author: BLAIR, C. PER CURIAM.

text:
    NANCY E. OLIVER, Appellant, v. MARY A. JOHNSON et al.
    Division Two,
    December 19, 1911.
    1. SPECIFIC PERFORMANCE: Of Oral Contract: Necessary Conditions. In order that there may be speqific performance of an oral contract to grant or devise land, three things must be proved: The contract, performance by the suitor, and that the refusal to grant specific performance would be equivalent to giving judicial sanction to a fraud. The contract must be proved as pleaded, and_its terms, both as pleaded and proved, must be certain, clear, definite and unambiguous. The things alleged to have been done in performance must be necessarily referable to the contract set up. Moreover, if the contract be unfair or its consideration inadequate, or if there be a remedy at law, or if it is not clear that for the court to refuse specific performance is to lend itself to the perpetration of a fraud, there will be no decree for performance. Further, that -performance may be decreed, the case must be made out by evidence of such character that no reasonable doubt can be entertained of its truth, or of the existence of the contract or the certainty' of its terms, or that the plaintiff has wholly performed.
    2. -: -: Evidence Insufficient. The evidence in this suit for specific performance of an oral contract to grant or devise lands is reviewed and the finding of the chancellor below is upheld, denying specific performance.
    8. -: -: -: Testamentary Disposition. Evidence indicative of no more than a testamentary disposition can afford no basis for a finding that a contract to devise lands existed.
    4. -: -: Witness: One Party Dead. A plaintiff who sues for specific performance of an oral contract to grant or devise lands made with an owner now dead (plaintiff’s parent), is not competent to testify in chief.
    5. -: -: -: -: Husband of Living Party. Nor is the-husband of such party a competent witness in chief.
    Appeal from Knox Circuit Court. — Hon. Charles D. Stewart, Judge.
    Affirmed.
    O. D. Jones and J. C. Dorian for appellant.
    (1) This action is against the heirs and executor of the deceased to specifically enforce an agreement to make a will of real estate to a daughter in consideration of her living with and making a home for and taking care of her father. In such.a case, “the will is not set aside,-but the devisee, heir or executor, is made trustee to perform the contract.” Wright v. Tinsel, 30 Mo..389. Such a contract though oral is valid, and the plea of the Statute of Frauds will not avail if there has been part performance. G-upton v. G-upton, 47 Mo. 46; Sutton v. Hayden, 62 Mo. 112; Sharkey v. McDermott, 91 Mo. 655; Headley v. Simpson, 113 Mo. 346; Steel v. Steel, 161 Mo. 574. (2) Is the agreement proved? (a) In the year 1897 O. D. Jones wrote a will for deceased. Deceased did not want to pnt it in a bank, but asked it be put in an envelope to take home with him. In the light of all the evidence it will be conclusively presumed that he took it home to show the plaintiff. His wife had then just died and he was alone, all but the plaintiff and her husband and family, (b) He declared to these nine different persons at different times under different circumstances, for a space of eight years prior to his death, that he intencledfor Ella to have the home when he was done with it. To three of them, Mrs. Bowman, Mr. Harris and Mr. Platts, he declared he had agreed with Ella to do it if she would remain with and take care of him; and to Platts and Sam Taylor he had so made his will, (c) He made five or six wills from 1897 to 1907, and until about seventeen days before his death they all provided she should have the land in fee or for life. All this testimony and these facts are absolutely undisputed. (3) Plaintiff was offered at the close of her case in chief and held incompetent by the court, on the objection that she is plaintiff and the person with whom she made the agreement and under whom she claims is dead. As to any part of the agreement with him, we concede she was not competent. But as to the defense of estoppel, it was no contract or transaction in issue to which the deceased was a party. It was based on transactions since his decease, with Epperson as the other party. Epperson was permitted to testify fully as to statements of plaintiff and her husband, before the will was admitted to probate, December 2, 1907, as after. And as to that, plaintiff was competent to testify. The fact that she was “the party in interest” was no ground to exclude her or her husband. It was error to allow Epperson to state what her husband said, without showing it was in her presence, or that he was her agent/ of which there was no attempt. It was asserted by counsel he was a “party in interest.” He had a right to testify to the whole case. Toovey v. Baxter, 59 Mo. App. 470'; Steffen v. Baner, 70 Mo. App. 404.

      L. F. Cottey, F. H. McCullough and C. B. Fowler for respondents.
    In a suit to specifically perform an oral agreement for an interest in real estate, the proof of the contract must be so cogent, clear and forcible as to leave no * doubt in the mind of the chancellor as to its terms and character. There must be no doubt in the petition as to the statement of the case or in the contract. There must be like proof that the acts done unmistakably refer to and result from that contract. The proof must show not only that some contract was made, but that the contract counted on in the bill was made. There must be no equivocation or uncertainty in the case. It must be in terms a contract and not a mere declaration of intention or expectation. In- fine, there must be a contract definitely and conclusively proven. Casual and loose conversations, when not supported by other evidence, are entitled to little, if any, weight. This is dangerous testimony: is'looked upon with jealousy, and should be weighed in the most scrupulous manner. Agreements of this kind are looked upon with suspicion and ought not to be encouraged. These agreements are within the. Statutes of Frauds and are. sustained only where- it would work a fraud if one party was allowed to plead it. Charpiot v. Sigerson, 25 Mo. 63; Sitton v. Shipp, 65 Mo. 297; Rogers v. Wolfe, 104 Mo. 1; Teats v. Flanders, 118 Mo. 660; Steele v. Steele, 161 Mo. 566; Kinney v. Murray, 170 Mo. 701; McElvain v. McElvain, 171 Mo. 244; Goodin v. Goodin, 172 Mo. 48; Asbury v. Hicklin, 181 Mo. 676; Grantham v. Gossett, 182 Mo. 651; Rosenwald v. Middlebrook, 188 Mo. 89; Russell v. Sharp, 192 Mo. 286; Kirk v. Middlebrook, 201 Mo. 289; Wales v. Holden, 209 Mo. 576; Collins v. Harrell, 219 Mo. 309; McQuinn v. Moore, 225 Mo. 36; Porrister v. Sullivan, 231 Mo. 373; Foley v. Harrison, 136 S. W. 393.
   BLAIR, C.

On November 8, 1907, Cornelius M. Coe died at his home in Knox county, Missouri. By his will, executed October 17, 1907, he "gave to his daughter, Nancy E. Oliver, the appellant herein, all his personal property, absolutely, subject to the payment of his debts, and also devised to her the use of his real estate for one year after his decease; the will further providing that after the expiration of appellant’s tenure under it, the real estate should be sold and the proceeds divided among the heirs, of whom appellant was one, share and share alike. John M. Epperson was named as executor of the will, and after Coe’s death met with the defendants, Mary A. Johnson and Medley S. Ooe and appellant and her husband, and read the will to them. On this occasion, appellant, after asking if the executor “could do that business under the will without probating it,” and being ad: vised that the executor 1 ‘ had no authority to carry out the will without probating it,” told Epperson to “go ahead and probate the will.” This Epperson did, the inventory and appraisement following in the usual manner.

The personalty was left in appellant’s possession with the understanding that out of it the debts, if any, and costs of administration were to be paid by her.

Appellant and her husband then negotiated for the purchase from the executor of the land in suit and indicated they would give $3125 for it. The executor told them he would see the other heirs and if that price was satisfactory he would sell it for that amount. Medley S. Coe, one of the respondents, offered $3600 for the property, and after informing appellant of this offer, the executor, on February 28, 1908, entered into a contract of sale with Medley S. Ooe, on which the latter paid $100, the balance payable March 1, 1909. After this contract of sale was entered into and appellant was apprised thereof, she brought this suit. Thereupon Epperson, the executor, demanded a receipt for the personalty he had delivered to her, and sh.e signed and delivered to him the following receipt, prepared by her attorney:

“Edina, Mo., May 19, 1908.
“Received of J. M. Epperson, executor of the last will and testament of O. M. Coe, the following described personal property as described in the appraisement caused by him to be made in said estate, to-wit: One-half interest in 19 shoats, etc. [Then followed a list of items, the appraised values totaling $878.30.]
“And in case debts are proven against said estate and no personal assets on hand out of which to pay same, I agree to refund all or so much of the proceeds of said property as maybe necessary to pay said debts and the costs of the administration of said personal and not real estate, under the will of said C. M. Coe.
“Nancy Oliver.”

The suit was returnable to the June, 1908, term of the Knox county circuit court, and was brought to enforce specific performance of a contract alleged to have been made with appellant by Cornelius M. Coe, deceased, whereby he in 1897 agreed to give to her the land in suit if she and her husband and family would reside with, him and care for him until his death. Answers consisting of general denials and pleas of estoppel were filed by respondents and a jury was impaneled which heard the evidence, disagreed and was discharged. The court continued the case until the 30th day of July, 1908, at which time appellant filed an amended petition, the answers and replies were refiled and tlie court rendered a general judgment for respondents, dismissing the bill.

In the amended petition appellant sets forth the contract, of which she seeks specific performance, as follows:

“Now comes plaintiff and asks leave to file this, her first amended petition in the cause to conform it. to the proofs and evidence in the cause and states, she is the daughter of Cornelius M. Coe, who departed this life in Knox county, Missouri, on the 8th day of November, A. D. 1907. That on or about the 6th day of July, A. D. 1897, while she was married to her present husband, N. S. Oliver, she was residing then in the home of her father near the town of Locust Hill, Knox county, Missouri, with her husband and family.
“That plaintiff’s mother, the wife of said deceased, had then only shortly since departed this life and he was alone, only that plaintiff and her family were with him in his home. That plaintiff’s mother, in her lifetime, informed her of the arrangement hereinafter stated, intended to. be made by the said deceased.
“That on the 6th day of July, A. D. 1897, plaintiff’s father went to the city of Edina and had prepared and written and executed his will. That on the next Sunday morning after his return home with it, he took it out of the drawer and handed it to this plaintiff, saying, “Here, Ella, this is yours, keep and take care of it.” He then told her that it was his will and that the following lands described in it were devised by him to her, to be hers after he was done with it or at his decease, in fee simple if she and her family would continue to live with him in his home, as they had done and were then doing and take care of him in his declining days, he being then about the age of seventy-six years. And that in addition thereto she should have all of his personal property and effects left after the payment of his debts. That to this plaintiff assented and agreed and took and pnt away the said will and had the care and custody of it for a long time.
‘ ‘ That plaintiff informed her husband and family of the agreement and arrangement and they all assented to it and immediately entered upon the labor and duty of fulfilling their side of the said agreement. That said lands so described in said will and referred to as those devised to plaintiff, were and are described as follows:
“Twenty-seven acres off the entire west end of the north half of the northwest quarter of section 6, and the northeast fourth of the southeast quarter of section 1, except six acres off of the entire south side thereof. Also ten acres, the south half of the north half of the northwest quarter of the northeast quarter of section 1, all in township 60, and in range 13, west, except the above described twenty-seven acres which is in range 12, west, in all, seventy-one acres.”

The amended petition then avers that the testator was induced by the other heirs to change his will and that appellant was informed by others of changes therein, but the matter was not mentioned by her father. Performance of the agreement is pleaded and certain improvements are alleged to have been made. In the first count of the amended petition the prayer is that the fee simple title to the property be vested in appellant, and in the second count, that she be vested with a life estate.

Since the question in this case is as to the sufficiency of the evidence, it is necessary to state briefly the testimony of the witnesses.

B. EL Fugate testified that Mr. Coe had said nothing to him “about any contract he had with his daughter about living with her,” but had frequently spoken to him about what he intended to do for her. Witness didn’t know of any agreement between the father and daughter, and understood from what Mr. Coe said that he meant he was going to do something for appellant in the future.

Dr. Humphrey, a physician, testified that'Mr. Coe told him, about three years before the trial, that the land in suit was not for sale; that aftef he “was through with it, he intended for Ella [appellant] to have it.”

Harry Tonldnson testified that Mr. Coe on one occasion, in talking of his affairs, and what he had given some of his grandchildren, had said to him, speaking of the land in suit: “This place I expect for Ella to have.”

Walter Haling testified that Mr. Coe, about May, 1907, had said to him: “I want to stay here as long as I live and when I get through with the home I want it to be Ella’s. I have fixed it so it will be Ella’s.”

J. A. Ren testified that in the fall of 1903 he was employed by appellant’s husband to build a barn on the place and that Oliver asked Mr. Coe where he should put the barn. Mr. Coe said “it did not make any difference to him where, that it would be his (Oliver’s) and Ella’s when he was through with it.”

Cora Bowling testified that about 1905 she heard Mr. Coe say, concerning the land in suit: “I intend for Ella to have that for her home when I am gone.” On another occasion she heard him say, in substance, that it would be a pretty place “when Ella gets it fixed up.”

Allie Coe, a daughter of one of the defendants, was called as a witness for plaintiffs and testified that she had never heard anything about her grandfather intending or agreeing to give the property to her Aunt Ella, the appellant.

Martha Bowman’s deposition was offered and her testimony was, that, about 1905 or 1906, Mr. Coe, in discussing an offer of respondent Mary A. Johnson and her husband to buy the land in suit, said he asked them what would become of him, aud the husband replied that he could live with them; that he could buy Ella a few acres somewhere else and he (Coe) told them: “No, no, that was Ella’s home: Pop (Mrs. Johnson) was married and left home before we moved there. And I gave Mr. Johnson thirty acres, deeded it to him to take the children to Kirksville, that was their portion;” that he repeatedly said it was Ella’s home if she staid and took care of him; “that when he died 'Ella was to have what he had, and the personal property was to pay his expenses, what it took, what it needed, and the rest was hers — the rest had theirs. She never had anything until she got this.”

“Q. What did he say, using his language as nearly as you can, as to an arrangement and agreement between himself and his daughter Ella as to where his home was during his life?
“A. Why it was to be there with her. She was to take care of him, and she done it mighty faithfully. He said she was to have all he had after his expenses were paid, and the personal property would pay that. And what was left she would have.”

On cross-examination the witness testified: “Prom what he. said at that time he wanted to own the place as long as he lived, then when he got through with it and the expenses were paid it was Ella’s. That was what he said he intended to do with it.”

David Harris, a brother of Mattie Bowman, testified with respect to the same conversation which she attempted to relate. He said that conversation occurred in the spring of 1906, and that Mr. Coe said that when Mrs. Johnson wanted to buy the place he asked her what would become of him, and she told him he could live with them and “then he wanted to know what Ella would do, and they said: ‘You could buy her a few acres and let her have that,’ and he said, ‘No, this was Ella’s home, it never was Pop’s home; she married and left before we moved there. Ella, was born and raised there and when I am through with it, it is Ella’s.’ ” •

Witness said: “He set his cane down on the floor and said: ‘This place is Ella’s when I am through with it; the contract calls for it, when she stays there and takes care of me while I live. There will be enough personal property to pay my expenses, and the place is to be Ella’s; the rest have had their part.’ ”

He further testified that he heard the conversation to which Ren testified as to locating the barn, that Mr. Coe was called out and asked as to the place to put the barn; that he indicated a spot which appellant’s husband said was too flat, and asked, “Why not put it here by the road where the ground is rolling?” Mr. Coe replied: “Just put it any place you want to, for when I am through with it it will be Ella’s — put it where you think will be the best place for it. ’ ’

On cross-examination witness said that Mr. Coe told him the contract was made before the Olivers moved into the house with him; that they moved there not less than fourteen years before the trial.

“Q. What was it he said there? A. He said the contract was that if she stayed there his lifetime she was to have the place and his expenses were to be paid out of the personal property.
“Q. When did he say they made that contract? A. When they went there.
“Q. Did he tell you that? A. Yes, sir; right there in the house.
“Q. When was it they went there? A. They were there right at fourteen years, not less than that.
“Q. Was the contract made before they went there or after they went? A. They went there under that contract.
“Q. Did he say that? A. Yes, sir; he said that was the contract when they went there.
“Q. How long before they went there? A. He didn’t say whether it was fifteen or twenty minutes.
“Q. "Where did they come from there? A. Macon City, as near as my estimate of it, there’s where they lived at one time.
‘ ‘ Q. Did he say this contract was made in Macon county? A. No, sir; didn’t say whether it was made in Macon City or Shelby county.
“Q. What did he say this contract called for? A. Called for them to have the place and the personal property was to pay his expenses and she was to have the balance after he was through with it, the rest of them had theirs.
“Q. What did he say the others had had? A. Well, sir; it would take me six months to tell you.”
“Q. Go on and tell it. A. That’s out of my line of business. He said the others had had their shares. That was not all he said — he said they had their shares. He said they had gouged him enough and Ella had had nothing and she was to have the home place, if she staid there and took care of him.”

Witness further states that Mr. Coe did not say in the conversation about the barn that the property was to belong to both appellant and her husband after his death.

A. R. Platts testified that in talking with him about the offer of respondents Medley Coe and Robert Johnson, husband of respondent Mary A. Johnson, to pay part of the funeral expenses of Gerald Coe if he would deed them both a strip off the land in suit, Mr. Coe said: “I put my foot down on that; I said this is Ella’s, I agreed if she staid here with me as long as I lived, that this should be hers. I have my will made and Ella is to have the home place.” This conversation occurred about 1903.

No witness attempted to testify to having heard any contract made between Mr. Coe and his daughter, the appellant, nor to having heard any contract mentioned in her presence or that of her hnshand. The children of appellant, two boys, about fourteen and nineteen years of age, respectively, at the time of the trial, did not testify in the case.

Appellant and her family moved to the Coe homestead about 1892 or 1893 (not later than 1894), and the contract is alleged to have been made on July 6, 1897. There is no evidence outside of the testimony (supra) of Harris as to what the arrangement was under which appellant and her family went to her father’s home to live and under which they lived until July, 1897.

The evidence as to the improvements is that a summer kitchen and a barn were built on the premises, and that an old orchard was cleared out and a new one planted, and that several acres of brush land were cleared and put in cultivation.

It was admitted that the trees for the new orchard were bought by Mr. Coe and set out prior to July 6, 1897. There was also credible evidence that the summer kitchen was built in 1895 or 1896. The barn was a small post barn, the evidence indicating that it was ‘ ‘ sided up with old lumber. ’ ’ It does not appear who paid for the material. Appellant’s husband did part of the work and paid off the men who assisted him, but with whose money the witnesses were unable to say.

The orchard which was cleared off was one which had died after the Olivers moved to the farm, and witness Harris intimates it covered about two acres. The brush ground which was cleared was variously estimated at from five up to ten acres in area. About two-thirds of it was covered with hazel brush, and the clearing was done about 1902, and the ground subsequently cultivated.

Appellant and her family lived with Mr. Coe until his death, but there is no evidence that he needed any particular attention until his last illness, which lasted but a few days, and during which Mrs. Johnson assisted in caring for him. He was mentally and physically strong and inclined to have a will of his own, and was recognized as a leading citizen in his community up to the time of his death.

He was much interested in raising poultry and the only evidence as to the manner in which the family expenses were paid was the testimony of one of the merchants from whom supplies were bought, to the effect that goods were bought and eggs brought in in payment, appellant’s husband paying whatever balance there was at the end’ of the year. Mr. Coe paid his own bills for medical attendance, except, for his last sickness, and that bill had not been paid at the time of the trial. During the life of Mr. Coe he received an income from the farm either in the way of rent or otherwise. There was evidence that he and appellant’s husband were in partnership.

In July, 1897, appellant’s present attorney drew a will for Mr. Ooe, to which fact he testified, but did not testify as to the contents thereof. The evidence does not disclose what disposition this will made of the property. Subsequent wills, made from time to time, provided that appellant should have a life estate in’the land in suit. In 1904, a new will was executed, giving appellant the personalty only, and providing for the sale of the realty and the distribution of the proceeds among the heirs at the testator’s death. This will was unchanged until the execution of that mentioned in the petition.

I. There wag no pretense that there was a written contract.

The rules of law applicable in cases of this kind have been often and clearly laid down by this court. Three things must be proved: The contract, performance by the suitor, and that the refusal to grant specific performance would be equivalent to giving judicial sanction to a fraud.

The very contract pleaded, and none other, must be proved, and its terms as both pleaded and proved, must be certain, clear, definite and unambiguous.

The things alleged to have been done in performance must be necessarily referable to the contract set up. They must, in fact, be consistent with the contract pleaded and proved, and inconsistent with any other reasonable theory than that they were done pursuant to such contract.

In addition, though the contract and its performance be never so well proved, if the contract is unfair, its consideration inadequate, if there be a remedy at law, or if it is not clear that for the court to refuse specific performance is to lend itself to the perpetration of a fraud, the performance of a contract in a case of this kind will not be decreed.

Further, the case must be made out “not by vague or shadowy evidence, not even by a mere preponderance, but by evidence so unquestionable in its character, so clear, cogent and convincing, that no reasonable doubt can be entertained of its .truth; that no such doubt can linger either as to the existence of the contract or the certainty of its terms or that the plaintiff has wholly performed his part.” [Russell v. Sharp, 192 Mo. l. c. 285, 286, and cases cited; Forrister v. Sullivan, 231 Mo. l. c. 373, 374, and cases cited; Goodin v. Goodin, 172 Mo. l. c. 48, and cases cited.]

From end to' end, through pleadings and proof, “there must be an absence of doubt or equivocation throughout the whole case.” [Forrister v. Sullivan, supra.]

II. In considering the evidence in this case, in the light of the rules of law applicable to it, it must be kept in mind that some deference is to be paid to the findings of the chancellor below, who heard the witnesses and who was not convinced by their testimony. Another fact of some importance is that the jury which was impaneled was unable to reach an agreement on the evidence now before this court. While neither the one nor the other, nor both, of these things, as a matter of law, preclude a reversal on the evidence by this court, both are significant as indicating the impression made by the witnesses upon both the trained legal mind of the chancellor and the minds of laymen summoned to assist him in resolving the questions of fact which now confront us on the cold record.

The testimony of Fugate, Tonkinson, Ruling, Ren, Dr. Humphrey, Cora Bowling, and Allie Coe, is indicative of no more than a testamentary disposition and, of course, affords no basis for a finding that a contract existed, much less for a finding as to its terms. [Forrister v. Sullivan, supra.] The testimony of Mattie Bowman is of no greater value. Leading questions as to the existence of “an arrangement and agreement between Mr. Coe and his daughter Ella as to where his home was to be during his life,” elicited no more than a conclusion of the witness, the value of which, if any, was practically destroyed by the cross-examination.

The principal witness for appellant was David Harris.' He had once had some trouble with the respondent, Medley Coe, who was to become, by purchase, the owner of the land in suit in case appellant failed to recover in this case. The conversation to which he attempted to testify occurred some two and one-half years before the trial and at a time when Mr. Coe’s will, then existing, gave appellant no interest in his realty greater than that of his other heirs. Harris testified to a contract entirely at variance, as to the time it was made, with that pleaded. The petition counts on a contract made in 1897, and Plarris testified that Mr. Coe told him that the contract was made prior to the removal of appellant and her family to the farm (1892 or 1893) and that they moved there pursuant to that contract. Further, the variance between his testimony and that of Mattie Bowman, who testified to the same conversation, is sufficiently’ material to require explanation, and the testimony of each of these witnesses discloses that Mr. Coe gave as reasons for his intention that appellant should have the farm, and his refusal to sell to Mrs. Johnson, that “the rest had had their part,” and that “Ella had been born and raised there,” and that it had “never been Pop’s (Mrs. Johnson’s) home,” reasons unnecessary if there was in existence a contract under which Mr. Coe was bound to give the place to his daughter Ella, the appellant.

There is also a discrepancy between the testimony of this witness and the witness Ren with respect to the conversation between Mr. Coe and appellant’s husband concerning locating the barn, and his testimony gives indication that possibly his zeal somewhat over-stimulated his memory.

The witness Platts testified that the conversation which he had with Mr. Coe occurred in 1903. At that time, Mr. Coe’s will provided that appellant should have a fife estate in the land in suit, and in concluding his statement concerning his agreement with his daughter, Mr. Coe said, according to Platts, “I have made my will and Ella is to have the home place.” The witness “did not think he was mistaken as to the substance of the language” Mr. Coe used. Mr. Coe’s language was: “I agreed if she [appellant] stayed here as long as I lived she should have this for her home.” He volunteered the statement. The witness testified to the terms of the contract no further than here set out. He said his memory was hazy with respect to some things to which he attempted to testify.

No effort to prove the contents of the will executed in 1897 was made, though the scrivener was appellant’s attorney in this case and testified that he drew the will, nor is there any explanation of such failure. No explanation is given or attempted to be given as to what became of that will, nor is it shown that it is not still in appellant’s possession.

It is inferable from the evidence that appellant’s sons lived at home and must have been in constant association with their grandfather, but neither of them was a witness in the case.

No effort was made to show under what agreement appellant and her family first moved to the land in suit, nor up,on, what terms the place was cultivated until 1897, when the contract pleaded is alleged to have been made, nor does it appear that any change of any hind was made in the division of the profits of the place (or in other respects) after 1897.

It is not shown definitely what property and money appellant and her husband accumulated by reason of such profits, though it seems to have been rather considerable in view of the property omitted from the appraisement. Neither in the trial court nor in this, in pleadings or in proof, is it made clear whether the contract set up entitled appellant to the fee or a life estate. In fact, in this court appellant’s counsel is unable to solve this question.

The conduct of appellant with respect to the property after her father’s death, her direction to the executor, after inquiring of him whether he could carry out the will without probating it (desiring to avoid costs), to “go ahead and probate it,” her effort and that of her husband to buy the place from the executor whose only right to sell was given by the will she here assails, and the complaint that she was not given an opportunity to meet Medley Coe’s offer, are all inconsistent with a consciousness that the property was already justly hers.

With respect to the improvements, some were made before the contract is alleged to have been entered into, some were proved to have.been made in whole or in part at Mr. Coe’s expense, and none were definitely shown to have been made and paid for exclusively by Oliver. None was made or paid for by appellant. The character of those made subsequent to 1897, so far as the evidence discloses, was not such as to induce the conviction that they would not have been made in the absence of a contract like that pleaded. [Collins v. Harrell, 219 Mo. l. c. 302.]

Under the law applicable to this case, we cannot say there was no reason for the doubts evidently entertained by the jury and the trial court. The casual declarations, of which there was evidence, themselves fell far short of excluding doubt. [Rosenwald v. Middlebrook, 188 Mo. l. c. 94, 95.]

III. Certain objections to the admission and exclusion of evidence were taken. There was no error in refusing to permit appellant or her husband to testify in chief. Each was allowed to testify so far as competent, in rebuttal. [Forrister v. Sullivan, 231 Mo. l. c. 378.]

Appellant’s husband, had ho been a party to the contract alleged and a party plaintiff, would have been subject to the provisions of section 6354, Revised Statutes 1909. Therefore, the suggestion that he was “a party in interest,” though not a party of record, and was consequently competent to testify on the whole case, is incorrect.

On the whole record, we are of the opinion that the finding of the chancellor was warranted. The judgment is affirmed.

Roy, C., concurs.

PER CURIAM.

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

All the judges concur.


source: Caselaw Access Project

author: ROY, C.

license: Public Domain

text:
    THE STATE v. EDWARD JANKE, Appellant.
    Division Two,
    December 19, 1911.
    1. INFORMATION: Sec. 4483, R. S. 1909: Maiming. The information set out in the opinion is held to be sufficient under Sec. 4483, R. S. 1909.
    2. MAIMING AND FELONIOUS WOUNDING: Sec. 4483, R. S. 1909: Instructions. In a prosecution for maiming and felonious wounding under Sec. 4483, R. S. 1909, 'the instructions should not tell the jury that,, if the weapons used were not dangerous, then the wounds- inflicted must have been of a kind likely to produce death. The statute does not require that the wounds be of that kind. The instruction is approved as set out in the opinion.
    3. -: -: -: Defenses. Defendant and the prosecuting witness quarreled, and then fought. Defendant testified that the prosecuting witness pointed a gun at him, tried to strike him with a stick, and caught the defendant round the legs and held to him. It is held that there -was reversible error in the giving of an instruction limiting defendant’s rights to a defense against an assault with a gun.
    Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed and remanded.

      Green £ Green and J. N. Burroughs for appellant.
    (1) The information is bad under either Sec. 4481 or 4482, R. S. 190-9', for the reason that it fails to charge that the assault was done with felonious intent. An intent to kill must be charged under either of those sections. State v. Clayton, 100- Mo. 516; State v. Norman, .136 Mo. 1. (2) Insufficiency of the information may be raised for the first time on appeal. State v. Stowe, 132 Mo. 199; State v. Hall, 130 Mo. App. 170; State v. Nunely, 185 Mo. 102. (3) If the information is bottomed on section 4483, then instruction 1 is erroneous, for the following reasons: Because it attempts to define an assault with intent to kill as covered by the prior sections. That is no part of the offense defined in section 4483, but is a greater offense. State v. Melton, 102. Mo. 684. Because it does not tell the jury that if the weapons used were not dangerous, then the wounds inflicted must have been of a character likely to produce death. State v. Bailey, 21 Mo. 484; State v. Carrico, 11 Mo. 369. (4) The fourth instruction improperly restricted the defense. The testimony shows that the prosecuting witness made demonstrations towards the defendant with his cane and in other .ways in addition to his assault with a gun. In this instruction the jury was directed to acquit defendant in the event he was defending himself against an assault by means of a gun. No other rights were given him under this instruction. State v. Hollingsworth,' 156 Mo. 178.

      Elliott W. Major, Attorney-General, and Camp-" bell Cummings, Assistant Attorney-G-eneral, for the State.
    (1) The information is for unlawful and felonious assault by maiming, wounding, etc., under Sec. 4483, R. S. 1909. It evidently took for its model the indictment in the much cited and approved case of State v. Bailey, 21 Mo. 484. The Bailey Case is cited with approval by this court in State v. Nieuhaus, 217 Mo. 344; State v. Munson, 76 Mo. 113; State v. Yan Zant, 71 Mo. 543; State v. Harper, 69 Mo. 426; State v. McDonald, 67 Mo. 16; State v. Bohannon, 21 Mo. 491. Under this section, as has been so frequently construed, it is not necessary to allege that the act was done willfully, intentionally, with intent to kill, with malice, with a deadly or dangerous weapon, or under circumstances which, had death ensued, would have constituted murder or manslaughter. It is sufficient to follow the statute. State v. Nieuhaus, 217 Mo. 344; State v. Moore, 65 Mo. 606; Jennings v. State, 9 Mo. 862; State v. Bohannon, 21 Mo. 490; State v. Bailey, 21 Mo. 484; State v. Calvert, 209 Mo. 285 ; State v. Campbell, 210 Mo. 215; State v. Kelley, 191 Mo. 680; State v. Temple, 194 Mo. 237. (2) Instruction 4 on self-defense was in defendant’s favor, and could not be prejudicial to his rights, as under the evidence there was no evidence of and no element of self-defense in the case. According to appellant’s testimony and evidence, he denied any assault, any striking or kicking him or making any threats against him, and claimed to have only .pulled away from prosecuting witness in order to have escaped his clutches. There was no evidence to support the instruction and none other on self-defense was requested. State v. Bailey, 21 Mo. 490; State v. Groves, 194 Mo. 459; State v. Melton, 102 Mo. 689; State v. Gartrell, 171 Mo. 489; State v. McCaffery, 225 Mo. 617; State v. Whitsett, 232 Mo. 511; State v. Person, 234 Mo. 262.
   ROY, C.

At the December term, 1910, of the Howell Circuit Court, the defendant was convicted af felonious wounding, and sentenced to pay a fine of two hundred dollars, and has appealed.

The information is as follows: “O. F. Wayland, prosecuting attorney within and for the county of Howell, in the State of Missouri, informs the court that one, Edward Janke, on the 29th day of June, A. D. 1910, at the said county of Howell, did then and there willfully and unlawfully and feloniously make an assault on one W. Hoppe, and did then and there feloniously strike, choke and beat him the said W. Hoppe with his hands and fists, and did kick and stamp the said W. Hoppe with his boots and shoes which were on the feet of the said Edward Janke, and did strike and beat the said W. Hoppe with some hard weapon or instrument unknown to this prosecuting attorney, all of which being dangerous and deadly weapons, whereby he, the said W. Hoppe, was maimed, wounded, beaten and ill-treated with great force which was likely to produce death and the said W. Hoppe received great bodily harm and which .was likely to produce death, contrary to the form of the statutes in such cases and against the peace and dignity of the State.”

The prosecuting witness, Hoppe, resided at "Willow Springs, and was engaged in the real estate business. He was a cripple, one leg having been previously broken several times, and was misshapen and lacked circulation. He walked with one and sometimes two canes.

The defendant, about a year previously, had come from Dakota and purchased a farm in Howell county through the agency of Hoppe, where he had since resided, and, just before the difficulty in question, had bought another farm from Hoppe as agent.

On the day of the trouble defendant went to Hoppe’s house to see him about the transfer of the insurance policy on the property last purchased. The parties up to that time were good friends. They drank freely of beer, but there is no claim that either was very drunk. At last they got into a senseless quarrel as to whether Missouri land was better or worse than Dakota land. Finally the parties got into a personal encounter in the hall of Hoppe’s house. Defendant testified that Hoppe pointed a gun at him, and tried to strike him with a stick and caught defendant round the legs and held on to him, and that all that he the defendant did was to try to pull loose from Hoppe. Hoppe’s leg was broken, and subsequently amputated.

The court gave among others the following instructions: “The court instructs the jury that if you find and believe from all the facts and circumstances in evidence in this case that at any time about the 29tb day of June, 1910', in Howell county, Missouri, this defendant did unlawfully and without just cause or provocation, assault "W. Hoppe, with intent to do him. some great bodily harm, and did then and there strike, beat or stamp said Hoppe, in a manner likely to produce death or great bodily harm, and did then and there inflict on said Hoppe great bodily harm, then you should find the defendant guilty as charged, and assess his punishment at imprisonment in the penitentiary for a term not less than two nor more than five years or by imprisonment in jail not less than six months nor more than one year, or by both a fine oh not less than one hundred dollars and imprisonment in the jail not less than three months, or by a fine'alone of not less than one hundred dollars.”

“If you believe from the evidence in this case that Hoppe first assaulted or attempted to assault defendant with a gun, without just cause or provocation, then the defendant has a right to use such force and such means as was reasonably necessary to prevent such assault or prevent such threatened injury, and he would not be guilty on this charge for personal injuries inflicted on Hoppe in the necessary defense of himself.”

OPINION.

I. The information charges an offense under section 4483 of the Revised Statutes and is sufficient. [State v. Bailey, 21 Mo. 484; State v. Moore, 65 Mo. 606; State v. Nieuhaus, 217 Mo. 332.]

n. Complaint is made of instruction numbered one because it does not tell the jury that if the weapons used were not dangerous, then the wounds inflicted must have been of a character likely to produce death. The statute does not anywhere require that the wounds should be of such character. .It only requires that the person shall be wounded or receive great bodily harm in cases and under circumstances which would constitute murder or manslaughter if death had ensued. All that is necessary under this section is that there shall be an unlawful wounding or the infliction of great bodily harm in cases and under circumstances not excusable or justifiable. This contention was decided against appellant in State v. Bailey, 21 Mo. 484, and State v. Munson, 76 Mo. 109.

That instruction does not state a case of assault with intent to Mil as contended for by appellant.

III. The fourth instruction is defective. It limits defendant’s rights to a defense against an assault with a gun. The instruction should have been broad enough to allow defendant to defend himself against any Mnd of assault, if any, that the evidence tended to show was made upon him by Hoppe.

What has been said above must he understood with the qualification that the word “feloniously” in the information only modifies the statement that defendant assaulted Hoppe and struck, choked and beat him with his hands and fists. It does not qualify any of the subsequent part of the information. On retrial the information should be amended in that particular.

The judgment is reversed and the cause remanded.

Blair, C., concurs.


text:
    THE STATE v. OLLIE LONG, Appellant.
    Division Two,
    December 19, 1911.
    1. SEDUCTION: “Seduce.” The word “seduce” when used alone in a statute of the kind under consideration in this case (Sec. 4478, K. S. 1909) usually implies the offense of inducing an unmarried woman, under or by promise of marriage, to surrender her chastity.
    2. “DEBAUCH.” The word “debauch” ordinarily imports the deflowering of a woman, whether with or without her consent, and, if with her consent, whether that consent be obtained by promise or persuasion or spring from her own desires.

      3. SEDUCTION: Statute: Title. The title to the Act of 1897 (Laws 1897, p. 106) is restrictive in effect and can embrace no other offense than that of seduction, with which offense alone the section amended by this Act of 1897 had to do.
    4. -: Sec. 4478, R. S. 1909: Seduce “and” Debauch. The word “or” between the word “seduce” and the word “debauch” in the Act of 1897, p. 106 (Sec. 4478, R. S. 1909), should be read “and.”
    5. -: -: -: Instructions. In this prosecution for seduction under promise of marriage under Sec. 4478, R. S. 1909, the court instructed the jury in effect that they should convict if they believed prosecutrix was either seduced or debauched by defendant under promise of marriage. Held that such instruction is erroneous because it defines two offenses when the statute creates but one.
    6. -: -: Evidence: Promise of Marriage: Corroboration of Prosecutrix. In this prosecution for seduction under promise of marriage, the testimony, of prosecutrix’s father, that defendant admitted to him that he had promised to marry her, is corroborative of prosecutrix’s testimony as to the promise.
    7. -: -: -: -: —1-: By Circumstances. In this prosecution for seduction under promise of marriage it is held that, aside from the testimony of prosecutrix’s father, the circumstances in evidence are not sufficient to meet the'requirements of the statute (See. 5235, R. S. 1909) as to the corroboration of the prosecutrix as to the promise, and the instruction given on this phase of the case should not have been so worded as to indicate to the jury that, without more, they might afford a basis for a finding that prosecutrix was sufficiently corroborated.
    8. APPEAL: Evidence: Sufficiency. The evidence in this prosecution for seduction under promise of marriage is held sufficient to take the case to the jury and to support a finding of guilt.
    Appeal from Atcbison Circuit Court. — Hon. William G. Ellison, Judge.
    Reversed and remanded.

      John W. Stokes and Hunt, Bailey & Hunt for appellant.
    (1) The court erred in refusing to give defendant’s instruction 6a. The testimony of the prosecutrix, Carrie Miles, stands absolutely uncorroborated as to the promise of marriage. Under onr statute, as to the promise of marriage she must he corroborated to the same extent required of the principal- witness in perjury. R. S. 1909, sec. 5235; State v. Reeves, 97 Mo. 673; State v. Hill, 91 Mo. 425; State v. Fogg, 206 Mo. 714; State v. Brassfield, 81 Mo. 159; State v. Me-' Caskey, 104 Mo. 646; State v. Primm, 98 Mo. 373. Not one act that usually attends the marriage engagement was testified to by either the prosecutrix, Carrie Miles, her father, John Miles, or her mother, Mrs. John Miles. State v. Wheeler, 108 Mo. 655; Armstrong v. People, 70 N. Y. 38; State v. Hill, 91 Mo. 425; State v. Reeves, 97 Mo. 673; State v. Davis, 141 Mo. 525; State v. Mitchell, 229 Mo. 698; State v. Meals, 184 Mo. 254; State v. Falkner, 175 Mo. 581. (2) ' The court erred in modifying instruction 2, offered by defendant. The modification consisting in changing the copulative conjunction “and” to the disjunctive conjunction “or,” in the clause ‘.‘seduce and debauch,” and making it read “seduce or debauch.” Imboden v. St. Louis Union Trust Co., Ill Mo. App. 239; State v. Darling, 202 Mo. 165. Had the court given the instruction as asked by defendant it would have properly submitted the case to the jury on the defendant’s theory. And it would have been in harmony with the adjudged instructions in cases of this class. The instruction as asked by the defendant should have been given. State v. Meals, 184 Mo. 250; State v. Fógg, 206 Mo. 714; State v. Mitchell, 229 Mo. 696. (3) The court erred in giving instruction 2, on the part of the State, in reference to the corroboration of the testimony of the prosecutrix, as to the promise of marriage. If that instruction does not negative the proper one given on behalf of the defendant on the same issue, it certainly did have the tendency to becloud the issue and confuse the jury. In the instruction given on behalf of the State the court practically told the jury that “Independent evidence was that furnished by the defendant’s admissions,- defendant’s conduct and demeanor toward her; defendant’s relation and correspondence with her; defendant’s attention to her.” Thus virtually shutting out all independent evidence as to the corroboration. And then tells the jury that upon this independent evidence, together with that of Carrie Miles, it is sufficient to overcome the oath of defendant and the legal presumption of his innocence, and that they should find the defendant guilty. This instruction is not the law, and under it any man, be he ever so innocent, could be convicted. It singles out certain specific acts of the defendant and tells the jury these slight, specific acts are sufficient to corroborate the testimony of Carrie Miles, and it virtually tells the jury that the postcards given in. evidence were sufficient corroboration. These specific acts should not have been singled out and given to the jury, and for so doing the court committed reversible error. State v. Ballard, 174 Mo. 615; Saxton v. Railroad, 98 Mo. App. 499 ; Eckhard v. Transit Co., 190 Mo. 620; State v. Hibler, 149 Mo. 486; Gordon v. Burris, 153 Mo. 235; State v. Fogg, 206 Mo. 714. (4) The conviction should not be allowed to stand. The judgment should be reversed and the defendant discharged. State v. Primm, 98 Mo. 372; State v. Dilts, 191 Mo. 675; State v. Francis, 199 Mo. 688; State v. McNamara, 100 Mo. 117; State v. Prendible, 165 Mo. 353; State v. Huff, 161 Mo. 487; Chitty v. Railroad, 148 Mo. 78; State v. Shackleford, 148 Mo. 495.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The conjunctive-“and” (Laws 1897, p. 106) may have been changed to the disjunctive “or” improvidently, or inadvertently “crept in by mistake.” If this court should so find, it will be the duty of the court to construe the word “or” to mean “and,” and in so doing this court will be following precedents. State v. Moody, 202 Mo. 127; Keeney v. McVoy, 206 Mo. 66; Perry v. Strawbridge, 209 Mo. 641. The presumption is that the Legislature never intended to enact an absurd law incapable of being intelligently enforced. State v. Fawcett, 212 Mo. 736, and cases there cited. (2) Appellant says that instruction 2 is not a correct instruction upon corroboration. In this connection it is well to consider section 5235, Revised Statutes 1909, which is as follows: “In trials for seduction under promise of marriage, the evidence of the woman as to such admissions must be corroborated to the same extent required of the principal"witness in perjury.” State v. Davis, 141 Mo. 525; State v. Wheeler, 108 Mo. 665; 1 Greenleaf on Evidence (14 Ed.), sec. 256, and cases there cited. Por a solution of this proposition, i-t is only necessary to ascertain the construction this court has placed upon this section. A reference to the following cases will do so. State v. Hill, 91 Mo. 423; State v. Eisenhour, 132 Mo. 140; State v. Mc-Caskey, 104 Mo. 644; State v. Sublett, 191 Mo. 163; State v. Fogg, 206 Mo. 696; State v. Walker, 232 Mo. 252. (3) The ninth point of appellant’s brief is answered by the verdict of the jury. The jury settled the conflict in the evidence, and this court will not interfere. State v. Tetrick, 199 Mo. 100; State v. Mathews, 202 Mo. 148; State v. Smith, 109 Mo. 706; State v. Williams, 186 Mo. 128.
   BLAIR, C.

Defendant was convicted in the Atchison county circuit court under an information charging him with seducing and debauching Carrie Miles under promise of marriage. After unsuccessful motions for new trial and in arrest of judgment, he appealed.

The evidence for the State tended to show that defendant and prosecutrix had been somewhat acquainted for several years and that about two years before the occurrences which gave rise to this prosecution defendant had visited prosecutrix each Sunday for about three months; that these attentions came to an end in October, 1907, when defendant proposed marriage, but was not accepted. On Sunday, August 15, 1909, prosecutrix invited defendant and several young people of the neighborhood to her home, and defendant sought to accompany her to church that evening but failed because prosecutrix had an engagement to attend with another. Defendant was permitted to call the following Sunday however, and accompany prosecutrix to church. On their return defendant proposed marriage, was accepted, and in a very short time (before reaching her home) induced prosecutrix to have intercourse with him. On August 29 defendant again accompanied prosecutrix to church and their illicit intercourse was repeated. Defendant’s visits then ceased. Prosecutrix’s mother discovered on September 13th that she was pregnant, and on September 16th, defendant was accosted by prosecutrix’s father and, according to the latter’s testimony, admitted the promise of marriage and agreed to carry it out. There was evidence that prosecutrix was of good repute, unmarried, and under twenty-one years of age at the time of her downfall.

Defendant denied the promise of marriage, the intercourse and the admission testified to by prosecutrix’s father. There was much testimony that the reputation of the latter for truth and veracity was bad, and also to the effect that he and prosecutrix at first charged defendant with having accomplished his purpose by force.

There was also evidence tending to show that prosecutrix’s testimony on the trial' differed in material respects from that given by her at the preliminary hearing, that she was accepting attentions from other young men in the early part of September, 1909, and also that she took the initiative in the matter of the arrangement whereby defendant accompanied her to church August 22, 1909. There was also evidence that defendant’s reputation for morality and virtue was good.

Several errors are assigned. In view of the fact that the cause must be remanded for reasons presently to be given, many contentions pressed in the briefs need not be discussed, some of them being unsound, and some being based on rulings not likely to recur on another trial.

I. In 1897 (Laws 1897, p. 106) the section of the Revised Statutes of 1889 (3486) defining seduction under promise of marriage was amended. Prior to that amendment the section provided that any person who should “under or by promise of marriage seduce and debauch any unmarried female of good repute,” etc., should be punished as therein prescribed.

The Act of 1897 was entitled “An act to amend section 3486, chapter 47, article 2, of the Revised Statutes of Missouri of 1889, relating to seduction of unmarried females under eighteen years of age,” and contained a prefatory section setting forth certain amendments intended to be made and ending with the words: “so that said section, when amended shall read as follows.” The amended section, as then set out in full, contains all the amendments mentioned in the prefatory section, and, in addition, contains the word “or” instead of the word “and” between the words “seduce” and “debauch,” so that the section as thus set out read, and now reads: “If any person shall, under or by promise of marriage, seduce or debauch any unmarried female of good repute,” etc. The trial court instructed on the theory that either seduction or debauchment warranted a conviction.

Counsel contend that the section as set out in the amendatory act cannot be construed to create two separate offenses in the stead of the one which the section previously defined, because (1) the title was not broad enough to warrant such a change and (2) the final section is repugnant to the prefatory section which declares the amendments intended to be made but gives no hint of a design to change the word “and” to “or.”

Under section 34, article 4 of the Constitution, “it is quite common for the Legislature to first state that certain words of a specific section are stricken out and others inserted, and then set out in full the section as amended, but the Constitution makes no such requirement” (Cox v. Railroad, 174 Mo. l. c. 601, and cases cited), and ordinarily in case of repugnancy between the prefatory section, which the Constitution does not require at all, and that setting forth the section as amended, which the Constitution expressly requires to be included in every amendatory act of the kind, the greater importance of the last mentioned section and its later position in the act itself, by familiar canons of construction, entitle its provisions to prevail over those of the section of less importance and prior position. [Lewis’s Sutherland, Statutory Construction, sec. 236.]

In this case, however, if this rule is to be applied and the change from “and” to “or” upheld, it must be done on the theory that the amendment was not designed to create a new and distinct crime since the title to the act is restrictive in effect and can embrace no other offense than that of seduction, with which offense, alone, the section amended had to do.

The word “seduce,” when used alone in a statute of this kind, usually implies the offense of inducing an unmarried woman, under or by promise of marriage, to surrender her chastity. [Carlisle v. State, 73 Miss. l. c. 393.] The word “debauch” ordinarily imports the deflowering of a woman, whether with or without her consent, and, if with her consent, whether that consent be obtained by promises and persuasion or spring from her own desires.

That the Legislature did not intend to disjoin the words “debauch” and “seduce” in the section and then use the former in its ordinary and unrestricted sense (supra) is clear from the fact that to so construe the word would convict that body of an intent to reduce the punishment for rape on the condition that it be committed upon the person to whom the ravisher was engaged to be- married.

Could it be said to be our duty,- however, to give the word “debauch” a meaning if possible which will bring it within the scope of the title of the act, it would follow that the words “seduce” and “debauch” must be construed, as employed in the Act of 1897, as synonyms, each meaning exactly what the two taken together meant in the section prior to its amendment.

There is a very strong suggestion of absurdity in the conclusion that the Legislature would thus deliberately set about effecting a change which amounted to no change at all, particularly since that change is not indicated to be intended by the section purporting to set forth the changes contemplated. It is further open to the argument that the Legislature is presumed to have known that this court had put a different construction (State v. Reeves, 97 Mo. l. c. 675) upon the word “seduce” and the word “debauch” as formerly used in this very section, and consequently that the new use of the words would ordinarily be presumed to be in the old sense. It is true that a new and different meaning, if the words are reasonably susceptible of it, might be ascribed to them to bring; them within the title to the act, and it may be that the Legislature, aware of this rule, relied upon it in making the change. On the other hand, this would involve the assumption that that body incorporated in the amended section an amendment which it was aware could have no practical effect at all, except, perhaps, to confuse the law upon this subject by substituting-an involved for a plain provision. What possible reason can be assigned for an amendment which thus construed accomplishes nothing except to set a cunningly devised trap for,trial courts?

In order to avoid this absurdity and- yet carry out the legislative intent, as evidenced by the Act of 1897 as a whole, we are of the opinion that the substitution of the word “or” for “and” in the amended section was an inadvertence and that in the section as it now stands the word “or” between the words “seduce” and “debauch” should be read “and.” For this conclusion there is abundant authority. [State v. Brandt, 41 Ia. l. c. 615; State v. Myers, 10 Iowa l. c. 449; Rolland v. Commonwealth, 82 Pa. St. 326; State v. Custer, 65 N. C. l. c. 342; State v. Pool, 74 N. C. l. c. 404; Endlich, Interpt. Stats., sec. 303; Bishop on Written Laws, 243; Lewis’s Sutherland, Statutory Const., sec. 397.]

It is to be observed, also, that whether the word “or” be allowed to stand and the words “seduce” and “debauch” be interpreted in harmony with the title of the act, dr the word “or” be rejected and the word “and” substituted for it, the practical result is the same and, in either event, there is but one crime defined and its elements are exactly what they were before, so far as this particular change is concerned. ’The requirements as to indictments, informations, instructions, evidence, etc., are unaffected by the change of “and” to “or” in 1897.

The court having instructed the jury, in effect, that they should convict if they believed prosecutrix was either seduced or debauched by defendant, under promise of marriage, this judgment must be reversed and the cause remanded for a new trial. • The use of the disjunctive clearly imports the existence of evidence of two' distinct crimes for either of which the instruction authorized the jury to convict.

Particularly was this instruction erroneous since the court therein defined “seduce” so that it did not necessarily include the element of carnal knowledge and defined “debauch” so that that element was all it did include. The instruction, therefore, taking into consideration these definitions, authorized a conviction for two separate acts, neither of which was necessarily within the statute. The error, in this respect, resulted solely from the use of the disjunctive instead of the conjunctive, which use the letter of the statute would authorize, but which, as shown above, is not warranted by its spirit.

II. The only evidence in this record corroborating the prosecutrix as to the promise of marriage is the testimony of John Miles, father of the prosecutrix, to the effect that defendant admitted to him that he had promised to marry his daughter.

No circumstances indicative of an engagement were proved. It is true there is evidence that about two years prior to the time prosecutrix testifies her downfall was accomplished, defendant called on her several times and prosecutrix testifies that these attentions culminated in October, 1907, in a proposal of marriage which she did not accept, and no further attentions seem to have been paid her by defendant until August, 1909. In the interim she attended church with other young men and corresponded with them. Defendant renewed his suit, according to prosecutrix, on August 22, 1909, and on the evening of that day the proposal of marriage was made and accepted and the betrayal almost immediately followed. This is prosecutrix’s version of the matter. Her mother had no knowledge of any engagement of marriage until about September 13, 1909, when certain explanations demanded by her of prosecutrix elicited the accusation against defendant.

Defendant was seen in public with prosecutrix in 1909 as ber escort but twice, once on August 22, and again either on August 29 or September 5.

Four or five postcards were offered by the State but were of such a character that they are of little value for any purpose, and all were dated prior to August 22, 1909; when the promise of marriage is said to have been made.

These circumstances are not sufficient to meet the requirements of the statute (Sec. 5235, R. S. 1909) as to the corroboration of the prosecutrix as to the promise of marriage (State v. Hill, 91 Mo. l. c. 426; State v. Eisenhour, 132 Mo. l. c. 147; State v. Davis, 141 Mo. l. c. 525), and the instruction on this phase of the case should not have been so worded as to indicate to the jury that, without more, they might afford a basis for a finding that prosecutrix was sufficiently corroborated as to that promise.

The testimony of John Miles as to defendant’s admission of the promise of marriage was corroborative of the prosecutrix’s testimony in the required particular. His credibility was for the jury.

III. The sufficiency of the evidence is assailed and it is insisted that the judgment should be reversed and the defendant discharged.

The testimony of the prosecutrix is direct and that of her father as to defendant’s admissions, if true, is sufficient to meet the requirements of the statute as to corroboration. Evidence as to the other elements of the offense is in the record. The credibility of the witnesses is for the jury. The question is not whether this court believes the evidence of these witnesses, but whether their testimony, if believed by the jury, is sufficient to support a finding of guilt. Applying the rule, we think there is enough evidence to take the case to the jury.

Accordingly, the judgment is reversed and the cause remanded.

Roy, G., concurs.

PER CURIAM.

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

All the judges concur.


text:
    THE STATE v. EDWARD FREEMAN, Appellant.
    Division Two,
    December 19, 1911.
    1. EVIDENCE: Cross-examination. Defendant, on trial under an indictment for second degree murder, testified that when Re struck deceased Re was angry on account of wRat Ris wife Rad told Rim about deceased’s insults to Rer. On direct examination Ris wife testified that Rer Rusband was away when deceased insulted Rer. Held, tRat no error was committed by requiring the wife to state, upon cross-examination, where Rer husband was at the time mentioned.
    2. -:■-: Impeaching Witness: Prior Conviction of Crime. Nor was it error to require defendant, upon cross-examination, to tell whether Re had ever been convicted of a crime. That was competent to impeach Rim as a witness.
    Appeal from St. Francois Circuit Court. — Eon. Peter E. Euek, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    There are only three rulings on evidence worthy of notice. The prosecuting attorney ashed the wife of appellant, upon cross-examination, where appellant was at the time deceased wanted her to go in the bach room with him and settle the account owed him by her husband. Her answer was that her husband was in Kansas. This testimony' was proper cross-examination as she had testified that her husband was away,, in the direct examination, when the solicitations and statements were made to'her. She had referred to him being’ away, and there was no error committed by the court in permitting the prosecution to.inquire where he was. The second exception to the rulings on evidence was when witness Sleeth testified that appellant said to him when he came to get Ms money .and found that it had been garnished (and this was before his wife detailed to appellant the solicitations and statements of deceased), that he intended to give the deceased a whipping. This was competent evidence because, as was said by the trial court, ‘ ‘ defendant goes on the stand and alleges that as a reason he did this, and if he made any statement that he did this for any other reason that is competent he could show that in the first instance, it is true, but if there is conversation which contradicts his statement on the stand, that can be introduced. . There is no objection to it.” The court was correct in its ruling because this was only a contradiction of the appellant as to one of the reasons why he struck deceased. Appellant excepts to the ruling of the court in permitting the prosecuting attorney on cross-examination to ask appellant if he had been convicted on a criminal charge, and that occasioned his being away at the time he testified he was away when these solicitations were made to his wife. This was not a deviation from the rule of cross-examination of the defendant, since he testified he had been away, and this cross-examination was upon that subject. This is one of the ways to impeach a witness. State v. Long,- 201 Mo. 675', and cases cited.
   ROY, C.

The defendant, under an indictment for murder in the.second degree, was convicted of manslaughter in the Tourth degree in the St. Francois Circuit Court at the May term, 1911, and sentenced to two years in the penitentiary, and has appealed.

The defendant is married and is the father of several children. At the time of the killing he was working at the lead mine known as No. 7 Federal, near the town of Elvins. The deceased, O. C. Short, was a merchant. Short had sued defendant on an account for $7.05 and had gotten judgment, and had garnished defendant’s wages. On December 20, 1910, the parties inet on the porch in front of Eaton’s store. It was a very cold day, the ground being frozen hard. A wagon was standing in the street in front of the porch. The' testimony for the .State was to the effect that defendant said to Short: “You didn’t treat me right.” To which Short answered, “I don’t know why. I furnished your folks some stuff while you were gone.” To which defendant replied, “Yes, but you sued me.”

The testimony for defendant was to the effect that defendant said to Short, “You ain’t treated me right,” and Short said, “What is the reason I ain’t treated you right?” To which defendant replied, “You garnished me and mistreated my family.”

Short was wearing an overcoat.. He made no motion toward attacking defendant, who struck him and knocked him off the porch, against the wagon, and down to the frozen street, which was about eighteen inches lower, than the porch. Short’s skull was badly, fractured and he was taken to a sanitarium where he died a few days after.'

The defendant’s wife testified that Short had insulted her on the 10th of March, 1909, and had repeated the insult a few days afterward, but that- she did not tell her husband until after his wages were garnished.

Defendant testified that when he struck deceased, he, defendant; was angry on account of what his wife had told him about Short’s insults.

Mr. Sleeth, who appeared to be manager of No. 7 Federal, in rebuttal testified that defendant asked him who it was that had garnished him, and that he told defendant it was Short, and that defendant then said that he was going to whip him, or words to that effect. That testimony was objected to by defendant on the ground that it was not evidence in rebuttal, but should have been introduced in chief. The objection was overruled and defendant excepted.

The defendant’s wife, in her direct examination, testified that at the time Short insulted her, her hus.band was away. On cross-examination she was asked where her husband was at the time mentioned, to which she answered that he was in Kansas. The question and answer were objected to as immaterial and incompetent. The objection was overruled.

Defendant was asked on cross-examination whether he had ever been convicted of a crime, and, over the objection of his counsel, was required to answer and did answer that he had been convicted of having counterfeit money in his possession.

The defendant asked an instruction on manslaughter in the fourth degree, which was refused, but the court of its own motion gave an instruction on that subject which fully covered that branch of the case. The instructions given by the court were all above criticism and fully covered the evidence in the case, and were eminently fair to the defendant.

OPINION.

No error was committed in requiring defendant’s wife to state where her husband was at the time mentioned. It was legitimate cross-examination.

Nor was it error to require the defendant to answer a,s to whether he had been convicted of a crime. It was competent for the purpose of impeaching him as a witness. [State v. Spivey, 191 Mo. l. c. 111.]

We have not had the advantage of a brief on the part of defendant, but have carefully examined the transcript and find no error in the record or in the admission or rejection of evidence or in the instructions, and, therefore, the judgment is affirmed.

Blair, C., concurs.


author: ROY, C. PER CURIAM.

text:
    GEORGE C. RANKIN, Receiver of Bates National Bank, Appellant, v. BATES COUNTY INVESTMENT COMPANY et al.
    Division Two,
    December 19, 1911.
    CORPORATIONS: Officers: Powers: Declaring Trusts. An investment company held a deed of trust upon certain land to secure an indebtedness. Tygard, the president of this investment company, was also the president of a hank, to which the investment company was practically a subsidiary corporation and to which the owner of the land was further indebted. Tygard bought the land at a foreclosure sale under the investment company’s deed of trust for an expressed consideration of one hundred dollars, not paid. He conveyed part of the land to the former owner’s wife, so that she might discharge certain incumbrances with it. The remainder of the lands he conveyed also to the former owner’s wife, and she, after mortgaging it to pay a part of the indebtedness to the investment company, joined with her husband in conveying it by general warranty deed to the investment company for the expressed consideration of one dollar. This suit is brought to have the last mentioned deed declared a mortgage. Written agreements and memoranda made by Tygard were put in evidence, stating that the investment company held the land in trust for the payment of the owner’s further indebtedness to the bank. Held, that Tygard, as president of said investment company, could not, without authority from the board of directors, give away the securities for the company’s choses in action, and the liens of the company are therefore superior to those of the bank.
    Appeal from Bates Circuit Court. — Eon. Wm. E. Martin, Special Judge.

      Affirmed.

      John A. Eaton, E. H. McVey and W. O. Jackson for appellant. ■
    (1) In the case at bar the declaration of trust was signed by the Bates County Investment Company, by F. J. Tygard, he being its duly authorized officer. It is a valid declaration binding upon the investment company, and under the evidence it is clearly shown that the investment company held the legal title in trust under the agreements previously made between Patterson and Tygard. (2) Tygard was the president of the investment company and its sole manager. He transacted all of its business. He was also the president and controlling officer of the bank. All the transactions in question here were arranged and conducted through him. The memorandum was merely the written evidence of previous agreements entered* into, under which the investment company secured title to the land. Tygard, as president of the investment company, had authority to make the agreement. Moore v. Glaus & Son, 113 Mo. 106; Madden v. Realty Co., 75 Mo. App. 358; Kiley v. Forsee, 57 Mo. 390; Bank v. Coal Co., 86 Mo. 125; Sparks v. Transfer Co., 104 Mo. 531; Ins. Co. v, St. Mary’s Seminary, 52 Mo. 480; Lloyd v. Matthews, 223 111. 477; 2 Thompson on Corporations (2 Ed.), secs. 1465 et seq.

      t). C. Chastain and J. S. Francisco for respondent. . •
    (1)' There was no consideration for the agreement between Patterson and Tygard that the title to the land should be held for the security of the bank, (a). The evidence shows that the investment company was not a party to the agreement and that it was .the beneficial owner of the land, (b) Neither was there any consideration between the bank and Patterson. (2) The affairs of this corporation were under the control of the hoard of directors. B. S. 1909, sec. 3347. And since this is an attempt to convey an interest in land it should he under the seal of the corporation and authorized hy the directors. B. S. 1909, sec. 3001. And where the act is without seal and without consent of the directors it is invalid. McKeag v. Collins, 87 Mo. 164; Hall v. Bank, 145 Mo. 418. • The record in this case shows affirmatively that Tygard was not authorized to execute this instrument. The president of a corporation has no power to assign the assets of the corporation, or to sell them, or to borrow money thereon, or kindred acts; his powers are limited to the general charge of the corporation’s property. Hyde v. Larkin, 35 Mo. App. 365; Ferguson v. Transit Co., 79 Mo. App. 365; Milling Co. v. Insurance Co., 105 Mo. App.-154; Bank v. Fesler, 89 Mo. App. 227; Mining Co. v; Moore, 130 Mo. App. 633; Feld v. Investment Co., 123 Mo. 630; Jorndt v. Beuter Huh & S. Co., 112 Mo. App. 341; Stripling v. Maguire, 108 Mo. App. 594'; Bank v. Fesler, 89 Mo. App. 217; State ex rel. v. Perkins, 90 Mo. App. 603; Mining Company v. Moore, 132 Mo. App. 633. "With these rules of law it seems clear that if Tygard would not have the power to borrow money on the strength of the corporation’s assets, nor to sell its property, nor assign the same, then it is' certainly true that he would not have the power to hind the corporation hy a gift of its property. Even the-directors of the corporation would not have this power. 10 Cyc. 768 and 799 and cases cited; Safety Yault Co.' v. Bayton, 71 Fed. 797. The authorities cited hy appellant on the question of apparent authority of the pres-' ident are not applicable to this case for the reason that the officers of the hank, who were the officers of' the investment company, knew what power Tygard had; and knew further what the records of the investment company showed. And since all of the officers of the, hank had notice, the hank itself was charged with no-, tice. Vandagrift v. Investment Co. (Mo. App.),'128 S. W. 1007.
   ROY, C.

This action was brought to declare a general warranty deed to be a mortgage.

In 1893, the defendant J. A. Patterson owned a large tract of land in Bates county, subject to incumbrances of $8000 to insurance companies, and some interest. On September 27 of that year, he, with his wife, defendant Cora A. Patterson, executed a deed of trust on the land to secure the payment of two notes and their renewals, one for $3000 and the other for $3800, both payable to the Bates County Bank, which was on September 4, 1902, reorganized as a national bank under the name “Bates National Bank.”

In June, 1897, the Bates County Investment Company was incorporated. The stockholders in the investment company and in the bank were practically the same. The capital of the investment company was furnished by the reduction of the capital stock of the bank to the extent of $50,000, and that much of the assets of the bank, including the two notes above mentioned, was turned over to the investment company as its capital stock. The investment company was organized as practically a subsidiary corporation to the bank, to handle items of business which the bank was not authorized under its charter to conduct.

It is agréed by the parties that the Bates National Bank, on its organization, succeeded to all the rights, assets and business of the Bates County Bank. F. J. Tygard was president of the Bates County Bank until it was succeeded by the Bates National Bank, of which he was president until it was placed in a receiver’s hands September 20, 1906. He was also president and general manager of the investment company from its organization until in January, 1906. The investment company and the bank did business in the same building, using the same vault, but keeping their papers in a general way separate in the vault.

After the execution of the deed of trust to the bank, judgments were rendered against J. A. Patterson, amounting to several thousand dollars, which became junior liens on the land. In order that a sale might be made of a portion of the land clear of the judgment liens, in 1897, while the investment company was still holding the notes for $6800, Patterson and Tygard entered into an arrangement by which Tygard bought the land at a foreclosure sale under the deed of trust for an expressed consideration of $100, but which was in fact not paid. Tygard then conveyed to Cora O. Patterson a part of the land, which she at once conveyed to other parties for $9976, which was applied in payment of the senior incumbrances to the insurance company.

On September 3, 1898, while the legal title to the remaining land was in Tygard, in order that the Pattersons should procure a loan of $3300 on it from the county to pay the investment company on account of Patterson’s indebtedness to it, Tygard conveyed the land to Cora O. Patterson, who borrowed the money, executing a mortgage to the county, and immediately, with her husband, executed a general warranty deed, dated October 3,1898, conveying the land to the investment company, for the expressed consideration of one dollar.

At the time of the organization of the investment company, Patterson was indebted to the bank, in addition to the $6800, to the amount of about $5000, and the amount of his indebtedness to the bank varied at times from that time on to the time of the appointment of the receiver of the bank, when, as plaintiff claims, it amounted to $5614.83. For about $3000 of this amount the bank held chattel mortgage security.

At the time of the trial Tygard was under guardianship as a person of unsound mind. Patterson testitled that the deed from his wife and himself to the investment company was made under an agreement between Tygard and himself that the deed was to be held as a mortgage to secure the bank on the notes then in the bank, and their renewals, and that the deed was made to the investment company because the bank could not carry real estate as security. The defendant objected to this testimony on the ground that Tygard was insane and Patterson was the other party to the agreement and could not testify. The court sustained the objection, but the plaintiff saved no exceptions to the ruling.

The following instrument was read in evidence and was admitted to be in the handwriting of F. J. Tygard:

“F. J. Tygard, Prest. J. B. Newberry, Yice-Prest.
“J. C. Clark,'Sec’y & Treas.
“Bates County Investment.Co.
“Capital $50,000.
“Abstracts of title to all lands in Bates county.
“Loans made on real estate and choice securities! for sale.
“Butler, Mo., Oct. 1, 1901.
“Whereas, Jno. A. Patterson is now indebted to the Bates County Bank in the sum of $6674.70, and whereas this Co. holds a Wt. deed from said Patterson for 550 acres of land at an estimated- value of $-, and whereas the interest of this Co. and of the Bates Co. Bk. are closely connected, it is therefore understood and agreed that this Co. holds the land above referred to in trust as follows: First, for the benefit of said Bates County Bank to secure indebtedness of said J. A- Patterson for amt. of $6674.70.
“Bates County Inv. Co.
“By F. J. Tygard, Pt.
“Copy of this delivered to Bates Co. Bank & held in Coll, pkgs.” ' •

And a copy of it was kept among the collateral securities of the bank from its date.

The plaintiff read in evidence a memorandum in a book kept among the archives of the bank, in the handwriting of Tygard, dated December 9, 1897, containing a list of the Patterson land with the following written under the list:

“Containing in all:
“All of above lands sold this day & bo.t by F. J. Tygard for bank for $100.
“Prior liens on above lands.
■ “Mch. 12/98 — I bot. at sheriff’s sale for the Bank for $25.00 all of the land described on p. 23 & also AY % Lot 23 S. 5, 39, 32..
“Oct. 7/98 — Patterson gave us trust deed on AY. i/2 of lot 9, N. AY. 5, 39, 32. E. % Lot 23, 6. 39, 32, for $169.”

On November 1, 1906, there was realized, on a sale of a portion of the land, a net amount of $3282.54, which, by agreement, was delivered to the Farmers’ Bank of Bates county, defendant, to await the result of this suit. Of that amount the sum of $2500 was loaned the investment company on a deed of trust, under an agreement of the parties to the suit that it should depend on the result of this suit; and the sum of $784.54 remains still with the Farmers’ Bank.

The decree found in favor of the investment company, allowing it a prior lien for $3854.15, the balance of the $6800 debt, against the funds in the Farmers’ Bank and against the unsold lands. Subject to the foregoing liens, the receiver of the Bates National Bank was decreed a lien on all the unsold land for the amount of $5614.83. There are other features of the decree which it is unnecessary to set out here.

OPINION.

It stands conceded that the investment company, on its organization, became the owner by assignment from the bank of the two notes for $3000 and $3800 respectively, secured by the Patterson deed of trust. It is not pretended that any consideration was ever paid by the bank to the investment company as an inducement for the surrender of its lien on the land in favor of the bank. When Tygard acquired the legal title under the foreclosure, he paid nothing, and, under the law, held it as surety for the $6800 notes due the investment company of which he was president. He had no right, as between the parties here concerned, to agree that the lien of the investment company should be subject to the bank’s claims. The conveyance by Tygard to Cora O. Patterson and from her to the investment company only strengthened that company’s position, as it then held the legal title in addition to its lien. Tygard had no power to agree, either orally or in writing, that the lien of the investment company should be made subordinate to the-bank’s claims. He could not give away the company’s property, or the securities for its choses in action.

In Brinkerhoff Zinc Co. v. Boyd, 192 Mo. l. c. 612, Judge Valliant, speaking on this subject, said: “It is sufficient to say that they wére trustees for the management and care of the property of the corporation, and whilst they had the right to deal with it in a business way, it did not belong to them in their own right and they could not give it away.” It was said by Judge Litrton in Germania Safety-Vault & Trust Co. v. Boynton, 71 Fed. 797: “The general presumption in favor of such officers of a corporation might support a disposition of the securities for any apparent corporate purpose, but that presumption does not extend so far as to justify one who accepts such securities in payment of, or as security for, the private obligation of the officer. ’ ’

This proposition is so elementary that we deem it unnecessary to cite further authorities. There is no pretense that Tygard had any authority by resolution of the board of directors to thus surrender the company’s rights. This conclusion determines all the other questions involved. The judgment is affirmed.

Bond, G. (sitting in Division Two when this case was argued), concurs.

PER CURIAM.

The foregoing opinion of Roy, C., is adopted as the opinion of the court,

all the judges concurring.


author: KENNISH, P. J.

text:
    SCHOOL DISTRICT NUMBER FOUR et al., Appellants, v. SCHOOL DISTRICT NUMBER THREE et al.
    Division Two,
    December 19, 1911.
    APPELLATE JURISDICTION: School District. The Supreme Court does not have appellate jurisdiction of a cause brought by one school district against another to determine whether • or not the proceedings by which certain territory was detached from the one and added to the other were legal. A school district is not a political subdivision of the State within the meaning of the Constitution.
    Appeal from Grundy Circuit Court. — Ho». G. W. Wanamaker, Judge.
    Transferred'to Kansas City Court of Appeals.

      Hall & Hall for appellants.

      O. G. Bain & Son for respondents.
   KENNISH, P. J.

This is an appeal from a judgment of the circuit court of Grundy county. The appellants are School District Number Four of said county and the board of directors thereof. The respondents are School District Number Three and the board of directors of that district. Appellants, by leave of court, brought this action in quo warranto for the purpose of ousting respondents from exercising any right or franchise, as a school district, in and over certain territory described in the information. The territory in controversy, as claimed by respondents, had recently been detached from relator school district and added to respondent school district, and the legality of the proceedings, in thus attempting to change the boundary line, was the issue in the case.

Upon a trial, judgment was rendered for respondents, and relators appealed to this court.

The record discloses no constitutional question or other ground of appellate jurisdiction of this court. A school district is not “a political subdivision of the State” within the meaning of section 12, article 6, of the Constitution. [School District v. Boyle, 182 Mo. 347; School District v. Burris, 84 Mo. App. l. c. 662; State ex rel. v. Andrae, 216 Mo. 617.]

As this court is without jurisdiction, it is ordered that the case be transferred to the Kansas City Court of Appeals, the court to which the appeal should have been granted.

Ferriss and Brown, JJ., concur.