author: BiChardson, Judge,

text:
    Clark & Lemon, Respondents, v. Brown, Appellant.
    1. The mechanics’ lien act of 1845 (R. C. 1845, p. 733) regulated proceedings instituted in St. Louis county to enforce a mechanic’s lien in cases where the materials were furnished or the work performed under a contract with the owner.
    2. "Where the owner of a building, upon which there is a mechanic’s lien for materials furnished under a contract with himself, conveys the premises to-a purchaser before the institution of a suit to enforce the lien, no judgment can be rendered, in a suit to enforce the lien commenced by scire facias, unless the purchaser he made a party to the record; nor if, in such case, suit he brought in the ordinary form against the vendor, could an execution issue against the property unless a scire facias shall have first issued and been served upon such purchaser.

      Appeal from St. Louis Land Court.

      J. R. Barrett, for appellant.
    I. The description of the property was insufficient.
    II. Blood should have been made a party. He was owner when the demand accrued, when the lien was filed, and when tlie suit was brought.
    III. No other judgment could have been entered in this case than a judgment against the property. The owner should have a hearing. The transfer from Brown to Blood, made subsequent to the contracting for furnishing the materials, and the actual furnishing of the same, would have been no defence to an action in the ordinary form against Brown; but it is a defence to an action against the property, if Blood, the owner, be not made a party. Hence the instruction given for plaintiffs was erroneous.

      Hart & Jecho, for respondents.
    I. The court ought not to have required Blood to be made a party. Plaintiffs had no contract with him. The materials were furnished under a contract with Brown and with him alone. The instrument of writing read in evidence shows that Blood bought out Brown’s interest with knowledge of the demands against the building. No act of Brown or Blood could deprive plaintiffs of their lien on the building.
   BiChardson, Judge,

delivered the opinion of the court.

This was a proceeding by scire facias to enforce a lien for materials. On the 31st of August, 1850, the plaintiff filed in the clerk’s office of the circuit court a statement of their demand, verified by affidavit, and a description of the property upon which the lien was intended to apply. The statement alleged that the plaintiff’s demand amounted to 1290.92 for materials furnished by them and used by Brown, under contract with him, in building the house described, which was erected and owned by Brown upon land belonging to Stro-ther’s heirs. It appears from the account, made part of the statement, that the lumber was furnished at different times from May 9th to July 31st, 1850, inclusive. A scire facias was sued out on the 22d October, 1850, containing the usual recitals, and stating that it appeared Brown was the owner of the building. At the return term of the writ the defendant filed his plea, and afterwards at the April term, 1852, it was stricken out on motion, and the court ordered that “ the scire facias be amended by bringing in J. H. Blood as a party to the suit.” At the November term, 1853, the plaintiff dismissed the cause as to Blood, and afterwards, during the same term, Brown filed his answer, averring, among other things, that the property described in the scire facias was owned by Blood when the plaintiffs’ demand accrued and when they filed their lien.

On the trial evidence was offered by the plaintiffs tending to prove that the defendant owed them the said account, and that it accrued for materials furnished by them under contract with Brown and used by him in building the house mentioned in the scire facias, and that the building was owned by him at the time.

On the part of the defendant a lease was read in evidence executed by Clark to Brown, dated February 20th, 1850, from which it appears that Clark had leased from Mrs. Stro-ther a portion of land, and then subleased to Brown for the term of twenty years, commencing November 7, 1849, the premises on which the building was erected; also an assignment of said lease and “ the building and improvements on the premises then erected and in process of erection and to be completed” by Brown to John H. Blood, dated 26th July, 1850, which was duly acknowledged and filed the next day for record in the proper office.

The court substantially instructed the jury that the plaintiffs were entitled to recover whether or not Blood became the owner of the property before the filing of the lien or the commencement of the suit. The jury found for the plaintiffs the amount of their claim with interest, and thereupon the court rendered judgment that — it appearing the demand, upon which the action was founded, was properly filed as a lien against the property described in the scire facias, and that part of the property could not be separated from the residue without great injury to the whole — the plaintiffs “ recover of said defendants the damages aforesaid, in form aforesaid, as assessed against said defendant and against the property above described,” with the award of execution, &c.

The questions in this case must be determined by the local act concerning liens in St. Louis county of 1843, and the general act concerning mechanics’ liens of 1845 ; and though the provisions of the special act must prevail when they are in conflict with the general law, it will be found that the person who performs work or furnishes materials under a contract with the owner must employ the means for the enforcement of the lien provided in the general act; for the special act does not furnish the machinery for that purpose. (3 Schulenburg v. Gibson, 15 Mo. 288.)

After a party has performed work or furnished materials for a building under a contract with the proprietor thereof, and proceeded as directed by the second section of the act of 1845, he can pursue either of two remedies provided in sections seventh and eighth.

First, as to remedy under the seventh section, “ he may commence his suit in the ordinary form, and shall have judgment against the original debtor for the amount that shall be found due to him, and shall have the liberty of taking his execution against such a proportional part of the property charged with the lien as his demand bears to the whole amount of liens that are charged upon the property under this act, which proportional part shall be decided by the court, and also against other property of the defendant.” This section gives him a general judgment, and in addition a special fieri facias against the property charged with the lien, on one of two conditions expressly named in these words: “ But no execution shall issue against the property charged with such lien unless the defendant shall have owned or possessed the said property at the time of the commencement of the said suit, or unless a scire facias shall first have issued and been served upon the owner or possessor of such property, requiring him to appear and show cause why judgment should not be entered up and execution had against such property.”

The policy and justness of this provision need no vindication. The lis pendens is notice to the world that a lien is claimed against particular property, and the law forbids that any alienation or encumbrance of it by the debtor should defeat the meritorious claim of the person who, by the contribution of his labor or jnaterials, has enhanced its value; and hence the judgment is against the property, besides the general judgment if the defendant owned or possessed it at the commencement of the suit. But the law repudiates the idea of condemning the property of one man to pay the debt of another, without giving him an opportunity in court, upon due service of process, of showing that the claim ought not to be asserted against his property; and under this section the plaintiff will take nothing but a general judgment unless the defendant owned or possessed the property at the commencement of the suit, or unless a scire facias shall first have issued and been served on the owner or possessor thereof.

Secondly, as to the remedy under the eighth section. The papers which the plaintiff files with the clerk, if properly prepared and filed in time, stand in place of a declaration and are treated as a record (Cornelius v. Grant, 8 Mo. 59) ; so that an original summons is dispensed with, and the scire facias is the first process. The word “ whom” in this section, evidently, from the context and spirit of the act, was intended for “ which,” and the section should read thus: “ In all cases under this act it shall be lawful for the plaintiff to proceed by scire facias against the original debtor, and against all and every person or persons owning or possessing the property against which he wishes to proceed; but no judgment to be rendered on the scire facias shall authorize the issuing of any execution except against the property charged with said lien, or such part thereof as the court shall direct.” If a party proceeds under this section, he can not take a personal judgment against the original debtor; but, in any event, can only have a judgment against the property charged with the lien. It is essentially a proceeding in rem, that seeks to condemn the property to satisfy a legal claim against it. And, as there can be no general judgment against the original debtor, if he is absent or insolvent, or is indifferent about protecting his vendee, he may have neither motive nor interest to defend the suit, or may even be in collusion with the plaintiff ; and therefore the plainest dictates of justice require that the real owner, whose property it is proposed to condemn to pay another’s debt, should at least have the opportunity of being present to show that no lien lawfully exists against his property.

There is nothing in the seventh and eighth sections of the act of 1845 in conflict with the sixth section of the local act of 1843, which declares “ that the lien for work and materials ■as aforesaid shall be preferred to all other encumbrances which may be attached to or upon such building or other improvements on the ground, or either of them, subsequent to the commencement of such building or improvementsbut they direct the mode of bringing before the court all parties interested in the property at the time of the commencement of the suit.

This proceeding was commenced by scire facias, and the proof shows that Blood was the purchaser from the defendant, with a recorded deed, not only before the suit was begun, but before the last of the materials were furnished, and, in our opinion, no judgment could be rendered in the case without the presence of Blood on the record.

It it be said that Brown owed the debt, and had no right to object to the judgment being rendered, it may bo replied that he ought to have paid it, and the argument would be unanswerable, if the proceeding affected nobody bnt himself; but if the court had no authority, as the case stood, to render a judgment against Blood’s property to pay Brown’s debt, any party to the record had a right to object.

The other judges concurring, the judgment will be reversed and the cause remanded.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    The State, Respondent, v. Shehane, Appellant.
    1. To authorize an appeal to the Supreme Court, final judgment should have been rendered in the court from whose decision the appeal is taken.
    2. Instructions to a jury should be incorporated into a bill of exceptions; otherwise they will be disregarded by the Supreme Court.

      Appeal from Oregon Circuit Court.

   Scott, Judge,

delivered the opinion of the court.

The defendant was convicted of murder in the first degree, and afterwards appealed to this court. Erom the transcript filed it does not appear that any final judgment has been rendered in the cause. Until there is a final judgment, no appeal nor writ of error can be sustained. This appeal then must be dismissed. If the judgment has been pronounced and the clerk has failed to enter it, the record may be amended on proper application for that purpose; or if no judgment has been given, the defendant may yet be brought into court and sentenced, and then he will have a right to his appeal or writ of error. If there was a sentence pronounced or judgment given, and by reason of the failure of the clerk to enter it the time has passed within which by such judgment the defendant should have been executed, the court will again sentence the defendant, proceeding in conformity to the 25th and 26th sections of article 7 of the act to regulate proceedings in criminal cases. (R. C. 1855, p. 1200.) The record however will be amended so as to show the first sentence, if there was any, although the time for the execution of the sentence may have elapsed.

It appears that there was a change of venue in this case from Ripley to Oregon county. The transcript from Oregon, where the trial took place, has no caption to it; nor is there any certificate of the clerk authenticating it. Both of these omissions must be supplied. There is nothing in the record showing what became of the cause after the overruling of the motion for a new trial. Surely the proceedings did not end there. Unless more care is taken in making up the records in criminal cases it will be impossible to sustain convictions, and our penal laws will become a dead letter. There are no instructions presented in the record. Instructions should regularly be incorporated in the bill of exceptions. Although they may appear among the papers in a cause and be spread upon the transcript, they will be disregarded unless they form a part of the bill of exceptions. So there is no bill of exceptions preserving the evidence in the cause. The paper containing the substance of the evidence and signed by the judge is no bill of exceptions. There does not seem to have been any point raised on the evidence as preserved in the record; of course, then, there could have been no bill of exceptions. There is a' good deal of confusion created and much unnecessary delay in requiring more than one bill of exceptions in a cause. The law requires that an exception must be taken at the time the point made is decided; but this does not mean that the bill of exceptions shall be prepared and signed at the time. It is enough that the point is noted, and afterwards, when the trial is ended and the motion for a new trial is overruled, if there should be one, then the losing party will prepare a single bill of exceptions, in which will be preserved all the points ruled against him in the progress of the trial. This is now the practice adopted by most of the circuits in the state, and its superiority over the other mode should commend it to every one. This court never reviews the instructions given in a cause unless so much of the evidence is preserved in the bill as shows that the point saved by it arose on the trial.

The other judges concurring, the appeal is dismissed because there is no final judgment in the cause.


author: Richardson, Judge,

text:
    Harris et al., Appellants, v. Harris et al., Respondents.
    1. To entitle a party to a suit, under the eleventh section of the twenty-fourth article of the practice act of 1849, or the third section of the act concerning witnesses (B. C. 1855, p. 1577), to examine as a witness in his behalf a party to the suit, the party summoned must he an adverse party, and not merely an opposing party on the record.

      Appeal from Pike Circuit, Court.

    Broadhead, for appellants.
    I. The court erred in excluding the testimony of Mrs. Whitlock.
    Henderson, for respondents.
   Richardson, Judge,

delivered the opinion of the court.

This was a proceeding, under the 81st section of the act concerning wills (R. C. 1845, p. 1083), to contest the validity of the will of Lewis Harris. The petition was filed by three of the heirs at law — two of whom were the administrators of the estate — against the widow, the other heirs at law, and the legatees under the will. On the trial the plaintiffs offered to read in evidence the deposition of Mrs. Whitlock, one of the defendants, who was one of the children of the testator and also one of the legatees of the will; but it appeared that she would receive a larger interest in the estate as heir at law, if the will were set aside, than she would take under the will as legatee, and on the objection of her co-defendants the deposition was excluded. The propriety of this decision presents the only question to be considered. The petition is silent as to the reason she was made a defendant.

At common law the witness would be incompetent for two reasons; first, because she was a party to the record, and next, for the reason that she was interested in the suit on the side of the party calling her; but it is insisted that the rules of the common law do not affect the question, and that it is to be determined by our statute law. The only provisions of the statute, that bear on the question, are contained in the act concerning witnesses, (R. C. 1855,) and are as follows: “ Sec. 1. No person offered as a witness shall be excluded by reason of his interest in the event of the action. Sec. 3. Any party to a civil action or proceeding may compel any adverse party, or person for whose benefit such action or proceeding is instituted, prosecuted or defended, to testify at the trial or by deposition as a witness, &c. Sec. 6. The following persons shall be incompetent to testify: first, a party to the action, or any person for whose immediate benefit the action is prosecuted or defended, except as hereinbefore provided in this act,” &c.

By the first section interest alone does not disqualify a witness ; but that section does not apply to a party to the action; for the sixth section renders him incompetent to testify for himself, or to testify at all unless he is included in the exception referred to in the sixth section; and though that exception evidently has reference to the third section, yet when a party attempts to avail himself of the third section, the person called as a witness must be an adverse party and not simply an opposing party on the record.

Under the code, as formerly in chancery, all persons interested in the subject of the action must be made parties ; and their relative position as plaintiffs or defendants is often immaterial, and is frequently assigned at the pleasure of the plaintiff, or under an arrangement with him. And though the statute requires that “if the consent of any one who should have been joined as plaintiff can not bo obtained, he may be made a defendant, the reason thereof being stated in the petition,” it would be very easy for one, who is interested in the relief sought, to refuse to join., in order that an advantage may be gained by his deposition as defendant, or, though willing to share the fruits of the litigation, would be unwilling to bear any of its expenses. If a defendant, who is not adverse in interest to the plaintiff, may be examined as a witness by the plaintiff, he can give evidence in his own cause and for his own benefit, which he could not do if he occupied his true position on the record; and after he has testified he could call the plaintiff, and between them the other defendants might be sacrificed. Under the construction contended tor by the appellants, it would be impossible to prevent collusion, or to prevent a party from testifying in his own behalf.

All the provisions of the statute we are considering are contained in the code of 1849, but not arranged in the same order; and an examination of their contexts, in the acts that first introduced them, may aid us in construing them. The third section of the act of 1855 is the eleventh section of the 24th article of the act of 1849, and the first and sixth sections of the act of 1855 are found in the twenty-fifth article of the code of 1849 in this connection: “ Sec. 1. No person offered as a witness shall be excluded by reason of his interest in the event of the suit. Sec. 2. The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended,” &c. It will be observed that the provision that allows one party to call as a witness an adverse party is in the twenty-fourth article, and stood first in point of order. The first section in the next article, at one sweep, abolishes an old and well-established rule of evidence ; but the second section limits the operation of the first, and declares that it shall not extend “to a party to the action,” and thus not only prevents a party from offering himself as a witness, but disqualifies an adverse party if he has an interest in favor of the party calling him ; and his competency on the score of interest is left unaffected by the statute, but must be determined by the familiar rules of the common law.

The Supreme Court of New York (Hollenbeck v. Van Valkenburgh, 1 Code R., N. S., 33) has given the same construction to like sections in their code ; and though the decision was made in 1850, we are not aware that it has been disturbed. The judgment is affirmed, with the concurrence of the other judges.


author: Napton, Judge,

text:
    Ridgely, Appellant, v. Stillwell, Respondent.
    1. Although rent reserved be payable monthly, yet, if the letting be general and without limitation as to time, it will be a tenancy from year to year, and a month’s notice to quit will not terminate the tenancy.

      Appeal from St. Louis Land Court.

    The facts sufficiently appear in the opinion of the court.

      Knox & Kellogg, for appellant.
    I. The evidence tended to show | tenancy from month to month. Defendant was entitled to only a month’s notice to quit. The notice given was sufficient. Even if defendant had been a tenant at will the notice was sufficient. (R. C. 1855, p. 1012 ; 1 Pick. 43 ; 2 Pick. 70; 17 Mass. 282; 16 Mass. 1; 7 Cush. 346 ; 31 Maine, 212 ; 12 Ill. 470 ; 13 Mete. 275; 5 Porter, 523.) The old common law notice of sis months to be served on a tenant from year to year was not intended for a case like the present, but for the protection of tenants cultivating the soil. In the present case the court should have submitted the question as to the nature of the tenancy to the jury.

      Krwn & Harding, for respondent.
    I. As the tenancy of the defendant, as shown by the testimony, was from year to year, he was entitled to six months’ notice to quit before his tenancy could be terminated. Neither of the notices offered in evidence were sufficient; consequently there was no holding over by the defendant. (Murray v. Armstrong, 11 Mo. 209.)
   Napton, Judge,

delivered the opinion of the court.

This was an action for unlawful detainer. From the evi dence it appeared that the defendant went into possession of the premises in March, 1851, and had been in possession up to the commencement of the suit in 1856, and that the rent reserved was payable monthly. There was no written lease, although at the beginning of the tenancy there had been some talk of a lease for three or four years. A month’s notice to quit was given ; and the only question in the case is, whether that notice was sufficient — or, in other words, whether this tenancy was one from year to year, or at will, or from month to month.

We think the land court was right in holding this a tenancy from year to year. A general letting, without any limitation as to time — although the payment of the rent may be semi-annually, or quarterly, or monthly — is in construction of law a letting from year to year. This is fairly inferable from the opinions of the judges in the case of Richardson v. Langridge, 4 Taunt. 131. A tenancy at will must be created by express contract; for if the terms are indefinite, and do not necessarily imply such a tenancy, the courts will construe the tenancy to be one from year to year. So, a tenancy from month to month, or for any aliquot part of a year, may be created by express contract, or perhaps be implied from circumstances ; but the circumstance that rent is payable monthly, or quarter-yearly, or yearly, or half-yearly, does not show that the holding is not yearly. In the absence of any other proof, the legal presumption remains that the tenancy is a yearly one. The cases cited from Massachusetts are decisions upon their statutes, which have materially modified the common law and are totally different from our acts on this subject.

The judgment is affirmed, the other judges concurring.


author: Napton, Judge, Scott, Judge,

text:
    Schwartz, et al., Plaintiffs in Error, v. Dryden et al., Defendants in Error.
    1. In partition sales, in statutory proceedings for partition, there is no warranty of title.
    2. Where the parties to a statutory proceeding for partition have no title to a portion of the land, a purchaser, at the partition sale, of such portion — there being no fraud or misrepresentation — will not he entitled to have such sale set aside as to such portion on the ground of this want of title. (Scott, Judge, dissenting.)

      Error to Marion Circuit Court.

    A suit was instituted in the Marion circuit court for partition of certain tracts and lots of land among the heirs of Pocahontas Sloan, deceased. In this proceeding, John D. S. Dryden, as commissioner appointed by the court, sold to Charles Schwartz and wife and William Lindig a certain lot in the town of Palmyra, 305 feet in width, and 289i feet in length. Said lot had formerly belonged to Samuel 0. Sloan, an ancestor of the parties to the proceeding for partition, who with his wife Pocahontas had conveyed all of said lot, except a strip of forty-one feet in width by 289J feet in depth on the east side of said lot, to trustees of the town of Palmyra to be used as a graveyard. The purchasers of said lot at the partition sale moved the court “ for an order setting aside said sale for so much at least of said lot as had previously been sold by Samuel and Pocahontas Sloan to the trustees of the town of Palmyra for a graveyard, and directing the said commissioner, John D. S. Dryden, to refund to plaintiffs a proper proportion of the funds paid him upon the sale.”
    On the hearing of this motion it appeared in evidence that the proceedings for the sale of the land sought to be partitioned were not closed, but were still pending; that at the time of said sale by Dryden, as commissioner, he did not know that said Samuel C. and Pocahontas Sloan had made the conveyance above mentioned to said trustees; that the sale was made on the ground, and many graves were there in full view of the purchasers and other bidders ; that at the sale of this lot the question was publicly asked, whether there had ever been any conveyance made of the ground occupied by the graves, to which the commissioner, publicly, in the hearing of the bidders replied, he did not know; that he had not examined the records, and that he only offered to sell whatever title the petitioners for partition might have in the lot. The court overruled the motion.
    Lipscomb, for plaintiffs in error.
    I. The parties to the partition had no title whatever to that portion of the lot included in the grant made by Sloan and wife to the trustees of Palmyra. The motion to set aside, having been made while the proceedings were yet open and pending, ought to have been granted. This case differs materially from Owsley et al. v. Smith’s heirs, 14 Mo. 155. In that case the heirs of Smith claimed title. In this case the heirs of Sloan do not claim title. They admit absolute conveyance by their parents as early as 1832. Again, in Owsley v. Smith’s heirs, the proceedings for partition had been closed, and Owsley sought to enjoin a judgment obtained for the purchase money. Here the proceedings for partition are yet open and pending. The motion to set aside had been made at the earliest moment. The commissioner, who is also the attorney who brought the suit for partition and defendant in this motion, was ignorant of the conveyance of 1832. By mistake the suit embraced the land sold in 1832. Equity and good conscience require that the motion should prevail.
    Dryden, for defendants in error.
    I. The plaintiffs in error were purchasers at a judicial sale-. There is no pretence of fraud or misrepresentation. The maxim “ caveat emptor” applies. (Owsley v. Smith’s heirs, 14 Mo. 153.)
    II. The plaintiffs ask to set aside the sale as to part only of the property sold. If set aside at all, it would have to be set aside in toto. The relief can not be had by motion.
   Napton, Judge,

delivered the opinion of the court.

In the case of Owsley et al. v. Smith’s heirs, 14 Mo. 153, this court held that in partition sales under our statute there was no warranty of title. This decision is based upon the particular phraseology of our statute, and seems to have been acquiesced in. No case has been brought up to this court, since that decision, in which the court has been asked to review the subject; nor is it attempted in this case.

Regarding this point as settled, the plaintiff, who was the purchaser of a lot in Palmyra at a partition sale made by a commissioner, applies to the court to set aside so much of the sale as included a part' of the premises he purchased to which it turned out there was no title in the parties to the partition. It seems that the sale was made upon the premises ,* that a portion of the lot was covered by a graveyard; that inquiry was publicly made whether this portion of the lot had ever been conveyed away by the ancestor of the petitioners; and that the commissioner publicly stated “ he did not know; that he had not examined the records; that he only offered to sell whatever title the petitioners might have in the lot.”

It is not doubted that where fraud or misrepresentation has occurred, or where the purchaser has been led into a mistake by the conduct of the seller, a court has ample authority, at all events previous to a confirmation of the report, to set aside the sale. No fraud or misrepresentation is alleged in this case, and the circumstances show that if the purchaser was led into mistake, it was not superinduced by the conduct of the commissioner or the petitioners, but resulted from the grossest negligence of his own. The graveyard was visible, and the subject was inquired into. The deed which had conveyed it was upon record, and the commissioner stated that he had not examined the record. Whether, under these -circumstances, the portion of the lot thus covered with graves was regarded as of any value by the purchaser when he made his bid would not seem very clear. But if the court is justified in setting aside the sale at all, it ought, under such circumstances, be set aside altogether. It may be that the portion of the lot to which there was good title was worth, and would have brought, the full amount of the bid. But the purchaser does not ask this ; he desires simply a pro rata deduction from his bid. This can not be allowed; for, although he may be injured, that injury is plainly the result of his own negligence and not brought about by the conduct of others. Judge Richardson concurring, the judgment is affirmed.

Scott, Judge,

dissenting. I do not regard a sale in partition as being similar to a sale on a judgment at law. A sale under an execution is always considered as in invitum. Not so with a sale in partition; but it is a kind of sale by the parties themselves. A sale by partition is becoming in this state a usual mode of conveyance ; and if it should be treated as a sale under a judgment, at which the rule caveat emptor applies, our courts will be made cloaks for many fraudulent contrivances to deceive innocent purchasers. When a title to land has been investigated by a court, and an order for its sale has been made, it is supposed, as the courts would not be made, instruments of fraud, that the parties to the suit in partition have title to the land which is ordered to be sold. Courts should not make partition nor order sales unless they are satisfied that there is a title in those who are seeking its assistance. If it is established that the rule caveat emptor applies to sales in partition, speculators will be emboldened to seek a sale in partition of any tract of land they fancy, in the hope they may entrap the unwary. In judicial sales the courts will relieve purchasers against encumbrancers and defects in title; and why should this form of sale, which is becoming so common and which may so readily be perverted to purposes of fraud, be made an exception ? In the case of Smith v. Brittain, 3 Ired. Eq. 347, it was held that a sale by a clerk and master, under a bill praying the sale of land for partition, is but a mode of sale by the parties themselves. It is not merely a sale by the law, in invitum, of such interests as the parties bare or may have — in which the rule is, caveat empbor — but professes to be a sale of a particular interest stated in the pleadings to be vested in the parties, and to be disposed of for the purpose of partition only. If a purchaser pays his money on a master’s sale, and discovers a defect in the title at any time before a conveyance executed, he may recover it back. So in the case of Jackson v. Edwards, 22 Wend. 509, the court, speaking of a sale in partition, says: “ Although these chancery sales are not made with warranty, it is the established course of practice of the court, whenever any objection is taken, if not in all cases, to refer it to a master to ascertain and report whether a good title can be made to a purchaser.”

The case of Owsley et al. v. Smith’s heirs, 14 Mo. 153, has not been overlooked by me.


author: RichaRdsoN, Judge,

text:
    Kinney, Respondent, v. Miller, et al., Appellants.
    1. Matter set up in an answer as a counter claim should he separately stated.
    2. Where an answer improperly blends and defectively states matters set forth therein as a defence and as a counter claim, the proper mode of taking advantage of the defect is, not by demurrer to the whole answer, but by motion to strike out either the whole of it or such portions as are defectively pleaded.

      Appeal from Stoddard Circuit Cowrt.

    This was an action on a promissory note for $350 executed by defendants. The court sustained a demurrer to the following answer : “ Defendants, for answer to plaintiff’s petition, say, they admit that they executed the note sued on, but defendants further state that they were induced to execute the said note by false and fraudulent representation of plaintiff — that is to say, plaintiff induced defendants to believe that he was the owner of the west half of the southeast quarter, and the east half of the south-west quarter of section thirty-six, in township, &c., containing one hundred and sixty acres, and by the false and fraudulent representations of plaintiff, as aforesaid, thereby induced Stephen Miller, the defendant first above named, to purchase the above described real estate of plaintiff, for which the said note was executed by said Stephen as principal and E. W. Miller as his security; when in truth and in fact the said plaintiff had no right whatever to the west half of the south-east quarter of section thirty-six, in township, &c., containing eighty acres, but said land belonged at that time to the Cairo & Fulton Railroad Company of Missouri. And defendant further states that he has made valuable and lasting improvements on said land by clearing the land of trees and brush, and putting up fencing thereon, and digging of well, worth two hundred dollars. Therefore defendants ask that the contract be rescinded and the note cancelled; and defendants further state that by the false and fraudulent representations aforesaid, made by the plaintiff to defendants, they, defendants, are damaged to the amount of five hundred dollars; for which they ask judgment.”
    The sustaining a demurrer to this answer constitutes the error complained of. ■ ■

      Noell, for appellants.
    I. The court erred in sustaining the demurrer to the answer. The answer set up a good defence. The fact that the title to one half the land had failed was a sufficient ground for a rescission of the contract of sale. At all events defendants were entitled to a recoupment of damages against the claim for the purchase money. (16 Mo. 869; Coffman v. Huck, 19 Mo. 435; 24 Mo. 496.)
   RichaRdsoN, Judge,

delivered the opinion of the court.

According to the present practice a demurrer will not lie to an answer except so far as it contains new matter constituting a counter claim. The whole subject is regulated by article 6 of Practice in Criminal Cases. (R. C. 1855, p. 1226.) The only pleading on the part of the defendant is either a demurrer or an answer. (Sec. 4.) The office of a demurrer is defined in the sixth section; and the answer must contain, “ First, a special denial of each material allegation of the petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; Second, a statement of any new matter constituting a defence or counter claim, in ordinary and concise language, without repetition.” (Sec. 12). The counter claim can not be for any cause of controversy between the plaintiff and defendant, but “ must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim or connected with the subject of the action ; Second, in an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action.” (Sec. 13.)

The matter constituting the counter claim ought not to be blended with the matter intended simply as a defence, but should be separately stated, with all the distinctness that would be required if the defendant was suing the plaintiff in an independent proceeding; and the objection for improperly blending statements touching the defence and those relating to a counter claim may be raised by motion to strike out. The defendant may set forth as many “ counter claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both,” but “ they must each be separately stated, in such manner that they may be intelligibly distinguished, and refer to the causes of action which they are intended to answer” (sec. 13) ; and a violation of this rule will invite a demurrer.

If a defendant has a defence and also counter claims, he ought in the answer to state separately, in one portion of it, every thing which properly goes to the defence, and then distinctly state, in the nature of separate counts, matter intended as counter claims. If that part of the answer which goes only to the defence, as such, is defective in whole or in part, for any of the reasons that apply to ordinary answers, the objection may be taken by motion to strike out the whole or such parts as are insufficient. Then as to the counter claims, the plaintiff may demur to such as are insufficiently stated, for the reasons that apply to petitions so far as they are applicable, or that they are not allowed by the 18th section. The demurrer must point specifically to the counts or counter claims at which it is aimed, and the plaintiff may demur to one or more and reply to the others ; and if the reply is insufficient the defendant may demur. (Sec. 17.) If the reply contains redundant, impertinent or irrelevant matter, and yet is not obnoxious to a demurrer, such matter may be stricken, out on motion. Rejoinders are not allowed, but the cause is at issue when the replication is filed and has escaped a demurrer or motion. (Sec. 19.) If the counter claim contains a cause of action, and is not subject to the operation of a demurrer, but contains matter which of a like character in a petition would be stricken out, such matter may be reached by a motion to strike out.

Applying these rules to this case, it will be observed that though the matter intended as a counter claim is so mixed with that part intended as a defence that it is difficúlt to see where one ends and the other begins, yet the objection could not be taken by demurrer; for the demurrer is to the whole answer, and it can not legitimately operate on any thing but that part which is intended as a counter claim. The proper mode of taking advantage of the bad pleading of the defendant was by motion to strike out. If the whole answer was bad, the motion should have been directed to the whole of it, or to such parts as were insufficiently stated or improperly pleaded. The facts stated in the answer showed a partial failure at least of the consideration of the note, caused by the misrepresentation of the plaintiff, and the facts alluded to in the answer, if true and charged in proper form and with sufficient legal precision, might entitle the defendant to a rescission of the contract of purchase.

It does not appear by any positive averment that the plaintiff knew, at the time of the sale, that he had no title to part of the land, or that the purchaser was deceived, or that the tract which belonged to the railroad company was the inducement to the purchase of the other part. These facts or some of them would be important in considering the question whether there was a partial or total failure of consideration; but in any view there was enough in the answer to save it from the summary and irregular disposition the court made of it. The defendant should have leave to amend his answer. The other judges concurring, the judgment will be reversed and the cause remanded.


author: Riohardson, Judge,

text:
    Johnson, Respondent, v. Dicken, Appellant.
    1. Instructions, to become a part of record, must be incorporated into a bill of exceptions.
    2. Words charging a person with stealing in a sister state are actionable per se.

    3. In a suit for slanderous words spoken of a wife, she should be joined with her husband as a party to the suit; the husband alone could not recover unless he avers and proves special damage.
    4. Where in a suit for slander — in which slanderous words against the plaintiff and also against the plaintiff's wife, who is not a party to tire suit, are charged, and evidence is received upon both charges — the jury assess entire damages, it will be presumed that some part of the damages was assessed upon the count or cause of action for words spoken against the wife, although this count or cause of action may have been defective; in such case the judgment shall be arrested.

      Appeal from, Stoddard Circuit Court.

      Noell, for appellant.
    I. The court erred in giving the instruction asked for by plaintiff. The words alleged in the petition are not of themselves slanderous. There is no allegation that by the laws of Illinois taking or stealing of corn is a crime, and the courts of this state will not take judicial notice of the laws of ano-tlier state regulating tbeir own internal affairs. Nor is there any allegation that he meant by the words used to charge plaintiff with a felonious stealing. It was error then to charge the jury that proof of the words alleged in the petition was sufficient. The proof must go beyond the petition to justify a verdict. Taking the corn may have been an innocent act for aught that appears in the petition in reciting the words used.
    II. The court erred in overruling the motion in arrest. The words used are not such as of themselves import a slander or imply that plaintiff was guilty of a crime by the laws of Illinois. Besides, so much of the petition as charges slanderous words or any words having been spoken by defendant of plaintiffs wife is insufficient. An action can not be maintained by the husband alone for slanderous words used concerning his wife, especially where no allegation is made of special damage to the husband by reason of such slander. (1 Starkie on Slander, 348-9.) There was a misjoinder of causes of action. An action for slander of the husband can not be joined with an action for slander of the wife, the wife not being a party to the suit and no special damage to the husband being alleged.
    III. The court also misdirected the jury by instructing them that it was sufficient to enable the plaintiff to recover if defendant reiterated a common report. (2 Starkie on Slander, 248.)
   Riohardson, Judge,

delivered the opinion of the court.

This was an action of slander commenced in 1855, and the petition was as follows: “ The plaintiff states that on or about the first day of November, in the year one thousand eight hundred and fifty-five, at the county of Stoddard, in the state of Missouri, the defendant, said Christopher Dick-en, spoke the following false and slanderous words concerning the plaintiff — that is to say, that plaintiff had stolen corn in Illinois and had to run away from there for it, and he (defendant) could prove it; and that the wife of the defendant bad stolen a wagon load of corn, and that he dared plaintiff to put him to the proof of it; by which plaintiff says he is damaged to the amount of ten thousand dollars, for which he prays judgment.” The answer denied all the allegations in the petition. On the trial evidence was given tending to prove that the defendant spoke the words charged in the petition. Before the case was submitted to the jury, instructions were given by the court, and though they are copied into the transcript they are not preserved in the bill of exceptions. A general verdict was rendered for the plaintiff, and the defendant filed his motion for a new trial and in arrest, but both motions were overruled.

Instructions are not a part of the record, and because the clerk may copy them into the transcript they do not for that reason get properly before this court; and it has often been decided that the Supreme Court will not review instructions unless they are incorporated in a bill of exceptions. (17 Mo. 49.)

The petition attempts to state in one count two separate causes of action, to-wit, that the defendant falsely said of the plaintiff that “ he had stolen corn in Illinois, and had to run away from there for it,” and, secondly, “ that the wife of plaintiff had stolen a wagon load of corn.”

It has been insisted that, as to the first cause of action, the motion in arrest ought to have been sustained, for the reason that the words are not actionable, in omitting the averment that stealing is a crime in Illinois. Without undertaking to define a rule as to the nature of the offence imputed to render words actionable per se, it is sufficient to say that larceny is an offence at common law involving moral turpitude and which subjects the guilty party to infamous punishment; and though our courts will not take judicial notice of the laws of another state at variance with the common law, yet upon a common law question the presumption is that the common law of a sister state is similar to our own. (8 Mo. 7 ; 10 Wend. 75.) Slanderous words, spoken in reference to a transaction that took place in another state, will be actionable per se in our courts, if an action of slander will lie for like words spoken in reference to a crime alleged to have been committed in this state. In Cefret v. Burch, 1 Black. 400, the defendant charged the plaintiff with having stolen hogs in Ohio; in Vananken v. Westfall, 14 Johns. 232, the actionable words were that the plaintiff had stolen money in Pennsylvania; and in the cases of Offull v. Earlywine, 4 Blackf. 460, and Leaville v. Earlywine, 4 Blackf. 469, the plaintiff was charged with having committed larceny in Kentucky. If the offence charged derives its quality as a crime from the statute alone, the rule would be otherwise. The right of recovery does not depend on the fact that the plaintiff would be amenable to our laws if the charge was true, for he might have been demanded as a fugitive from justice and punished in Illinois; and it is no less slander to charge a person with an offence for which a criminal prosecution is barred by limitation.

As to the slander of the plaintiff’s wife, he had no cause of action without joining her in the suit, unless he had sustained special damages, which he was bound to aver and prove. (1 Starkie’s Slander, 348.) Eor the words spoken of the wife an action might survive to her, and if the plaintiff is permitted to recover for the slander of his wife without uniting her in the suit, or alleging and proving special damage to himself, the defendant would be liable to make compensation ■twice for the same injury. There is clearly no cause of action properly stated for the slander of the wife, but proof was received on that charge ; and as the jury assessed entire damages, it must be intended that some part of the damages was assessed upon that allegation, and for that reason the judgment should be arrested. (Holt v. Scholefield, 6 Term R. 691; Gibbs v. Dewey, 5 Cowen, 503.) It was the practice in England when there was a general verdict on a declaration containing several counts, some of which were bad, and evidence had been given only on the good counts, to amend the verdict by the judge’s notes of the trial; but Justice Buller said: “ If there was any evidence which applied to the other bad or inconsistent counts — as, for instance, in an action for words, where some actionable words were laid and some not actionable, and evidence given of both sets of words and a general verdict — there the postea could not be amended, because it would be impossible for the judge to say on which of the counts the jury had found the damages, or how they had apportioned them.” (Eddows v. Hopkins, Doug. 376.) Under the old system of practice in this state, it was directed by the statute that “ where there are several counts in a declaration, and entire damages are given, the verdict shall be good, notwithstanding one or more of such counts shall be defectivebut that provision can not help this verdict, because both causes of action, though one is defectively stated, were pleaded and tried together, and, as there was no separate assignment of the damages, and the court could not ascertain upon which cause the jury made the assessment, the motion in arrest should have been sustained. (Mooney v. Kennett, 19 Mo. 554.)

The other judges concurring, the judgment will bo reversed and the cause remanded.


text:
    Robert & Wife, Appellants, v. Casey, Respondent.
    1. The seventh section of the “ act concerning minors, orphans and guardians,” approved February 8, 1825, (R. C. 1826, p. 417,) conferred upon the probate courts power to authorize guardians of minors to sell real estate of such minors at private sale to complete their education.
    2. Upon petition of a guardian, under said act, to a probate court for leave to sell real estate of his ward, the court ordered, May 4,1835, that the guardian, after an appraisal by three disinterested householders, should sell the lot at private sale for not less than three-fourths of its appraised value, and should make report of his proceedings at the next term of the court. After the next term of the court, the guardian made a private sale of the lot for more than the sum at which the lot had been appraised, and executed a deed, dated October 3, 1836, to the purchaser; but he made no report whatever to the court of the sale or of his proceedings under the order. Held, that the failure of the guardian to make report of the sale and proceedings under the order would not invalidate the title of the purchaser, the said act of February 8, 1825, not requiring an approval of such sale by the probate court; nor -would the fact, that the sale was made subsequent to the term at which the guardian was directed to report his proceedings under the order, invalidate the sale,
    8. The original affidavit of the appraisers, and their written appraisement, and the deed of the guardian, though never reported to the court, are admissible in evidence to show the proceedings of the guardian under the order of the probate court.

      Appeal from St. Louis Land Court.

    The facts sufficiently appear in the opinion of the court.
    Whittlesey, for appellants.
    I. The records of the county court, and the approval by said court of the proceedings of the guardian under the order, are the only competent evidence to show that the order of court has been complied with, and parol testimony can not resorted to until it is shown that record testimony has been lost. In courts of limited jurisdiction proceeding-contrary to the course of the common law, the records are the proper evidence to show that the requisites of the law have been complied with. (Vallé v. Fleming, 19 Mo. 454; Medlin v. Pratte, 8 Mo. 235 ; Milan v. Pemberton, 12 Mo. 598 ; Danzey v. Swinney, 7 Texas, 617 ; Burnett v. Higgins, 4 Dana, 565, 567 ; Griffith v. Dicken, 4 Dana, 561; Planters’ Bank v. Johnson*, 7 Sm. & M. 449; 23 Mo. 30 ; 7 J. R. 19 ; 6 J. R. 9.)
    II. The sale was void and the deed passed no title, because the court did not approve of the same, no return being made by the guardian as required by the order. It is admitted that, independent of statutes, sales made under orders of courts of general jurisdiction, if regular and made in proper time, pass the title, without any return under the order. But in this case the statute and the order of court both required that return and the approval of the sale when made. The county court was not a common law court, and had only limited as distinguished from general jurisdiction; it was a creature of statute entirely. At common law, the real estate of an infant can not be sold, nor .will a court of chancery do it, although it may be for the benefit of the infant. (Calvert v. Godfrey, 6 Beav. 97; Garmston v. Gaunt, 9 Law Jurist, 78.) The authority of the county court and its process are regulated by the statute. An appeal lies from the judgment of the court confirming a sale by an administrator ; (Speck v. 'Wohlien, 22 Mo. 810 ;) and appeals lie, in the cases of guardians and wards, as in other cases cognizable in the probate courts. If no report is necessary, and the court is not required to confirm that report to make the sale valid, and no report is made, how can an appeal be taken ? But if the statute did not require this report, the county court justly exercised its powers in requiring the report, so that the proceedings might appear of record showing how the minor’s title was divested ; and what must appear of record may not be proved by parol. (See cases cited above ; also Jenner v. Jolifie, 6 Johns. 9; Brush v. Taggart, 7 Johns. 19; 4 Dana, 565.) The court chose to retain authority over its own process, and to know whether the sale was for the benefit of the infant, who finds no record of a sale, and might well suppose that the power given by the order had not been executed.
    III. The court had authority over its own process to order the report to be made at the next term ; and as the sale was made after the process was returnable, the authority to sell had ceased, and the sale and deed were consequently void. The powers of the probate court were transferred to the county court by act of 1827. (See 2 Terr. Laws, p. 127.) By the acts of 1825, p. 272, § 13, the terms of the county courts were to be four in each year, and to be held on the first Mondays of February, May, August and November. The order in this case was made at the May term, 1835, and the report was returnable at the August term, and the sale was made in October (as appears from the deed), nearly two months after the return term of that order. The power had expired, and the sale under it was as void as a sheriff’s levy and sale under an expired execution. (Vail v. Livingston, 4 Johns. 450 ; Devoe v. Elliot, 2 Caines, 143 ; Jarvis v. Rus-sick, 12 Mo. 63, 67.)

      IV. If the power was good at the date of the sale in. October, 1835, the deed was void because made in the name of the guardian, instead of bis ward. (See authorities in notes to Elwell v. Shaw, 1 Am. L. Cas. 424; Griswold v. Bigelow, 6 Conn. 258; Lockwood v. Sturdevant, 6 Conn. 373, 387.)
    -, for respondent.
    I. It was contended in a written brief filed at a former term by Mr. Reber, (now judge of St. Louis Court of Common Pleas,) that the act of 1825 (R. 0. 1825, p. 417) did not require the guardian to report his sale to the court; that if the court had the implied power to make such an order, a failure of the guardian to execute it could not defeat the title of an honest purchaser who had no control over him. The rule in such case is, where the law requires an act to be done in order to pass the title, there it must be performed or the sale is null. The law requires an administrator’s sale to be approved by the court. (19 Mo. 461.) If not approved it is void. So also no title passes by an administrator’s sale unless he execute a deed. (18 Mo. 561.) So also the sheriff’s return is indispensable to the title of a tenant by elegit. (1 Barn. & Aid. 40.) But an irregularity, in a matter which is not an essential link in the chain of facts which pass title, does not vitiate in a collateral proceeding; as, for instance, a sheriff’s failure to return his execution, where he has otherwise conformed to the law and executed, a deed to the purchaser. And yet, where the sheriff’s return is the title (as in the case of an eligit) there it must be shown. (See Lessee of Stall v. McAlester, 9 Ohio, 19 ; Wheaton v. Sexton’s Lessee, 4 Wheat. 503 ; Palmer v. Oakley, 2 Dougl. 495,) In all the cases where a report of sale or confirmation is held necessary, it is on account of a statute. (Young v. Keogh, 11 Ill. 642; Rea v. McCachron, 13 Wend. 465 ; Lessee of Curtis v. Norton, 1 Ohio, 136 ; 17 Mo. 71, 442.) No confirmation of the sale is required either by the law or by the order under which the sale was made. The duty of the purchaser was performed when he paid the purchase money and received his deed. Every thing was regularly done up to that period. The land was sold for more than the appraised value ; and the purchaser and those claiming under him have held under the sale for more than twenty years.
   Napton, Judge,

delivered the opinion of the court.

The title of the defendant in this case was derived from a sale by a guardian made in pursuance of an order of the county court of St. Louis county. The law under which the court acted is the seventh section of the act concerning minors, orphans and guardians in the revised code of 1825. (B. C. 1825, p. 417.) That section is as follows: “ Sec. 7. Be it further enacted, that it shall be lawful for any guardian of any minor, who is committed to his or her care for tuition, and who has lands or tenements, for the purpose of education, to apply to the court of probate of the proper county for leave to sell the said lands or tenements, or such part thereof as may be necessary to complete the education of such minor, or to mortgage the same for any sum not less than two-thirds of the real value, as the court shall think proper.” The remainder of the section, and some subsequent provisions, relate to the duties of the court and of the guardian concerning settlements of the guardian’s accounts and the application of the money to the education of the minor. Nothing more is said in the act concerning the authority to sell or the manner in which the authority shall be executed.

The agreed case shows that the order for Turpin to sell the land of his daughter and ward was made at the May term of the county court; that the appraisement was made a few days after the date of the order; and that the deed was executed on the 3d of October of the same year. The objections to this title are, firsts that the records of the court show no return whatever to the court by the guardian of any action by him under the order, and consequently the court never passed upon or sanctioned the sale, and no title vested until such approval; secondly, that the deed was made after the term of the court to which the guardian was directed to report, and that at this time his power and authority under the order had ceased; and thirdly, that the affidavit and appraisement were improperly admitted in evidence.

We think the affidavit and appraisement were properly admitted. They were not matters of record, but proceedings in pais; and the principle that a court speaks only by its records is not applicable.

The act of 1825 does not expressly confer upon the county court the power to order a sale, but it does confer the power by necessary implication. There is in the act no restriction upon the kind of sale which the court may order — whether it shall be public or private; nor does the law require that the sale shall be reported to the court or subject to its revision. The order of the court however in this case was, that the guardian should report his proceedings to the next term of the court. The order authorized the guardian to sell the lot at private sale, provided hj would have it appraised by three disinterested householders, and could sell' for two-thirds of its appraised value. He was then directed to report his proceedings to the court. No report was ever made; nor do the records of the court show that after the order any thing was ever done in relation to this land, its sale, or the proceeds of the sale ; nor was any settlement ever made by the guardian, either in relation to this land -or any other matter appertaining to his guardianship. It appears, however, from the affidavit and appraisement produced at the trial as original papers and proved, that the lot was appraised as directed by the court, and that the sale was made for about one hundred dollars more than the value at which it was appraised. The purchase money, it is agreed, was paid. The deed of the guardian recited the order of the court and the appraisement, and purported to convey the title of the minor in pursuance of the authority conferred by the order.

The question is whether the failure of the guardian to comply with the order of the-court in making report of his ■sale invalidates the title of the purchaser. If the title of tlie purchaser depended on the approval and sanction of the court, there could of course be no title anterior to such approval. But here neither the law nor the order of the court makes the title depend upon the sanction of the court. The guardian is authorized to sell, and of course to convey, after he has procured an appraisement, and for a sum not less than a fixed proportion of its appraised value. Then he is directed to report his proceedings, not, it would seem, so much with any view that the court should exercise its judgment upon the policy or propriety of the sale generally, but principally to enable the court to pass upon the validity of his acts, so far as previous restraints had been imposed, and to control and direct a proper application of the proceeds. To hold the title of the purchaser dependent upon the return and report of the guardian, is to hold him responsible for a matter over which he has no control. Ho can look to the order of the court and see whether there is authority to sell, and if so, how far that authority is restricted; but when he sees an order and that the terms, upon which the power to sell depends, have been complied with, he is not responsible for the subsequent misconduct of the guardian. His title can not and ought not to be invalidated by matters happening subsequent to its vesting. We might as well require him to see to the application of the purchase money.

Undoubtedly where a title can not be consummated without certain acts being done and an approval by the court of those acts, the case is different. The sales of administrators under the statute are of this character. But no provision is made in the guardian law of 1825 to secure the supervision of the court over the sale; none which looks to an approval by the court as a preliminary to the purchaser’s title.

The deed from the guardian is made in strict conformity to the order of the court, and it is not easy to see how it could have been executed in any other way than it was, in order to convey the title of the ward. It recites the terms of the power and their fulfilment, and purports to pass the interest of the ward by virtue of the power. The Connecticut cases, to which reference has been made in the argument, are not applicable. (6 Conn. 258; 6 Conn. 373.) In these cases, the administrators, on the face of their deeds, did not profess to convey the interest of the decedent, but their own; and the waranties were against their own acts. Nor is the doctrine concerning attorneys in fact, or the general law of principal and agent, in reference to conveyances, pertinent to the case of a guardian or administrator. (1 American Lea. Cas. 424.) The guardian docs not act as agent of his ward, or under a power of attorney from him either express or implied, but he derives his power to sell and convey from the law and the action of the court under the law. If he followed this, and acts under this, his deed is binding upon the ward.

The remaining objection to be considered in this case is the one which denies to the guardian, after the term has lapsed at which he was directed to report, all authority or power to sell. It is said that when the August term of the county court of St. Louis had passed, the authority conferred by the order in May was gone, and the case is likened to a writ which an officer undertakes to execute after the return day has passed. Writs are issued by a clerk at the instance of a party, and their form and time of return are regulated by law. After the return day the writ is but blank paper, and the officer who 'acts under it is a mere trespasser. In this case the order of the court can not be construed as intending to limit the period within which a sale could be made. It authorizes a private sale, and the only restriction in the order to this authority is, that the lot shall be appraised and the sale shall not be made at a price below two-thirds of its appraised value. It does not in terms declare at what time the sale may be thus made, nor does it appear to be reasonably inferable from its language that there was on the part of the court any intention to compel the guardian to sell immediately or within any given period. He is directed to return his proceedings under the order to the next term; but this would only appear to be a direction that, so soon as a sale was made, tbe proceedings should be placed before the court at the first term after such sale. If no sale was made there was nothing to return; and it would hardly have been contended in this case, that if, after the sale in October, the guardian had duly returned a statement of the same, and the sale had been approved and confirmed, the sale would nevertheless have been void because made after the lapse of the first term succeeding the one at which the order was made. The truth is, it does not very clearly appear how the title of the purchaser could have been affected by any action' of the court subsequent to the sale, had all the proceedings, as they ought, been properly returned. The order was strictly pursued. The sale was made on the terms directed. What authority had the court to set it aside, if they so desired, and what control could they exercise over it ? The act gives them none. They had reserved none in the original order; and it would seem that the only purpose to be accomplished, or that could be attained, by requiring a return, was to enable the court to see that their direction had been followed, and to make such disposition of the purchase money as would forward the objects for which the sale was made. So far as the purchaser is concerned, who had a deed executed after every preliminary step which the law or the order of the court required, it was a matter of perfect indifference whether the guardian complied with his duty in returning the proceedings into court or not. His title was the same with or without a return.

We do not wish to be understood as saying that such an order as the county court made in this case would warrant a guardian at any remote period of time to undertake its execution. Cases might bé put in which the lapse of time would be very material, but it is plain that five or six months is no reasonable period for effecting a ¡jrivate sale of land, and that the real injury which the minor has in this case sustained does not arise from the time when the order was executed, but from an entire failure to report its execution, or to account for the money which the sale produced. Whilst it is to be regretted that such power should ever be confided to a court in such a loose and unconditional manner, or that it should ever be delegated to a guardian in the same unrestricted mode, and whilst it is also probable that the power, thus entrusted by the court in this instance to the guardian, has been grossly abused, we are not, from these considerations, at liberty to annul the title of an honest purchaser acquired more than twenty years ago, based upon the performance of every act on his part, and on that of the guardian, which by law was made a pre-requisite to its validity.

The judgment is affirmed, the other judges concurring.


author: EichaRdson, Judge,

text:
    Inhabitants of Palmyra, Defendants in Error, v. Morton, Plaintiff in Error.
    1. The trustees of the town of Palmyra had power, under the tenth section of the act incorporating said town, (Local Acts, 1845, p. 151,) — if the owner or occupier of lots adjacent to the streets of said, town should fail to pave the same as directed by the ordinances — to pave the same and recover the full expense thereof from such owner or occupier. The charter, authorizing such assessments, is in conformity to the constitution.
    2. Such a suit is properly brought in the name of the corporation.
    3. A member of a municipal corporation will be presumed to be aware of its by-laws and ordinances.

      Error to Marion Circuit Court.

      Lipscomb and Lackland, for plaintiff in error.
    I. The trustees had no right by authority of law to require Morton to curb and pave the streets in front of his property. The street is public property, a matter of public concern, and can therefore be made only by a general tax imposed upon the citizens and proprietors in proportion to the value of their property. The proceedings against Morton, if sustained, would be the imposition of a special and partial tax upon one individual for a public benefit; or, in other words, the taking of private property for public use without just compensation. The legislature has no power to do this, and could confer no such power upon the trustees of the town of Palmyra.
    II. Morton was never requested to pave and curb. The ordinance can not be construed into a inquisition upon Morton. The notice in the Palmyra Whig is not a sufficient notice to Morton.
    III. There is nothing in the record showing that the trustees of Palmyra ever paid out money for which this suit is brought.
    IV. This suit should have been brought by the trustees, and not by the inhabitants as appears by the record.

      Me Cabe and Dryden, for defendant in error.
   EichaRdson, Judge,

delivered the opinion of the court.

The plaintiffs were incorporated a body politic by an act of the general assembly, approved March 3d, 1845, (Sess. Acts, 1845, p. 152,) by the name of “ The Inhabitants of the Town of Palmyra,” and by that name were authorized to sue and be sued. The corporate powers of the town were vested in a board of trustees, to consist of five members to be chosen by the qualified voters of the town, who were authorized by the tenth section “ to have the footways and side-walks of the streets paved at the expense of the owners or occupiers of the adjacent lots; and if such owner or occupier fail to pave the same as directed by ordinances, said trustees shall pave the same and recover the full expense thereof from such owner or occupier, before any court of competent jurisdiction, by action of debt.” On the 3d of May, 1853, an ordinance was passed by the trustees, requiring the owners or occupiers of property fronting on Main street, from Church to Jefferson street, to curb and pave the same — the curbing to be of rock not less than three inches thick, and the paving to be of the width of eleven feet, and to be completed on or before the first "day of September following. The defendant failed to have the paving and curbing done in front of his property; and in October, 1853, it was done by order of the trustees, for the expenses of which this suit was brought. On the trial only two instructions were asked, which were refused. They are as follows: “ 1. That unless the jury believe from the evidence that the defendant requested the plaintiffs to curb and pave in front of the lots in question, or to have said curbing and paving done, they will find for the defendant. 2. That unless they believe from the testimony that the money, alleged to have been paid by the plaintiffs for curbing and paving in front of said lots, was so paid by plaintiff at defendant’s request, they will find for defendant.” The verdict was for the plaintiffs; after which the defendant moved for a new trial, and in arrest of judgment; but the motions were overruled.

The main objection taken by defendant, which arises on the motion in arrest, is that the street is public property and can only be improved at the general expense ; that this proceeding is an attempt to levy a special tax upon one individual for a public benefit, and is obnoxious to the constitutional provision which declares that private property shall not be taken for public use without just compensation. It may be observed in the first place, that there is no attempt here to exercise the right of eminent domain; for it was not proposed to condemn the defendant’s property to public use, and it is unnecessary to discuss the character, extent or limitation of that power. Though the public convenience was promoted by making pavement on the street designated in the ordinance, yet it was essentially a local improvement, and it was proper that the owner or occupant of the property fronting on it should bear the burden of its cost. (Lockwood v. The City of St. Louis, 24 Mo. 20.) Examples of local assessments for partial improvements are familiar in the legislation of states and municipal corporations. The subject has been thoroughly discussed, and every principle bearing on it severely analyzed, in almost every state of the Union where the power has been exercised ; and it is now as firmly established as any other doctrine of American law. Each county builds its own jails and court-house, erects bridges and opens roads; and the expenses for such purposes are defrayed by levying a county tax. Public roads are worked and kept in repair by the inhabitants of particular districts; school houses are built at the expense of school districts; marshes are drained and river banks are leveed, and the expenses of these improvements are charged upon the persons in the vicinity, although the public is benefited by them. So, in towns, wells and cisterns are dug and kept in repair at the expense of particular limits; and in cities public parks and wharves are established, streets are opened and paved, sewers are made, water-pipes are laid, and the expenses thereof are charged to the property holders immediately benefited thereby. It is the exercise of the same power that authorizes districts, counties or towns to subscribe for public improvements. (27 Miss. 224; 5 Gilm. 405 ; 1 McCook, 77 ; 9 Ben. Monr. 526 ; 9 Humph. 252 ; 4 Comst. 423.)

The right of a municipal corporation to require the owner to pave the side-walk in front of his property may be derived from its duty to protect the public health and to prevent nuisances, and is a mere police regulation. It is the exertion of the same power that prohibits persons from throwing filth into the streets, or from obstructing the side-walks; that regulates awnings; that forbids the building of wooden houses within certain districts; that prescribes the quantity of powder which may be kept in stores, and that requires the pavements in front of each house to be kept clear of ice and snow.

The suit was properly brought in the name of the corporation. It was the duty of the trustees under the charter to have the side-walks paved, if the owner failed to do it in the time appointed ; but they are merely the agents of the corporation in that behalf, and had no cause of action for which they could sue, any more than a cause of action would have accrued, for a like service, to the constable, marshal, engineer, street commissioner, or any other officer or agent whose duty it was to superintend the work. (Northern Liberties v. St. John's Church, 13 Perm. State, 104.) In this case the board of commissioners were authorized to recover the assessments, for grading and paving a street, made on the owners of property that fronted the street; yet the action was maintained in the name of the corporation.

The instructions asked by defendant were properly refused, for they sought to place the right of recovery on grounds that would paralyze the tenth section of the charter. The plaintiffs could recover, on a familiar principle of the common law, if they had caused the work to be done and paid for it at the defendant’s request; but they have authority to cause the side-walks of a street to be paved at the expense of the owners or occupiers of property fronting on it, with or without their consent, and express power is given to recover “ the full expense thereof from such owner or occupier,” without the condition of having first paid the same.

There is nothing in the objection that the defendant was not notified of the ordinance; for being a member of the corporation, he is presumed to be aware of its by-laws. (City of London v. Venacie, 12 Mod. 269; G-lover on Corporations, 290, 207.) The other judges concurring, the judgment will be affirmed.


author: Richabdson, Judge,

text:
    Woolfolk, Respondent, v. Tate, Appellant.
    1. Where, during the pending of a motion for a new trial on the ground that the verdict is against the weight of evidence, a cause is removed to another circuit by an act of the legislature transferring the county in which the suit is pending to such other circuit, the judge of such other circuit should not decline disturbing the verdict, and refuse to grant a new trial, on the ground that the judge, not having heard the evidence as delivered by the witnesses on the stand, had not had the opportunity which the jury had of deciding upon the credibility of the witnesses. If'embarrassed from such cause, the court should grant a new trial.

      Appeal from Marion Circuit Court.

      Lipscomb, for appellant.
    I. It is the doctrine of this court that motions for new trials arc always addressed to the discretion of the court in which the trial was had. (16 Mo. 393.) But it is submitted that this court is not in this case called upon to control the discretion of the circuit court as to the weight of testimony. That court expressly declined acting upon the question because the judge then sitting was not the judge before whom the cause was tried.
    II. The verdict was against the evidence.

      T. L. and R. E. Anderson, for respondent.
    I. The judge of the circuit court properly refused to disturb the verdict. The presumptions of law are in favor of the verdict.
   Richabdson, Judge,

delivered the opinion of the court.

This case was tried in the Marion circuit court, at the July term, 1855, before Judge Wells. The verdict was for the plaintiff, and thereupon the defendant filed his motion for a new trial, on the ground that the verdict was against the weight of evidence, and that the court admitted illegal testimony. The motion was not heard by the judge who tried the cause, but was continued until the next term, and in the mean time Marion county, by an act of the general assembly, was included in another circuit, in which Judge Redd presided. At the February term, 1856, the motion was called and overruled for the reason, as assigned by the court, “ that the cause having been tried before Judge Wells, and not having heard the evidence as delivered by the witnesses on the stand, and not having the opportunity which the jury had of deciding upon the credibility of the witnesses, by the manner in which that evidence was given, the court is unwilling to disturb the verdict on the ground that it is against the weight of evidence.” Without expressing any opinion whatever on the evidence or the merits of the motion, we think that, under the circumstances, the court ought to have sustained the motion and ordered a new trial. A party to a suit has the same right to have his motion for a new trial heard and duly considered as he has to institute or defend an action. An acknowledged ground for granting new trials is, that a verdict is against the weight of evidence; and if, in this case, the court was embarrassed by the circumstances, and could not pass on the merits of the motion, it ought to have directed a new trial. It is better to allow a new trial, where the court for any cause can not consider the merits of an application for that purpose, than to refuse it; for by denying the motion, without giving a party the benefit of being heard or of having his reasons considered, irreparable injury may be done, while on the other hand the prevailing party in the verdict will only suffer by delay, and generally will secure another verdict if he is entitled to it.

With the concurrence of the other judges, the judgment is reversed and the cause remanded.


text:
    Wibbing, Respondent, v. Powers, Appellant.
    1. A material man instituted proceedings by scire facias, under section 8 of tbe “act for securing liens to mechanics and others,” (E. C. 1845, p. 735,) to enforce a lien; the original debtor — the contractor — and the owner of the building were made parties to tire proceeding; the plaintiff dismissed the proceeding as to the debtor; held that, haying dismissed the proceeding as to the debtor, there was no party on the record to defend the suit, and the cause could not proceed against the owner of the building alone.
    2. The general mechanics’ lien law of 1845 was in force in St. Louis county as far as it was not inconsistent with the local act of 1843.

      Appeal from St. Louis Land Court.

      A. J. P. Garesché, for appellant.

      H. N. Hart, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was a proceeding by scire facias to enforce a mechanic’s lien under the 8th section of the “ act for securing liens to mechanics and others.” (R. 0.1845, p. 733.) Before issuing the scire facias there had been no judgment against the contractor for the labor and materials furnished. On motion of the plaintiff, the cause was dismissed as to the defendant Eckert, the contractor, and a judgment was taken against Powers only, the owner of the building.

It is clear that this proceeding can not be sustained. As the plaintiff discontinued as to the debtor, there was no party to the record who could defend the suit. It is no answer to this objection that Eckert could not be found. The statute provided a mode of service in such an event. (Sec. 9.) Powers, the owner, was not brought into court to defend the cause of action against Eckert, the contractor. He is not presumed to know any thing more in relation to the demand against the contractor than any other person. The object of calling in the owner of the building is to give him an opportunity to show why his property should not be condemned to pay the debt of another. The contractor is the only person who can contest the validity of the demand; and, as the proceeding was dismissed as to him, there was no person to defend the claim of the plaintiff. This case is as if a creditor, proceeding by attachment and garnishment, should dismiss his suit against the defendant — the debtor — and afterwards take steps against the garnishee, when there could be no judgment which he could be condemned to satisfy.

In the case of Schulemberg v. Gibson, 15 Mo. 287, it was held that the general law in relation to mechanics’ liens still regulates the remedy, and continues in full force in the county of St. Louis, in all its provisions not inconsistent with the special law. The other judges concurring, the judgment will be reversed and the cause remanded.