affirmed, regardless of the question as to whether or not respondent is exempt from damages for its servants’ acts because it is a charitable institution. At best, plaintiff’s evidence leaves it in doubt and uncertainty whether the injury resulted from negligence of an employee or that of a person who was not an employee. The cause being left to speculation, a demurrer to the evidence was properly sustained. Goransson v. Ritter Co., 186 Mo. 3001; Kane v. Railroad, 251 Mo. 30; Caenefielt v. Bush, 198 Mo. App. 491. (2) The respondent was shown by undisputed documentary evidence, to be a charitable institution, and, under the law of this State, and under the great weight of authority in other states, and in England, a charitable hospitable is not liable for the torts of its servants committed in the treatment of patients. Therefore, even if the plaintiff had been-injured by a negligent act of some servant of the respondent, while engaged in the line of his or her duty, there would still be no right of recovery. The fact that many patients paid for the privileges of the hospital, or the fact that in one year some surplus was left after the expenses were paid, does not change the institution from a charitable one to a business corporation. Adams v. University Hospital, 122 Mo. App. 675; Whittaker v. St. Luke’s Hospital, 137 Mo. App-. 116; Powers v. Mass. Homeopathic Hospital, 109 Fed. 294; McDonald v. Mass. General Hospital, 21 Am. Rep. 5139 ; Benton v. Boston City Hospital, 140 Mass. 13!, 54 Am. Rep. 431; Downs v. Harper Hospital, 101 Mich. 555-, 45 Am. St. 427; Hospital v. Ross, 12 Clark & F. 507; Gooch v. Association, 109 Mass. 508; Cunningham v. - The Sheltering. Arms, 119' N. Y. Supp-. 1033:; Collins v. New York Post Grad. Med. Hospital, 89 N. Y. Supp. 106; Wilson v. Brooklyn Homeopathic Hospital, 89 N. Y. Supp. 619; Pephe v. Grace, 130 Mich. 493 ; Parks v. N. W. University, 121 111. App. 512, 218 111. 381, 2 L. R. A. (N. S.) 556; Hearns v. Waterbury Plospital, 66- Conn. 98; Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 52 L. R. A. (N. S.) 505; People ex rel. v. Society of New York Hospital v. Purdy, 58 Hun 386, 12. N. Y. Supp. 307, 126 N. Y. 679.; Iiodern v. Salvation Army, 139 Am. St. 899; Taylor v. Protestant Hospital Assn., 85 Ohio St. 90, 30 L. R. A. (N. S.) 427; Hill v. Tualatin Academy, 61 Ore. 199; Duncan v. Nebraska Sanitarium Benv. A-ssn., 41 L. R. A. (N. S.) 973.
   SMALL, C.

Appeal from the Circuit Court of the City of St. Louis. . This is a suit for personal injuries sustained by the plaintiff from having received a massage with carbolic acid instead of alcohol at the hospital of ■the defendant. The petition is as follows:

Plaintiff states that defendant is, and at all of the time herein stated was, a corporation existing under the laws of the State of Missouri, located and doing business in the City of St. Louis and maintaining and operating a hospital for the care and treatment of the sick.

“Plaintiff states that heretofore, to-wit, during January and February, 1914, she was sick and a patient at said hospital of defendant, and that part of the treatment administered to her consisted of daily alcohol rubbings or massages by one of the attending nurses.

“And plaintiff states that on, to-wit, the 2nd day of February, 1914, one of said nurses, desiring an additional supply of alcohol, applied to the proper representative and attendant of defendant therefor, said representative being one of the internes at defendant’s said hospital, and that such representative carelessly and negligently filled up the bottle of the nurse with carbolic acid instead of alcohol.

“That owing to the similarity in appearance, such substitution was not discovered by such nurse, and that thereafter the nurse undertook to give plaintiff the usual alcohol rub or massage, and in consequence of the action aforesaid of defendant, through its said representative, in filling the bottle used by the nurse with carbolic acid instead of with alcohol, a large quantity of carbolic acid was -poured on and against the back of this plaintiff, severely burning and injuring and wounding* her and causing intense physical pain and mental anguish and suffering.

“Plaintiff states that she still suffers the effects of said carbolic-acid burns and wounds, and that in all probability she will continue to suffer therefrom permanently hereafter.

“That by reason of the premises she has been damaged in the sum of ten thousand dollars, for which, with costs, she prays judgment against defendant.”

The answer was as follows:

“Comes now the defendant, the Deaconess Hospital, and for answer to the plaintiff’s petition herein, says:

“That it, said defendant, is an eleemosynary corporation, organized and doing business under and by virtue of the laws of the State of Missouri, and created and existing particularly under and by virtue of the provisions of the statute as shown in Article 10, Chapter 33, Revised Statutes of Missouri 1909, entitled, ‘Benevolent, Religious, Scientific, Educational and Miscellaneous Associations “that said defendant corporation is a benevo-. lent and charitable- association or corporation and is not incorporated for profit; and that by reason of the premises defendant is not liable for the alleged or pretended injuries described in the plaintiff’s petition.

“And said defendant for further answer denies each and every allegation in said petition contained.

“Wherefore, said defendant having fully answered, asks to be dimissed with its costs in this behalf most wrongfully sustained.”

The reply was a general denial. The. plaintiff’s testimony tended to show the following state of facts:

The plaintiff, a married lady, living in St. Llouis, being ill in January, 1914, was attended by Dr. Francis Red-er, as her physician. At his suggestion on January 21, 1914, she went to the hospital of the defendant and remained there until February 28, 1914, and was there attended by her said physician. She employed and paid two special nurses, Beatrice Francis by day and Anna Schmidt by night. For her róom and board at the hospital she paid defendant $15 a week. The hospital had a pharmacy at which she purchased bandages, medicines and alcohol, for which she paid. She paid each of her nurses $25 per week, and paid the hospital $7 a week for the board of each nurse. She also paid Dr. Reder who attended her. She received no free treatment, medicines, or attention whatever, but, as far as the evidence shows, she paid the full regular price for all she received at the hospital. About midnight, February 2,1914, her night nurse, Miss Schmidt, undertook to massage the plaintiff’s back with alcohol, as she had done before, in pursuance of instructions from Dr. Reder. The nurse poured something: into her hand out of a bottle and applied it to plaintiff’s bare back, and as the nurse did so, the plaintiff gave out a scream and the nurse said: “My Grod! It is carbolic acid I have used.” The plaintiff was severely burned by the acid. The nurse’s hands were also burned.

In addition to the expenses already mentioned, the plaintiff paid the hospital for the use of the operating room for two operations performed upon her, $5 for the first operation, and $10' for the second.

The night nurse, Miss Schmidt, did not testify, nor was her deposition taken. At the time of the trial she resided at Cairo, Illinois.

The day nurse, Miss Francis, testified that on the day plaintiff was injured, she was on duty, her hours being from seven in the morning until seven in the evening, and Miss Schmidt’s from seven in the- evening until seven in the morning. That sire used alcohol for “rubs” which she gave the plaintiff; that she got the alcohol at the drug department at the hospital in an eight-ounce bottle marked, “Alcohol.” On February 2,1914, the day plaintiff was burned, she took this bottle to the hospital pharmacy to get it filled with alcohol. The druggist was off duty and she testifies: “Dr. Young, the interne or house physician, had charge of the drugs. I asked him for alcohol, and handed him the bottle. He filled it with something which had the samo color as alcohol. It was light in appearance. I took it to the plaintiff’s room and put it on the dresser in its usual place. I did all in the usual way. Alcohol arid carbolic acid resemble each other very much in looks. "When I left duty that evening Mrs. Nicholas had no burns on her person. I saw her again the next morning between seven and eight o’clock, and her whole back was burned by carbolic acid. I could tell that by the color of the burns and the odor of what was in the bottle. I did not know at the time that Dr. Young-had put carbolic acid in the bottle.”

For defendant, Dr. Francis Reder, testified that plaintiff’s burns were superficial, except near the lower part of the spine, where they were deeper than superficial. He spoke to Sister Magdelane about the nurses for the plaintiff, and she assigned Miss Francis and Miss Schmidt. He prescribed alcohol rubs and not carbolic acid. Plaintiff was burned with carbolic acid.

Defendant was incorporated by a decree of the Circuit Court of the City of St. Louis March 18, 1891, in which the court adjudged that its articles of agreement “come properly within the purview of Article N, of Chapter 42, R. S. Mo. 1889,” ^elating to Benevolent, Religious, Fraternal, Beneficial, etc., Associations. The articles of association 'of defendant, which were executed by seventy citizens of St. Louis, together with the decree of incorporation, were introduced in evidence by the defendant. The object and membership of the association are therein stated, as follows:

“Article II. Object. It is the object of this asso-’ ciation: 1st. To nurse the sick and to exercise care for poor and aged by deaconesses, i. e. theoretically and practically trained Christian nurses. 2nd. To found and support a deaconess home where deaconesses shall be educated and trained, and from which they shall be sent as nurses, and where sick and aged, under circumstances provided by By-laws, may be admitted and receive attendance-.

“Article III. Membership. 1st. Every Protestant Christian whose belief is in conformity with the creed of the apostles, and who agrees to fulfill the regulations of this association, is welcome as a member. 2hd. The duties of members are: a. To attend the meetings of the association as regularly as possible, b. To be active for the growth and promulgation of the association. c. To pay in advance an annual fee of at least two dollars. 3rd. Any person, being proposed in writing by a member, may become a member of the association if admitted by a vote of a majority of the board of directors.”

-Among other thing’s, Article VI provided for annual meetings, and- stated: “This meeting shall be of a religious character in which deaconess work shall be set forth by one or more speeches . . . 4th. Every meeting shall he opened and dismissed with prayer and conducted in a manner corresponding to the Christian charity work of this association. ’ ’!

Article IY provided: “The management of this association shall he hy a hoard of directors consisting of twelve persons,” four ministers, four laymen and four ladies, who shall have been members of the association at least one year.

Article V provided for a president, vice-president, recording secretary, secretary of [finance, and a treasurer. The secretary of finance was required to collect the dues of the members and turn over the money to the treasurer. The treasurer was made custodian of the association’s funds and was required to execute bond at the option of the directors that he “will faithfully fulfill the duties of his office and account for and pay over as directed hy the board of directors, all funds which may come into his hands. He shall keep an account of receipts and expenditures and make payments only when orders for the same carry the joint signatures of the president and recording secretary, and at the termination of the year he shall submit a statement of finance to the hoard of directors.” A home committee chosen from the board of directors was provided for, who, with others, should examine all applications for admittance to the Deaconess Home and then submit the same to the board of directors for decision.

The manager of the hospital testified for defendant that the funds of the hospital were derived from dues of members, donations from churches and private persons, and from the Hospital Saturday and Sunday Association, also from pay patients. Patients who do not pay were also received. In 1914 there were 395 free patients, and 1521 pay patients. The money of the association was expended under his supervision. It was paid out for salaries, medicines and for operating the hospital. They always had some charity patients. There were no dividends paid and no salaries, except to those in the hospital. They took patients whether such patients could pay or not, and they had the benefit of the medicines and nursing, and if admitted as charity patients were not expected to pay. The superintendent or manager received a salary of $1400 per annum. The house physician received $50 per month and room and board. The deaconesses received no salaries, but they got a monthly allowance of pocket money. The income for the year ending September 30', 1914, was from pay patients $60,387.45, including sums paid for drugs, dressing and operating room; income from other sources, including membership dues and donations, was $5,844.42. Total expenditure's during the same time in operating and maintaining the hospital, was $62*,021.29. The excess of income over expenditures was $4,210.58. A statement was also put in evidence showing1 that defendant owned a building, furniture . and equipment worth $158,012.77, and. accounts receivable and supplies on hand $8,090.07, and was owing $14,362.74.

Dr. Young, who Miss Francis testified, was in charge of the pharmacy department in the absence of the druggist and was an interne or house physician at the hospital, and who filled the bottle for her, as she thought, with alcohol, was not called as a witness, nor did he testify by deposition.

At the close of all the evidence, the court, at the instance of defendant, sustained a demurrer to the evidence. The jury rendered a verdict for the defendant, and the plaintiff brought the case here by appeal.

I. We hold that defendant under its articles of association is a charitable organization. The purposes of its organization are: “1st. To nurse the sick and to exercise care for poor and aged by deaconesses, i. e. theoretically and practically trained Christian ntirses- 2nd. To found and support a deaconess homey where deaconesses shall be educated and trained, and from which they shall be sent as nurses, and where sick and aged persons, under circumstances provided, by By-laws, may be admitted and receive attendance. ’ ’ The members were required to be Protestant Christians, whose belief is in conformity with the creed of the apostles, and they were to attend the meetings of the association as regularly as possible and be active for its growth. Eivery meeting was required to be opened and dismissed with prayer and conducted in a manner corresponding to the Christian charity work of the association-. There were no shares of stock, no provision for making any profits for its members; but, on the other hand, each member was required to pay two dollars annual dues to support the association. It is true, there was a board of directors, composed of ministers, laymen and ladies, who had the management of the association and the disposition of its funds.; -but. this was not intended to give the power to the board to distribute any funds to its members as profits, or otherwise, but to manage and dispose of its funds to carry out the benevolent and charitable objects of its incorporation. The owners of the corporation, i. e., its members, could receive no personal benefit or advantage whatever from their connection with the association, save the satisfaction that comes to human beings from doing or attempting to do something to relieve the sick and the suffering. The services rendered by the members in promoting the growth of the association, managing! the hospital and deaconess home, were furnished gratis, and so were the funds they paid in as dues. The charitable character of the defendant clearly appears from its articles of association, wherein its work is expressly referred to as Christian charity work, and was, therefore, for the court to pass upon, and not for the jury.

The parol evidence introduced by the defendant was not necessary to show defendant’s charitable character, biff it did not 'disprove it. The fact that a large part of its revenue was derived from pay patients, in no wise destroyed defendant’s character as a charity, because, such funds, as well as those received from dues and donations, were held in trust by it for the charitable and benevolent purposes of its organization. [Adams v. University Hospital, 122 Mo. App. 675, l. c. 687-8; Whittaker v. St. Luke’s Hospital, 137 Mo. App. 116; Powers v. Mass. Homeopathic Hospital, 109 Fed. 294; McDonald v. Mass. General Hospital, 120 Mass. 432; Gable v. Sisters of St. Francis, 227 Pa. St. 254; Jensen v. Maine Eye & Ear Inf., 107 Me. 408; Downes v. Harper Hospital, 101 Mich. 555; Hospital v. Ross, 12 Clark & F. 507; Cunningham v. The Sheltering Arms, 119 N. Y. Supp. 1033; Pepke v. Grace Hospital, 130 Mich. 493; Parks v. N. W. University, 218 Ill. 381, 2 L. R. A. (N. S.) 556; Hearns v. Waterbury Hospital, 66 Conn. 98; Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 52 L. R. A. (N. S.) 505; Hordern v. Salvation Army, 139 Am. St. 889; Taylor v. Protestant Hospital Assn., 85 Ohio St. 90; Duncan v. Nebraska Sanitarium Benev. Assn., 41 L. R. A. (N. S.) 973; and 6 Cyc. p. 974; Wharton v. Warner, 135 Pac. (Wash.) 235; Abston v. Waldon Academy, 118 Tenn. 24; St. Paul’s Sanitarium v. Williamson, 164 S. W. (Tex.) 39; Fordyce v. Woman’s Natl. Lib. Assn., 79 Ark. 550.]

II. The defendant- being a charitable organization, is not liable for injuries caused to its patients by the negligence of its trustees, servants or employees. Authorities, supra.

In none of the decisions above noted is the exemption of charitable institutions from the rule of respondeat superior more clearly and satisfactorily set forth than in the two opinions from our own Courts of Appeal to which we have referred. In Adams v. University Hospital, 122 Mo. App. 675, Ellison, J., delivering the unanimous opinion of the court, cites and reviews, in extenso, the decisions in this country and in England, and shows that ever since the decision of the House of 'Lords, in the case of Heriot’s Hospital v. Ross, 12 Clark & F. 507, the law has been firmly established by the great weight of authority, that the funds of a charitable hospital or association are trust funds devoted to the alleviation of human suffering, and cannot be diverted nor absorbed by claims arising from the negligence of the trustees or their employees in administering the trust or charity. In Whittaker v. Hospital, 137 Mo. App. 116, Goode, J., delivering the opinion of the court, again thoroughly examines and considers the question and thus announces the law (l. c. 120): “Two rule.s of law, both founded on motives of public policy, come into conflict here; the rule of respondeat superior (or if not technically that, one akin to it) and the rule exempting charitable funds from executions for damages on account of the misconduct of trustees and servants. As both rules rest on the same foundation of public policy, the question is whether, on the facts in hand, the public interest will best be sub-' served by applying the doctrine of respondeat■ superior to the charity, or the doctrine of immunity; and we decided this cause for respondent because, in our opinion, it will be more useful on the whole not to allow charitable funds to be diverted to pay damages in such a case; and, moreover, the weight of authority is in favor of this view, as expressed not only in cases where the party seeking damages were patients in the institution,but where they were not.”

We are satisfied with these pronouncements of our Courts of Appeals, and hold that they announce the true rule of law to be applied in such cases.

III. But, it is urged, that the plaintiff in this case svas not a charity patient, and that she paid for all the services rendered and supplies and medicines furnished her by the defendant. This was also true in all of the ma:ny eases cited (except three or four), supra, but this fact was held immaterial and to give the plaintiff no greater right to divert a trust fund, than if she had been a'charity patient. On this phase of the case, in Adams v. University Hospital, 122 Mo. App. l. c. 679-80 (in which case the plaintiff was a pay patient1), the court says:

“So it maybe said that any citizen who accepts the service of such institution (it making no difference whether in a special instance he pays his way) does so upon the ground, or the implied assurance, that he will assert no complaint which has for its object, or perhaps we should say, for its result, a total or partial destruction of the institution itself.”

Many of the cases cited from other states, supra, place their ruling on the same ground. Others give the reason, as stated by the New York Court of Appeals, in Schloendorff v. Society of N. Y. Hospital, 211 N. Y. l. c. 129: “Such payment is regarded as a contribution to the income of the hospital, to be devoted like its other funds, to the maintenance of the charity. ’ ’

But they all agree that a pay patient stands on the same footing and no better, than a patient that does not pay.

IV. There is nothing contrary to the conclusion we have reached, in Phillips, v. Railroad Co., 211 Mo. 419', or Brennan v. Cabanne Methodist Episcopal Church, 192. S. W. 982. In the Phillips case — not the hospital, but ^ie railroad company itself was sued — and this court held the railroad company liable for the negligent treatment of a patient by a physician at the hospital, on the ground that the railroad company substantially operated and maintained the hospital, not as a charity, but, in effect, for its own purpose and protection, and the hospital association was the mere agent of the railroad company. In the case of Brennan, the plaintiff alleged that he was injured by a negligent defect in a building owned by defendant, which it used for religious and “other public assemblages.” The lower court sustained a demurrer. Wje held it erred in so doing, because the petition showed the defendant might own property to be used for divers purposes not charitable nor religious, although organized under the Benevolent Association Act, and the petition alleged that defendant’s house was, in fact, used for more than religious purposes. We said, 192 S. W. l. c. 984:

“If the defendant desires the court to pass upon the question as to whether or not a religious corporation is a charitable organization, which is not liable, it will have to get the matter here in snch shape that snch will be the question for actual determination.”

In the case at bar, the introduction in evidence of the defendant’s articlesi of association and decree of incorporation brings the question as to the charitable character of defendant and the use of its property as a hospital, fairly before us for actual determination, and we have determined that under its articles it is a charitable institution, and there is nothing shown by the oral testimony that in its actual operation and management it in any way departs! from the charitable character and purpose of its organization, as shown by its articles of association.

There are other questions suggested in the very able briefs of counsel on each side, which, however, it is not necessary to determine.

The result is, we concur in the ruling* of the circuit court. Let the judgment be affirmed.

Brown and Ragland, GC., concur.

PER CURIAM: — The foregoing opinion of Small, C.,- is adopted as the opinion of the court.

All of the judges concur.


author: RAGLAND, C.

text:
    THE STATE ex rel. RAY McKEE, Collector of the Revenue, v. ALBINA C. CLEMENTS, Appellant.
    Division One,
    March 2, 1920.
    1. TAXES: Assessed in Name of Another. Sections 11374 and 11385, Revised Statutes 1909, must be read together, and when that is done they make the taxes a charge oil the land under all circumstances, regardless of who the owner or prior lienors may be, regardless of the name or names in which the land is assessed, and regardless of any error or omission in that respect. So that where the owner was Albina C. Clements, and she had purchased a part of the land and acquired the balance by the will of C. C. Clements, and the deed and will had been recorded long before the assessments were made, an assessment made in the name of C. C. Clements as • the owner did not invalidate the taxes, and her duty to pay them was just the same as it would have been had the assessments been made in her own name.
    2. ———: -: Owner’s Remedy. The statutory corrective for the failure of the assessor to discharge his duty in carefully entering the names of the owner in the “real estate book” is a:i action on his bond. The validity of the assessment is in no wise dependent upon his failure to use diligence to ascertain the name of the owner at the time the assessment is made.
    3. -: -: Notice. An assessment of land or lots in numerical order, or by plats and a “land list” in alphabetical order, in the manner prescribed by the statutes, imparts notice to the owner that the land is assessed and liable to be sold for the taxes chargeable thereon; and, when so assessed, the actual owner is not prejudiced because it was assessed in the name of another.
    Appeal from Greene Circuit Court. — Mon. G. A. Watson, Special Judge.
    Affirmed.

      Charles J. Wright and McLain Jones for appellant.
    (1) The certified copy of the baclc-tax bill made out in the name of Albina C. Clements was not admissible as evidence, for the reason that the assessment of the lands sued upon for the years mentioned in said petition were not assessed to the said Albina C. Clements, and the back-tax bill as offered as prima-fadie evidence must substantially conform to the back-tax book and the back-tax book as offered in evidence showed the land assessed for the years in controversy in this proceeding to be assessed to 0. C. Clements. Secs. 11372,11498, R. S. 1909; State ex rel. v. Scott, 96 Mo. 72. (2) The law requires a valid assessment of the land to the true owner. Yender v. Wheeler, 9 Tex. 408; Vestal v. Morris, 39 Pac. 96; Johnson v. Melntire, 4 Ky. (Bib.) 295 ; Redmond v. Banks, 60' Miss. 293; Sutton v. Calhoun, 14 La. Ann. 209. A valid assessment of the property to the true owner, and notice of the judgment rendered against him, are indispensible to the validity of a tax title. Abbott v. Llindenbower, 42 Mo. 162. The assessment must be made against the owner when known. Not against the property, and must he as certain to him as with respect to anything” else. Kelsey v. Abbott, 13 Cal. 609. “If the assessment is void the tax is void.” City of Hannibal v. Bowman, 98 Mo. App. 108'. A failure to properly assess the property renders the tax void, and all proceedings to enforce it are nullities. Phelps v. Brumback, 107 Mo. App.. 16. A tax deed made in pursuance of an assessment against one who is not by the records shown to be the owner at the time is void. Brown v. Hartford, 173 Mo. 183; • Wilson v. Fisher, 172 Mo. 10; State ex rel. v. Burroughs, 174 Mo. 70; Hubbard v. Gilpin, 57 Mo. 441. (S') Statutes requiring real estate to be listed and assessed in the’name of owner are mandatory and not merely directly, and assessment, made in the name of one, who is not the owner of the property, when the true owner is known or, by the exercise of ordinary care, could be discovered, is generally void, and will not support any proceedings for the enforcement of the tax, unless such errors are cured by statute. St. Louis v. W.enneker, 145 Mo. 230'; Jackson v. Mack, 74 Mo. 61; Plein v. Wainseott, 46 Mo. 145; Abbott v. Lindenbower, 42 Mo. 162.

      Fred A. Moon for respondent.
    (1) Each tract of land is chargeable with its own taxes, no matter in whose name it may have been assessed. Sec. 11385, R. S. 1909; State ex rel. v. Hurt, 113 Mo. 93; Cape Girardeau v. Bunough, 112 Mo. 559. The law as contended for by appellant and as laid down in Abbott v. Lindenbower, 42 Mo. 162, was changed by the adoption of the foregoing statute in 1872. Laws 1872, p. 124. (2) When respondent showed that property was duly assessed and taxes levied and extended on the tax books, and that they remained unpaid, it was entitled to judgment, regardless of the tax bills. The suit is not founded on the back tax bills. State ex rel. Miller v. Hutchinson, 116 Mo. 402; State ex rel. v Bank, 144 Mo. 380. (3) At an early date in the state under statutes then in force, some of the objections here urged by the defendant might have been valid, bnt the more liberal statutes of recent years and the decisions of this court construing them deprive these various assignments of all force. State ex rel. v. Wilson, 216 Mo. 286.
   RAGLAND, C.

This is a suit by the State, at the relation and to the use of the City Collector of the City of Springfield, to enforce the State’s lien for certain delinquent taxes which had been assessed against two distinct pareéis of land in said city and which were due in the years 1911, Í912 and 1913, respectively. The assess- or’s hooks offered in evidence at the trial showed that both tracts had been assessed in the name of one C. 0. Clements and that all the taxes in controversy were based on such assessments. It was stipulated that the defendant at the time of the several assessments was the owner of both tracts; that she acquired tract 1 by the will of Dr. C. C. Clements, which wras duly probated and thereafter recorded in the proper office January 5, 1906; and that she purchased tract 2 with her separate means in 1887, taking the title in her own name and duly recording the conveyance thereof. It was also admitted by defendant that the taxes sought to be collected by this proceeding were unpaid and that they constituted valid liens against the respective tracts of land described in the petition, unless the assessments in the name of C. 0. Clements on which they were based rendered them invalid.

The court found the issues for the plaintiff and rend- . ered judgment accordingly. Prom the judgment so rendered defendant appeals.

I. The only question for decision is whether the assessments were invalid because not made in the name of the owner of the land. The City of Springfield during the years in which the several assessments were ma<^e was organized as a cityi of the third class. The statute then governing such cities required the city assessor jointly with the county assessor to assess all property in such city both real and personal, and that the assessments of city property, as made by the city and county' assessors, respectively,' should conform to each other. The ordinances of the City of ¡Springfield relating to the assessment of property are not before us, but it should be presumed that they conform to the statutes in respect thereto. Both parties have briefed the case on the theory that the general statutes of the State governing the assessment of lands for taxation are controlling. In disposing of the question under consideration we will accord them such effect.

II. In prescribing the manner of making that part of the assessor’s book denominated the “land list,” Section 11372, Revised Statutes 1909, provides that all lands “shall be placed in the ‘land list,’ with the owner’s name, if known, and if not, then the name of the original patentee, grantee or purchaser from the Fed- , „ . .. ,. ,, eral Grovernment, . . . opposite thereto.” Section 11374, applicable to counties having a population of 40,000 or more, such as the one in which the City of Springfield is located, requires that the assessor be provided with a “real estate book”, which shall contain all lands subg'ect to assessment, that the book shall be tabular in form with suitable captions and separate columns, and that the first column shall contain the name of the owner or owners, if known, if not, the name of the party who paid the last tax; if no tax has ever been paid, then the name of the original patentee, etc. In pari materia with the foregoing sections, is Section 11385, which is as follows:

“Each tract of land or lot shall be chargeable with its own taxes, no matter who is the owner, nor in whose name it is or was assessed. The assessment of land or lot's in numerical order, or by plats and a ‘land list’ in alphabetical order, asi provided by Sections 11372 and 1137S, shall be deemed and taken in all courts and places to impart notice to the owner or owners thereof, whoever or whatever they may be, that it is assessed and liable to be sold for taxes, interest and costs chargeable thereon; and no error or omission in record to.tbe name of any person, -with reference to any tract of land or lot, shall in anywise impair the validity of the assessment thereof for taxes.”

Read and construed together the three sections seem to mean, that land shall he assessed in the name of the owner, if known; if not, in the name of the party who paid the last tax; if no tax has ever been paid, then in the name of the original patentee, etc., but each tract of land or lot shall be chargeable with its own taxes, no matter who is the owner, nor in whose name it is or was assessed, and no error or omission in regard to the name of any person, with reference to any tract or lot, shall in anywise impair the validity of the assessment thereof for taxes. It is said that a tax is assessed against the owner, that he and not his property pays the tax, and that the property is resorted to merely for the purpose of ascertaining the amount of the tax. [Gitchell v. Kreidler, 84 Mo. 472; State ex rel. v. Snyder, 139 Mo. 549.] Yet such tax so far1 as it is assessed against him on account of his ownership of real estate cannot be recovered as and for a debt owing from him in an action at law. [Carondelet v. Picot, 38 Mo. 125.] Under our system there are but two methods of collecting a real-estate tax. One is a distraint of the owner’s personal property, and the other is the enforcement of a lien on the real estate on account of which the tax is assessed. It may be conceded that such a tax could not be collected by distraint of the owner’s personal property, unless it was assessed against him, that is, unless the land was assessed in the owner’s name, but, so far as the creation of a lien on the land is concerned, it is immaterial in whose name it is assessed. By said Section 11385 each tract of land is chargeable with its own taxes no matter who the owner is or in whose name assessed. The assessment of land or lots in numerical order, or by plats and a “land list” in alphabetical order, as provided by preceding sections, imparts notice to the owner that it is assessed and liable to be sold for the taxes chargeable thereon. This and related sections make the taxes a charge on the land under all circumstances, regardless of who the owner or prior lienors may be, regardless of the name or names in which it is assessed, and regardless of any error or omission in that respect. What is here said has no reference to the «enforcement of the lien by suit. The determination of necessary parties thereto rests upon other considera, tions. [Meriwether v. Overly, 228 Mo. l. c. 250; Paving Co. v. Realty Co., 199 Mo. App. l. c; 244.]

Abbott v. Lindenbower, 142 Mo. 162, was decided before the enactment) of Section 11385. [Laws 1872; p. 124.] In St. Louis v. Wenneker, 145 Mo. 230, the tax bills were declared void because the underlying assessment had not been made, nor had it been intended to be made, in the name of amg one. We see no reason for extending or enlarging upon the holding made in that case, when to do so would plainly violate both the letter and the intent of the statute. [Cape Girardeau v. Burrough, 112 Mo. 559; State v. Hurt, 113 Mo. 90.]

There is no question here of the failure of the assessor to use diligence to ascertain the name of the owner at. the time he made the assessment; the validity of the assessment is not dependent upon that. Whose, if any one’s, dereliction caused the error or omission is wholly immaterial. The statutory corrective for the failure of the assessor to discharge his duty in carefully entering the names of the owners in the “real estate hook” is an action on his bond. [R. S. 19O01, sec. 11375.] Defendant knew that taxes had been assessed against her lots, that they had. not been paid, and that the amount thereof was easily ascertainable. She was in no respect prejudiced because they were assessed in the name of another.

The judgment should be affirmed. It is so ordered.

Broten and Small, CC., concur.

PER CURIAM: — The foregoing opinion of Rag-land, C., is adopted as the opinion .of the court.

All of the judges concur.