author: FEEBISS, J.

text:
    LUTHER LYONS et al. v. CENTRAL COAL & COKE COMPANY et al., Appellants.
    Division Two,
    February 6, 1912.
    1. MEASURE OF DAMAGES: Coal Mining: Inadvertent Incursion on Another’s Land. In a suit by tile owner of land against a mining company for the reasonable value of coal removed from his land by a company, in an inadvertent and unintentional incursion thereon while mining on its own adjacent land, the measure of damages is not “a sum equal to the reasonable market value of the coal at the mouth of the mine, less the expense necessarily incurred in digging and mining said coal and taking it to the mouth of the mine.” That rule omits the cost of maintenance of the shaft, machinery and other appliances, and other necessary charges, all of which are difficult of proof; and besides, if such cost should prove equal to the cost of the coal at the ffiouth of the mine, it would leave the owner of the land nothing for the coal taken.
    2. --: -:--: Value in Place: Royalties. The true rule for the measure of damages to the owner of land from which a neighboring miner has inadvertently removed coal, is the value of the coal “in place,” that is, its value as it lay in its bed, if that value can be established by direct testimony. And where the owner of the land did not mine coal or operate a mine, and direct affirmative proof is available that coal in the bed was sold at so much royalty per ton at the time the neighboring coal mining company inadvertehtly made an incursion on plaintiff’s coal, that proof is the true measure of the damage, is a rule of easy comprehension, and establishes a just measure of the value “in place” of the coal taken. Where the owner is not operating the mine, but can dispose of his coal only by selling it in the bed, its only value to him is its value at that place, which, according to the general rule, is measured by the royalty which is customary and fair at that locality; and where that royalty value can be established by direct proof, such proof should be used to establish the damage.
    3. COAL MINING: Incursion on Neighboring Land Under Royalty Lease: Right of Owner to Sue. The owners of 480 acres of land had contracted with another, under what was denominated a lease, by which he was to mine coal at a certain royalty per ton. The contract embraces the whole tract. While the contract was in force defendant, a miner on adjacent lands, extended its tunnels and drifts to twenty acres of the land and removed coal, for the reasonable value of which the owners sue. The lessee had not exercised his right to mine coal on the twenty acres, and his contract had expired before the suit was brought. S-eld, that the owners of the land, and not the lessee or licensee, have the right to maintain the suit. The loss was not his, but theirs.
    4. -: -: -: Title. Where the plaintiffs have been in the undisputed possession of land for twenty years, they have such ownership, without showing any proper title, as entitles them to recover the reasonable value of coal taken therefrom by an adjacent mining company.
    5. -: -: Proof of Amount Taken: Best Evidence Available. Testimony as to the amount of coal taken by defendant from plaintiffs’ lands which consists of the recollection of workmen as to the size and number of rooms in which they worked underground six years before the trial, and as to the thickness and character of the coal taken, if the best evidence within the power of plaintiffs to produce, will not be held to be too vague and uncertain to support a verdict awarding damages for the coal taken, especially as defendant was in a better position to show the true amount than were plaintiffs.
    Appeal from Bates Circuit Court. — Hon. G. A. Denton, Judge.
    Reversed and remanded.

      Daniel B. Holmes, Thos. J. Smith and Mdssey Holmes for appellants.
    (1) Plaintiffs’ action is in trespass alleged to have' been committed by the defendants willfully on real estate of which plaintiffs claimed to be the exclusive owners and of which they claimed to be in the exclusive possession when the trespass is alleged to have been committed. This exclusive ownership and possession being a necessary condition precedent to a right of recovery, the court below erred in admitting, over defendants’ objections, the two deeds read in evidence. No antecedent title was shown in the first grantor. Hammond v. Johnston, 93 Mo. 221; Smith v. McCorkle, 105 Mo. 141; Cummings v. Powell, 97 Mo. 537. Possession in the plaintiffs of the real estate in question was indispensable to the maintenance of this action. Ronssin v. Benton, 6 Mo. 592; McMenamy v. Cohiclc, 1 Mo. App. 535; Pnrher v. Langford, 11 Mo. App. 288; More v. Perry, 61 Mo. 175; Lindenbower v. Bentley, 86 Mo. 515, 519; Zeitinger v. Hackworth, 117 Mo. 505. And possession of this coal was, as a matter of law, in Williams & Company, and not in plaintiffs. Manning v. Coal Co., 181 Mo. 359 ; Waters v. Stevenson, 13 Nev. 157. The cost of production and market value at the place, if there is a known market value there, is the only proper evidence to be admitted. Koeltz v. Beckman, 46 Mo. 320; Northrup v. Cook, 39 Mo. 208; Warren v. Mfg. Co., 161 Mo. 124; 1 Wig-more’s Ev., sec. 718. (2) The witness'Reese having testified for plaintiffs as an expert as to the cost of bringing coal from its natural bed in the mine to the top of the shaft, the court erred in refusing defendants, on cross-examination, to prove all of the elements of the cost which he considered. 2 Wigmore on Ev., sec. 992. (3) The court erred in refusing to admit in evidence the contract made by defendant Coal & Coke Company, showing the price at which it was selling the output of the mine in question covering the period of the defendants’ alleged trespass. It was made-anterior to the alleged taking complained of by plaintiffs, hence there could have been no motive to induce a contract not expressing the truth, and it was against defendants’ interest to have contracted to sell at less than is claimed by plaintiffs to have been the market price. Under these circumstances the evidence was competent and its exclusion error. 2 Wigmore’s Evidence, sees. 1422, 1455; 1457, 1462, 1465, 1466, 1467. (4) The court erred in refusing to admit in evidence the lease made by plaintiffs to defendant Coal & Coke Company covering the land in question, under which the testimony of Wallace Lyons shows defendants had entered and were mining coal prior to the institution of this action. It was competent as showing the value in place of the coal, and as showing that at the time of. bringing of this action plaintiffs had neither the possession nor right of possession of the land in question. More v. Perry, 61 Mo. 171; Brown v. Hartzell, 87 Mo. 568; Lumber Co. v. Markam, 96 Mo. App. 51; Lindenbower v. Bentley, 86 Mo. 519; Zeitinger v. Hack-worth, 117 Mo. 505. (5) The measure of such damage is ascertained by finding the difference between what was the market value of such land immediately .before the injury occurred and a like value after the injury is complete. Martin v. Railroad, 17 Mo. App. 152; Sheehy v. Railroad, 91 Mo. 571; Trust Co. v. Barn-brick, 119 Mo. 570. If the measure of damages is not the difference between the market value of the land prior to and subsequent to the injury, then it is the value of the coal in place and instruction 1 did not properly charge such measure of damages. In re United Merthyr Collieries Co., L. R. 15 Eq. Cas. 16; Coal Co. v. Rogers, 108 Pa. St. 117; Boiler v. Fett, 30 Cal. 181; Jegon v. Yivian, L. R. 6 Ch. App. 712; Coal Creek, etc. Co. v. Moses, 83 Tenn. 300; Austin v. Huntsville Coal Mining Co., 72 Mo. 535; Wood v. Morewood, 3 Q. B. 110; Powell v. Aiken, 1 K. & J. 313; McBuire v. Coal Co., 86 N. E. 171; Keys v. Coal Co., 50 N. E. 911; Hilton v. Woods, 1 Eq. Cas. 132; Crawford v. Oil Co., 57' Atl. 17; Sandy River, etc. Co. v. White House, etc. Co., 101 S. W. (Ky.) 319; Iron Co. v. Iron Works, 102 Mass. 80. ■

      Silvers é Silvers and Silvers & Dawsons for respondents.
    (1) This is not in substance an action for trespass. Trespass on realty, pure and simple, is an invasion only of the plaintiff’s right of possession. The real action of trespass is for merely the immediate injury occasioned by the wrongful entering. 28 Am. & Eng. Ency. of Law (2 Ed.), page 551. Oftentimes a trespass or breach of plaintiff’s right of possession is followed by an injury to the freehold, and in such a case the injury to the freehold may be recovered for in an action known at common law as trespass on the case. Injury to the freehold does not necessarily follow trespass, nor does- trespass necessarily precede an injury to the freehold. Plaintiff may suffer an injury to his freehold of which he has no right to possession whatever. In such cases it is not the law that plaintiff cannot recover, simply because his possession has not been disturbed, or because he has no possession to be disturbed. If his property has been damaged he can recover for damages to his freehold estate in an action on the case. 28 Am. & Eng. Ency. of Law (2 Ed.) 622. ■ The abolishment of forms of action in this State does away with the necessity of declaring under either trespass or trespass on the case. It is only necessary to state the facts. Where an injury is to the freehold and not “a mere wrong against the possession,” then the action therefor accrues to the owner of the freehold, whether he be in possession or the holder only of a reversionary interest. Ridge v. Transfer Company, 56 Mo. App. 130. The lease to Williams could not be a grant of the fee simple title, for under it his rights terminated in seven years. The plaintiff, therefore, retained a reversionary interest at least. This being true, the plaintiffs had a right to sue for any injury to the freehold which was theirs in reversion. 16 Cyc. 663; Randall v. Cleavland, 6 Conn. 328; Lane v. Thompson, 43 N. H. 320; Tinsman v. Railway, 25 N. J. L. 255; Brown v. Bowen, 30- N. T. 519; Smith v. Felt, 50 Barb. (N. T.) 612; Learned v. Ogden, 80 Miss. 769; Beavers v. Trimmer, 25' N. J. L. 97. Actions in trespass may be maintained when the plaintiffs are in the actual or constructive possession. Brown v. Hartzell, 87 Mo. 567. The owner of the freehold may maintain trespass though the same was in possession of a tenant at the time the trespass was committed. Parker v. Shackelford, 61 Mo. 68; Austin v. Coal Co., 72 Mo. 535; Cramer v. Gresdose, 53 Mo.. App. 648; Barley v. Fixture Co., 54 Mo. App. 54. Prank Williams’s miners houses and store located on this land did not divest plaintiffs of such possession as entitles them to maintain this action. His possession, to defeat plaintiffs’ action, must have been adverse (not subordinate) to the plaintiffs’ title. Stone v. Perkins, 217 Mo. 6Ó4; Thurmond v. White Lime Association, 125 Mo. App. 73; Arnold v. Bennett, 92 Mo. App. 156. Constructive possession follows the title to the land. Turner v. Baker, 64 Mo. 218; Kirk v. Mat-tier, 140 Mo. 23; Manning v. Coal Company, 181 Mo. 377. Any possession is good as against a wrongdoer. Reed v. Price, 30 Mo. 442; Watts v. Loomis, 32 Mo. 236; Schrodt v. St. Joseph, 109 Mo. App. 627; Restetski v. Railroad, 106 Mo. App. 382. Plaintiffs own the fee title. Their proof of actual possession since 1881 was sufficient. Zeitinger v. Hockworth, 117 Mo. 506. (2) The market value of a commodity is a matter of public notoriety, to dealers in that community. What others may say to them about it at the time is not hearsay within the law. McCrary v. Railroad, 109 Mo. App. 571; Railroad v. Norcross, 137 Mo. 427. Where witness testifies that he knows the value of a commodity, he should be allowed to testify as to its value. His means of knowledge is a matter for cross-examination, going to the weight of his testimony. Browne v. Insurance Co., 46 Mo. App. 473; McCrary v. Railroad, 109 Mo. App. 571. (3) The plaintiffs’ recovery was for compensatory damages only. When such damages are asked the motive of defendants is wholly immaterial. Joice v. Bronson, 73 Mo. 28; Hurt v. Railway, 94 Mo. 255; Goetz v. Ambs, 27 Mo. 28; Green v. Craig, 47 Mo. 90. The allegation that the injury was willfully and knowingly done went to the matter of punitive damag’es only. To render defendants liable for compensatory damages it is not necessary that the injury be done either wilfully or knowingly. Lumber Co. v. Craig, 112 Mo. App. 454. The measure of damages contended for by defendants — i. e., the difference in value of the real estate as it was before the injury occurred and a like value after the.injury is complete — is the rule with reference to persons appropriating or injuring land under the right of eminent domain, when one is compelled by law to yield up some private right for the good of the general public, not, as in this case, when the injury was committed without the sanction of the law, for the gain it would yield the wrongdoer. In a case of this character, when the act was not willfully or grossly negligent, the true measure of damages is the value of the coal taken at the pit’s mouth less the cost of severing it and delivering the same at the mouth of the pit, as was declared by the court in this case. Austin v. Mining Co., 72 Mo. 53.5-; Waters v. Stevenson, 13 Nev. 157; Roller v. Fett, 30 Cal. 481. A slightly modified but more drastic rule is laid down in the following cases: Coal Co. v. Lennon, 91 111. 561; Coal Co. v. Ogle, 82 111. 627; Coal Co. v. Cox, 39 Md. 1; Herdie v. Young, 55 Pa. St. 176. The case of Austin v. Coal Company, supra, has been cited and followed in the following cases: Arnold v. Bennett, 92 Mo. App. 160; Alt v. G-rosclose, 61 Mo. App. 413; Bailey v. Fixture Co., 54 Mo. App. 54; Cramer v. Groselose, 53 Mo. App. 651. The measure of damages set up in instruction number two is correct. Austin v. Coal Co., 72 Mo. 535; Coal Co. v. Lennon, 91 111. 561; Fitzgerald v. Clark, 17 Mont. 100: Empire, etc. Co. v. Bonanza, etc. Co., 67 Cal. 406; Goller v. Fett, 30 Cal. 481; Maye v. Yappen. 23 Cal. 306 ; Donovan v. St. Louis, etc. Co., 187 111. 28; Coal Co. v. Ogle, 82 111. 627; Herdie v. Young,.55 Pa. St. 176; Waters v. Stevenson, 13 Nev. 157; Coal Co. v. Cox, 39 Md. 1. (4) Plaintiffs showed both possession and color of title. The evidence warranted the instruction given. Eeed v. Price, 30 Mo. 442; Quick v. Eufe, 164 Mo. 412; Baker v. Thompson, 214 Mo. 509. Possession of real estate under claim of ownership is prima-facie evidence of title; especially against a stranger. 16 Oyc. 1074 ; Eailroad v. Norcrosse, 137 Mo. 426; Neither v. Bingham, 100 Mo. 300'.
   FEEBISS, J.

— Plaintiffs, on April 29, 1907, sued to recover $60,000 compensatory, and $10,000 punitive damages, for the taking of coal from their land by defendants. They charged' that the coal was knowingly and wrongfully taken by. defendants, without plaintiffs ’ knowledge, and was of the reasonable value of $60,000.

The answer was a general denial.

The defendant coal company was operating a coal mine in Yernon county, Missouri, known as Mine 14. The vein of coal mined was about one hundred feet below the surface, was reached by a shaft, and worked by means of tunnels or drifts in various directions. Defendant Jack Williams was superintendent of the coal company. Adjacent, on the east, to the property so occupied by the defendant coal company were 400 acres of land which plaintiffs claimed to own, the west line whereof was about 775 feet east from defendant’s shaft. Under this land of plaintiffs also there was coal. Plaintiffs introduced evidence tending to prove that some time prior to April, 1902, the coal company extended its drifts or entries beyond its eastern boundary, into the land of plaintiffs, and took therefrom large quantities of coal, all of which was unknown to* plaintiffs until 1906, when .a slight cave-in or depression appeared on plaintiffs’ land. The coal company ceased operations and abandoned work in Mine 14 in 1903. When plaintiffs’ attention was called to the matter of a probable incursion on their land by defendant, conditions were such that it was impracticable to enter the underground workings and accurately measure 'the spaces from which it is claimed coal was taken. For the purpose of showing the amount of coal taken by defendants proof was introduced of borings made by plaintiffs from the surface, and testimony from experts on results; also verbal testimony from men who had worked for the coal company in the entries under plaintiffs ’ land, and who undertook to estimate from memory the number and size of chambers excavated, and also the thickness of the vein of coal mined therein.

From computations based on this testimony plaintiffs arrived at the amount of coal which they claimed the coal company had taken. The testimony of these workmen was given six years after the work was done. Plaintiffs claimed that these computations showed approximately 50,000 tons of coal taken by defendants from their land.

There was testimony tending’ to prove that the market value of the coal so taken was, at the mouth of the mine, from $1.15 to $1.40 per ton, and that the cost of mining and transportation to the surface was seventy-five or eighty cents. Plaintiffs showed no paper title to the land in controversy, but introduced evidence tending to prove that they and those under whom they claimed had occupied the land, in undisputed ownership and possession, paying taxes thereon, since 1881.

Plaintiffs did not, themselves, mine their coal, and they owned no shaft or other facilities for mining. They sold their coal in the bed, on a royalty basis. It was shown in evidence that in 1891 plaintiffs executed to Frank Williams & Co. a mining lease to 480 acres, including the land in question, on a royalty basis of one cent a bushel, which lease expired by its terms in 1902; also that the lessee mined certain portions of the 480 acres and occupied portions of the surface for miners’ houses and other uses connected with his mining operations.

The coal in controversy was under a certain twenty acres, which was a part of the 480 acres, west of a slough thereon. Frank Williams & Co. did some mining on this twenty acres, east of the slough, some years before the incursion by the defendants, but never mined west of the slough.

There was no evidence given by plaintiffs tending to show a willful incursion in their coal mine by defendants, other than the fact that such incursion was made. Defendants gave affirmative, undisputed evidence that the incursion, if it occurred, was inadvertent and made in good faith.

The jury found a general verdict for plaintiffs for the sum of $20,205.40. Further facts considered in the opinion will be found therein.

I. The question of main importance in this case relates to the measure of damages. The petition charges in effect that the alleged wrong was willfully committed by defendant, and asks punitive damages. This claim was abandoned at the trial, and the case went to the jury on the theory of compensatory damages only, based upon the reasonable value of the coal taken. What we shall have to say on the question of damages will be based on the assumption that the taking was inadvertent and innocent of intentional wrong. We may remark, in passing, that such assumption is fully supported by the testimony.

A vast number of cases both in this country and in England have considered the question of a- proper measure of damages in cases where mine operators have extended their underground workings into lands of adjacent owners, and taken ores and coal therefrom. These cases may be divided into two general classes —one where the trespass is willful; the other where it is innocent and inadvertent. In the first class of cases, the prevailing rule is that the owner is entitled to the value of his coal at the surface, no deduction being allowed to the trespasser for the cost of placing it there. It is unnecessary to cite cases on this proposition or elaborate the learning involved in them. The case at bar does not fall within this class.

Regarding the second class, where the taking is inadvertent, different rules have been applied, depending often on the form of the action. All agree that the owner is not entitled to recover the value of the coal at the surface. Some courts have ruled that from the value at the surface the cost of transportation from its original place in the mine' only should be deducted in order to arrive at a just compensation to the owner, and that the cost of severing the coal from its bed, and thus converting it into chattels, should not be deducted. This on the theory that the owner suing for damages for the conversion of chattels is entitled to compensation for the value of the coal at the time it was converted into chattels, and hence should not pay for the process which converted the coal into, chattels, namely, digging it out of its bed. The cases so holding depend often on the form of the action. The courts, however, have generally adopted the juster rule, that, inasmuch as the claim is for compensatory damages, the owner should be paid the value of the coal to him before the trespass was committed; that is, the value of the coal as it lay in its bed, or, as it is often said, value in place. Two methods have been pursued in arriving at this value in place. One by deducting from the value at the mouth of the shaft the cost' of mining and putting it there. This we will consider first. This method was applied in the case below. The jury were told in the first instruction given that if they found for plaintiffs they should give them ‘‘a sum equal to the reasonable market value of the coal at the mouth of the mine, less the expense necessarily incurred in digging and mining said coal and taking it to the month of the mine.” Obviously the measure of damages so laid down is uncertain, difficult of proof, and may prove inadequate to give the owner fair compensation. It takes no account of the cost and maintenance of the shaft, machinery and other appliances, the investment, the bulk of the fixed charges, or the hazards of the business. It would be impracticable so to do. On the other hand, if it should happen that the cost of mining and raising exceeds the market price at the mouth of the mine, the owner would get nothing. The cases which adopt this measure hold to the doctrine that the owner is entitled to the value of the coal in place. Generally, as applied to the facts in the case, this method of proving value in place has been a proper one. Where the controversy arises between adjacent mine operators, both mining their properties, having suitable appliances and facilities therefor, if one has made incursions into the mine of the other, the owner of the coal wrongfully taken is entitled to the market value of the coal at the mouth of the shaft, less the cost of putting it there. He would have paid the cost of mining and transportation, and he is entitled to any profit derived above that cost. This excess of market value at the mouth of the shaft over the cost of production is the value in place to him, because he himself is in the business of mining this coal. Such is the situation in most of the cases which adopt this method. It may be quite otherwise with one who owns coal land which he is not himself mining; one who, having no shaft or other facilities for production, depends entirely upon selling his coal in the mine upon a royalty basis by means of mining leases. If there is an established market price or royalty for coal so situated, such price is the value in place to such owner. If there is no market price in the shape of a royalty, it well may be that the method of arriving at the value in place adopted below is the only practicable one to be applied. But if it appears that there is a market value for the coal in place, and that it can be and is sold in place at a certain and easily ascertained price, why should we pursue the cumbersome, uncertain and difficult method of working back from the market price at the mouth of the mine to the coal in place? 'Why not adopt a commonsense plan, and give the owner the value of his coal in place as that value appears from direct proof? Why permit him to make a profit at the expense of one who has inadvertently taken his coal? There is affirmative proof in this record of a fact of common knowledge, that coal owned and situated as this was is sold in the bed at so much royalty per ton through mining leases and licenses. The lease from these plaintiffs to Frank Williams & Co., in evidence, shows that at the time in question this same, or a similar, vein of coal was under lease or license at a royalty of one-half cent' a bushel, which, under the weights fixed by our statute, would be twelve and one-half cents a ton. This amount represents the actual value of the coal in place. This leads to a consideration of the second method of reaching the value in place which some cases have adopted, namely, by direct proof of the value in the bed, on a royalty basis. This is the method which defendant insists should be applied here, considering the fact that plaintiffs were not miners, but mere sellers of coal on a royalty basis. As there is evidence tending to show that there was a market price for the coal in its bed by way of royalty, we think the defendant should have had the benefit of this testimony before the jury, under instructions fixing the royalty as the measure of damages, if the facts should be so found.

Let us see how the matter stands under the authorities. We are cited to the case of Austin v. Huntsville Coal & Min. Co., 72 Mo. 535, which seems to be the only case in this State touching this subject. That case involved, as does this, the taking of coal from a neighbor’s mine. Whether the plaintiff operated his mine does not appear. It was reversed because the circuit court had given judgment for defendant on a. plea in bar based upon a settlement receipt, which this court held to be error. After reversing the case for the above reason, the court discusses an instruction which ran as follows: “The measure of damages for the coal taken is the value thereof at the mouth of the shaft, less the cost of raising it, and without any deduction for the expense of getting or severing it from the freehold.” The sole question considered was whether, where the value of the coal in place was sought to be established by this method, deduction should'be made for the cost of severing from the bed as well as for transporting, .to the mouth of the shaft. The citations made show clearly that this court accepted, to its full extent, the doctrine that the true measure is the value, in place. Instance the following citations in the opinion:

From Pennsylvania: “If the defendant'was guilty of no intentional wrong, he ought not to have been charged with the value of the coal after he had been at the expense of mining it, but only with its value in place.”

From Massachusetts:. “The value of the ore is to be estimated as it lay in the bed.” •

This from an English case: “The plaintiff, although he has suffered a wrong, shall not have any more than he would have had if that wrong had not been committed.”

From Greenleaf: “Damages . . . should be precisely commensurate with the injury.”

From Connecticut: “No good reason, consistently with moral principle, can be suggested why greater - damages should be recovered than have in truth been sustained, except in those cases where the law per-, mits, by way of punitive justice, the recovery of vindictive damages.”

In the English case (United Merthyr Collieries Co., L. R. 15 Eq. Cas. 46), referred to by Judge Sherwood in the Austin case, supra, it appears that the complainant himself operated a mine on the premises invaded by the defendant. The vice-chancellor, in making the original order, refers in the foot note to this fact as having great weight. He says: ‘ ‘ The claimants are themselves owners of mines. They seek their profit by severing the coal in the mine and bringing it to the surface and then selling it. If they had been undisturbed in the possession of which they now complain they must have incurred an expense in severing the coal before they could have made a profit. ’ ’

In the course of his final opinion in the case, Sir James Bacon, V. C., says: “The principle of the decision is that the plaintiff:, although he has suffered a wrong, shall not have any more than he would have had if that wrong had not been committed. That I take to be-the clear and plain principle. If he had himself severed the coal, he could only have done so by means of disbursements. If he had brought it to the pit’s mouth when severed, he could only have done so by means of disbursements. If he himself had severed and brought the coal to the pit’s mouth, whatever the value of it might then be would have to be deducted, because he would have borne the expenses on both these heads.” Further on he says that “the plaintiff is to be put in the same situation as he would have been in, neither better nor worse, if he himself had severed the coal and brought it to the pit’s mouth.”

This is a leading ease often cited. It will be seen, however, that the rule applied there, namely, deducting total cost of production from market price, was entirely proper, because the complainant himself had a shaft and other appliances by means of which he could have elevated the coal to the surface. Therefore he was entitled to the profit, and it was eminently just in that case that he should recover the value of the coal at the mouth of the pit, less the disbursements occasioned in putting it there. The theory of the case is that the complainant should be paid the value of the coal in place.

The situation of the plaintiffs in the case at bar is altogether different. They have no shaft or other appliances. They are not in the business of mining. The coal has no value to them except its value in place. If that value can be established by direct testimony, then the principle underlying the Merthyr Coal Co. case would seem to require that such measure be adopted.

In the case of Durant Mining Co. v. Percy Consolidated Min. Co., 93 Fed. 166, it appeared that the plaintiff and defendant were adjoining mine operators, and that the defendant extended its workings into the mine of plaintiff and extracted ores therefrom. This case presents practically the same situation as arose in the Merthyr Coal Co. case. Judge Sanborn, speaking for the Circuit Court of Appeals, applies the same rule, and says: “One who, unintentionally, and in the honest belief that he is lawfully exercising a right which he has, enters upon the property of another and removes his ore, his timber, or any other valuable appurtenant to his real estate, is liable in damages for the value of the ore, timber, or other thing in its original place, and for no more.” He then proceeds to say that the defendant may limit the recovery of the owner by deducting from tbe value of tbe ore at tbe mouth of the shaft the cost of mining and transporting it to that point. The rule as applied to the facts in that ease is a proper one, because the complainant himself had the facilities for mining and elevating the ore. The same rule is laid down by Judge Thayer in the case of Golden Reward Min. Co. v. Buxton Min. Co., 97 Fed. l. c. 421. In that ease, too, controversy arose between the owners and operators of adjoining mining claims.

In the case of Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80, a similar controversy arose between adjoining mine operators. The court found for the plaintiffs, and stated the measure of damages as follows: ‘ ‘ The value of the ore is to be estimated as it lay in the bed, and not as it was after the defendants had increased its value by removing it.” It does not appear how this value was arrived at.

The case of Wood v. Morewood, 3 Q. B. 440, is regarded as a leading case on the measure of damages where the taking has been inadvertent. In that case Parke, B., told the jury that, if they found for the plaintiff, but thought that the defendant was not guilty of fraud or negligence, and acted fairly and honestly in the full belief that he had a right to do as he did, “they might give the fair value of the coals as if the coal field had been purchased from the plaintiff. ’ ’ The method of determining* this value is not given. This case falls under the ruling in the case of Hilton v. Woods, L. R. 4 Eq. 432, where the court says: “I propose to declare that in estimating* the amount to be paid by the defendant for the coal gotten by him, he is to be paid the fair value of such coal, as if the coal field had been purchased from the plaintiff by the defendant at the fair market value of the district.”

In the case of Coal Co. v. Rogers, 108 Pa. St. 147, the following instruction to the jury was approved on appeal: “The measure of damages is the fair value of the coal at the place there. If there is a market price in place, in the pit or mine, that would be the value you would put upon it, and if there is evidence from which you can find what it was worth before it was touched, it is your duty to do so. If there is no evidence to fix the value in place, what would it be worth at the pit mouth, deducting all the cost of bringing it there, or if there is no evidence from which you can fix the value either in place or at the pit mouth, then you may find what it was worth at a distant market, deducting what it was worth to take it there, even if you had to go to Europe to sell it.” Here we find a clear enunciation of the measure of damages to be applied according to the evidence in the case.

Sandy River Cannel C. Co. v. White House Cannel C. Co., 125 Ky. 278, was tried upon the same theory which was applied in trying this case below. The circuit court allowed the defendant credit ior what it cost him to get out the coal, and then charged him for what he got for it, leaving a balance of forty-four cents a ton in favor of the plaintiff. Both parties appealed. The Supreme Court cited the following from 20 Am. & Eng. Ency. Law, 792: “It is the prevailing rule that in an action for uulawfully working a mine and extracting coal or ore therefrom, if the taking was not a willful trespass, but was the result of an honest mistake as to the true ownership of the mine, the measure of damages is the value of the coal or ore as it was in the mine before it was disturbed.” Also this from 3 Sedgwick on Damages, see. 935: “Where coal, ore, or other valuable mineral is wrongfully, but in good faith, mined from plaintiff’s land, the measure of damages is generally and properly held to be the value of the coal or ore taken as it lay in the mine.” Also this from Barringer & Adams on Mines, 680, after a similar statement of the rule: “This valuation may also be expressed as the usual royalty paid for the right of mining.” The court says in its opinion: “The only feasible way that this coal could be gotten out, according to the proof, was through the mine which the defendant had opened. The defendant took the 3, 942 4-5- tons of coal under an honest claim of ownership. . . . Under such circumstances, all that the plaintiff can fairly ask is that it shall be made whole. It cannot ask that it shall be.enriched at the cost of the defendant, or that more than a fair and reasonable compensation shall be paid it for what it has lost. . . . The proof shows that a reasonable royalty on bituminous coal is seven cents, and on cannel coal twenty-five cents.” Judgment was ordered accordingly.

The case last cited is directly in point here.

The case of Coal Creek Min. & Mfg. Co. v. Moses, 15 Tenn. (Lea) 300, presents a full' discussion of the question involved here, and concludes thus: “The facts of this case do not show any special ground for damages to the complainant’s land, and all that he can reasonably ask is just compensation, which would be the valúe of the coal taken in situ, or the usual royalty for mining, one cent per bushel.”

It is unnecessary to cite further authorities. The principle generally adopted is that the owner should be compensated by giving him the value of his- ore, lying in its original bed. In cases where the owner is himself operating the mine, has the necessary appliances to sever it from the bed, elevate it to the surface and put it upon the market, he is entitled to the profit and the value of the coal in the market, less the cost of putting it there. In cases where the owner is not operating the mine, but can dispose of his coal only by selling it in the bed, its only value to him is the market value at that place, which, according to general custom, is measured by the royalty which is customary and fair in that locality.

In the case at bar, the defendants had no facilities for mining this coal, and were ready to dispose of it in place on a royalty basis. In fact they attempted to do so. The coal was worth to them, according to the highest value shown in evidence, twelve and one half cents a ton, and no more. To allow them to recover fifty-five, cents a ton, as was claimed by their counsel, or even forty cents, as was allowed them by the jury under the instructions of the court, would be grossly unjust.

Referring now to the cases cited by plaintiffs :

We have discussed above the case of Austin v. Huntsville Min. Co. That case decided that where the value in place is sought to be ascertained by deducting from the market price the cost of production, the entire cost, including the digging out of the coal, should be deducted. That was the only question presented or considered in that case. The reasoning in the opinion sustains our views.

In Waters v. Stevenson, 13 Nev. 157, the controversy was. between the operators of adjacent, mines. The court held erroneous an instruction authorizing the jury to deduct .from the market value only the cost of raising the ore. ' The holding is that the entire cost, including the mining, should be deducted. The reason given by the court for applying the rule of deduction of cost from market price fully sustains our conclusion that the rule should properly be limited to cases where the complainant himself is in position to mine the ore, and where there is no other feasible method of proving value in place. The Nevada court says: “If defendant had not expended his money in mining the ores, Armstrong (plaintiff) would have expended his own. So too, it might be added that if defendant had not taken out the ores, transported them to the mill and there separated the precious metals from the earth, in all probability Armstrong would have done so.....We must confine our view to the condition of the property and the extent of Armstrong’s property rights when their value was the measure of Armstrong’s actual loss, rather than their value on a subsequent day when the ores instead of representing such loss, had been appreciated by defendant’s labor.”

The case of Goller v. Pett, 30 Cal. 481, which holds that the cost of digging should be deducted,* is also a case where if defendants had not extracted the ores the plaintiffs would have done so.

McLean Co. Coal Co. v. Lennon, 91 Ill. 561, was a case in trover wherein the drastic rule was applied that defendant should be allowed to deduct from the market price only the cost of conveying the coal to the mouth of the shaft. This rule seems to be based on the form of the action, and excludes the cost of converting the coal from its original bed into a chattel. Neither this case nor the case of Ill. & St. Louis Ry. & Coal Co. v. Ogle, 82 Ill. 627, which announces the same doctrine, is in point here. Plaintiffs do not invoke the rule of those cases.

Similar comment may be made on the case of Barton Coal Co. v. Cox, 39 Md. 1. This last case contains an interesting review of decisions, and indicates how far the measure of damages has been affected by the common law forms of pleading, with which our practice is not encumbered.

The case of Herdic v. Young, 55 Pa. St. 176, loses its force in view of the decision in the case of Coal Co. v. Rogers, 108 Pa. St. 147, supra.

We fully appreciate the force of plaintiffs’ argument that sale for a royalty is a matter of contract, and that the rule announced above in effect compels the owner to sell whether he will or no. This argument would apply with its full force to a case where the taking was a willful trespass, but where the taking is in good faith, the abstract right of contract ought not to prevail over plain justice. Whether the taking was intentionally wrongful is the controlling question upon this point.

Although we have said enough to reverse the case, and indicate the proper theory of damages on re-trial, we shall now rule upon some other points which go to the right of action.

IT. Defendants assert that plaintiffs cannot maintain this action, for two reasons: (a) Because at the time of the alleged trespass Frank Williams & Co. were in possession, under a mining lease; (b) because plaintiffs have not shown title in themselves as against the whole world.

This suit was filed in 1906. The lease to Williams expired in 1902. The coal was taken prior to 1902, while the lease to Williams was in effect, and while he was mining other portions of the leased tract. It is unnecessary to determine whether Williams’s contract was a lease or license. Conceding it to have been a lease, he had no ownership in the coal that he did not mine. He had an option, a right to mine this coal in controversy; failing to exercise his right, the ownership remained in plaintiffs. Whether Williams alone could have maintained this action while his contract was in force we need not decide. He quit the property without having in fact attempted to mine this coal, and without having indicated any intention to do so. The loss, therefore, was not his, but - was the loss of the owners of the land. The coal belonged to them, and in them only was the right, in 1906, to recover. Defendants misconceive the nature of the action. The wrong may have involved an injury to the fee. This is not sued for. The action is to recover tlie reasonable value of the coal taken.

We think the ownership established by the plaintiffs sufficient for the purposes of this case, the only objection being that they did not show paper title back of their possession, which, it is undisputed, they had since 1881, and certainly so in view of the fact that defendants assert the validity of the contract by which plaintiffs leased the mining rights to Williams & Co. The defendant Coal Company was a mere intruder on the property claimed by and in possession of plaintiffs, or one claiming under them.

III. Defendants insist that the true measure of damages is to be found in the difference in value of the real estate, that is, the land and the coal under it as a whole, before and after the taking. As stated above, this is not an action to recover for injury to the land. The rule invoked by defendants and the authorities cited do not apply. We rule this point against defendants.

IV. Defendants claim that the testimony as to the amount of coal taken was too uncertain and vague to support the verdict. True, the evidence mainly relied upon was the recollection of workmen as to the size and number of the rooms in which they worked underground six years before, and as to the thickness and character of the coal. If the plaintiffs produced the best evidence within their power to obtain, and this evidence tended to prove the amount taken, they were within the law. The defendants had the opportunity, and should have been in a better position than were plaintiffs, to show the true amount, or that there was no incursion at all into plaintiffs’ land.

Because of error in the instruction on the measure of damages, the judgment is reversed and the cause remanded.

Kennish, P. J., and Brovm, J., concur.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    ANTONIO DOUGHERTY, by O. D. JONES, Guardian, Appellant, v. MARY C. GANGLOFF, ANTHONY R. GANGLOFF and CATHERINE DOUGHERTY.
    Division Two,
    February 6, 1912.

    1. EXECUTION SALE: No Notice of Exemptions. The failure of the sheriff to give notice to the execution debtor of his right as the head of a family to select and hold as exempt from execution the three hundred dollars worth of real or personal property mentioned in the statute, does not make void an execution levy and sale of real estate.
    2. -: Notice By Creditor. A sheriff’s deed is not void by reason of the failure of the execution creditor to give notice of the execution and sale to a judgment debtor upon whom personal service of summons was. made before judgment and while he was a resident of the county where it was rendered, although at the time execution is issued he is not a resident of the county. Sec. 2220, R. S. 1909, has no application to such a case.
    3. -: In Bulk: Not Raised at Trial. If appellant in the trial court did not object to the sheriff’s deed on the ground that the four lots were sold in bulk, instead of being divided and sold in parcels, no such objection to the deed will be considered on appeal. A litigant is bound by the theory upon which he tried his case in the lower court.
    4. -: Sale for Costs Only: No Costs Certified In Execution. An execution sale of real estate by the sheriff will not be held to be void simply because the execution did not certify any costs or command the officer to collect any. If the execution creditor made a bid of $100 and the land was sold to him for that sum, and he paid it, and the sheriff’s report shows that he applied $50.65 to the payment of the costs and paid the balance to the said execution creditor, it will not be held that the sale was made to pay costs only, or that no part of the money bid was applied on the judgment, for the effect of the sale and disbursement was that the costs were paid and the judgment against the debtor was satisfied to the amount of $49.35.

      5. -; Inadequacy of Consideration. A sale, of property worth $907.75 for $100 is not such a grossly inadequate consideration as to shock the conscience or to authorize a court to set it aside on the ground of inadequate price alone — especially where the records of deeds at that time showed that the execution debtor had no interest in the property.
    6. -: -: Clouded Title. Nor does the fact that the title of the judgment debtor was at the time of the execution sale clouded by conveyances which seemed to convey his interest and which later by the courts were set aside, coupled with the inadequacy of consideration, justify a court in setting aside a sale fairly made, if there is no proof that any of the defendants obtained said invalid conveyances to themselves for the purpose of defrauding the judgment debtor.
    7. -: Subject to Prior Liens and Judgments. A recital in the notice of sale that the interest of the judgment debtor would be sold “subject to all prior liens and judgments” will not be held a sufficient ground in equity for setting the sale aside unless it is shown that there were no prior liens or judgments; and the burden is on said execution debtor to show there were none such. 'However, the better practice is for the sheriff to follow the usual custom of simply advertising for sale all the right, title and interest of the execution debtor.
    Appeal from Knox Circuit Court. — Hon. Charles D. Stewart, Judge.
    Affirmed.

      O. D. Jones for appellant.
    (1) These defendants and plaintiff’s father were tenants in common of these lands, and he was a reversioner, which relation implies certain trusts. 11 Am. & Eng. Ency. Law (1 Ed.), 1080-. The pleadings and conduct of these defendants in the other case shows they attempted to use the trustee’s sale and deed under the deed of trust to Linville, to shade out and take the title of plaintiff’s father. They have used that illegal deed, put on the land by plaintiff’s mother, in violation of the terms of the father’s will, the quitclaim deed for one dollar in which there was a mistake as to the block, to encumber and cloud his title, until the defendant in this case conld be, as he intended to be, the sole bidder at the sheriff’s sale, at his own price, and actually did bid off the property at less than one-twentieth of its actual value. Now after every one of those apparent encumbrances and conveyances of all his title in said property have been wiped off by the judgment and decree of this court, but this sheriff’s deed, they stand upon it. Can they do it with “clean hands?” In the other case they denied they owed him any rent; and yet not one of them took the witness stand, nor did they state one fact on that subject. Under our code the rule is, especially in equity, “That matters more in the knowledge of one party than the other, must be pleaded, by the party having the knowledge.”- Owens v. Gerges, 2 Mo. 41; Leet v. Bank, 141 Mo. 581. But their policy then and now is suppression of the truth. Every rule of honesty and fair dealing then and now calls on these defendants for the facts. Before they denied he was the owner, or entitled to am’ rents; denied he was cotenant; asserted they had rightly excluded him as such and treated him as a stranger, since the date of the death of his mother July 18, 1894. Now they come as eloquent parties in equity and admit that conduct that shows it was oppressive, illegal, coercive and fraudulent; they- did it without any legal right. Can this court say they stand here with clean hands offering to do equity? (2) That deed is also illegal and the sale was irregular in fact and law and for no consideration — at least, for a very inadequate one. And the failure of these defendants to take the witness stand raises a presumption against them of great weight. Baldwin v. Whitcamp, 71 Mo. 651; May-berry v. McClurg, 74 Mo. 575; Pomeroy v. Benton, 77 Mo. 64; Ins. Co. v. Smith, 117 Mo. 261; 2 Greenl. on Evidence, sec. 82. (3) No legal notice of sale was given describing “the real estate to be sold.” The notice does not say it was an undivided interest in the property; says the sheriff has levied on all the right, title and interest of John A. Dougherty. That does not notify bidders what his interest in the property was. There was no decree of partition setting forth what they were; not even that it was an undivided one. If the notice had recited he was the owner of an undivided one-fourth, then, what would it show the sheriff was going to sell? That interest “subject to all prior liens and judgments.” That asserts there were prior liens and judgments; it put intended bidders on special notice. And when they proceeded to investigate, as the record then stood, it would not appear that he owned any interest in that property; it would appear that a bid for his supposed interests would only be a bid for one or more lawsuits. Why was that clause inserted in the notice? It certainly is unusual. The general principle of purchasers at such sales is caveat emptor, without a special injunction to that effect. The sheriff says he thinks Gangloff’s attorney wrote the notice of sale. It made, as it was intended to do, Gangloff the sole and only bidder. (4) The statute, Sec.. 3197, R. S. 1899, says twenty days’ notice shall be given of the time, terms and place and “what real estate is to be sold.” The notice given did not state what his interests were and then declared it would be sold “subject to prior liens and judgments.” The de scription is not sufficient Lisa v. Lindell, 21 Mo. 132. Freeman’s Judicial Sales, sec. 36; Daugherty v. Linthicum, 8 Dana, 198; Bullard v. Heickley, 6 Greenleaf, 298; -Eberstein v. Oswalt, 47 Mich. 254; Crane v. Guthrie, 47 la. 542. (5) The sheriff’s deed is made without any consideration. The execution does not certify any judgment for costs. It shows, that the judgment for the debt is $917.81, and that is all that is certified. The defendants offer and read in evidence the sheriff’s report of this sale, in which he recites that defendant Gangloff bid $100' for all the property at one bid. That he applied “$50'.65> to the payment of costs accrued, and the remainder $49.35 paid to A. R. Gangloff.” He does not credit the judgment one cent, and returns the execution not satisfied. There must he a judgment for the costs as well as for the debt and damages. Cranor v. School Dist., 151 Mo. 119; Beedle v. Meade, 81 Mo. 304. Here no costs are certified in the execution. Baird v. Given, 170 Mo. 302; Sec. 3152, R. S. 1899. (6) The statute declares when the officer levies an execution on lands, he shall “so divide such property, if susceptible of division and sell so much thereof, as will he sufficient to satisfy such execution.” Sec. 3185, R. S. 1899. Here the property was improved, town lots — he did not need to divide; all he need do was to sell according to the subdivisions. It was irregular to not do it. Bolden v. Evard, 63 Mo. 336; Gordon v. O’Neil, 96 Mo. 356. (7) Plaintiff was a married man; head of a family; he had no property hut this and was well known to the sheriff and that he lived in an adjoining county. He was entitled to hold $300 exempt in this real estate. Sec. 3159', R. -S. 1899; Bank v. Borgfield, 93 Mo. App. 62. It was the duty of the officer to apprise the execution defendant of his rights of exemption. Sec. 3163', R. S. 1899; Paddock v. Lance, 94 Mo. 283; State v. Bierworth, 47 Mo. App. 551; Pink v. Craig, 57 Mo.- App. 393; Warder-Busknell Co. v. Allen, 63 Mo. App. 459.

      D. A. Rouner and L. F. Gottey for respondents.
    ' (1) The record shows that this sale was regular in all respects. The well-settled policy of the law is to uphold judicial sales, in the absence of fraud or unfairness. Lovitt v. Russell, 138 Mo. 484. (2) It is also contended that the insertion in the notice of sale, of the words, in brackets, “subject to all prior liens and judgments,” had the effect to chill bidding and consequently invalidated the sale. The rights of a purchaser at an execution sale are not in any .wise abridged or affected by the statement contained in the sheriff’s notice of sale'to the effect, that the same was made subject to all prior liens and judgments. All the right, title, and interest of John A. S. Dougherty in said property was sold by the sheriff under the execution issued on the judgment against said Dougherty, and it is not conceived how that statement in the notice affects the case. Clearly the sheriff could not limit the interest so sold by any statement of his. Huffman v. Nixon, 152 Mo. 316. Where the defendant is personally served with summons, in a county where he resides and has land, and judgment is rendered against him -in such county, although he may subsequently remove to a different county and there reside when the execution is issued against him on said judgment, he is not entitled to notice of the issuance of such execution under Sec. 2220, R. S. 1909; Young v. Schofield, 132 Mo. 667. Mere inadequacy of price alone is not sufficient to set aside judicial sales under execution. Bxiant v.. Jackson, 99 Mo. 585-; Knoop v. Kelsey, 121 Mo. 642; Martin v. Castle, 193 Mo. 183.

      Note. — -Decided December 19, 1911. Motion for rehearing overruled February 6, 1912.

   KENNISH, P. J.

— This case is before us on a second appeal. The opinion delivered on the former appeal is reported in 204 Mo. 228. The facts involved in the former appeal and the ruling of this court thereon, briefly stated, were as follows:

John Dougherty, a resident of Knox county, Missouri, died in 1874. By his will he devised to his wife Ellen the real estate in controversy, being lots five, eight, nine and ten, in block five, in the original town, now city, of Edina, in Knox county, Missouri, during her life or widowhood, with power to sell any or all of said property. At her death or remarriage the remainder was to go in equal portions to the four children of the testator, viz., Bernard, Mary C., Catherine and John A. S. Dougherty. Ellen Dougherty, after the. death of her husband, executed a deed of trust on all of the property so devised except lot five. Ellen Dougherty died in 1894. Thereafter the property described in the deed of trust, pursuant to the terms of said deed, was sold at trustee’s sale. James Dougherty, a brother of John Dougherty, deceased, purchased the property, received a trustee’s deed therefor, and subsequently conveyed to Catherine Dougherty and Mary C. Gangloff, formerly Mary C. Dougherty, wife of the defendant Anthony R Gangloff. Bernard Dougherty conveyed all of his interest in all of the lots to Catherine and Mary 0. On May 25, 1903, this suit was instituted by John A. S. Dougherty, in the circuit court of Knox county, against Catherine Dougherty, Mary C. Gangloff and Anthony R. Gangloff. The relief asked was that the deed of trust, trustee’s deed and deed from James Dougherty to Catherine and Mary C. be canceled; that defendants be required to account for rents and profits; that plaintiff be adjudged the owner of an undivided one-fourth interest in the property and that partition thereof be made. Before the suit was tried John A. S. Dougherty died, and the action was revived in the names of his widow, Dena Dougherty, ahcl his minor son, Antonio Dougherty, who appeared by 0. D. Jones, guardian ad litem. An amended petition was filed. In addition to the matters alleged and the relief prayed for in the original petition, it was alleged that after the institution of the suit John A. S. Dougherty’s interest in the property had been sold at sheriff’s sale, under an execution issued upon a judgment in favor of Anthony R. Gangloff and against John A. S. Dougherty, and that at such sale Anthony R. Gangloff purchased the property sold and received a sheriff’s deed therefor., Plaintiffs asked that this deed also be set aside. In' tlieir separate answer to the. amended petition, defendants Catherine Dougherty and Mary 0. Gangloff set up a deed from John A. S. Dougherty and Dena Dougherty, conveying to them lots five, eight, nine and ten, in block six in the city of Edina; alleged mistake in the description of the property conveyed by said deed, and asked that the deed be reformed so as tb describe the property in controversy, being the same numbered lots in block five. The circuit court found and adjudged that the deed of trust, trustee’s deed, and the deed from James Dougherty to Catherine and Mary C. should b.e set aside; that the deed from John A. S. Dougherty and wife to Catherine and Mary C. should be reformed as against Antonio Dougherty, so as to describe the property in controversy, but should not be so reformed as against Dena Dougherty 5 that Dena Dougherty was entitled to dower in an undivided one-fourth of said property, but that Antonio had no interest therein. There was no finding as to the validity of the sheriff’s deed. Antonio Doug’herty and all of the defendants appealed to this court. On such cross-appeal it was held that no error was committed by the trial court in setting aside the deed of trust, trustee’s deed and deed from James Dougherty to Mary C. and Catherine, but that error was committed in reforming, as against Antonio, the deed from John A. S. Dougherty and wife to Catherine and Mary C. The judgment was accordingly affirmed in so far as it awarded dower in the property to Dena Dougherty, but reversed as to Antonio and remanded for further proceedings in order that his interest might be ascertained and determined in accordance with the views expressed in the opinion. No ruling was made by this court as to the validity of the sheriff’s deed, that question not having been passed upon by the trial court, and the evidence upon that issue not having been fully submitted by reason of a remark made by the trial court that John A. S. Dougherty had, prior to the sheriff’s sale, conveyed all of his interest in the property by the deed which this court held was erroneously reformed.

After the cause was thus remanded to the circuit court Antonio Dougherty filed another amended petition, in which the validity o'f the sheriff’s deed to Anthony R. Gangloff was assailed upon the following grounds:

First: That at the time of the sale John A. S Dougherty resided in Shelby county, Missouri, - and was not given notice of the execution and sale, or notice of the exemption rights to which he was entitled as the head of a family.

Second: That in the notice of sale the sheriff gave notice that he would sell John A. S. Dougherty’s interest in the property subject to all prior liens and judgments.

Third: That the price at which the property was sold was grossly inadequate, which inadequacy was caused by the recital in the notice of sale that the property would be sold subject to all prior liens and judgments, and by the further fact that at the time of the sale, owing to the fraudulent acts of the defendants in procuring and placing of record the various conveyances involved in the first trial of the case, John A. S. Dougherty had no apparent title to any interest in the property, all of which conveyances were subsequently adjudged to be illegal and void by both the circuit court and this court. . •

In the second count of his amended petition plaintiff asked that he be adjudged the owner of an undivided one-fourth interest in the property, subject to the dower of Dena Dougherty, and that partition of the property be made.

The answers denied that plaintiff had any interest in the property; pleaded the sheriff’s deed to Anthony R. Gangloff;- denied plaintiff’s allegations assailing the validity of that deed; and asked that the title be quieted in Anthony B. Gangloff. The quitclaim deed from John A. S. Dougherty and wife, involved in the former appeal, was not pleaded, the defendants relying solely upon the sheriff’s deed.

The facts developed at the second trial bearing upon the validity of the sheriff’s deed were, in substance, as follows:

In December, 1900, Anthony B. Gangloff recovered judgment against John A. S. Dougherty, in the circuit court of Knox county, for the sum of $917.81. Execution was issued thereon afterwards and on the 12th day of May, 1903, the sheriff levied upon John A. S. Dougherty’s interest in the lots and advertised the same for sale. In the notice of sale the sheriff recited the levy and gave notice that at the time and place designated he would sell all of the right, title and interest of John A. S. Dougherty, subject to all prior liens and judgments. At the sale Anthony. B. Gangloff purchased the property at the price of one hundred dollars, and received the sheriff’s deed mentioned in the pleadings. At the time of the sale John A. S. Dougherty was the head of a family and resided in Shelby county, Missouri. He was not notified of the execution and sale or of his exemption rights. It was agreed by the parties that at the time .of the trial the value of the four lots was five thousand and five hundred dollars.

Upon the evidence adduced, the circuit court found that the execution sale was regular and conveyed the title of John A. S. Dougherty to Anthony B. Gangloff, and that the title should be quieted in said Gangloff. Judgment was entered in conformity with the finding, and plaintiff appealed to this court.

I. Appellant complains of error in the holding of the trial court that the failure of the sheriff to notify the execution debtor of his exemption rights, as required Tby section 2184, Eevised Statutes 1909, did not invalidate the sale.

The evidence shows that the execution debtor, at the time of the sale, was the head of a family and was entitled to select and hold exempt from execution three hundred dollars worth of real or personal property, under the provisions of section 2183, Eevised Statutes 190-9, and that the sheriff did not give him notice of his exemption rights pursuant to the requirements of said section 2184, supra.

In the case of Hudson v. Wright, 204 Mo. 412, the precise question raised by appellant was considered by this court. In that case the decisions in this State were reviewed and it was held that the failure of the sheriff to give such notice to the execution debtor di d not make an execution levy and sale of real estate void. We adhere to the ruling in that case.

II. Error is assigned to the ruling of the lower court that the sheriff’s deed is not void by reason of the failure of the execution creditor to give the debtor notice of the execution and sale.

. There is no merit in this point. Section 2220, Eevised Statutes 1909, requiring the plaintiff in certain cases to give to the defendant written notice of the execution, has no application to the facts of this case. The judgment upon which the execution was issued was rendered against John A. S. Dougherty after personal service of summons upon him in Knox county, while he was a resident of that county. He appeared and contested the suit on the merits. Under such circumstances he was not entitled to the notice provided for by section 2220. [Harness v. Cravens, 126 Mo. 233; Young v. Scofield, 132 Mo. 650.]

III. It is contended that error was committed in the refusal of the court to set the deed aside on the ground that the property was sold in bulk, instead of being divided and sold in parcels, as provided for by section 2206-, Revised Statutes 1909.

It is sufficient to say upon this point that no such issue was raised in the trial court. It has long been an established rule of appellate procedure in this State that a litigant is bound by the theory upon which he tries his case in the lower court. He cannot “try his cause on one theory in the trial court, and then, if beaten there on ground of his own choosing, spring a fresh theory on his adversary in this court.” [Bray’s Adm’r v. Seligman’s Adm’r, 75 Mo. l. c. 40; Henry County v. Citizens Bank, 208 Mo. l. c. 226.]

IY. Appellant’s next assignment is that the court should have held that the sale and deed were void because the sale was made “to pay costs only, when the execution under which it was made did not certify any costs or command the officer to collect any, and because the sale in fact did not yield one cent to be applied on the judgment described in the execution.”

In support of the contention thus made, appellant cites and relies upon the case of Nelson v. Brown, 23 Mo. 13. In that case a sheriff’s sale was set aside because the evidence showed that at the sale the execution creditor bid seven dollars for the lot offered for sale and the sheriff struck it off to him at that price, but'with the understanding that the amount of the bid should be increased or decreased to just the amount of the expenses of the sale. The case is not in point. The evidence introduced in this case shows that the execution creditor made a bid of one hundred dollars for the property and it was sold to him for that sum. He paid the one hundred dollars to the sheriff. The report of the sale made by the sheriff shows that he disbursed the money so received by applying $50.65 to the payment of the costs that had accrued in tbe canse, and by paying the balance, amounting to $49.35, to the execution creditor. The effect of the sale and the disbursements made by the sheriff was that the costs were paid and the judgment against John A. S. Dougherty was in part satisfied. The point is ruled against appellant.

Y. The objection to the finding and judgment of the circuit court most strongly urged by appellant, both at the oral argument and in briefs, is that the sheriff’s sale was made under such circumstances, and in a manner so unfair to the execution debtor, that there was no competition in the bidding at the sale, with the result that the execution creditor was enabled to secure the property at a grossly inadequate price.

Under this complaint appellant presents three objections to jthe sheriff’s sale and the deed made pursuant thereto, viz.: First, That the consideration was grossly inadequate; second, That at the time of the sale the title to the property was so clouded that no one would bid on the interest of John A. S. Dougherty when that interest was sold by the sheriff, and that all of the conveyances so clouding the title were procured and placed on record by the .defendants for the purpose of defrauding John A. S. Dougherty, all of which conveyances have by the judgment of the circuit court and this court been adjudged to be illegal and void; third, That in the notice of sale John A. S. Dougherty’s interest in the property was advertised to be sold subject to all prior liens and judgments, when in fact there were no prior liens or judgments affecting his interest in the property, which misleading recital also contributed to the inadequacy of consideration.

The question whether inadequacy of consideration alone, however gross, constitutes equitable ground for setting aside a sheriff’s deed, was fully considered by this court, in Banc, at the last term, in the case of Mangold v. Bacon, 237 Mo. 496. The conclusion reached in that case was that “a court of equity in Missouri, acting with caution and only in an aggravatecl case and when no aid from other equitable considerations is at hand, may set aside a sheriff’s deed on the sole ground of a consideration so grossly inadequate as to shock the conscience.”

In the trial of this case in the circuit court it was agreed that the value of the lots involved was $5500. Taking that valuation as a basis of the value at the date of the sale, a one-fourth interest was worth $1375. The sale of John A. S. Dougherty’s interest, however, was subject to the dower of Dena Dougherty, which has heretofore been finally adjudged to be of the value of $467.25. The value of the interest sold at the sheriff’s sale was therefore $907.55. It was sold for $100’, a fraction over eleven per cent of its value. This falls far short of being such a grossly inadequate consideration as would warrant a court in setting the deed aside on that ground alone, when tested by the rule announced in Mangold v. Bacon, supra. And in view of the fact that at the time of the sale the records of Knox county showed that John A. S. Dougherty had no interest in the property, it is not strange that no larger sum was offered for his interest. It is apparent, when all of the circumstances under which the property was sold are considered, that appellant is not entitled to relief on the ground of inadequacy of consideration alone.

This brings us to a consideration of the facts relied upon by appellant, in connection with the alleged inadequacy of consideration, as furnishing grounds for setting the deed aside.

The clouded condition of the title at the time of the sale, so far as the record before us shows, was due to no misconduct on the part of the defendants herein. There is no evidence whatever that the deed of trust, trustee’s deed and the deed from James Dougherty to Catherine Dougherty and Mary C. Gfangloff were not all made in good faith, for full value, and under an honest belief of all parties to such conveyances that Ellen Dougherty had power and authority, under the terms and provisions of John Dougherty’s will, to encumber the property. Appellant’s contention that such conveyances were obtained and placed on record by the defendants for the purpose of defrauding John A. S. Dougherty, is wholly without proof to support it. The mere fact that the title was clouded by these conveyances at the time of the sale, in the absence of any evidence of fraud or unfair dealing in the making and recording of the conveyances, constitutes no ground for setting the deed aside.

Neither does the recital in the notice of sale that John A. S. Dougherty’s interest in the property would be sold subject to all prior liens and judgments furnish any basis for the equitable relief sought. Appellant’s contention on this point is based upon the assumption that the notice was false and misleading, in that the statement complained of was equivalent to an assertion that there were prior liens and judgments affecting the property, when in truth there were no such prior liens or judgments. If the facts thus assumed were supported by the evidence, a serious question as to the validity of the deed would be presented. We have carefully examined the record upon this point and find no evidence whatever tending to show that there were no prior liens or judgments. If such liens and judgments did exist the execution debtor was not harmed by the statement made in the notice, because the title acquired by the purchaser would be subject to the judgments and liens, regardless of any statement made in the notice of sale. The burden was upon the plaintiff to show that the sale was not fairly conducted. In order to entitle him to relief on account of the statement in the notice it was incumbent on him to show that the notice was misleading in a way that would tend to prevent bidding’ at the sale. He failed to meet this requirement by producing evidence that there were no prior liens or judgments affecting the property sold.

It would have been the better practice had the sheriff followed the usual custom of simply advertising all of the right, title, interest and estate of the execution debtor, leaving the prospective bidders to ascertain the condition of the title. But the incorporation .in the notice of the statement complained of, without proof that it'was false or misleading, furnishes no ground for setting the deed aside.

For the reasons given the judgment should be affirmed. It is so ordered.

Ferriss and Brown, JJ., concur.


author: BROWN, J.

text:
    H. S. McPHERSON and J. M. ADAMS, Appellants, v. R. C. KISSEE and W. N. ADAMS.
    Division Two,
    February 6, 1912.
    1. SPECIFIC PERFORMANCE: Incumbrance: Failure to Inform Purchaser. The owner of land who enters into a written contract to sell and convey it by warranty deed at a stipulated price is required to fully inform the contracting purchaser of the amount and nature of the existing incumbrances thereon; and if he fails to perform that duty, he is not entitled to specific performance.
    2. -: Interest Mortgage not Mentioned. The contract for the exchange of properties recited that defendant’s land was “subject to two deeds of trust to secure payment of $5000.” There were at the time one mortgage for $4000, another for $1000, and a third for $803 in favor of the same mortgagee to whom the first was made. Defendant claims that the third mortgage was given for unpaid interest on the $4000 and did not create a separate indebtedness; and it appears that the first mortgage of $4000 could not be paid off and discharged without a payment of the third mortgage of $803 in full. Held, that the contract means that the land was incumbered with only two mortgages, and that they could be paid off with $5000; and whether the third mortgage for $803 be classed as a part of the interest on the first mortgage or as an independent debt, its existence constitutes a substantial incumbrance, knowledge of which was not revealed by the contract to plaintiffs, and therefore defendant cannot have specific performance of the contract.
    3. —-: -: Knowledge: Verbal Testimony. Antecedent verbal statements are merged into the written contract. So that where plaintiffs and defendants entered into a written contract for the exchange of lands, which recited that defendant’s land “was subject tp two deeds of trust to secure payment of $5000,” whereas there were three, defendant contending that the third for $803 was given for unpaid interest on the first, testimony of defendant that he verbally notified plaintiffs that they could not pay off the first for $4000 without paying two per cent interest for the entire time the money had been borrowed, and testimony of plaintiffs to the effect that defendant was guilty of fraud in representing that he had an understanding with the mortgagee of the second mortgage for $1000 to extend the time for paying its mortgage and that said mortgagee Would loan additional money on his equity in the farm, were not admissible, and will be disregarded, since the parties relied upon the written contract, which cannot be varied by verbal statements.
    3. -: Undisclosed Incumbrances: Possession: Estoppel. Where the vendee, without knowing of an existing mortgage which was not described in the contract of purchase, took possession of the .farm and listed it for sale, but upon learning of its existence immediately abandoned his possession and withdrew it from the market, he did not thereby perform any act which estopped him from repudiating the contract.
    4. -: -: Ejectment. Where the vendee of land under a written contract of purchase is in possession and is not entitled to have that contract specifically performed and claims no right to occupy the land, except through that contract, the vendor, in his suit in ejectment, is entitled to judgment for possession of the property, and the only further issue to be tried is the amount of rents and profits.
    Appeal from Taney Cirenit Court. — Son. John T. Moore, Judge. •
    Eeversed and remanded (with directions).

      McPherson & Silpirt, John S. McPherson and G. B. Sharp for appellants.

      The court erred in finding the issues for the defendant Kissee under the pleadings the law and the evidence. Taylor v. Williams, 45 Mo. 80'; Foster v. Kimmons, 54 Mo. 488;-Martin v. Halley, 61 Mo. 196; Shelton v. Church’s Admr., 10'Mo. 774; Tedford v. Trimble, 87 Mo. 226; Smith v. Wilson, 160' Mo. 657; Black v. Crowther, 74 Mo. App. 480 ; Metz v. Wright, 116 Mo. App. 631; Luckett v. Williamson, 31 Mo. 54; Rozier v. Graham, 146 Mo. 352; Mitchner v. Holmes, 117 Mo. 185; Wilson v. Wilson, 115 Mo. App. 641; Secret Service Co. v. Gill Alexander Mfg*. Co., 125 Mo. 140; Gloeckner v. Kittlaus, 192 Mo. 477; Strange v. Crowley, 91 Mo. 287; Taylor v. Sehraeder, 107 Mo. 206; Berry v. Hartzell, 91 Mo. 132.

      G. Purd Hays and G. A. Watson for respondent.
    The court did not err in decreeing specific performance of the contract. Secret Service Co. v. Mfg. Co., 125 Mo. 156; Evans v. Evans, 196 Mo. 23; Kilpatrick v. Wiley, 197 Mo. 169; Kilpatrick v. Pease, 202 Mo. 494.
   BROWN, J.

— Ejectment for 41.60 acres of land in Taney county. Judgment was given for defendant Kissee in the circuit court of Taney county on October 26, 1911, specifically enforcing a contract to exchange the land in controversy for a farm owned by said defendant. From this judgment plaintiffs appeal.

Plaintiffs were the owners of thirty-five head of hogs, a log wagon and the 41.60 acres in controversy, upon which land was located a flouring mill, all of which property they agreed to exchange for the equity of defendant Kissee in a farm of 240 acres in Dade county, Missouri.

After execution of the contract for exchange of property, plaintiffs allowed defendant Kissee to take actual possession of the personal property and flouring mill before the abstract of title to defendant’s property was submitted to them. Upon examining the abstract of title, plaintiffs declined to complete the exchange of property, and demanded that they be restored to possession of the flouring mill, on the alleged ground that defendant’s farm was incumbered for a larger amount than was represented by him in the contract. Defendant Kissee declined to surrender posses-” sion of the mill, whereupon this action ensued.

The correctness of the judgment below rests upon a proper construction of the following written contract between plaintiffs and said defendant Kissee:

CONTRACT AND AGREEMENT FOR THE SALE OP LANDS.
We,'the undersigned, R. C. Kissee, for himself, his heirs and assigns of Christian Co., Mo., and H. S. McPherson, of Taney Co., Mo., representing the Bradleyville Milling Co., this day make and enter into the following contract, to-wit: The first named party, R. C. Kissee, for himself, his heirs and assigns agrees and binds himself, his heirs and assigns for, and in consideration of forty acres of land, in Taney Co., Mo., now owned by the Bradleyville Milling Co., and 75-100 of an acre, in Taney Co., Mo., owned by H. S. McPherson and J. M. Adams, and 85-100 of an acre in Taney Co., Mo., part of N W of the N W of 11-24-18, on which is situated the Bradleyville, Mo., Mill, and about thirty-five head of hogs, one log wagon, all machinery, stocks and fixtures belonging to the Bradleyville, Mo. Mill, to sell, transfer and set over to the said H. S. McPherson or any person or persons he may designate, one farm of 240 acres located in Dade county, Mo. being farm purchased by him (Kissee) from J. W. Baker. It is agreed and understood by and between us, the undersigned R. C. Kissee, and H. S. McPherson, that each of us furnish good abstract of title to premises described and that we furnish each other a general warranty deed, duly executed and acknowledged to premises described and owned and controlled by each of us; the lands and property agreed to be sold by H. S'. McPherson and the Bradleyville Milling Company to be free and clear of any incumbrances whatever; the lands agreed to be sold by R. C. Kissee, to be sold subject to two deeds of trust to secure payment of $5,000.00. It is further agreed and understood by us, R. C. Kissee and H. S. McPherson, that the deeds to property are to be made and delivered to J. S. McPherson’s office, Sparta Mo., on or before July 1st, 1906. It is further agreed by and between us, R. C. Kissee and H. S. McPherson, that the damages for the non-compliance with this agreement shall be the sum of $500.00 to be paid from our estates in the event of our death, the same be due and payable on 2d day of July, 1906. In witness whereof we have this day set at our hands. This the 16th day of June, 1906. This contract to be left in the possession of J. S. McPherson.
R. C. Kissee,
H. S. McPherson,
Representing the Bradleyville Milling Company.

The defendant W. N. Adams is simply holding the property under a contract with his codefendant Kissee, and announces his willingness to surrender possession thereof to whoever may prevail in this action. The trial court adjudged him to have no interest in the suhject-matter of this controversy.

The defendant Kissee admits that when the foregoing contract was .signed, there were outstanding mortgages against his farm in Dade county, as follows : A first mortgage of $4000' to a Kansas City firm, a second mortgage of $1000 to the Golden City Bank, and a third mortgage for $803- in favor of the same parties to whom the first mortgage was given. However, he avers that the $803 mortgage was given for part of the interest on the $4000' loan and really did not create a separate indebtedness, and hence the contract truthfully represented the incumbrances on the property at $5000'. While these mortgages were not introduced in evidence, it appears reasonably clear by the record that the $4000 mortgage could not have been paid off and discharged without paying the third mortgage of $803 in full.

OPINION.

. The issue is, Did the defendant Kissee correctly describe the incumbrances on his farm, in the foregoing contract? In other words, Did the existence of the third mortgage for $803 constitute a material variance of the contract? The statement in the contract that Kissee’s land was incumbered by two deeds of trust to secure the payment of $5000’ means, (1) that the land was only incumbered by two mortgages; and, (2) that said mortgages could be paid off with $5000: Said recital does not convey the idea that there was in addition to the face of those mortgages $803 interest which must be paid before the principal debt could be extinguished; so that whether we class the $803 mortgage as a part of the interest on the first mortgage or as an independent debt, its existence must be held to constitute a substantial incumbrance 'of which the plaintiffs had no knowledge when they entered into the contract upon which defendant Kissee relies. Defendant Kissee claims that he verbally notified plaintiffs that they could not pay off the $4000 mortgage without paying two per cent interest for the entire time the money had been borrowed. This statement plaintiffs deny. All such evidence was improperly admitted, as tending to vary and change the terms of a written contract which purported to fully describe all the incumbrances on the property.

Plaintiffs contend that defendant Kissee was guilty of fraud in securing the execution of the contract by representing that he had an understanding with the G-olden City Bank to extend the time for paying its mortgage and that said bank would loan additional money on his equity in the farm.

As the parties had examined the property they were trading for and were relying on a written contract, we will disregard all their verbal statements and representations. Such oral statements were merged into the written agreement. [Hagar v. Hagar, 71 Mo. 610; Tuggles v. Callison, 143 Mo. l. c. 536.]

Under the laws of this State any person contracting to sell real estate by warranty deed impliedlj agrees to deliver a marketable title to the purchaser; and in this case, defendant Kissee, having contracted to sell his farm subject to incumbrances in the aggregate sum of $5000', at least impliedly guaranteed that it was not incumbered in any different or greater amount than named in the contract. [Luckett v. Williamson, 31 Mo. 54; Herryford v. Turner, 67 Mo. 296; Rozier v. Graham, 146 Mo. 352.]

In Herryford v. Turner, supra, this court in discussing the rights of one who had contracted to purchase real estate, said: “If an incumbrance exists which it was not agreed should enter into and form part of the consideration of the sale, the vendor must discharge it before he can call for a completion of the sale. ’ ’

The case of Wilson v. Wilson, 115 Mo. App. 641, grew out of the construction of a contract to exchange a stock of goods for a tract of real estate, the latter being represented in the contract as subject to an incumbrance of $4000. The real estate was really incumbered by two mortgages aggregating the principal sum of $4000 and also an interest note for $366.67: and it was held by the Court of Appeals that the refusal of the party who traded the land for the stock of goods to pay the interest note of $366.67 constituted a breach of his contract.

Section 4569', Revised Statutes 1909, requires every person selling real estate which he has previously conveyed by mortgage to describe such outstanding mortgage in his conveyance of the property.

It was the duty of defendant Kissee to inform plaintiffs fully of the amount and nature of the incumbrances upon the property he undertook to trade to them; and as he failed to perform that duty, he is not entitled to a decree of specific performance.

The record indicates that before learning of the condition of the title to defendant’s farm, plaintiffs took possession thereof and listed it for sale, but upon learning of the existence of the third mortgage, imrne-s diately abandoned their possession of said farm and withdrew it from market. They did not therefore perform any act which would estop them from repudiating thescontract.

Plaintiffs also rely upon other defenses to defeat defendant Kissee’s plea for specific performance; but having found that the existence of a mortgage not named in the contract bars a recovery by said defendant on his prayer for specific performance, it is not necessary to consider such other defenses.

As the defendants do not claim any right to occupy the land in controversy except through the contract hereinbefore recited, the judgment will be reversed and the trial court directed to enter a judgment for plaintiffs.

The evidence is conflicting as to the rental value of the property which defendants wrongfully withheld from plaintiffs. One of plaintiffs places it at $300’ per month, while one of the defendants testifies that the mill could not. be run at a profit; that he lost money trying to run it.

We will reverse the judgment decreeing specific performance and direct the circuit court to enter judgment for plaintiff for possession of the property in controversy. The circuit court will retry the issue of damages and rents for unlawfully withholding the property from plaintiffs, and give judgment in their favor on that issue for such amount as the evidence may show is due them. It is so ordered.

Kennish, P. J.f and Ferriss, Jconcur.


author: KENNTSH, J.

text:
    Ex parte FRANK E. McBRIDE.
    Division Two,
    February 6, 1912.
    IMPRISONM ENT: Contempt: Three Days from This Date: Habeas Corpus Thereafter. The petitioner was taken into custody under an order of court, on the 31st day of May, to be confined in jail for contempt, for three days “from this date.” Held, that the commitment gave the sheriff no warrant of authority for restraining petitioner of his liberty beyond the period of three days from the 31st day of May, and an imprisonment on June 9th was illegal, and a writ of habeas corpus issued on June 9th must, on the hearing, be upheld and the petitioner discharged.
    Habeas Corpus.
    Petitioner discharged.

      T. J. Roive and A. E. L. Gardner for petitioner.
    (1) Tbe circuit court bas no authority to confine any one in tbe county jail “upon tbe charge of contempt.” (2) It is not contempt of tbe court ipso facto, for a witness to refuse to answer a question propounded by its grand jury. (3) Tbe contempt, if any was committed, was not in tbe presence of tbe court and was a criminal contempt; consequently, every jurisdictional fact must appear in tbe commitment. Ex parte Clarke, 208 Mo. 121. (4) Tbe commitment is illegal because tbe course prescribed by tbe statutes was not followed, but ignored. Secs. 3881, 3883, 3884, 5081, 5082, R. S. 1909. (5) Tbe court had no authority to commit petitioner to jail for bis refusal to answer questions which be said under oath be could not answer without incriminating himself. Ex parte David Eicbel, 223 Mo. 258; Ex parte Gauss, 223 Mo. 277; State v. Young, 119 Mo. 495; Ex parte Arnot Carter, 166 Mo. 604; State ex rel. v. Simmons, 109 Mo. 118; Councilman v. Hitchcock, 142 U. S. 547; Boyd v. United States, 116 U. S. 616; Emery’s Case, 107 Mass. 172; People v. Mather, 4 Wend. 252; State v. Butler, 47 S. C. 25; 1 Wharton on Evidence (3 Ed.), sec. 536; Chief Justice Marshall’s opinion in the trial of Aaron Burr, First Burr’s trial, 244.

      Edwin W. Miles for respondent.
   KENNTSH, J.

— The petitioner, Frank E. McBride, on the 8th day of June, 1911, filed in this court his petition, complaining that he was imprisoned and unlawfully restrained of his liberty by John Or uninger, Jr., sheriff of St. Louis county, and praying for the issuance of a writ of habeas corpus, directed to the said sheriff. The writ was issued as prayed and the sheriff filed his return thereto in which he alleges that the petitioner was “taken into his custody on the 31st day of May, 1911, at four p. m., by the order of the Hon. O. A. Wurdeman, Judge of Division No. 2 of the Circuit Court of St. Louis county, State of Missouri, under the following order and commitment,” etc. A copy of the order of commitment is then set out at large in the return, from which it appears that the petitioner had refused to answer certain questions propounded to him as a witness before the grand jury of said county; that because of such refusal he was adjudged guilty of contempt and as a punishment therefor it was ordered that he he confined in the county jail of said county “for a period of three days from this date.” Petitioner filed a motion for judgment on the pleadings and the cause is thus at issue.

The respondent has not favored us with a brief, and the record upon which we must decide this case is in an unsatisfactory condition.

Directing our attention to the issues as made by the return and motion for judgment, we find no illegality in the proceedings committing the petitioner to the county jail for three days as a punishment for contempt. However, the writ of this court was issued on the 9th day of June, 1911. It is so alleged in the return. It further appears from the return that the petitioner was taken into custody, under the order of the court, on the 31st day of May, 1911, at four p. m., to be confined in jail for a period of three days “from this date.”

It is apparent that the order of commitment gave no warrant of authority for restraining the petitioner of his liberty beyond the period of three days from the 31st day of May, 1911, and as the writ of habeas corpus was not issued until the 9th day of June, 1911, the imprisonment at the date of the issuance of the writ was illegal. It follows that the petitioner should be discharged. It is so ordered.

Ferriss, P. J., and Brown, J., concur.