author: BROWN, C.

text:
    SUSAN STANFIELD et al., Appellants, v. SARAH J. HENNEGAR.
    Division One,
    June 2, 1914.
    1. SUIT TO CANCEL DEED: Mental Capacity: Evidence. The evidence, in a suit to cancel a deed, held not to show mental incapacity in the grantor, hut rather that, while the grantor was old and suffering from the cerebral ailments incident to a hardening of the arteries, he knew what he was doing when he made the deed, understood its nature and consequences, and, in fact, made it by way of carrying out a fixed purpose which he had entertained when there could be no question as to his mental capacity.
    2. -: Undue Influence: Performance of Filial Duties. The law does not look upon the faithful performance of filial duties as an element of fraud, nor does it lay its restraining hand upon the substantial recognition of their performance.
    3. -: -: -: Evidence. Evidence in a suit to cancel a deed from an aged father to a daughter who had long been his housekeeper, companion and nurse, held to sustain a finding that the deed was not procured by undue influence.
    Appeal from Greene Circuit Court. — Hon. James T. Neville, Judge.
    Affirmed.

      Wright Bros, and T. II. Jones for appellants.
    (1) The law presumes that the deed was the result of undue influence, and the burden was on the defendant to explain that the deed was not the result of such undue influence. Kincer v. Kincer, 151 S. W. 424; Hall v. Knappenberger, 97 Mo. 509; Street v. Goss, 62 Mo. 226; Alimón v. Jewell, 94 U. S. 506; Griffith v. Godey, 113 U. S. 89. (2) The evidence shows the relation of the defendant to George Creason, and that she ministered to his health, etc., and also shows the conveyance pending the relation.- It is therefore not necessary for plaintiff to show fraud or imposition. Street v. Goss, 62 Mo. 226; Ryan v. Ryan, 174 Mo. 279.

      Hamlin & Seawell for respondent.
    There were no undue influences in this case. “It must be an influence exerted mala fide to produce a result which the party, as a reasonable person, was bound to know was unreasonable and unjust; and it must have the effect of producing illusion or confusion in the mind of the testator, so as either to overcome free agency, or power of judging upon the true relations between himself and those who might be supposed to have just claims upon his bounty.” 1 Redfleld.on Wills (3 Ed.), sec. 38, par. 38. “It must not be such as arises from the influence of gratitude, or esteem, but it must be the control of another will over that of the testator, whose faculties have been so impaired as to-submit to that control, so that he has ceased to be a free agent, and has quite succumbed to the power of the controlling will.” Ib., see. 38, par. 47; Carl v. Gabel, 120 Mo. 283. “The influence must be such as amounts to moral coercion.” Norton v. Paxton, 110 Mo. 456; Von De Veld v. Judy, 143 Mo. 348. There was absolutely no evidence showing want of capacity. McKissock v. Groom, 148 Mo. 459; Cutler v. Zollinger, 117 Mo. 92. “If a person understands the nature of the business in which he is engaged, and the effect of what he is doing, his acts are valid and this is true though the mind of such person may be impaired by age o„r disease.” Cutler v. Zollinger, 117 Mo,. 92,.
   BROWN, C.

This suit was begun in the Greene County Circuit Court September 3, 1907. Its object is to cancel a deed made by George Creason, deceased, in Ms lifetime, wMch purports to convey to Ms daughter, the defendant, forty-seven and one-half acres of land, being the west part of the home farm owned and occupied by him during Ms life with buildings thereon. The plaintiffs are Susan Stanfield and Elizabeth Morton, two daughters of George Creason, the plaintiff Thomas J. Creason, one of four living sons, and also the children of two deceased daughters. The sons not parties to the suit are Eobert J. Creason, James H. Creason and John T. Creason. These plaintiffs and defendant, together with the three sons last named, are the only heirs of George Creason, who left a will wMch does not, so far as any purpose of tMs suit is concerned, change the course of their inheritance, and we will accordingly ignore it. The grounds stated in the petition for the relief asked are mental incapacity of the grantor and undue influence over Mm by the grantee.

Mr. George Creason died January 21, 1906, aged eighty-eight years. His wife had then been dead about fourteen years. His daughter Mrs. Hennegar, the defendant, was married quite young, and had two cMldren. Her husband then died and she came with her children to reside with her father and mother about 1870, and continued to reside with them during the entire thirty-five or thirty-six years intervemng between that time and her father’s death. Mr. Creason although uneducated was a man of great force and intelligence. Mr. Forrester, Ms brother-in-law, a minister of the gospel, testified for plaintiff and described him, as follows: “Previous to Ms affliction, I don’t think I ever knew a common man, just an ordinary uneducated man, who had as strong a mind and as much business qualifications as George Creason had. He had a discermng mind; a penetrating mind, and he kept Ms business straight.” Mr. Creason’s health began to fail in consequence of some Mdney or bladder trouble which also seemed to affect his heart, and he had attacks of difficult breatMng, although under ordinary conditions it did not interfere with Ms ability to get around and attend to Ms business. During tMs time he frequently expressed Ms intention to convey to Mrs. Hennegar the land in controversy here, wMch he described as the west part of Ms home place, including the bmldings and well, for the purpose of securing her a home. He called her Kittie, and said that he wanted her to have that home; that she had been there with him, and that he intended that she should have it. He had one of his bad spells wMch began about the 28th of May, 1905, when Dr. Brown was called to attend Mm. When these came he could not lie down with comfort and would sit in Ms chair on the porch. He was broken up nervously and was afraid of death; saying that he did not care about dying, but that it was the pain and punishment that preceded it wMch he dreaded. Mr. Wood, a neighbor, called to see Mm, and he asked Mm to see Judge Bristow, who seems to have been a neighboring justice of the peace, and to ask Mm to come around and make the deed. Squire Bristow came on May 31 for that purpose. Mr. Forrester and Doctor Brown, who was making Ms call that day, were there as were also Thomas and Robert Creason. The boundaries of the tract he desired to convey to Mrs. Hennegar were very irregular and it was questionable how much land off the west side it would take to include the buildings, and the boys stepped it off and ascertained to their satisfaction, and apparently to the satisfaction of their father, where the line should run. Squire Bristow then began to struggle with the description, but gave it up. Doctor Brown, who thought he could do it, then tried and was unable to get it right, and the result was that they advised Mr. Creason to get a lawyer to write the deed. He was considerably perturbed at this, saying in substance that he was afraid he might die before the next day. He was acquainted with the Gideons, and at first talked about getting Tom Gideon to do it, but at Mr. Forrester’s suggestion he told his son James to go and get Mr. Murrey. James had brought him the blanks for the purpose a month or six weeks before, •and had talked over with him what he wanted to do, and understood that Mrs. Hennegar was to have the west side and Charley was to have the other side of the place and also a building lot near the barn and house, so that he would be handy to them, and was to pay the girls $1200, which was about its fair value, and was to be secured on the land. It was arranged before they separated that Squire Bristow was to return the next day to take the acknowledgment of the deeds. James took the old deeds into town the next morning, and had Mr. Murrey write the deeds to Mrs. Hennegar and Charley, and brought them back and left them with his father, who executed them the same day in the presence of Mr. Forrester and some of the family, and the acknowledgments were taken by Mr. Bristow. The object of making the deed to Charley was two fold. It enabled him to build on the land and be near his mother, and it converted the land into money for distribution as had been already provided in his will. James testified that his father sent for him and told him he wanted him to go to town and get the deeds, and that he said: “Father, if nothing else will do you, I guess I can come and get the old deeds.” His father said: “What is the matter with you?” James said, “When it comes to a show-down, I will tell you. I don’t believe it is right the way you are going to make the deeds.” During this talk Mrs. Hennegar came in and wanted to know if he (James) was going to beat her out of it and he told her no. He testified that he said: “I told her I thought it wouldn’t beat her out of it if we raised her children and took care of them, and I didn’t think she ought to have it. It was worth something to raise the children.” He further testified that when Mrs. Hennegar came to her father’s she had two children, Charley and a daughter two or three years old. She came after her husband’s death and had some property and helped support her children as well as any of them. She made her home there and helped the same as before her marriage, and all helped to take care of her.

Doctor Brown, the attending physician, had known Mr. Creason ever since he (the doctor) was a lad, and was his physician the last years of his life. He testified as follows: “I treated him in a little spell before his last spell; his physical condition in May and June, 1905, was very bad. I heard some conversations when Mr. Bristow and Mr. Forrester were there about some deeds. My first visit was made May 28. I was called to see him; called, I think, late in the afternoon, stayed all night with him; was there the 29th twice, remained almost all night. Was there twice on the 30th, memorandum in book, ‘detained;’ stayed some time until he got quieted; called next day once, remained perhaps as much as two hours, called once June 1, stayed an hour or two. I visited Mm until June 19.

“Q. Now, independent of your book, you recollect having been there on those occasions? A. Yes, sir.

“Q. Now state to the court what was George Creason’s physical and mental condition at that time along about the time you were called there and up to June 1? A. Well, at that time he was in a great state of agitation, mentally and physically; it was very hard to do anytMng with Mr. Creason at that time, that is, to control Mm to get Mm to obey orders such as we thought best for Mm. It was hard to keep Mm in the house; he wanted to get out doors, and he would stand and hold to a post or we would have to hold Mm sometimes to keep him from falling and he was continually talking about dying, and crying and such as that.

“Q. Now, what do you say in reference to his mental agitation; what was his mental condition? A. Well, his mental condition was but a functional derangement of his brain, and it was due to a poor circulation of blood in his brain. Mr. Creason had what we call athromatic degeneration of the blood vessels; hardness of the blood vessels. He complained of blindness and dizziness; couldn’t see. Sometimes he couldn’t see well enough to hardly tell who it was. At those times we would ask him if he knew certain ones; it seemed like sometimes he would and sometimes he wouldn’t. This was during the worst part of his spell. I think it was the latter part of May, or first part of June. We call that mania; that was a mitral delire. He would talk out of his head sometimes too; talk to himself; it was a state of his brain, senile changes, I think, more than anything else, at his old age. Mr. Creason had heart trouble too, but then the trouble with his heart was due to the same thing that hardened these blood vessels. The valves had become stiffened, and his circulation was not strong. On the occasion when Mr. Bristow and Mr. Forrester and these members of his family were there, I was uneasy about him because he seemed to be very much agitated. He was crying and it seemed like it was a difficult matter for them to get a little business attended to. I was afraid that he would have a rupture of a blood vessel in his brain or heart failure or something like that. I tried to quiet him down; tried to get him to sit down and keep quiet, and of course proceeded to give him something to quiet him, medicine. I don’t remember exactly how long I stayed that day. I wouldn’t mark any detention unless it had been over an hour or probably two. The 31st of May, I was not there over a couple of hours, I guess.

“Q. That was the condition in which you found him that day? A. Yes, sir. On the first day of June it was a good deal the same, about the same except not so much excitement, but then I don’t think there was a time that I was ever there during that bad spell of sickness but what he would cry and have a good deal to say about things, about dying, and first one thing then another that showed he was extremely distressed in his mind. On the 31st of May something was said about the manner of attending to that business to me and I told them that I thought they had better put it off until tomorrow and see a lawyer about it. I didn’t think they could attend to it and I didn’t like for Mr. Creason to be agitated any longer and I didn’t really think he was in a condition to attend to business.

“Q. Now, from your knowledge of his condition physically and mentally at that time, state to the court whether or not in your judgment as a physician, he was capacitated or incapacitated to attend to business on that day. A. No, I don’t think he was competent to attend to business on that day. He was very childish mqst of the time along those days. Mr. Creason’s brain, I think, was slightly demented, that is another way of speaking of insanity. He was not a crazy man from brain disease. The disturbances that were in his brain were functional I think on account of bad circulation, and then another thing, he had very difficult breathing. He had what we call cardiac asthma; that is, asthma associated with bad action of the heart, and then in that condition of course his blood would be overcharged with carbonic acid gas, and then he was intoxicated from that- to a certain extent. That would make him somewhat delirious. His bowels were swollen but that was on account of the inactivity of the bowels; obstinate constipation. It was a very difficult matter to get them to operate. Sometimes there is a toxic material that is absorbed in the bowels that causes fever, and by the prevention of elimination on account of inactivity of the bowels there wouldn’t be a sufficient amount of waste carried out, and that would intensify the fever. He got pretty thin during the progress of bis trouble, bis face was swollen most of the time; his lips puffed, just as long as he had that difficult breathing he had some puffiness about the face.”

Mr. Creason’s last sickness, or “spell” as it was called in the testimony, began the following November and lasted until the time of his death. About the first of December Mrs. Hennegar “broke down” in health and went to her daughter’s to recuperate and a family meeting was held to determine who should take care of the father. Thomas and his wife came to the house and stayed a while, but the wife could not stand the presence of the suffering, and had to give it up. Then Robert and bis wife came, and stayed until their father’s death in January.

The relation of Mrs. Henn,egar to her father is described in appellants’ printed argument as follows: “ The defendant had lived in bis household for many years. She was his daughter, his housekeeper, his companion, his nurse much of the time, and ministered to his health, wants and comfort, and wielded a great influence over him. She also attended to portions of his business.”

The court, upon the pleadings and evidence, dismissed the petition and entered final judgment for the defendant, from which an appeal was taken to the Springfield Court of Appeals, from which it was transferred to this court.

I. While, in their fifth assignment of errors, the appellants say that the evidence clearly shows that George Creason was of unsound mind when he executed the deed they now seek to set aside, they have, in their brief, neither set forth their reasons for this claim, nor have they attempted seriously to support it by argument. As a matter of fact it clearly appears in the evidence that the execution of the deed was in accordance with a fixed purpose which he had entertained when there could be no question as to his mental capacity; and that when, in the progress of a disease that continually kept before him the apprehension of a fatal result from the failure of the degenerated tissues of his arteries, he was seized with’ an attack of more than usual violence, it was natural that he should hasten, and he did hasten while there was yet time, to carry out that purpose. We have carefully read the evidence, and find no hint in it that, although he was nervously affected by the cerebral conditions that characterized the attack, he did not know exactly what he was doing; understand perfectly its nature and consequences, nor that he swerved a hair’s breadth from his deliberately formed purpose. We have quoted in full the testimony of his attending physician to show that his reluctance to have his patient transact the business arose from fear of the consequences rather than from doubt as to his understanding of its nature and object, as well as of the details necessary to its accomplishment. So far as this point is concerned, we will follow the example of the appellants’ counsel, and dismiss it from our consideration without further árgument.

II. The real question presented is includ'ed in the assertion that the law presumes that the deed was the result of undue influence growing out of the relation of the defendant to her father as his housekeeper, companion and nurse, and her ministration to his health, wants and comfort, and the great influence over him that would naturally flow from such relation.' We cannot have the benefit of her relation of these things, because the tongue of the one other person who knows them in all their details is silenced by death; but it is disclosed in evidence that the young mother did not come into his household as a mendicant, but that she brought property with her which she contributed to the general fund. We know something of the burden she sustained during the sickness of her father from the fact that when it broke her down, and her sister-in-law undertook to take it up, she could not endure the strain.

We are glad that the law does not look upon the faithful performance of filial duties of this character as an element of fraud. Nor does it lay its restraining hand upon the substantial recognition of these affectionate services. [Huffman v. Huffman, 217 Mo. 182, 193; Bonsal v. Randall, 192 Mo. 525, 532; Hamilton v. Armstrong, 120 Mo. 597; Turner v. Butler, 253 Mo. 202.] While it looks with disfavor upon the improper use of influence so acquired, there is no evidence in this case that Mrs. Hennegar attempted to influence her father in this respect. No word of hers upon the subject is mentioned in evidence other than the natural and impatient answer to her brother who was expressing to her father his dissatisfaction at the direction he had received with reference to this deed; and that included no solicitation or argument in her own behalf. We are satisfied with the finding and judgment of the trial court upon these questions.

III. We do not want to be understood as deciding or considering any question that might arise with reference to the absence from this suit of parties who represented George Creason by inheritance with respect to this deed. No point is made upon it in the record or argument, and its examination is not necessary to the decision of the case upon the broader ground we have taken.

In accordance with the foregoing view the judgment of the Greene Circuit Court is affirmed.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All concur, Bond, J., in result.


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    THE STATE ex rel. the COLLECTOR of the CITY OF GALLATIN, Appellant, v. J. W. YOUNG.
    Division One,
    June 2, 1914.
    1. DUPLICATE TAXATION: Cities. In 1907, while a city was operating under a special charter, the city assessor on June 1 assessed defendant’s personalty, and the township assessor made a like assessment of the same property. The last-mentioned assessment was duly returned to the county clerk and equalized. The city taxes were extended on the city assessor’s assessment of June 1, and defendant paid them. In February, 1908, the city became a city of the fourth class, and on June 30, 1908, the mayor by authority of Sec. 9347, R. S. 1909, and an ordinance duly passed, procured from the county clerk an abstract of the assessment of all property in the city taxable for state and county purposes in 1907, and the city taxes for 1908 were levied accordingly. Held, that such assessment did not constitute duplicate taxation. Duplicate taxation exists only when one person or one subject of taxation is compelled to contribute directly twice to the same burden, while oiher subjects of taxation belonging to the same class are required to contribute but once. Here the city taxes first paid were for 1907, while the subsequent levy was for 1908, although made upon an abstract of the township assessment of. June 1, 1907.
    2. CITIES: Special Charter: Change to General Class: Citizens. The citizen of a city or village under special charter enjoys his residence subject to all the applicable laws, among which is the provision whereby such city may elect to enter the general class which its population entitles it to join, and when such city elects to enter a general class, the citizen . must abide by the statutes regulating the assessment and collection of the city revenue.
    3. PLEADING ORDINANCES. A city ordinance need not be set out in full, but may be pleaded by reference to its number and ,to the date of its passage and by a disclosure of its character for the purposes of the case.

      Appeal from Daviess Circuit Court. — Hon. Arch B. Davis, Judge.
    Reversed and remanded.

      J. A. Selby and Virgil Yates for appellant.

      S. W. Brandom for respondent.
   BLAIR, C.

This is a suit for city taxes. The circuit court sustained a general demurrer to the petition and plaintiff appealed;

. The pleaded facts pertinent to the .questions presented here are that in 1907. and 1908 defendant was a citizen and resident of the city of Gallatin; that in 1907 Gallatin was operating under a special charter, and June 1st that year the city assessor duly assessed defendant’s personalty for taxation as of the value of $6155, and the township assessor, on the same date, made a like assessment of the same property, and this last assessment was duly returned, with all other assessed property of the township, to the county clerk of Daviess county and duly equalized and adjusted by the county board of equalization, as the law provides; that the city taxes for 1907 were extended on the assessment made by the city assessor as of June 1, 1907; and defendant, in the same year, paid the city taxes for 1907 so extended against his personalty; that in February, 1908, the city of Gallatin became a city of the fourth class by virtue of lawful procedure under the general statutory provisions governing such action but did not elect a city assessor or make provision for one; that on June 30, 1908, the mayor, pursuant to the statute (See. 9347, R. S. 1909) and an ordinance duly passed, procured from the county clerk of Daviess county, in which county Gallatin is situate, an abstract of the assessment of all property in the city taxable for State and county purposes, including the property of defendant; “thatpursuant to law and the provisions of ordinance No. 8 of said city, duly passed and approved by the mayor thereof on July 16, 1908, the board of aldermen of said city, on the 20th day of July, 1908, by ordinance No. 9 of said city, duly passed by them and approved by the mayor thereof on that date, levied” the city taxes for 1908 on the property included in the abstract mentioned and according to the valuations therein set forth.

Other facts are alleged in the petition and those referred to are more particularly stated therein, but those set out sufficiently present the questions decisive of the case.

Respondent’s position is that the petition discloses a case of duplicate taxation and that the ordinances are insufficiently pleaded.

Appellant contends the petition is open to neither of these objections.

I. Do the facts stated present a case of duplicate taxation obnoxious to the constitutional provisions requiring equality and uniformity in taxation?

“By duplicate taxation in this sense is understood the requirement that one person or any one subject of taxation shall directly contribute twice to the same burden, while other subjects of taxation belonging to the same class are required to contribute but once.” [1 Cooley on Taxation (3 Ed.), p. 394.]

In this ease the city assessor and township assessor made their assessments in 1907 at the same time and assessed the same property, affixing identical valuations; but the taxes extended upon the city assessor’s assessment were the city taxes for the year 1907, while the taxes extended on the abstract procured June 30, 1908, were the city taxes for the year 1908. The taxes were, therefore, extended for two entirely different years and in no sense can it be said the defendant or his property was made to “ directly contribute twice to the same burden.” The levy in'1907 for the taxes of 1907 was satisfied when defendant paid his taxes in 1907. The levy in 1908, though made upon an abstract of the township assessor’s assessment' relating to the date June 1, 1907, was for the taxes of 1908. The abstract of assessment was used in 1908 because the statute provided it should be used in circumstances like those stated, and the levy in 1908 did not relate to the date of the township assessor’s assessment but liability thereunder began with the levy on July 20, 1908. [City of Westport ex rel. v. McGee, 128 Mo. l. c. 157, 158.] It follows that no duplicate taxation in any constitutionally objectionable sense appears from the facts alleged, the levies being for two entirely different years.

II. Defendant was a resident of Gallatin both in 1907 and 1908. Had Gallatin been a city of the fourth class in 1907 as well as 1908, the right the city to follow the statute and levy-city taxes for 1908 on the abstract of the assessment made by the township assessor in 1907 is not questioned. The facts that Gallatin was acting under a special charter in 1907 and became a city of the fourth class in February, 1908, do not make any material difference. It was a city during both years and preserved its character and jurisdiction as such despite the change in some of the forms of its government. [Sec. 9300, R. S. 1909.] What might be the result if defendant had not continued to reside in Gallatin in 1908 need not be discussed since he did continue to reside there.

Neither does it make any difference whether the levy for 1907 on the city assessment for that year was valid or invalid. The single question here is as to the validity of the levy for 1908. The cases cited by respondent are those stating generally the rule prohibiting duplicate taxation and are not in conflict with what has been said.' The conclusion reached is, in effect, that the citizen of a city or village under special charter enjoys his residence in such city subject to all the applicable laws, among which is the provision whereby such city may elect to enter the general class which its population entitles it to join; that when such a city elects to become a member of one of the general classes, the citizen must abide by the statutes regulating the assessment and collection of the city revenue. His very citizenship amounts to an implied agreement that he will abide such changes in the city government as the law provides and the majority may make.

III. It is said the ordinances relied on by appellant are not properly pleaded. The ordinances referred to in the petition are referred 1 as the source of power exercised by certain of the city officials or as the method employed by the council to perform certain of its duties relating to the levy of taxes. The petition sufficiently states their existence and, by necessary inference, at least, discloses their character for the purposes of the case.

Even in an indictment it is not necessary to plead pertinent ordinances in full. [State v. Dineen, 203 Mo. l. c. 634.]

The judgment of the circuit court is reversed and the cause remanded.

Brown, C.; concurs.

PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


text:
    EDITH MURRAY v. E. ANGELA SCULLY, Appellant.
    Division One,
    June 2, 1914.
    1. EVIDENCE: Presumption of Divorce Arising from Second Marriage: Fault of Wife: Dower. Presumption may not be based upon presumption; and therefore the record of the husband’s second marriage is not admissible, in an action to assign dower, to prove that his former wife, who now seeks dower, had been divorced from him for her own fault or misconduct. The showing of the husband’s second marriage raises a presumption of divorce, thus relieving lym from the imputation of bigamy, but no further presumption arises from it that such divorce was granted for the wife’s wrong and that thereby she lost her right to dower.
    2. ADMEASUREMENT OF DOWER: Set-off for Taxes Paid by Purchaser. In a widow’s suit for assignment of dower, the purchaser of land from the husband in his lifetime is not entitled to have deducted from the dower interest the widow’s portion of taxes due upon the land and paid by the purchaser.
    Appeal from Bates Circuit Court. — Hon. C. A. Calvird, Judge.
    Affirmed.

      Thomas J. Smith for appellant.
    The court erred in refusing to admit in evidence the record of the marriage of Thos. J. Fry, the former husband of the plaintiff, to L. J. Farris, and the other evidence offered by defendant tending to show the fact of said marriage, and that they lived together openly as man and wife in Bates county, Missouri, from the time of said marriage in 1891 until his death in 1906 as tending to show that Thos. J. Fry had been divorced from the plaintiff, and if divorced, necessarily, on account of her fault, the presumption of innocence of Pry of the offense of polygamy being stronger than the presumption that the plaintiff, having been once married to the.defendant, remained his lawful wife. Waddingham v. Waddingham, 21 Mo. App. 609; Johnson v. Railroad,' 203 Mo. 381; Maier v. Brock, 222 Mo. 74.

      W. O. Atkeson and Silvers & Silvers for respondent.
    (1) When the plaintiff showed her marriage to T. J. Pry, that he was seized of an estate of inheritance in the land, during the marriage, and that he died in 1906, she made a prima-facie case. It then devolved on the defendant to show that her right of dower had been lost. Cozier v. Hinchey, 143 Mo. 203. (2) To show that plaintiff’s right of dower had been barred, the defendant relied solely upon an effort to prove that Pry had been married a second time in 1891. Proof of this fact, defendant maintained, would raise a presumption that the first marriage, with plaintiff, had been dissolved. But it would not raise the presumption that his wife was the guilty party. To defeat plaintiff’s claim of dower, it devolved on the defendant to show not only that Pry had been divorced from her, but that in the divorce proceeding the plaintiff was adjudged the guilty party. Hunt v. Thompson, 61 Mo. 148; White v. Ingram, 110 Mo. 483; Scales v. Scales, 65 Mo. App. 292.
   BROWN, C.

This action was instituted in the circuit court of Bates county, Missouri, in the fall of 1909, for the admeasurement of dower and assessment of damages for its alleged withholding, in the south half of the southwest quarter of section 26, and the south half of the southeast quarter of section 27, and the northeast quarter of section 34, and the northwest quarter of section 35, all in township 40, range 30, in Bates county, Missouri. The plaintiff filed an amended petition at the February term, 1910, on which the case then went to trial. In this she stated that she was lawfully married to Thomas J. Fry, and that during the said marriage he was the owner and seized and possessed in fee simple of said land, and that she had never joined in any conveyance of, nor otherwise released her dower in the same. That afterwards, in the State of Colorado, she procured a decree of divorce from said Fry on account of his fault, and an order of the court therein changing her name to Edith Murray; and on December 4, 1894, said Fry made a deed conveying his interest in said land to the defendant. That he died in 1906. She asked that her dower be assigned and for all proper relief. The defendant answered denying all the allegations of the petition except that Thomas J. Fry did own some interest in the land; that he conveyed that interest to defendant by deed in fee simple, with covenants of general warranty of seizin and for further assurance; and that he died. She also stated:

1. That Thomas J. Fry and John Fry, Jr., his brother, were partners and at the time the former conveyed the land to defendant it was being used and held as partnership property, and was so recognized by them prior to the time of his alleged marriage to plaintiff; that while it was so held and used by them F. C. Ferrell recovered judgment against them in the Jackson County Circuit Court, under which the land was all sold, and purchased by S. S. Mathews, to whom the defendant paid $4197.58 in satisfaction of his claim on account of the title acquired through said purchase, and as a part of the purchase price of the land from Fry.

2. That Thomas J. Fry acquired the land from his mother, Maria S. Fry, in 1885, and to secure a portion of the purchase price made a deed of trust to secure the payment to her of $9000, ten years thereafter, with six per cent interest per annum, which recited that the debt so secured was for the purchase price of said land; which the defendant was compelled to and did pay at the time of her purchase.

3. That she also paid $61.39 in taxes which were a lien on the land when she purchased it.

That all these sums were paid by her in good faith without any knowledge or information that plaintiff had or claimed any right or interest in the land.

“ That prior to the time of the marriage of Thomas J. Pry to Lydia Fry, who joined with him in the deed to defendant, he was lawfully divorced from the plaintiff herein for her fault, if in fact he was ever lawfully married to her.”

A reply denied all the affirmative allegations of the answer. On the trial before a jury it was developed in evidence and undisputed, that the plaintiff, whose name was Missouri J. Porter, was married to Thomas J. Fry, March 16, 1882, and lived with him as his wife on the tract of land in controversy for about eighteen months and to the winter of 1883, during which time one child was born of the marriage who resides in Longmont, Colorado, where the plaintiff, at the time of the trial, had been teaching for eighteen years as principal of a ward school. Plaintiff left her husband in the winter of 1883, and has not remarried, but since going to Colorado in 1885 she has been known both there and in her old home in Bates county, as Edith Murray, which name she adopted at that time.

The record shows that upon her cross-examination as a witness she produced and identified a document marked “Exhibit A.” She was then asked upon cross-examination the following question: “Are you the Missouri J. Fry who brought in this court a suit for divorce against Jeff Fry?” The plaintiff’s attorney objected on the grounds that there was no evidence that any such suit had been brought and that it was incompetent and irrelevant. The defendant’s attorney then made the following statement:

“I have two reasons, and one is I want it for the purpose of the identification of this witness as to whether or not she is the same party; and we want to prove that along about 1883 or 1884 suit was brought in this court, which was pending, heard, and adjudicated against her; and that will be for the purpose further along of basing an objection to this decree that is offered (Exhibit A) to show where the jurisdictional fact occurred; to show that the court out there was without jurisdiction, and therefore was without power to render any judgment.”

The court said: “For the present I am inclined to think that the objection is good.” To which ruling the defendant excepted. The record does not further disclose what was in the Exhibit A referred to. The plaintiff was then identified by witnesses, including the recorder of deeds of Bates county, who produced the record of her marriage to Thomas J. Fry. Upon the cross-examination of the same witness the defendant offered the record of the marriage of Thomas J. Fry, Butler, Bates county, to Mrs. L. J. Farris of the same place, on November 24, 1891. The plaintiff objected to the evidence as incompetent, irrelevant and immaterial; and because this marriage constituted no defence to plaintiff’s action for dower. Defendant’s counsel then explained as follows: “My purpose is this: that the plaintiff in this case will absolutely fail to show that she was ever divorced from T. J. Fry. We offer to show here that this same T. J. Fry was in this county on the date named here, the 24th day of November, 1891, married to Lydia J., or Lydia I., or L. I. Farris; that from or after that date he continued to live with her in this county and she was known and recognized as his wife, and he as her husband. And this we think is competent especially under the case of Waddingham v. Waddingham, reported, I think, in the 24th Mo. App., as tending to show a divorce of T. J. Fry from the plaintiff in this case, on the ground of presumption of innocence.” Plaintiff’s counsel then made the further objection that if Fry was divorced, defendant had it within her power to bring the record to show that he was the innocent and injured party, and his subsequent marriage was not the best evidence nor evidence of that fact. The court said: “I do not see how presumption of the lawfulness of his second marriage should affect or raise the presumption that he was the innocent and injured party, so as to deprive his former wife of dower rights. The objection will be sustained for the present. It may be that it can be made relevant, but I do not know finally. I cannot admit it on that ground on the presumption of innocence because it does not prove that he is the innocent and injured party.” The defendant excepted. The plaintiff then offered, from the records, deeds showing the title of Thomas J. Fry through mesne conveyances from one Robert T. Richardson and his possession thereunder, all of which was admitted by the court against the objection of defendant made on the following ground: “I understand there is no such thing as showing title by adverse holding or title by possession or anything of that kind until you first show the title has emanated from the general government.” The defendant duly excepted.

These deeds show the Richardson title through John P. Huston and wife and William McNeilly to have passed to John Fry and from him to Albertus Fry, Thomas J. Fry, Martin L. Fry and Maria S. Fry, who constituted a partnership under the firm name of Fry Brothers. Maria S. was the mother of the other three members of the partnership as well as of John Fry, Jr., the grantor in the deed, and who was not shown in the testimony to have had any further connection with the title. This partnership, including the ownership of the land, continued until December, 1881, when it was dissolved, and the land by the agreement of dissolution, went to Thomas J. Fry, who lived on it from that time until his death January 20, 1906. Deeds were made by the other owners to Thomas J. Pry for the purpose of carrying out this arrangement, on February 12, 1885. In 1886 he formed a partnership with his brother John for the purpose of dealing in cattle and preparing them for market. They fed on this place, but there was no evidence that John had any connection whatever with the title or that the land constituted any part of the joint capital. The Ferrell judgment under which the land was sold to Mathews in 1894 arose out of the dealings of this partnership which passed out of existence on March 3, 1893. John Fry died in 1901. The court at plaintiff’s instance gave the jury the following instructions:

“The court instructs the jury that if you find and believe from the evidence that the plaintiff was married to Thomas J. Fry in 1882, and that while the plaintiff was the wife of said Thomas J. Fry, the said Fry was in possession of the land described in the petition, exercising ownership thereover, under deeds of conveyance thereof from Albertus Fry, John Fry, Jr., Martin L. Fry and Maria S. Fry, or was so in possession and exercising ownership over said land under and by virtue of an agreement of dissolution of the copartnership of Fry Brothers, whereby said land was set off to Thomas J.-Pry, then the right of the plaintiff to dower in said land thereupon attached to said land, and such right is not affected by the fact, that after said Thomas J. Fry so entered into possession and began to exercise ownership over said land, he and said John Fry, Jr., entered into a partnership and used said land in their partnership business.
“You are therefore instructed that if you shall find and believe from the evidence that the plaintiff was married to Thomas J. Fry in 1882, and that while the plaintiff was the wife of said Thomas J. Fry, the said Thomas J. Fry was in possession of the land described in the petition, exercising ownership thereover, under deeds of conveyance thereof from Albertus Fry, John Fry, Jr., Martin Fry and Maria S. Fry, or was so in possession and exercising ownership over said land under and by virtue of an agreement of dissolution of the copartnership of Fry Brothers, whereby said land was set off to Thomas J. Fry, and that the partnership between said Thomas J. Fry and John Fry, Jr., if any existed, was not formed until after the said Thomas J. Fry entered into possession of said land under such deeds of conveyance or under such agreement of dissolution; and if you shall believe also that Thomas J. Fry is now dead, and that the defendant is now the owner of said land, then the plaintiff is entitled to dower in said land, and your verdict should be for the plaintiff.
“2. The jury is instructed that after the several conveyances from John Fry, Jr., to T. J. Fry, A. Fry, M. L. Fry, introduced in evidence, there is no testimony that John Fry, Jr., or the copartnership of John Fry, Jr., and T. J. Fry, as such copartnership, had or held any interest in the land described in the petition.
“3. The court instructs' the jury that the only question for your determination is whether or not the plaintiff is entitled to dower in the land described in the petition.
“You are therefore instructed that if you shall find and believe from the evidence that the plaintiff was the wife of Thomas J. Fry, and that during the time she was his wife, the said Thomas J. Fry was the owner of and in possession of the land described in the petition, and that the said Thomas J. Fry is now dead, and that the plaintiff has not relinquished or conveyed her dower interest (if any) in the land described in the petition, and that the defendant was, at the time of the commencement of this action, the owner of the land described in the petition, then your verdict should be for the plaintiff.”

To the giving of each of which the defendant objected and excepted at the time upon their being given.

The defendant first asked a peremptory instruction in her favor which was refused and she excepted. She then asked six others as follows: The second was to the effect that if the real estate in question was in fact partnership property, recognized and used by Thomas J. Ery and John Pry, Jr., as partners in and about their partnership business, and that the same was sold as such by the sheriff of Bates county under execution and a conveyance thereof made to S. S. Mathews, and that the defendant in the case, through her agent, paid to Mr. Mathews in order, to procure a title to said land the sum of $4197.58, their verdict should be for defendant.

The third sought to have recouped out of any interest of the plaintiff in the land the pro rata share of $61.39 taxes paid by defendant, which was an incumbrance against the land at the time of her purchase with interest at the rate of six per cent until the time of payment.

The fourth was to the effect that if the jury should find that the real estate in question, along with other property, was held by Thomas J. Pry and John Pry, Jr., as partnership property, and that said partnership at the time of conveyance was indebted in an amount in excess of all their property, their finding should be for defendant.

The fifth was to the effect that if the property in question was partnership property of Thomas J. Pry and John Pry, Jr., and as such was sold under execution against them to S. S. Mathews, and that the defendant in order to procure title to this land paid $4179.58 to said Mathews, then their finding should be for defendant.

The sixth predicated recovery by defendant upon the fact of the land being owned and used as partnership property by Thomas J. Fry and John Fry; Jr., and that they were insolvent at the date of purchase by the defendant.

The seventh is as follows:

“The court instructs the jury that if they shall find and believe from the evidence that Thos. J. Fry was married to Lydia J. Fry, who joined with him in the deed to the defendant, introduced in evidence, and after the separation of the plaintiff and said T. J. Fry, then the presumption arises that said Thos. J. Fry was lawfully divorced from the plaintiff here, and if he did obtain such divorce, then the plaintiff is not entitled to any dower in any of the real estate in question, and your finding and verdict should be for the defendant.”

Under the instructions the jury found that “the plaintiff is entitled to dower in the land described in her petition.”

Upon this verdict, after the overruling of motions for a new trial and in arrest of judgment duly raising the questions we shall consider, an interlocutory judgment was entered that plaintiff be endowed of the lands and appointing commissioners to admeasure and assign the dower. They reported at the May term, 1910, that they had assigned to plaintiff the south half of the southwest quarter of section 26, and the south half of the southeast quarter of section 27, described in the petition, which was confirmed by the court and damages assessed for its detention pendente lite at $90, and $2 per acre per annum as rental until possession delivered. Final judgment was entered accordingly, from which, after motions for a new trial and in arrest overruled, the defendant has appealed.

Such further facts as may be necessary will be stated in the opinion,

I. This being a suit by plaintiff for the assignment of dower in lands alleged to have been owned by Thomas J. Pry, now deceased, in his lifetme, it was necessary for her to set out in her petition the three facts necessary to the existence of the right: (1) her marriage to Pry; (2) his seizin or the seizin of some other person to his nse during the marriage, of an estate of inheritance in the land; and (3) his. death. If the inchoate right accrued during the lifetime of the husband by the concurrence of the first two of these conditions and something which afterward occurred is relied on to defeat it, it must, under the code, to be made available as a defense, be pleaded by the defendant. Recognizing and following these rules, the defendant has, among other affirmative defenses interposed by her, stated in her answer “that prior to the marriage of said Thomas J. Pry to the said Lydia, he was lawfully divorced from the plaintiff here, for her fault, if in fact he was ever lawfully married to her.” Upon this plea hangs the serious question in this case. As its decision will necessarily dispose of various correlative questions which, arose during the trial, it should be first considered.

That the plaintiff was legally and formally married to Pry in Bates county on the 16th day of March, 1882, is not disputed, and that he was also married in the same county to one Lydia J. Parris on the 24th day of November, 1891, is equally well established. Nor is it questioned that he lived in that county continuously from sometime before 1881 up to the time of his death on January 20, 1909, and that during that time, on November 17, 1894, he made a warranty deed conveying the land in question to the defendant in which Lydia J., his then wife, joined. The defendant relies upon the fact of the marriage to the last wife to establish the other facts that even though the inchoate right of dower in plaintiff had attached to these lands during her marriage with him, yet Fry had been afterward divorced from her for her own fault or misconduct, and her right to be endowed thereby defeated in accordance with the terms of the statute (R. S. 1909, sec. 359).

The evidence tends strongly to show, and the appellant’s ,argument scarcely questions, that during the time intervening between December, 1881, and February 20, 1885, Thomas J. Fry was seized in fee simple absolute of an undivided one-fourth. of these lands while his brothers Albertus Fry and Martin L. Fry, and his mother Maria S. Fry, were seized of the same estate to his use in the remaining undivided three-fourths; and that on the last named date they conveyed or released the legal title in that three-fourths interest to him, and he was thereafter seized, at law as well as in equity, of the whole, until the conveyance to the defendant. It was upon the theory that in such a state of facts the inchoate right of dower of plaintiff would attach upon her marriage to Thomas J. Fry, if she was so married, in 1882, that the first instruction for the plaintiff was given by the court; but notwithstanding the provision of section 2207, Revised Statutes 1879, in force at the time, making possession of the husband unnecessary, the court imposed upon plaintiff the further burden of proving that Thomas J. Fry had been in possession of the land, exercising ownership thereover, during the marriage. This the statute made unnecessary whether the estate were a legal or equitable one. [Davis v. Green, 102 Mo. 170.] That this instruction covers the whole issue in the absence of facts tending to establish one or more of the special defenses pleaded, is beyond question, and we do not understand it to be seriously controverted by the appellant. She simply asserts that the second marriage raises the presumptions of divorce and misconduct as pleaded, and that they are fatal to the plaintiff’s case; and cites Maier v. Brock, 222 Mo. 74, as settling the question in her favor. That case, like this, was a proceeding for the assignment of dower. The lands were situated in Jasper county, and had belonged to Joseph G. Maier in his lifetime. Mr. Maier had been married to the plaintiff in Germany on January 24, 1865, and they lived together as husband and wife until the spring of 1866 when he left her and came to the United States. The next heard of him was sometime during the period included in the years 1872 and 1874 when he appeared in Carthage with another wife and acquired the farm in question, and lived on it until the time of her death. In 1885 he married a third wife, with whom he lived on the same land until her death, having by this marriage two daughters. He then married the fourth wife, from whom he was divorced on January 17, 1902, and married the wife who survived him, by whom he had one child. In that case there was no question as to which of the parties was presumed to be the innocent and injured one in the divorce which the law supplied in favor of the presumption of innocence. The land was acquired after the second marriage, so that a divorce so presumed must have already severed the prior relation of husband and wife, the existence of which during the seizin of the husband is the prime requisite to the endowment of the wife. The ease was decided upon the authority of Johnson v. Railroad, 203 Mo. 381, in which no such question could have arisen. This case presents in its nakedness the question whether the law, in presuming the innocence of the husband to protect him from the imputation of criminal wrong, will, upon no other foundation than that presumption, build another presumption, that th'e wife has been guilty of wrong and misconduct in the marriage relation and assess against her the serious penalty imposed by our statute for such an ofíense. It is a question suggestive of droll situations. If the answer of appellant be the true one, what would we say to the man and woman who should each come before us with record of their marriage to each other and the record of a subsequent marriage to another, and ask us upon those facts alone to not only presume that they had been legally divorced but to adjudicate which was the innocent and injured one, and which had been guilty of marital misconduct? It would be easy to presume, in favor of innocence, that they had been divorced. Having done this, the presumption would have performed its beneficent office, and the innocence of both would have been vindicated; for then under our own statute each would be equally at liberty to remarry, irrespective of guilt or innocence in the marriage relation; but they might pile presumption upon presumption and neither could thereby cast upon the other the burden of proving the innocence that the law presumes. That would, in its very nature, require direct evidence. As was said by the Supreme Court of Iowa in Thayer v. Coal Company, 121 Ia. 121, 130, “A presumption can arise only from facts actually proven by direct evidence.. A presumption is not a legitimate foundation for a presumption. If this were not true there would be no limit to conjecture.” This case furnishes an excellent illustration of the reason for that rule, which is as old as the common law itself. If this man ever obtained a divorce, the record of it was in the county in which he had lived, on the very land in controversy constantly for a period beginning before his first marriage and extending to the day of his death. If he had ever obtained a divorce the record of it was in the courthouse- where this ease was' being tried; yet out of abundant tenderness for him, the law presumes that he has not been guilty of bigamy, by presuming that the former marriage relation had ceased at the instancé of one or the other of the parties to it. Having this concession, founded not upon any evidence of the truth but upon tenderness of the law, the appellant asks that it be used as a basis for a presumption of guilt against one whom the law has already sacrificed, to some extent, to save another from a like infliction. We sympathize with those fictions of the law which have been invented to serve truth, and to afford, in the administration of justice, a foothold for that confidence and sympathy which enter into and must be reckoned with as elements of every human association; but in attacks upon innocence, which the law presumes in favor of all, they must yield to facts. The shafts of attack may be turned with lightning rapidity against a new victim, but never so quick that the presumption of innocence is not already ahead of it, interposing its own shield in the interest of fair play. There is nothing in the presumption relied on in this cáse that tends in any degree to show that the plaintiff has forfeited by fault or misconduct her right to be endowed under our statute. Nor is there anything in Johnson v. Railroad in which Judge Graves, for this court, has collected a wealth of authority upon the subject which leaves little to be done or said in that direction, nor in Maier v. Brock, in which, in an exhaustive opinion by Judge Woodson, we have restated and again given our approval to the same doctrine, which, either directly or by implication, questions the law as we have here stated it.

It follows that there was no prejudicial error in the action of the court in excluding the record of the marriage of Thomas J. Fry to Lydia J. Farris on November 24, 1891, long after the inchoate right of dower of the plaintiff had attached. Of itself it was only evidence of a prior divorce so far as the presumption of innocence required that it should be indulged to protect Mr. Fry from the imputation of bigamy in the act of contracting it, and could not go back, in its search for something upon which it might operate, to the time of the first marriage in 1882, nor to any other time than that indicated by the necessity which it created. A divorce could only relate back to bar her rights already attached because it had been obtained for her fault or misconduct, and no evidence was offered to that effect. Considered as a step in the proof of a divorce for her misconduct, it still devolved upon the defendant to offer the supplemental evidence, or at least state her intention to do so, as a ground for the admission of that which, while standing alone, had no tendency to sustain her defense.

II. There is no evidence whatever that after the dissolution of the original partnership of Ery Brothers in December, 1881, John Ery, Jr., of the copartnership of John Fry, Jr., and T. J. Ery, as a copartnership, had or held any interest in the land in controversy and the court was right in so instructing. It follows that the Mathews title acquired at sheriff’s sale under the Ferrell judgment against John Ery, Jr., and T. J. Ery did not affect the dower interest of plaintiff,

III. This brings us to the claim pressed in the third instruction asked by and refused for the defendant, founded upon the. evidence that at the time of the execution of the deed to defendant dated November 17, 1894, the taxes for that year in thev amount of $61.39 remained unpaid and were paid by defendant as a part of the purchase price of the lands and that such proportion thereof as the plaintiff’s dower interest bears to the whole land, whatever that may mean, should be deducted from her interest.

Whatever the relation of the plaintiff may have been to the State with respect to the lien of these taxes, as between herself and her former husband and the defendant, his grantee, no duty rested upon her to pay the tax. There is nothing in the point.

For the reasons we have given the case seems to have been well tried and the judgment of Bates Circuit Court must be affirmed.

Blair, C., concurs.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


author: GRAVES, J.

text:
    PUTNAM COUNTY, Appellant, v. JOHN D. JOHNSON.
    Division One,
    June 2, 1914.
    1. MONEY HAD AND RECEIVED: County Clerk: As Agent of County: Limitations. A petition charging that defendant as agent of the county received certain money for the use of the county and that, after demand, he has not paid the same, states a cause of action for money had and received, and such an action is not barred by the three-year Statute of Limitations, but the five-year statute is applicable, although the petition in another count states that during the years of the appropriation of the money defendant was county clerk.
    2. COUNTY CLERK: Money Received and Retained: Fraudulently Concealed: Limitations. In order that it may be held that the petition in a suit by the county against the county clerk for moneys received and retained by him is grounded on fraud, facts constituting the fraud, such as the destruction of the books or the concealment or suppression of the evidence from which the county court could have ascertained that he was wrongfully retaining money or making overcharges or duplicate charges, must be pleaded. If so pleaded,’ then the five-year Statute of Limitations applies.
    3. -: -: In Virtue of His Office: Limitations. A charge that defendant wrongfully exacted and charged the county $1306.91 for making out the tax books by counting sixty-five words and figures for each name instead of forty,, the true number, charges that he received the money “in virtue of his office” as county clerk, and is not grounded on fraud, and hence the three-year Statute of Limitations (Sec. 1890, R. S. 1909) applies.
    Appeal from Putnam Circuit Court. — Hon. George W. Wanamaker, Judge.
    Reversed and remanded.

      D. M. Wilson, J. W. Clapp and E. A. J arman for appellant.
    (1) The action is properly-brought in the name of the county. Sec. 1729, R. S. 1909. (2) An action for money had and received is not barred by limitation until five years after the right of action accrues. Sec. 1889, R. S. 1909; Shelby County v. Bragg, 135 Mo. 291. (3) Where the fraud is an open one the Statute of Limitations runs within five years; if secret, ten. years. Sec. 1889, R. S. 1909; Callan v. Callan, 175 Mo. 346. (4) The first count shows on its face that it is not barred by the three-year Statute of Limitations. Although the money was obtained in Johnson’s official capacity as county clerk, it was not exacted and obtained “in virtue of his office.” Sec. 1890, R. S. 1909. (5) The third and fourth counts follow the recognized •forms of pleading for money had and received. Es-tee’s Pleading (3 Ed.), sec. 835; Green & Myers, Plead, and Prac. (1 Ed.), sec. 658. (6) The common counts are good under our code. Carroll v. Paul, 16 Mo. 226.

      N. .A. Franklin and J. C. McKinley for respondent.
    (1), The first and second counts charge him as an officer of the county, and in the third and fourth counts he is-charged with money had and received as agent of the county, but in all the counts the sum asked for is exactly the same — the charge being that he received $2009.85, paid back $418.86, leaving a balance of $1590-.99, for which plaintiff prays judgment — thus showing conclusively that the third and fourth counts of the petition relate to the same alleged delinquencies as set forth in the first and second counts, and that the ■petition should for the purposes of this demurrer be treated as a whole, and on the theory that the term agent of the county, and county clerk of the county, are synonymous terms so far as the pleadings are COBcerned. In which, case the three-year Statute of Limitation applies. Sec. 1890, R. S. 1909. State ex rel. v. Harter, 188 Mo. 516; .Shelby County v. Bragg, 135 Mo. 291; State to use v. Daily, 4' Mo. App. 172; State ex rel. v. Stonestreet, 92 Mo. App. 214. (2) To extend the Statute of Limitations on account of fraud on the part of defendant such fraud must be specifically pleaded, and in case of a trial conclusively proved. In this case the word, fraud, is not mentioned in either count of the petition, much less specifically pleaded. Shelby Oo. v. Bragg, 135 Mo. 300; Wood v. Carpenter, 101 U. S. 141.
   GRAVES, J.

The plaintiff, being cast below upon a demurrer to its petition, suffered final judgment to go, and from such judgment has appealed. The petition, omitting therefrom the items of account in the first count thereof, reads:

“Plaintiff for its third amended petition, leave of court first had and obtained, states that it is a political subdivision of the State of Missouri, and as such has authority to bring this suit. That at the general election held in 1898, the defendant was elected county clerk of Putnam county, Missouri, for a term of four years, and that on the first day of January, 1899, he, gave bond, qualified and entered upon the discharge of the duties of his said office, and continued to hold said office until the first day of January, 1903. That at the general election in 1902 the defendant was reelected to the said office of county clerk of said county, for another term of four years, and that on the first day of. January, 1903, he gave bond, qualified and entered upon the discharge of the duties of said office, and continued to hold the same until the first day of January, 1907.
“That during the years, 1900, 1901, 1902, 1903, 1904, 1905, and 1906, and while the defendant was county clerk of said county, he wrongfully and without authority of law as such county clerk exacted and obtained from plaintiff the aggregate sum of two thou-' sand and nine dollars and eighty-five cents, said aggregate sum being made up and composed of the following items, and in the manner following, to-wit:
“That' when the county court of said Pntnam county ascertained that the defendant had wrongfully exacted, charged, obtained and received from plaintiff the said several items above enumerated, amounting to the aggregate sum of two thousand and nine dollars and eighty-five cents, and had only paid back the sum of four hundred and eighteen dollars and eighty-six cents, leaving unpaid and due plaintiff the said sum of fifteen hundred and ninety dollars and ninety-nine cents, the said court, by its order made on .the fifth day of April, 1910, and during the February adjourned term, 1910, of said court, did order and direct the defendant to pay into the treasury of said county the sum of fifteen hundred and ninety dollars and ninety-nine cents, so found by said county court to be due said county, and that the defendant having failed, refused and neglected for more than fifteen days' after the making and delivery to him of a copy of said order, to pay said sum of fifteen hundred and ninety dollars and ninety-nine cents, or any part thereof, into the treasury of said county as required by law, the said county court, by its order entered of record on the twenty-first day of April, 1910, and during its said February adjourned' term, 1910, ordered that an action be brought against the defendant for the said sum of fifteen hundred and ninety dollars and ninety-nine, cents, so found to be due plaintiff, and that the defendant has ever since failed and refused and still fails and refuses to pay the said sum of fifteen hundred and ninety dollars and ninety-nine cents or any part thereof into the treasury of said county.
“Wherefore, plaintiff prays judgment against the defendant for said sum of fifteen hundred and ninety dollars and ninety-nine cents, with interest thereon, and for costs.
“For another and further cause of action plaintiff says that it is a political subdivision of the State of Missouri, and as such has authority to bring this suit. That at the general election held in 1898, the defendant was elected county clerk of Putnam county, Missouri, for a term of four years, and that on the first day of January, 1899, he gave bond, qualified and entered upon the discharge of the duties of his said office, and continued to hold the same until the first day of January, 1903. That at the general election held-in 1902 the defendant was again elected to the same office, and that on the first day of January, 1903, he gave bond, qualified and entered upon the discharge of the duties of said office, and continued to hold the same until the first day of January, 1907.
“That during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906, and while the defendant was county clerk of said Putnam county he wrongfully and without authority of law exacted, charged, obtained and received of and from plaintiff $2009.85, of which amount defendant thereafter and before the bringing of this suit paid back to plaintiff the sum of $418.36, leaving the net amount so wrongfully exacted, charged, obtained and received of and from the plaintiff by defendant and due plaintiff, the sum of $1590.99.
“That when the county court of said Putnam county became possessed of the knowledge that the defendant was so wrongfully retaining the said sum of $1590.99, the said court, by its order made on the 5th day of April, 1910, and during the February adjourned term, 1910, of said court, did order and direct the defendant to pay into the treasury of said county the said sum of $1590.99, and that the defendant having failed and refused and neglected for more than fifteen days after the making and delivery to him of a copy of said order, to pay said sum of $1590.99, or any part thereof, into the treasury of said county as required by law, the said court, by its order entered of record on the 21st day of April, 1910, and during its said February adjourned term, 19Í0, ordered that an action be brought against the defendant for the said sum of $1590.99 so found to be due plaintiff, and that the defendant has ever since failed and refused and still fails and refuses to pay the sum of $1590.99, or any part thereof, into the treasury of said county.
“Wherefore, plaintiff prays judgment against defendant for the sum of $1590.99, with interest thereon, and for costs.
“For another and further cause of action plaintiff says that in the month of January, 1900, the defendant became the agent of the plaintiff, and remained such agent during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906, and that during said time the defendant received as agent for plaintiff the sum of $2009.85 and of said amount paid back to plaintiff the sum of $418.86, but retained in his possession the sum of $1590.99, and that although the plaintiff has often demanded of defendant the said sum of $1590.99 rightly due from' defendant to plaintiff, yet defendant has refused and still refuses to pay plaintiff the said sum of $1590.99 or any part thereof.
“Wherefore, plaintiff prays judgment against defendant for the sum of $1590.99 with interest, and for costs.
“For another and further cause of action plaintiff says that during the years 1900, 1901, 1902, 1903, 1904, 1905, and 1906, defendant, at the county of Putnam, Missouri, received the sum of $2009.85 from plaintiff, as its agent, for the use of plaintiff. That of said sum defendant has paid back to plaintiff the sum of $418.86, leaving still due plaintiff the sum of $1590.99, that thereafter, to-wit, on the 5th day of April, 1910, plaintiff demanded payment thereof from defendant,' but that defendant has not paid to plaintiff the" said sum of $1590.99 or any part thereof. "Wherefore, plaintiff prays judgment against defendant for $1590.99, with interest and costs of suit. ’ ’

The items pleaded, but not set out in the foregoing, will be more particularly noted later, if they become material.

To this petition the defendant interposed the following demurrer:

“Comes now the defendant and demurs to plaintiff’s petition and to each count thereof.
“For the reason that the same do not state facts sufficient to constitute a cause of action against him under the laws of this State.
“For the further reason that there is a defect of parties plaintiff, the petition showing on its face that •a part of the count sued for, if owing, belongs to the State of Missouri, and not to plaintiff. .
“And because the claim on which the suit is based as set forth in said petition and the several counts thereof is barred by the three-year’s Statute of Limitations and also by the five-year’s Statute of Limitations.
“Wherefore, defendant asks that this his demur-' rer to plaintiff’s third amended petition be sustained and that he be discharged from further answering in the above entitled cause.”

The issues are, therefore, purely issues of law.

I. This judgment will have to be reversed and the cause remanded, but the reason for so doing should be fully discussed in view of the peculiar wording of the petition in the third and fourth counts thereof, and in further view of the fact that there must be a retrial. The judgment upon the demurrer will have to be reversed, because both the third and fourth counts in this petition state good causes of action for money had and received. Not only so, bnt upon their face it is shown that the five-year Statute of Limitations is the only one which could be invoked, as to them, and it could not be successfully invoked. These counts in the petition do not proceed upon the theory of the defendant having been an official, and having received the money sued for “in virtue of his office” as contemplated by Revised Statutes 1909, section 1890, the three-year Statute of Limitation. These counts charge that the defendant received these funds as the agent of the county, not as an officer of the county. What the proof may show upon trial is one thing, and what the petition shows, when attacked hy demurrer, is quite a different thing. It may bé that the proof will utterly destroy the allegations of these two counts, but that is a matter to be determined upon the trial of the facts, rather than upon this demurrer. It is not uncommon for county officers to be agents of the county for matters beyond those of the office. Whether the facts will so show in this case, we have no means of knowing. We only know that defendant is alleged to have received the funds as agent. For this reason the demurrer was not well taken as to these two counts, and for like reason the instant judgment ■will have to be reversed.

II. What we have just ruled would dispose of this case, but for the fact a trial nisi must be had, and the other questions involved should he ruled upon in view of that fact. It is stated in the brief that the trial court was of the opinion that the whole petition (and all the counts thereof) was directed against the defendant as an official, i. e., as county clerk, and that the cause of action in each count was barred by the three-year Statute of Limitations, supra. We have pointed out the error of this ruling in so far as the third and fourth counts of the petition are concerned. Such counts were not drawn upon that idea. The first and second counts are different, however. The question now material is, whether these counts state a cause of action which is barred by the three-year statute. Plaintiff says not, and defendant contra. The statute, Revised Statutes 1909, section 1890, reads:

“Within three years: First, an action against a sheriff, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of any official duty, including the non-payment of money collected upon an execution or otherwise; second, an action upon a statute for a penalty or forfeiture, where the action is given to a party aggrieved, or to such party and the State.”

This question requires a statement of the items sued for in the count named, to the end that we may see whether or not they fall within this statute. These items, fully set out in the first count of the petition, are as follows:

“Item 1. The sum of one thousand three hundred and six dollars and ninety-one cents, being the amount Avrongfully exacted and obtained from said county and charged for making out and computing the tax books, the defendant having wrongfully charged said county on a basis of sixty-five words and figures for each name on said tax books, instead of charging on a basis of forty words and figures for each name appearing thereon, the proper and correct basis as shown by actual count.
“Item 2. The sum of seventy-eight dollars and eleven cents, being the amount Avrongfully charged exacted and retained as back salary for previous years, and to which the defendant was not entitled.
“Item 3. The sum of ninety-nine dollars and ninety-nine cents, being the amount wrongfully charged, exacted and retained for three months’ salary of thirty-three dollars and thirty-three cents each, in excess of what conld be legally charged for the time served, and to which the defendant was not entitled.
“Item 4. The snm of one hundred and thirty-four dollars and fifty-five cents, being the amount of earning wrongfully and untruly reported and having been reported as received from the State, and not in accordance with the State report of same.
“Item 5. The sum of seventy-one dollars and fourteen cents, being school tax wrongfully and erroneously charged twice in the same year, and wrongfully exacted and retained by the defendant.
“Item 6. The sum of one hundred and fifty dollars, being the amount wrongfully charged, exacted and received for making three financial statements, at fifty dollars each, and in excess of the sum allowed by law for making said statements.
“Item 7. The sum of one hundred and sixty-nine dollars and fifteen cents, being total excess erroneous earnings on revenue and miscellaneous services, the said amount being made up of the sum of two hundred and sixty dollars and fifty-seven cents, wrongfully charged, exacted and received from plaintiff for 26,057 words and figures falsely reported as in tax books and being 26,057 words and figures in excess of the true number of words and figures in said tax books; and the further sum of three dollars and seventy-five cents wrongfully charged, exacted and received for commissioners ’ orders, making a total of two hundred and sixty-four dollars and thirty-two cents, and from which should be deducted the sum of ninety-five dollars and seventeen cents paid back by defendant, and leaving an excess overcharge of one hundred sixty-nine dollars and fifteen cents, said several items aggregating the total sum of two thousand and nine dollars and eighty-five cents, so wrongfully exacted, charged, obtained and received from plaintiff as aforesaid, and of which said aggregate amount the defendant thereafter and before the bringing of this suit, paid bach to plaintiff the sum of four hundred and eighteen dollars and twenty-six cents, leaving the net amount so wrongfully exacted, charged, obtained and received by defendant and due plaintiff the sum of fifteen hundred and ninety dollars and ninety-nine cents.”

More than three years had elapsed, and if these items come within the purview of the statute above quoted, and such statute has not in Some way been tolled under the facts pleaded, then the demurrer was properly sustained as to these counts. Plaintiff urges in the brief that these items were not received by the defendant “in virtue of his office,” but that they were fraudulently received. To the one class of cases the three-year statute applies, whilst as to the other the five-year statute would apply.

We have fully set out the petition. The wording of it is not such as to justify us in saying that the actions in the first and second counts of the petition stated, are grounded upon fraud. If this was the view of the pleader, then he failed to allege facts sufficient to state a cause of action. [Shelby Co. v. Bragg, 135 Mo. 291.] In the Bragg case, Macearlane, J., said:

“It cannot be said that the evidence of the facts constituting plaintiff’s cause of action was conceded or suppressed. The evidence all existed upon the official books and records of the office open to the examination of the court. The expert accountants who afterward made an examination encountered no difficulties in making an account of fees collected. They reported no destruction of books, or the suppression or concealment of no fact which could prevent an accurate statement being made.
“It is insisted that the duty of this officer and his relation to the county court was such that the latter had the right to rely implicitly on the correctness of these statements and that making a statement which did not fully and truthfully account for all fees collected is such a fraudulent concealment of the facts as would delay the running of the statute. But the county court is required to examine the statement and see that they are correct before approving them; it was not intended that they should accept as true any statement the officer should make. The evidence by which the truth could have been ascertained was at hand and open to their examination. Indeed, the statements themselves did not all purport to be accurate; they do not pretend to give an itemized account of the fees collected and from whom; they virtually refer the court to the records of the offices for the evidence.
‘‘ The county court is given the power to audit the accounts of these officers and it is made their duty to examine statements made by them and, if necessary, to hear the evidence of witnesses. A mere examination of the statements is not a proper performance of their duty. They should see that the statements are correct. This is particularly so when the statements on their face, as' in -this case, are not such as the law requires. It cannot be said that the county court was ignorant of facts which were open to its examination, and which it was its duty to know.”

It is true that Judge Macparlane was discussing the tolling of the Statute of Limitation by fraudulent acts, but he says much that is of interest here. The county court passes upon and allows charges of the county clerk. To state a good cause of action grounded upon fraud, and fraud practiced must be pleaded. This is as much requisite in a petition grounded upon fraud, as it is a requisite to show fraud for the purpose of tolling the statute. We do not believe the pleader intended to ground the action upon fraud, but if he did, the demurrer was well taken, because the facts alleged were insufficient. The five-year Statute of Limitation has no application to the first and second counts.

But plaintiff says the three-year statute, supra, has no application, because the items of cash named were not received by defendant “in virtue of his office.” We do not agree to this view. If they were not received “in virtue of his office” how were they received? We can conceive of no other way ór capacity in which they were received. They may have been wrongfully and, speaking from the statute, unlawfully received, but they were evidently received “in virtue of his office.” In other words they-were received as an officer, not as an individual or agent. Take the alleged overcharge for the tax books. Whether the defendant was allowed or retained the proper or the improper amount for such service, yet whatever amount he did retain for such services was retained by him officially, for official work, and was received, had, held and retained “in virtue of his office” as used in the statute.

If these two counts (first and second) do not plead actions grounded upon fraud, as we have held, and if they do seek to recover from defendant money wrongfully held by him, but received by him “in virtue of his office,” then the three-year Statute of Limitations applies, and the causes of action stated in these two counts are barred by such statute. Upon this theory the trial court was right in sustaining the demurrer as to these counts. Other grounds of demurrer are not well taken. We suspect plaintiff may have trouble in proving a case under counts three and four of the petition, but that remains to be seen. Under the views above expressed, the instant judgment will be reversed and the cause remanded.

All concur.


text:
    EMILY M. FISCHER v. E. F. DENT et al., Appellants.
    Division One,
    June 2, 1914.
    DEEDS: Description: Mistake: Reformation. B in 1880 acquired by deed twenty-five and one-half feet of land and built upon it a building twenty-three and one-fourth feet wide called the “little store.” In 1886 he acquired the thirty-five feet to the west, and erected upon it a building that also extended over the two and one-fourth feet left vacant on the twenty-five and one-half-foot strip. ,In 1907 defendants H & S purchased from B’s widow the “little store,” as the evidence of the negotiations shows, but their deed called for twenty-five and one-half feet. They took possession of the store lot, never suspecting that they were not in possession of all their deed called for, and soon sold the property to defendant D, his deed also granting twenty-five and one-half feet. In 1909 D discovered the discrepancy. Held, that both deeds, as well as a mortgage made in 1907 by the same description, must, at the widow’s suit, be reformed so as to include only twenty-three and one-fourth feet.
    Appeal from Dent Circuit Court. — Hon. L. B. Woodside, Judge.
    Affirmed.

      J. J. Cope for appellants.
    (1) A general warranty deed like the one in question, can only be set aside when it is procured by fraud or undue influence, or by mistake, and such fraud, undue influence and mistake must be charged in the petition, and not only charged, but must be proven as charged. Anderson v. Gaines, 156 Mo. 664; Brown v. Fickle, 135 Mo. 495'; Taylor v. Crocket, 123 Mo. 300'; Studdard v. Wells, 120 Mo. 25. Moreover, the courts say that the mistake must be mutual and both the mistake and the agreement must be made out by satisfactory and clear evidence. Griffin v. Miller, 188 Mo. 334; Sweet v. Owens, 109 Mo. 1; Parker v. Yanhooser, 142, 327. (2) The breach of contract will not warrant the rescission thereof by a party if it was occasioned, by his own faults, and this same principle of law and equity will apply in this case. If there is any mistake it is her mistake and not the mistake of another. It is held in the case of. Griffin v. Miller, 188 Mo. 334, that the mistake, if there be one, must be mutual, and both the agreement and the mistake must be made out by satisfactory and clear evidence.

      William P. Elmer for respondent.
    (1) A court of equity will reform a written instrument where it fails by mistake to express the true contract and intention of the parties thereto, if the mistake was mutual or if the scrivener was acting for both parties, and made the mistake himself. Henley v. Sullivant, 154 S. W. 706; Brown v. Tusetoff, 138 S. W. 499. (2) A person who buys land in the visible possession of a third person is chargeable with notice of the title and the rights of the possessor to the premises. Squires v. Kimball, 208 Mo. 110; Shaffer v. Dettie, 90 S. W. 135.
   BROWN, C.

This is a suit by the plaintiff against E. E. Dent, Mary A. Judson, Nathaniel D. Hobson and Earl A. Seay, defendants, to reform a deed made by the plaintiff April 27, 1907, Hobson and Seay purporting to convey to them all the portion of lots two and three of block fifteen west side of the creek in the city of Salem, Dent county, Missouri, described as follows, to-wit: “Commencing thirty-five feet east of the northwest corner of said lot two, thence east twenty-five and a half feet, thence south one hundred and sixty-five feet, to the south line of lot three, thence west twenty-five and a half feet, thence north one hundred and sixty-five feet, to the place of beginning.” It will he observed that this description covers the east twenty-five and a half feet of the west sixty and a half feet of said lots two and three in block fifteen. It fronts north on fourth street and south on third street. The plaintiff contends, and so states in substance in her petition, that this description was a mistake and that the deed was intended by both parties to convey, and should have conveyed, the east twenty-three and one-fourth feet of said sixty and a half feet.

The plaintiff acquired the title to the sixty and a half feet by devise from her late husband Louis Fischer, who died about the year 1897. He acquired the twenty-five and a half feet described in this deed from E. L. Dye in 1880, and erected a brick building on the north end of it flush with the east line, and twenty-three and one-fourth feet wide and extending south from Fourth street, on which it fronted, about seventy feet, thus leaving a strip west of the building two and one-fourth feet wide. In 1886 he acquired the thirty-five feet adjoining it on the west and extending to the west line of lots two and three. He then erected on that part of his land west of the first building an-' other building afterward called Fischer Opera House, which extended one hundred and thirteen feet south from the south line of Fourth street and occupied the entire thirty-seven and a half feet west of the first building constructed, which was commonly known as Fischer’s little store. The walls of these two buildings were independent, although in actual contact, for a distance of sixty feet south from Fourth street. Thence to the south end of the little store, the wall of the opera house building was used as a common wall.. The little store lot was vacant south of the south end of the building except that about twenty feet of the south end was occupied by a warehouse of the same' width as the store. At the time of the sale-to Hob-son and Seay the store purchased by them was occupied by Murray, Bryson & Company, who attorned to the purchasers and remained in possession; while the opera house building was occupied by one Selby, who kept the store which occupied the first story, and ran the opera house on the second floor.

Mrs. Fischer resided in Detroit, Michigan. Mr. T. A. Bruce of Salem was her agent with respect to this property. Mr. Hob'son proposed to him to buy the little store and he wrote to Mrs. Fischer for terms. She answered by letter addressed to Mrs. Bruce, contained the following upon the subject of that deal:

“Mr. Bruce asks about the price of the two stores. I have given him the prices. I will not change the the prices. The little store I will not take less than $4000 cash for, and for the big store $11,000. Would take one-half cash and balance payable $1000 yearly, secured by deed of trust, first mortgage, at six per cent. ’ ’

Mr. Bruce says he showed the letter to Mr. Hob-son, who does not deny that he read this part of it. There was a misunderstanding about its meaning; both Hobson and Mr. Bruce thinking the time provision quoted applied as well to the little store as the big one. After some further correspondence Hobson and Seay acceded to Mrs. Fischer’s terms after the receipt from her of the following letter:

“April 29th/07. 507 Field Ave.,
Detroit, Michigan.
Mr. T. A. Bruce, -Salem, Mo.
“Dear Friend: — I am in receipt of your letter 27th. Am sorry that you misunderstood my terms. I asked $4000 cash for the little store and $11,000 for the big store. The big store one-half cash and balance in $1000 payments, yearly, with mortgage at six per cent per annum, secured by deed of trust. I have a copy of what I wrote to you.
“I have abstract of the property. Sorry that this turned up a misunderstanding. If you get the $4000 cash the sale is made. I do not want to bother with mortgage on the little store.”

Hobson and Seay sold and conveyed the land to the defendant Dent by the same description on October 3, 1907, for $5000, and he took possession.

During the summer of 1909, Mr. Selby, the tenant of the opera house building, ih doing some measuring to verify sidewalk bills, discovered that the description in the deed from Mrs. Fischer to Hobson and Seay covered two feet three inches of the east side of the opera house building, and went to Mr. Dent to talk with him about it. Mr. Dent immediately began to do some measuring himself,, and the warehouse building on the south end of the lot, which had, up to that time, stopped at the extension of the line between the two buildings, having become dilapidated, he fixed it up, extending it two and one-fourth feet' further west. Up to that time he says that he never knew that his land went any farther than the east wall of the opera house, but that he intended to purchase twenty-five and a half feet of the ground and thought that the little store building was that width. He said it got so dilapidated and rotten that he “took and tore it out and put it out on the line where it belonged.” The defendant Mary A. Judson claimed under mortgage from Hobson and Seay, dated May 9, 1907, to secure $2000. The judgment of the court, after reciting the facts, is as follows:

“Wherefore it is considered and adjudged by the court that in equity and good conscience that the said deeds should be reformed so as to conform to the true intention of all parties to these transactions, and that twenty-three and one-half feet of ground will cover the entire building known as the little store building, including part of the wall adjoining of the opera house building, and that said amount of ground extending back from the front to the rear of said lots is all that should be described in said deed and was all that all of the grantees in all of the above recited conveyances intended to buy and all that the grantors intended to sell; and that all of said instruments are hereby reformed and corrected so as to describe the real estate conveyed thereby and in each and every one of them hereinbefore recited, as follows, to-wit:
“A part of lots two and three, in block fifteen, west side of the creek, in the city of Salem, Dent county, Missouri, as follows, to-wit: Commencing thirty-seven feet east of the northwest corner of said Tot two; running thence east twenty-three and one-half feet; thence south one hundred and sixty-five feet, to the south line of lot three; thence west twenty-three and one-half feet; thence north one hundred and sixty-five feet, to the place of beginning. ’ ’

There can be no doubt as to the intention of both parties to the sale and transfer of the land in question from Mrs. Fischer to Hobson and Seay. Whatever might have been their idea as to the proper description tó be employed to express it, there is no question as to the thing which was the subject of the transaction. They purchased the little store and the ground on which it was situated, the width of which was as perfectly marked by the width of the warehouse on Third street as by the width of the store on Fourth street. They took possession of that property, never suspecting that they'were not then in possession of everything they had purchased. A tenant was in possession of the opera house building and no complaint was made by the purchasers of this property that he was not within his right in the occupation of every square foot of that building. The unquestioned possession of the respective parties measured the claim of each, and was for that reason evidence of their intention in the transaction which was the origin of that claim.

Mr. Dent stands in no different attitude with respect to this matter than the original purchasers. He, saw their possession as well as the possession of those who claim adversely to the description in his own deed and was bound to take notice of its nature, origin and extent. His promptness in extending the- old warehouse two and one-fourth feet as soon as he heard of the difference between the position of the buildings and the description in the deeds, indicated that a new light had broken in upon him which he had never before seen or suspected. We do not understand that Mrs. Judson'is here complaining.

The judgment of the circuit court is affirmed.

Blair, G., concurs.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.