text:
    Rankin, Respondent, v. Harper et al., Appellants.
    1. A father purchased land in the name of hia son with intent to defraud his creditors; held, 1st, that the contemplated fraud upon creditors repelled the presumption of an advancement to the child; that consequently there was a resulting trust to the father for the benefit of his creditors ; 2d, that this interest in the father was subjeet to seizure and sale on execution un-derjudgments in favor of such creditors.
    2. A defendant can not be a witness for his co-defendant.
    3. Where, upon the polling of a jury, eleven assent to the verdict, and one juror, in answer to the question of the clerk, “is-this your verdict ?” answers as follows : “ It is, as far as it goesheld, this answer does not invalidate the verdict.
    4. A. having purchased a tract of land, it was conveyed to a son of A. with intent to defraud the creditors of A.; held, in a suit to annul this deed in behalf of one of those creditors who had purchased the land at a sale on execution under a judgment in his favor against A., that evidence was inadmissible to show, in behalf of defendants, the pecuniary circumstances of A. several years after the conveyance to his son.

      •Appeal from St. Louis Land Court.

    Tbe petition of the plaintiff, Harper, sets forth substantially that plaintiff is entitled to the possession of the land in contro - versy ; that one Otis West, under whom plaintiff claims, purchased the same at a sheriff’s sale on execution under a judgment against Daniel Harper, one of the defendants, and received the sheriff’s deed therefor dated May 15, 1846 ; that defendants have been in unlawful possession of said premises since May 15th, 1846 ; that “ in the year 1839, the said Daniel Harper was largely indebted, and was in fact insolvent; and that at said time be was indebted to Josiah Pope and Otis West in about the sum of $ BOO ; that in said year 1839, said' Daniel Harper purchased the tract of ground above described and paid for the same ; that the said Daniel Harper, with the intent and for the purpose of defrauding, hindering and delaying his creditors, procured a deed to be made to the said Orrin Harper, a son of the said Daniel Harper, then a boy not over the age of eight years ; that said Daniel Harper refused to permit the deed to be made to himself, though he paid the purchase money; a part of which purchase money, so paid for said ground, was received by said Harper for and on account of the goods and merchandize purchased by the said Daniel Harper of the said Pope & West in year 1837, and which was never paid for by said Daniel Harper up to the time of the sale of the above described tract of ground to said West in the year 1846. Plaintiff states that said conveyance to Orrin Harper, made as aforesaid for the purpose of hindering and delaying the creditors of the said Daniel Hai’per, was and is clearly and utterly void. Plaintiff asks judgment for the recovery of the above described premises, for the rent of the same for five years next preceding the filing of this petition, together with damages and costs. Plaintiff further asks that said conveyance to Orrin Harper be declared void, and that the said defendants be compelled to convey said premises to said plaintiff, or that the court will do it for them; and for such other and further relief as the said plaintiff may be entitled to in the premises.”
    Daniel Harper answered, denying the fraud in the petition. Orrin Harper answered by a guardian ad litem in the common form, submitting the rights of the infant to the protection of the court.
    The evidence introduced tended to prove the truth of the facts charged in the petition. It appeared that Josiah Pope and Otis West, of the firm of Pope & West, in the year 1844, recovered a judgment for $317 81 against Daniel Harper upon an indebtedness which had accrued in their favor previously to the purchase of the land in controversy by Daniel Harper, and the conveyance to his minor son Orrin Harper ; that execution issued February 9th, 1846, and was levied upon the land in controversy in April, 1846, to pay an unsatisfied balance ; that Otis West became the purchaser at the sheriff’s sale, and received the sheriff’s deed therefor dated May 16,1846. Defendants offered to prove the state of Daniel Harper’s pecuniary circumstances in the year 1842 and later. The court excluded the testimony. Plaintiff in reply introduced in evidence the sheriff’s return on the execution against Harper dated February 9, 1846, to the effect that “ no goods and chattels of Harper were found out of which to make the balance of the execution.” Defendants then again offered to prove that, during the whole time of the life of the execution, said Harper was the visible and known proprietor of a large amount of personal property subject to execution, more than sufficient to satisfy the same. The court excluded the testimony. Daniel Harper was offered as a witness for his co-defendant, Orrin Harper, but was rejected by the court.
    The court, on the motion of plaintiff, gave the following instructions : “1. If the jury find from the evidence, that, at the time of the purchase of the lot described in plaintiff’s petition by Daniel Harper, said Harper was indebted to Pope & West; that said Harper paid the purchase money for said lot, and caused said lot to be conveyed to said Orrin Harper, with the intent or for the purpose of hindering, delaying, or defrauding his' creditors, — they will find the issue for the plaintiffs. 2. If the jury find the issues (declared to them by the court) for the defendant, they ought to say so in their verdict, and need say no more. If they find the said issues for the plaintiff, they ought also to assess damages for the detention of the land, and declare the monthly value of the land.”
    The defendants moved the court to give the following instructions : “ 1. If Harper, the father, at the time of the purchase of his son, was solvent, and did not intend by such purchase to cheat or defraud his creditors, then the son, by the purchase and deed to him, acquired the title to the land, and the plaintiff can not recover. 2. If Harper had, at the time of the levy and sale on execution, property other than the land now in dispute sufficient to satisfy said execution, and which was openly and notoriously held by him, then Otis West, one of the judgment creditors, did not acquire any title to the land in dispute by the sheriff’s deed. 3. The sheriff’s deed read in evidence to Otis West was inoperative and void, and passed no title.” The court refused to instruct the jury as requested by defendants. Exceptions were duly taken.
    The jury found for the plaintiff, and assigned his monthly damages “ at the sum of fifty cents per month for the time said plaintiff was kept from possession of the premises.” Upon the return of the jury with a written verdict, on the motion of defendants, the jury was polled. Eleven of the jurors assented to the verdict. One juror, in answer to the question of the clerk, “ is this your verdict ?” said “ it is, as far as it goes.” The defendants objected to the reception of the verdict. The court ordered the verdict to be received as the unanimous finding of the jury.
    The court, by its own decree, annulled the conveyance of May 10, 1839, to Orrin Harper, and vested all the right, title and interest of the defendants, Daniel and Orrin Harper, in and to the tract of land in controversy, in the plaintiff, Harper ; and ordered “ that plaintiff recover of said defendants the monthly damages aforesaid, in form aforesaid as assessed, together with costs,” &c. Defendants appealed to this court.

      R. M. Field, for appellants.
    I. In the most favorable aspect of the case for the plaintiff, the defendant Daniel Harper made a fraudulent purchase for his son. It is conceded that a court of equity would, in favor of a creditor, raise out of the property purchased the money advanced by the father. But the father had no estate or interest in the land to be sold on execution. (R. C. 1845, p. 478.) There is no resulting trust in favor of a parent purchasing in the name of a child. (2 Sudg. on Vend. 145 ; Matthews’ Pre-sump. Ev. 61; 2 Johns. OK. 405 ; 17 Eng. Ch. R. 447.) The statute against fraudulent conveyances only avoids fraudulent sales in favor of creditors of tbe grantor. (R. C. 1845, p. 525.) To apply tbe statute to tbe present case would manifestly defeat tbe object of tbe plaintiff; for, if tbe deed from Daniels to Orrin Harper were void, then tbe title to tbe land in controversy still remained in Daniels, and tbe plaintiff could not recover. That a fraudulent purchase is not within tbe statute against fraudulent conveyances appears from tbe following authorities : Roberts on Fraudulent Conveyances, 463 ; 1 Yerg. 79 ; 7 Yerg. 155 ; Growing v. Rich, 1 Iredell, 553.
    II. Tbe court below erred in excluding Daniel Harper as a witness on behalf of bis co-defendant. Tbe father, though a formal party on tbe record, bad really no interest in tbe controversy. He claimed no estate in the land. It was indifferent to him whether the land was adjudged to his creditor or bis son. The suit was equitable in its character, and the present question must be judged by the rules prevailing in courts of equity. Tbe established rule in equity is, that a defendant having no interest is a competent witness. (McDonald v. Neilson, 2 Cow. 133 ; Kirk v. Hodgson, 2 Johns. Ch. 550; Rutter v. Elliot, 15 Conn. 187 ; Ridgway v. Newbold, 1 Har-ring. 385 ; 1 Bland, 508 ; 2 McCord’s Ch. 185, 205 ; 1 Jones’ Eq. 24 ; 5 Paige, 633 ; 1 Green’s Ob. 321.) The new practice act has not changed tbe rule. (1 Code Rep. 123; id. 113 ; 9 How. P. R. 385.) Nor is it material that the witness might have been subjected to costs. (Burns v. Taylor, 23 Ala. 255.) Nor under the practice here was any previous order necessary. (Black, v. Chase, 15 Mo. 344.)
    III. Tbe court below erred in excluding tbe testimony offered as to Daniel Harper’s pecuniary circumstances subsequent to the conveyance by Daniels, for it was material to be considered in an inquiry into bis intentions in procuring the conveyance to his son. When tbe plaintiff was permitted to read to tbe jury tbe sheriff’s return of nulla bona to prove that tbe defendant had no property subject to execution in 1846, the defendants should have been allowed to show the contrary.

      IV. The court below erred in receiving the verdict after one of the jury declared that he assented to it only “ as .far as it went.” That juror gave to his assent a qualification, that he must have regarded as material, or he would not have mentioned it. (5 Burr. 266.) ' So too, the verdict is void as not finding all in issue ; for the damages are not found in a manner that any verdict can be rendered. (1 Grah. & Wat. on New Trials, 140 and cases cited.)
    V. The judgment is repugnant, contradictory and void. It declares the deed from Daniels to be void, and then conveys all the right, title and interest of the defendants to the plaintiff. In other words, the judgment annuls all the title of the defendants, and then transfers this annulled title to the plaintiff.
    VI. The judgment is erroneous in awarding damages at a rate per month for a term not fixed and not ascertainable.

      Knox & Kellogg, for respondent.
    I. Daniel Harper was not a competent witness for his co-defendant. (19 Mo. 268 ; IT Mo. 36T.)
    II. The sale and deed by the sheriff to Otis West were sufficient to vest the title to the lot sued for in said West. (4 Mo. 116 ; 10 Mo. 34, 175, 137 ; 15 Mass. 211 ; 12 Wend. 414 ; 4 Denio, 439 ; 1 Conn. 525 ; 11 Conn. 369 ; 10 Conn. 137 ; 2 Barr, 38 ; 8 B. Mon. 566 ; 1 Johns. Ch. 582 ; 3 Eng. 83 ; R. C. 1845, ch. 67, § 2.)
    III. The instructions given put the case fairly to the jury.
   LEONARD, Judge,

delivered the opinion of the court.

The main question in this case is, whether land, purchased in the name of a child for the purpose of defrauding creditors, is subject to sale under our execution laws ; or whether, in such a case, the only remedy of creditors is_to purchase the property in equity, and have it declared subject to a trust for the payment of debts. This is a new question here to some extent, although somewhat involved in the case of Howe & Wallace v. Waysman, heretofore determined in this court, (12 Mo. 169,) and we proceed to consider it both on principle and authority, but in as brief a manner as possible.

Under the English law, legal estates only were subject to legal executions, and of course the equitable owner of land was beyond the reach of executions at law. This was remedied by the 29 Oar. 2, ch. 3, § 10, which subjects to execution all real estate of the defendant which any other person holds in trust for him ; and as it was a principle of equity law, that, if one purchased land in the name of a stranger, the use resulted to the party who paid the purchase money, this resulting trust, of course, became liable to execution under the provisions of the statute. If, however, the conveyance be in the name of a wife or child, it is presumed to be a provision for the former and an advancement to the latter, and in such case, therefore, there, is no resulting trust. But it is to be observed that this presumption may be repelled by contrary proof, and then the trust results, as in the ordinary case of a purchase in the name of a stranger. And Sugden says, (2 Vend. & Pur. 171,) that if the purchase be after marriage and voluntary, it may perhaps be deemed fraudulent as against creditors in like manner as if the property actually vested in the husband. It has, however, (he continues) been strenuously argued that a purchase is not within the operation of the 13th Elizabeth, for, as the purchaser may give the money to the object of his bounty to purchase the estate for himself, he may by the same reason direct a convey- - anee to be made to him ; and this seems to be the better reason when the case is clear of actual fraud.

In New York, where the statute of 29th Car. 2 was in force by re-enactment, the very case here suggested of actual fraud occurred in Guthrie v. Gardiner, (19 Wend. 41,) where, in an action of ejectment, the plaintiff claimed land under a deed made to her by a stranger at the request of her husband, who paid the purchase money and directed the deed to be made to his wife for the benefit of his family, and to protect the property from his own debts, for which it was afterwards sold under execution and bought by the defendant. The court declared that tbo presumption that the deed was a provision for the wife, having been rebutted by the proof of actual fraud, a resulting trust arose to the husband in favor of his creditors, and that the fee passed under the execution sale to the purchaser. The original statute was subsequently repealed in New York, and it was then provided that no use should result to the party who paid the money, but that the title should vest in the grantee, and that the conveyance should be presumed fraudulent as against existing creditors ; and that, if the presumption was not disproved, a trust should result to them to the extent which that should be necessary to satisfy their demands. (Per Brown, C. J., in Wait v. Day, 4 Denio, 442.) Under this statute, the chancellor of New York thought this land could not be sold under an execution at law, but that the creditors must go into equity to have the effect of the statute trust. The words of the statute seem to require that construction, but the Supreme Court decided otherwise, and held that the remedy of the creditors was, as before, by an execution sale, which they deemed a more direct and speedy remedy than a resort to a court of equity. (Wait v. Day, 4 Denio, 439.) Our execution law is quite as broad in its terms as the English act, and has received, practically, a more liberal construction. In its language, it extends to every interest in the land of which the party himself, or any one for his use, is seized in law or equity. Although the case of Howe & Wallace v. Waysman was that of a purchaser and not of a creditor, yet the reasoning of the court applied quite as forcibly to the latter as to the former. Our law subjects all that a man has as property to the payment of his debts, and we know of no reason why the trust, that results to him who pays the purchase money, and which can not be allowed to stand as an advancement to a child, or a provision for a wife, on account of the actual fraud, should not be allowed to result to the debtor for the benefit of his creditors, so as to afford them the speedy and easy remedy of an execution sale. It ill-becomes the parties to the fraud, after they have been detected and foiled in their attempt, to complain of the sacrifice of property incident to sucb sales. These sacrifices are perhaps fully compensated for by their practical teachings, that, after all, “ honesty is the best policy.”

The manifest defect of our law, in refusing to allow a defendant in any suit to be a witness for his co-defendant, we can not remedy by judicial construction. It existed in the original act in New York, but was amended there at the very first session of the legislature that afterwards occurred. Our legislature, however, have not seen proper to correct what we suppose is a mere oversight, and we are not at liberty to do so.

There is nothing in the answer of the juror that ought to invalidate the verdict; nor do we think there is any thing in the exclusion of the evidence in reference to the pecuniary condition of the debtor, so long after the impeached transaction. It was not competent evidence for the defendant at first, nor did it become so after the plaintiff had put into his case the execution and return under which he derived his title to the property. This was competent proof for the plaintiff in making out his title, and he was obliged perhaps to put it in for that purpose, and the defendant can not be allowed to seize hold of this in order to get in illegal evidence, under the pretence of rebutting a fact that appeared incidentally in the sheriff’s return.

The formal defects in the judgment will be amended here, and, with the consent of the plaintiff, the damages to be adjudged will be confined to those that have occurred since the judgment below 1 We shall accordingly reverse the judgment below and enter judgment here, vesting in the plaintiff the title acquired by the defendant, Orrin Harper, under the impeached conveyance, 'and for the possession of the land, and the costs of both courts. The judgment below is reversed, and the judgment here pursuant to this opinion.


source: Caselaw Access Project

author: LEONARD, Judge,

license: Public Domain

text:
    Eddy, Defendant in Error, v. Baldwin et al., Plaintiffs in Error.
    1. E. 'as surviving partner of the firm of B. & E., recovered a judgment against C. for money embezzled by him while a cleric for B. & E. from the year 1841 to 184S ; an execution was issued under this judgment, and levied upon a lot that had been, in May, 1844, conveyed to one D. in trust for the separate use of the wife of C.; E. became the purchaser at the sheriff’s sale, and received a deed from the sheriff, and brought suit, — to which D. and C. and the wife of C. were parties — to obtain a decree vesting in himself all the right, title and interest of D., the trustee, and of the wife of C. in said lot, on the ground that the same was conveyed to D. for the separate use of the wife with the intent to defraud and hinder the creditors of the husband : held, that the judgment against C., though conclusive against him as to the items upon which it was found, (and which appeared in the report of a referee confirmed by the court,) was not conclusive as against the other defendants; that they might show that the deficits against C., in the account kept by him as clerk of B. & E., and upon which the judgment against him had been recovered, were caused by the interference of E.; and that forced balances were made by C. at the suggestion of E., and that consequently there was no indebtedness on the part of C. to B. & E. at the date of the deed of May, 1844, to D.
    2. Where land, purchased with the money of the husband, is conveyed to a trustee in trust for the separate use of the wife with intent to hinder and defraud the creditors of the husband, it is subject to be sold under executions issued under judgments in favor of such creditors.

      Error to St. Louis Court of Common Fleas.

    This was a suit instituted by Joseph A. Eddy against Henry Baldwin, Julia A. Baldwin his wife, Samuel Willi, and T. Gr. Stewart. The petition states, substantially, that on the 30th of April, 1852, a judgment was recovered in the St. Louis Court of Common Pleas by Joseph A. Eddy, as surviving partner of Beach & Eddy, against Henry Baldwin, for $5888 23 ; that an execution issued upon this judgment, which was levied upon all the right, title and interest of Henry Baldwin in the lot and premises in controversy ; that Joseph A. Eddy, plaintiff, became the purchaser at the sheriff’s sale, and received the sheriff's deed therefor dated September 21st, 1852 ; that •on the S0th day of May, 1844, one Josephus W. Hall conveyed the lot in question to the defendant Willi, in trust, for ihe sole benefit, use and advantage of Julia A. Baldwin, for ■the consideration of $3850 ; that on said 30th of May, 1844, ■and for many years previously, said Henry Baldwin was and ever since has been wholly insolvent; that, at the date of said deed to Willi, he was largely indebted to the firm of Beach & Eddy; that for this indebtedness the said judgment of April ■30th, 1852 was obtained; that, at the time of the marriage, ■said -Julia had no separate estate, nor has she since acquired any by descent, devise, gift or otherwise; that the said consideration of $3850 was wholly furnished out of moneys belonging to Henry Baldwin ; that said “ Henry and Julia A. Baldwin, contriving and confederating together for the purpose of defrauding and hindering the then existing creditors of said Henry, among whom were said Beach & Eddy, and also the subsequent and future creditors of him, the said Henry, among whom were said Beach & Eddy, from obtaining the payment of their just debts, and in order to conceal from them the property of the said Henry, fraudulently contrived to have the said conveyance from Hall and wife made to defendant Willi in trust, for the separate and exclusive use and benefit of said Julia A. that said Henry and Julia A. took possession of said premises and occupied them until they rented them to defendant Stewart. Plaintiff prayed that the interest, title, claim and estate of the said Willi and of the said Julia A. Baldwin in the lot in controversy be vested by a decree in himself.
    Plaintiff, to make out his case, introduced the judgment and execution against Henry Baldwin in favor of Eddy; also the sheriff’s deed to said Eddy. Plaintiff also offered in evidence the bill of particulars accompanying the petition in the case in which that judgment was obtained ; also the report of the referee in that ease. The defendants, Julia A. Baldwin and S. Willi, objected to their introduction ; the court admitted the bill of particulars, and so much of the report of the referee as gave the items and the decision of the referee on each item. Some of these items were of a date prior to the date of the deed of Hall to Willi.
    Defendants offered to prove that the plaintiff Joseph A. Eddy, in 1841-2-3-4-5-6-7 and 8, controlled the cash account in the store of Beach & Eddy, and that he had access at all times to the money ; that he handled the money frequently; that he controlled Baldwin entirely ; that he made him a mere instrument in his own hands in the beeping of the cash accounts; that he kept many memorandums of cash in his own hands, and caused forced balances to be made upon his own suggestion, and that the deficits were occasioned by these irregularities and by Eddy’s interference with the cash account. This testimony was ruled out as inadmissible, on the objection of plaintiff.
    Defendants also gave in evidence a certificate of discharge of Henry Baldwin from his debts under the general bankrupt law of the United States. The certificate was dated May 2, 1853, and issued out of the district court of the United States for the district of Missouri, and showed that the petition for a discharge was made July 18, 1842, and the discharge decreed September 5,1843.
    The court gave the following instructions to the jury : “ 1. If the jury find from the evidence that the consideration of the deed from Hall to Willi was paid by Henry Baldwin out of the moneys in his possession, or out of the earnings of his wife, and the proceeds of the sale of her jewelry by her, and the proceeds of a prize drawn by her in a lottery ; or, if the jury find that said Julia, the wife of said Henry, paid the consideration of said deed to Willi out of her earnings and the proceeds of the sale of her jewelry and the proceeds of a prize drawn by her in a lottery, whilst she was the wife of said Henry; and if they further find that said deed was made or contrived by said Henry and Julia, or either of them, for the purpose of protecting the property described- in said deed from the creditors of said Henry, or of placing said moneys beyond the reach of the creditors of said Henry, or of preventing them from collecting tbeir just demands against said Henry, or hindering or delaying them in the collection of said demands, then the jury should find that said deed was made or contrived with the intent to hinder, delay or defraud the creditors of said Henry. 2. To ascertain the intent with which said deed was made, the jury should take into consideration all the facts and circumstances in evidence. They should not presume a fraudulent intent without proof thereof. Fraud is not to be presumed, but it may be proved indirectly by such facts and circumstances as satisfy the jury of its existence, as well as by direct proof. The burthen of proving said intent is on the plaintiff. 3. The judgment in favor of Joseph A. Eddy against Henry Baldwin, and the referee’s report therein, read in evidence, are conclusive proof of the indebtedness of said Baldwin to said Eddy to the amount of said judgment, and that the same is founded upon the items of indebtedness set forth in said report, and as against this indebtedness the certificate of discharge in bankruptcy of said Baldwin is no discharge of him from any of said items.”
    The following instructions asked by defendants, Julia A. Baldwin and Samuel Willi, were refused: “1. The earnings of Mrs. Baldwin and her personal savings, as well as the proceeds of a prize drawn by her in a lottery, if her husband allowed her to apply the same to her own use, vest in and belong to her in equity, as against the claim of her husband thereto. 2. If the consideration of said deed of Hall to Willi, trustee of Julia A. Baldwin, was paid by Julia out of the proceeds of her own earnings and savings, and a prize in a lottery drawn by her, then such consideration was not paid by money belonging to Henry Baldwin.”
    The jury found the following verdict upon issues framed and presented to them by the court:
    “ 1. As to the first issue, we, the jury, find in the affirmative, that the judgment in favor of Joseph A. Eddy, surviving partner of Beach & Eddy, against Henry Baldwin, was rendered and an execution issued thereon, and under it the' property described in the deed to Willi was levied upon and sold to the-plaintiff, and a deed thereof made to him, as said facts are alleged in the petition.
    “2. As to the second issue, we, the jury, find that, when the deed of Hall to Willi, named in the petition, was made and delivered, Henry Baldwin, the defendant, was insolvent, and that he was indebted to Lewis Beach and Joseph A. Eddy.

      "3. As to the third issue, we, the jury, find that the consideration of said deed to Willi was paid to Hall by said Willi and Dr. Brown with money furnished to them for the purpose by Julia A. Baldwin, out of funds in her hands at the time, derived partly from her earnings as a school teacher, whilst she was the wife of said Henry Baldwin, partly from the proceeds of her jewelry sold by her during the timé she was the wife of said Henry, and partly from the proceeds of a prize drawn in •the lottery on a ticket bought by said Henry with his own money, and given to said Julia by him after it had drawn a prize of eight thousand dollars.
    “ 4. As to the fourth issue, we, the jury, find that said deed of Hall to Willi was made or contrived with the intent to hinder, delay or defraud the creditors of said Henry Baldwin ; and that said Henry was, and that said Julia was, privy to said intent.

      “5. As to the fifth issue, we, the jury, find that the consideration for said deed to Willi was paid as stated in our finding of the third.

      “ 6. As to the sixth issue, we, the jury, find that the consideration for said deed to Willi was paid as stated in our finding of the third issue ; and that seventeen hundred and twenty dollars thereof were so paid from the funds derived from her earnings as school teacher, whilst Julia was the wife of said Henry; and one hundred and thirty dollars from the proceeds of the sale of her jewelry, during said time ; and two thousand dollars from the proceeds of the prizej as found by us on the third issue.”
    A motion for a new trial, made by Julia A. Baldwin and Willi, having been overruled, they moved also in arrest of judgment, which motion was also overruled, and a decree was rendered vesting in plaintiff all tbe right, title and interest o£ Henry Baldwin, Julia A. Baldwin, and her trustee, Samuel Willi, in and to the lot in controversy. It was further ordered that plaintiff recover and have possession thereof, and to that end a writ of possession was awarded. Exceptions were duly taken.

      T. Polk and B. Jl. Hill, for plaintiffs in error,
    cited 2 Story’s Eq. §§ 1377, 1380 ; Gentry v. McReynold, 12 Mo. 513 ; Curtis v. Price, 12 Yes. 89, 103 ; Arundell v. Phipps, 10 Yes. 140; 1 Roper on Husband and Wife, 325 ; 1 Swanst. 106 ; Townshend v. Windham, 2 Yes. sr. 11; Kidney v. Cropmaker, 12 Yes. 136 ; Montague v. Lord Sandwich, 12 Ves. 148 ; Stephens v. Clive, 2 Bro. C. Cas. 90 ; Story’s Eq. § 361-2-5 ; Eoggord v. Tolcott, 2 Edw. Ch. 628 ; Parish v. Rhodes, Wright, 339 ; Westbrook v. Comstock, Walker’s Ch. 314 ; Whitesides v. Davis, 7 Dana, 101.

      Todd, Krum & Harding,, for respondents,
    cited 11 Wheat. 210 ; Bailey, 415; 1 Monroe, 44 ; 2 Hill & Cowen’s Notes, 950, 960 ; 1 Greenl. Ev. 524, 528, 523 ; 14 Mo, 597 ; 7 Mo. 125 ; 2 S. & R. 275 ; 17 Mo. 376 ; R. C. 1855, art. 3, secs. 8, 9'; Clancy on Rights 3, 440; 8 Mass. 229 ; 9 Mo. 628; 12 Mo. 169, 533 ; 18 Mo. 378 ; 19 Mo. 340 ; 7 Mo. 452 ; 2 Roper on law of Husband and Wife, 137-8-9, ch. 7 ; 2 Kent’s Com. 139 ; 2 Story’s Eq. § 1403-4.
   LEONARD, Judge,

delivered the opinion of the court.

We have come to the conclusion that the court erred in exluding the proof, offered through the witness Ladd, of Eddy’s control over and interference with Baldwin in reference to the cash account kept by the latter as the clerk of Beach & Eddy. The judgment against Baldwin, which was founded mainly on the items in this account, may conclude him as to the nature and dates of the several items of indebtedness on which the recovery was had ; but does it also conclude the other defendants here to the same extent, so as to preclude them from showing, for the protection of their own rights, that no such indebtedness existed at the times indicated ? We are not aware of, nor have we been referred to, any case to this effect; and, upon principle, we think it can not be so. It is of course conclusive against the world of the party’s indebtedness at the time of the recovery ; but we do not see how it can be held conclusive against a grantee in an alleged fraudulent conveyance of such indebtedness at a time long anterior to the judgment, for the purpose of impeaching the conveyance as fraudulent by reason of the then existing indebtedness of the grantee. The principal matter in this case to make out the alleged fraud, was the husband’s indebtedness at the date of Hall’s deed of May, 1844, to Willi, for the use of the wife ; and, as the husband’s discharge in bankruptcy, in 1843, extinguished all his general prior indebtedness, it became material to show that the several items of the judgment indebtedness existed before the date of the deed, which was several years before the judgment, and that they were also of such a character as exempted them from the operation of the bankrupt’s certificate. We do not know that the rejected proof would have weighed much with the jury against the fair presumption of such indebtedness furnished by the recovery, or, indeed, that it ought to have had much weight; but yet we think it was competent evidence, and that therefore the court erred when they excluded it.

Passing from this point to the substantial merits of the case, we remark, that this suit is not to subject the lot to the payment of a debt, but to try the alleged fraud in equity, in order, if it be found, that it may be so decreed, and the proper title passed to the purchaser, and the matter thereby concluded, once for all, instead of being left open for interminable litigation at law. And here the first question that meets us is, supposing the settlement to have been fraudulent in fact against the husband’s creditors, whether the lot was subject to an execution sale for the payment of his debts ? The objection is, that the lot never belonged to the husband, and that, of course, he never made any disposition of it to be adjudged fraudulent and void as against bis creditors. In Rankin v. Harper, (ante p. 579,) where a father had purchased land in the name of his son to defraud his creditors, we determined that the use resulted to the father for the benefit of his creditors, and that the land was subject to be sold under execution as the father’s property, and we refer to our opinion in that case for the grounds of our decision. It is true that in that ease there was no expressed use, and so the trust would of course have resulted to the party who paid the price had the deed been taken in the name of a stranger ; but it was there insisted that the purchase being in the name of a child, it was an advancement, and not a resulting use ; but we held that, although this would have been so, had it been an honest transaction, yet, as the purpose was to defraud creditors, the presumption in favor of an advancement was repelled, and the use resulted to the debtor in favor of his creditors. In other words, it was decided that a purchase by a debtor with his own funds in the name of another, whether child or stranger, to defraud creditors, was a fraudulent disposition of his property, and that the purchased land was subject to sale under our execution laws. The present ease, however, is distinguished from that case, by the fact that here the use is expressly declared in favor of the wife, and therefore it is said that, according to the principles of law, there can be no resulting trust. We think, however, that ought not to be allowed to take the case out of the rule there established. The great principle on which the statute against fraudulent conveyances stands is, that a man shall not dispose of his property so as to have the enjoyment of it himself, and yet keep his creditors at arm’s length ; and all the schemes that are from time to time cunningly devised by men for that purpose, are met and rendered ineffectual by the courts, as far as it is possible to do so consistently with the principles of the law. We see no legal reason why, if, in the one case, the legal presumption that the purchase was an advancement for a child was properly met by proof that it was a trick to defraud creditors, the same evidence should not be allowed in the present case to counteract the expressed, use, and create a resulting trust to the debtor lor the benefit of his creditors. If the property was bought with his funds, and the form of the conveyance was a mere contrivance of the parties to secure the property against his creditors, it of course ought not to prevail under any system óf law, and we think the principles of our own law, as they now stand, are sufficient to answer the purposes of justice in this, particular.

The proceeds of the lottery ticket, and of the wife’s jewelry and industry, belonged to the husband; and, iE they were invested in the purchase of the lot, it must, as against the husband’s creditors, no matter how it might be as against himself and mere volunteers be considered as a voluntary post-nuptial settlement. According to the doctrine of some of the cases, (Reade v. Livingston, 3 Johns. Ch. R. 500,) if the party be at all indebted at the time, the transaction is void as to existing creditors as a sheer matter of law; while, according to others, (Sexton v. Wheaton, 8 Wheat. 229,) it can not be impeached upon that ground only; but the presumption of fraud arising from the fact of indebtedness may be repelled by contrary proof. The present case, however, was put to the jury on the ground that the purchase of the lot, in the name of the trustee, was intentionally contrived between the parties — husband and wife — to defraud creditors ; and it is upon this ground that we have considered the property as subject to an execution sale for the payment of the husband’s debts. The question has not. been raised here whether any indebtedness on the part of the husband will annul the settlement in favor of existing creditors, and we presume it will not be made in the future trial of the case ; and so we are not now called upon to express any opinion upon that point. The judgment is reversed, and the cause remanded.


text:
    Biddle, Respondent, v. Hussman, et al., Appellants.
    1. A. having leased a lot to B. for a term of years, joined with others, the owners of adjoining lots, in a deed of conveyance hy which a portion of the lot leased was conveyed to the city of St. Louis; this deed contained the following clause: “ It being understood that some of said first parties have made leases for portions of the wharf property hereby conveyed, the terms of which have not expired ; and the conveyance to the city is made hy said first parties subject to said leases now in existencethe portion thus conveyed by A. to the city of St. Louis was duly condemned and appropriated to public uses. Held, in a suit brought by A. against B. to recover the whole of the rent reserved, that the conveyance to the city carried with it, as incident to the part of the reservation conveyed, a proportionate part of the rent, the above clause not amounting to a reservation of the rent to the grantor.
    2. The condemnation and appropriation to public uses of a portion of a lot leased for a term of years, will extinguish a proportionate part of the rent, and entitle the parties — landlord and tenant — to compensation according to their respective rights.
    3. In determining the proportionate part of the rent due to the landlord for the portion not appropriated to public uses, the jury must have reference, in making their estimate, to the real value to the tenant of what is left uncon-demned, and not merely to the quantity.

      Appeal from St. Louis Land Court.

    This was an action to recover rent alleged to be due plaintiff. Under instructions given by the court, which it is unnecessary to set forth, a verdict was rendered for plaintiff for the whole rent reserved.- The opinion of the court sufficiently sets forth the facts.

      I. T. Wise, for appellants,
    cited 1 Co. on Litt. 143, a 151, 448, 482 ; 8 Cowen, 206 : 18 Gilb. on Rents, p. 30, 59 ; 8 Cowen, 209, 728 ; 2 Co. Inst. 412 ; Cruise Dig. T. 17, § 19 ; 4 Kent’s Com. 356 ; 3 id. 470 ; 2 East. 575; Taylor’s Land. & Ten. 183, 219; Jackson v. Eddy, 12 Mo. 209 ; 3 Camp. 513 ; 25 Wend. 445 ; 1 Ld. Raym. 77 ; Waters’ case, 3 Coke, 22; 11 Ala. 63 ; Const, of Mo. art. 3 sec. 7 ; Sess. Acts, 1853, p. 248 ; 15 Wend. 464; 11 Ohio, 408 ; 24 Wend. 254 ; 11 Platt on Leases, 151.

      I. H. Keim, for respondent,,
    cited 1 Hilliard on Real Property, 225, 257; Fowler v. Botts, 6 Mass. 63 ; Parks v. City of Boston, 15 Pick. 198 ; 24 Wend. 254 ; Foote v. City of Cincinnati, 11 Ohio, 408 ; Fotts v. Huntley, 7 Wend. 210 ; Ellis v. Welch, 6 Mass. 246 ; Frost v. Earnest, 4 Whart. 86.
   LEONARD, Judge,

delivered the opinion of the court.

Biddle’s conveyance to the city embracing part of the lot that he had previously leased to Hussman, the first question is as to the effect of that conveyance upon the rent reserved on the prior lease. Littleton (sec. 228) says, “ that, by a grant of a reversion, the rent passes and Coke, in his commentary upon it, tells us “ the reason thereof is, because the rent is incident to the reversion, and passes by the grant of the reversion, as with the superior, without saying cum periinentns.” Gilbert, in his book on Rents, (p. 174,) speaking in reference to the question whether a rent service incident to the reversion may be apportioned by the grant of part of the reversion, says : “It seems formerly to have been doubted whether, upon such a grant, there could be any apportionment, or whether the whole rent should not be extinguished and lost; for, since the reversion and rent incident thereto were entire in their creation, they thought it hard that, by the act of the lessor, they should be divided, and thereby the tenant made liable to several actions and distresses therefor. But the conception was too narrow and absurd to govern men’s property, long; fot, if I make a lease of three acres, reserving three shillings rent, as I may dispose of the whole reversion, so may I also of any part of it, since it is a thing in its nature severable, and the rent, as incident to the reversion, may be divided too, because that, being made in retribution for the land, ought, from the nature of it, to be paid to those who are to have the land on the expiration of the lease. And hence it is that the rent passes immediately with the reversion, without any mention of it in the grant.” The effect, therefore, of Biddle’s conveyance to the city was to transfer to the latter a proportionable part of the rent, -unless the particular clause in the deed to which we have been referred had the effect of severing the rent from the reversion and reserving it to the grantor. The words of the clause are : It being understood that some of the said first parties have made leases for portions of the wharf property hereby conveyed, the terms of which have not expired, this conveyance to the city is made by the said first parties, subject to said leases now in existence.” These are not apt words of exception, reserving from the operation of the grant something that otherwise would have passed, and they do not import in their ordinary signification that the grantor thereby holds back and excepts from his grant something that the grantee would otherwise have taken under it. They refer to the condition of the grantor in reference to the land he is disposing of, and then declare that the grantee takes it subject to existing leases. That was all that the party could lawfully transfer, and, no matter what was the form of the deed, it could be effectual only to that extent. If no notice had been taken of the lease, the deed might have been considered in form a conveyance of the fee in possession, although it would have been in effect only a conveyance of the reversion; and the purpose of this clause, we think, was to make the deed in form what it was in effect; in a word, the declaration, that the property is subject to an existing lease, and that the grantee takes it with that burden upon it, expresses only — what otherwise would not have been apparent — that the transaction is a transfer of the grantor’s reversionary interest in the property only, and not of an estate in possession. The effect of the deed, therefore, was to divest Biddle of a proportionate part of the rent. The original court, however, taking a different view of the law, instructed the jury that Biddle was entitled to the whole rent reserved, and for that reason the judgment must be reversed and another trial had. The question will then come up as to the effect of the subsequent condemnation of the lot upon the respective rights of the landlord and tenant. The interests of both these parties in the lot were equally within the protection o£ our constitution. Both were owners within the meaning of the statute authorizing the condemnation, so that the interest of neither could be taken without a just compensation. If the rights of the parties had remained as they were originally before the making of the deed to the city, and the whole of the leased premises had been ap-. plied to the public use, we think the condemnation would have divested all rights of private property in the lot, and have thus extinguished the whole rent issuing out of it. The condemnation was a reassumption by the state of her original title to the land under her right of eminent domain. It was a revocation of the landlord’s title, and may well be considered as extinguishing all rights depending upon the continuance of that title. This revocation was effected by law without the fault of either party, and could only be upon a just compensation to both parties, according to their respective rights in the property. The landlord was entitled to the present value of his reversion, and of the rents that were to become due to him during the continuance of the term, and the tenant to the present value of his leasehold interest over and above the rents payable during the term. The public, upon the resumption of the land, must pay the present value of the property, which is to be distributed between the landlord and tenant according to their respective interests. (Ellis v. Welch, 6 Mass. 250.) In the present case, however, only part of the lot was taken, and the effect of this partial application, we think, was to apportion the rent, extinguishing it in respect to the part taken, and leaving it subsisting as to the residue. This was so held in the case of Cuthbert v. Kuhn, (3 Whart. 357,) although a different view of the matter seems to have prevailed in Parks v. Boston (15 Pick. 198). We concur, however, in the last case, so far as it holds that the condemnation of part of the leased premises does not extinguish the whole rent; and that seems to have been the matter to which the attention of the court was mainly directed, although the case, perhaps, may be considered as laying down the doctrine that in such a case there can be no apportionment, but that the tenant must continue liable under his personal contract to pay the whole rent, and be indemnified against this continuing liability in an additional compensation to be allowed him by the public on that account. The condemnation of the whole lot, it must be admitted, discharges the lot from the rent, so that the rent ceases thereafter to issue out of the land. If the rent must be considered as still subsisting on account of the personal obligations of the original lessee to pay it, the lessor, in case of the insolvency of the former, might justly complain that he had been deprived of his rights without compensation. And so, in like manner, we think the consideration of part of the lot discharges it from a proportionate part of the rent, and extinguishes it accordingly. This apportionment must be made by the jury, who will determine whether any thing, and how much, is due, and have reference, in making their estimate, to the real value of what is left to the tenant, and not to the quantity; and the plaintiff will recover accordingly. ( Gilbert on Rents, 190.)

It is thus seen that, in our view of the law, it is not material in the present case, as between these parties, whether the rent, in respect to that part of the lot that was conveyed to the city and subsequently condemned to public use, was extinguished by these proceedings or not. It is enough for the present case that the lessor’s conveyance of the reversion to the city apportioned the rent, and of course divested the plaintiff of his original right to recover the whole. We remark, however, that the object of the conveyance and condemnation being to appropriate part of the lot to public use, the rent due in respect to that part of it, we think, was extinguished upon the well-established principle that the union of the reversion of the land and the rent in the same person extinguishes the latter. (Gilbert on Rents, 149, 150.) We also remark that, if the whole rent remained due to the landlord, notwithstanding the conveyance to the city, as the rent issues out of every part of the land, the subsequent condemnation of part of it had the effect of apportioning the rent and extinguishing that part of it that issued out of the condemned portion of the lot. The judgment is reversed, and the cause remanded.


text:
    Biddle, Respondent, v. Hussman et al., Appellants.
    1. Biddle v. Hussman, (ante, p. 597,) affirmed.

      dip peal from St. Louis Land Court.

      I. T. Wise, for appellants.

      I. H. Keim, for respondent.
   Tbe lease here sued upon and tbe defence relied upon against tbe recovery of tbe rent are the same as in the preceding case between tbe same parties, decided at the present term ; and tbe instruction upon which tbe plaintiff recovered is also tbe same. Tbe present judgment must therefore be reversed, and for tbe reason given in the other case.

The plaintiff, however, in this case, also sought to recover the taxes assessed on the lot and paid by him under the covenant in the lease on the part of the lessee to pay them or refund them when paid by the lessor. In reference to this we remark, that the condemned part of the lot, we suppose, ceased to be taxable from the time it was appropriated to public use; and, as no taxes would be assessed in respect to this part of it, no controversy could exist between landlord and tenant in reference to them ; and as to the taxes assessed before the condemnation and afterwards upon the uncondemned part, we do nof see upon what ground the tenant can claim an exemption. The judgment is reversed, and the cause remanded.


author: FOX, J.

text:
    THE STATE v. CHARLES H. MARTIN, Appellant.
    Division Two,
    June 30, 1910.
    1. PLEA IN ABATEMENT. A plea alleging that the counts in the indictment are violative of certain provisions of the Constitution . (pointing them out), and that hy reason of the violation of said provisions the indictment should he quashed and the prosecution abated, is not a plea in abatement, if not supported hy affidavit or some other evidence, and cannot he entertained as such.
    2. DEMURRER: Not Preserved in Record. If such paper he considered a demurrer, it cannot be considered on appeal unless preserved as a part of the record proper. To preserve it in the bill of exceptions only is not sufficient.
    3. APPELLATE JURISDICTION: Constitutional Question: How Raised: Motion for New Trial. Although a demurrer denouncing the statutes and the indictment based thereon as violative of certain provisions of the Constitution cannot be considered on appeal, because not preserved as a part of the record proper. yet where the case was submitted on an agreed statement of facts from which it appears that the only issue is whether or not, under the Constitution, defendant can be convicted of a misdemeanor for selling non-intoxicating beer containing less than one-half per cent alcohol, the constitutional question may be raised in the motions for a new trial and in arrest.
    4'; LOCAL OPTION: Sale of Non-Intoxicating Beverages. It is illegal to sell as a beverage liquors containing alcohol in any quantity in any county in this State unless the seller has a license as a dramshop keeper.
    5. -: -: Meaning of Intoxicating Liquor. The words “intoxicating liquor” as used in the Local Option Law, were used in the same sense in which they had long been and are yet used and defined in the general Dramshop Law; and under that law no one can sell liquors containing less than one-half per cent alcohol unless he has a license authorizing him to sell; and the legal effect of the Local Option Law, when adopted by the people, is to suspend all sales in the county or city under the general Dramshop Law. That law having been legally adopted, beers containing alcohol in any quantity cannot be legally sold as a beverage.
    6. -: -: Non-Intoxicating as a Fact. The statute having declared that “the term ‘intoxicating liquor’ shall be construed to mean fermented, vinous or spirituous liquors, or any composition of which fermented, vinous or spirituous liquor is a part,” and also prohibiting, where the Local Option Law has been adopted, the sale of any “beverage containing alcohol, in any quantity whatever,” it is wholly immaterial whether or not “a beverage containing less than one-half per cent of alcohol” is or is not, in point of fact, intoxicating. The statute furnishes the definition, and declares any composition containing alcohol, when sold as a beverage, is “intoxicating” in the sense the word is used in the Local Option and general Dram-shop Law.
    7. -: Title to Act. The title of the Local Option Law, namely, “An Act to provide for the preventing of the evils of intemperance by local option in any county, ... by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters,” etc., embraced the sale of any beverage containing alcohol in any quantity whatever, since the statute long prior thereto, in defining the words “intoxicating liquors,” had declared any composition containing alcohol when sold as a beverage to be an “intoxicating liquor.”
    8. -: Indictment: Intoxicating Liquor. It is not essential that the indictment should, in so many words, charge that the beverage sold was “an intoxicating liquor,” or that defendant “sold intoxicating liquor.” If it charge and designate the ingredients the composition sold as a beverage contained, and the component parts make it an intoxicating liquor, that is a sufficient charge of a sale of an intoxicating beverage or liquor.
    9. -: -: Two Counts: General Finding. Where the agreed statement of facts makes it apparent that only one offense was submitted to the court, a general finding of guilty will not work a reversal, although the indictment contained two counts.
    10. PRACTICE: No Instructions. A failure by the court to give . any instructions in a criminal case, submitted to the court on an agreed statement of facts, none being requested, is not error.
    11. LOCAL OPTION; Agreed1 Statement: Non-Intoxicating Beverage: Finding. Wher.e the agreed statement of facts says defendant sold “a non-intoxicating beverage”’ and then proceeds to recite that “the substance was sold for a beverage, and said beverage contained some alcohol,” the court was fully justified, though the statement was somewhat inconsistent, in finding that the substance was an “intoxicating liquor,” as these words are defined by the statute.
    Appeal from DeKalb Circuit Court. — Hon. Alonzo D. Bu-rnes, Judge.
    Aeetrmed.

      W. M. Fitch for appellant.
    (1) The second count of tbe indictment charges no offense under the laws of this State, because Sec. 3032, R. S. 1899:, is unconstitutional and void in this: It is in contravention of section 28 of article 4 of the Constitution, in that the bill enacting said section 3032 was leveled at intoxicating liquors, and not against a non-intoxicating beverage; therefore so much of said section as prohibits the sale of a nonintoxicating- beverage is void and of no force. State v. Fullrs, 207 Mo. 26; State v. Coffee Co., 171 Mo. 634; "Witzmann v. Railroad, 131 Mo. 616; St. Louis v. Weitzel, 130 Mo. 616; State ex rel. v. Scofield, 41 Mo. 39; State v. Persinger, 76 Mo. 346; People v. Beadle, 60 Mich, 22; Comm, v. Doll, 6 Pa. Co. Ct. Rep. 49; Comm. v. Carey, 151 Pa. St. 368; Albrecht v. People, 78 111. 510; Miller v. Jones, 80 Ala. 89; State v. .Young, 47 Ind. 150; P'eople v. Bird, 138 Mich. 31; State v. Barrett, 27 Kas. 213. (2) So much of section 30321 as prohibits one from giving away intoxicating liquors in good faith is unconstitutional. State v. Fulks, 207 Mo. 26. (3) The indictment was in two counts; there was a general finding of guilty, followed finally by a general judgment, and neither finding nor judgment specified on which count the finding and judgment were based. The defendant had a right to know this; it was brought up in the motion for a new trial. This was error. State v. Pitts, 58 Mo. 556; State v. Pierce, 136 Mo. 34; State v. Harman, 106 Mo. 635; State v. Hudson, 137 Mo. 618; State v. Karlowski, 142 Mo. 463; State v. Burke, 151 Mo. 136;. State v. Rowe, 142 Mo. 439; State v. Jones, 168 Mo. 398; 12 Cyc. 692-695. (4) The second count of the indictment does not allege that the beverage sold was intoxicating. It is therefore not sufficient to charge defendant with an offense under the Local Option Law. State v. Houts, 36' Mo. App. 273’. The Local Option Law does not prohibit the sale of a non-intoxicating liquor. R. S. 1899, secs. 3027-35. Section 3027 provides for an election “to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of such county,” etc. Section 3030 provides the form of ballot for local option elections: “F'or the sale of intoxicating liquors,” and “Against the sale of intoxicating liquors.” Section 3031 follows this idea by providing that if a majority of the votes shall be “For the sale of intoxicating liquors,” the general laws shall be in force; but if “Against the sale of intoxicating liquors,” then publication, etc., shall be made. Section 3032 provides that “if a majority of the votes shall be ‘against the sale of intoxicating liquors,’ it shall not.be lawful for any person within the limits of such county to directly or indirectly sell, give away or barter in any manner whatever any kind of intoxicating liquors, or beverages containing alcohol, in .any quantity whatever.” The enacting clause of the Local Option Law is to prohibit “the sale of intoxicating liquors.” Therefore, it was never the intention of the Legislature, in enacting the Local Option Law, to prohibit the sale of a non-intoxicating beverage. (5) The indictment was fatally defective in failing to allege that said temperance beer was an intoxicating bevera&’e. When “beer” is used alone, without qualification, it is said to mean an intoxicating beverage. State v. Houts, 36 Mo. App. 265: State v. Effinger, 44 Mo. App. 81; ' State v. Besheer, 69 Mo. App. 75. The conviction of defendant was erroneous because it is admitted by the evidence that temperance beer, mentioned in the indictment, was not intoxicating. (6) The court should have given instructions in this case whether requested or not; his failure therein is error. R. S. 1899, sec. 2627; Laws 1901, p. 140, subdiv. 4; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v.Gregory, 178 Mo.48. (7) The Local Option Law is supplemental to the Dramshop Law, and is in pari materia with it, and they should be considered together in construing the Local Option Law. State v. Wingfield, 115 Mo. 440; State ex rel. v. Slover, 126 Mo. 652; Bank v. Heywood, 62 Mo. 556; Ross v. Railroad, 111 Mo. 18; Kane v. Railroad, 112 Mo. 34; 26 Am. and Eng. Ency. Law (2 Ed.), p. 616, note 1.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The question for consideration, in a nut-shell, is what did the Legislature meaii to include in the term “intoxicating liquors” as used in the title to said Local Option Act? If the term “intoxicating liquors” is broad enough to and does include all “beverage containing alcohol, in any quantity whatever,” whether intoxicating or non-intoxicating, then appellant’s objection to the sufficiency of said title is without merit. At the date of the passage of said Local Option Act in 1887, the dramshop laws of this State which were then in force, defined the term “intoxicating-liquors”1 as follows: “The term ‘intoxicating liquor,’ as used in this chapter, shall be” construed to mean fermented, vinous and spirituous liquors, or any composition of which fermented, vinous or spirituous -liquors is a part, and all the foregoing provisions shall be liberally construed as remedial in their character.” R. S. 1879, sec. 5161. This definition of “intoxicating liquors” was first adopted in this State in the year 1855, ana has remained the law of this State since. R. S. 1855, p. 688, secs. 31, 32; R. S. 1879, sec. 5461; R. S. 1889, sec. 4595; R. S. 1899, sec. 3016. The phrase appearing in said section 5461, “or' any composition of which fermented, vinous or spirituous liquors is a part,” certainly is included in-the inhibition of Sec. 3032, R. S. 1899, sec. 6, of Local Option Act, prohibiting any sale or gift of “any kind of intoxicating liquors or beverage containing alcohol, in any quantity whatever. ’ ’ At the time of the passage of the Local Option Act in 1887, no person was permitted, under the provisions of the dramshop laws then in force (and now), to sell “any composition of which fermented, vinous or spirituous liquors is a part, ’ ’ without first taking out a license as a dramshop keeper. If such “composition” contain the least per cent, of fermented, vinous or spirituous liquors, whether intoxicating or non-intoxicating, it came under the ban and could not be legally sold except by a dramshop keeper. R. S. 1879, sec. 5461; R. S. 1899, sec. 3016. In the passage of the Local Option Act, it was certainly the intent of the Legislature to provide a law whereby the people by the required vote might prohibit altogether the sale of “intoxicating liquors,” as was then permitted under the dramshop laws, and the title of the act was doubtless so understood by tbe members voting for tbe Local Option Act. State ex rel. v. County Court, 102 Mo. 537; State v. Bengscb, 170 Mo. 106; State v. Cantwell, 179' Mo. 260. In construing the title to tbe Local Option Act, the court should give tbe term “intoxicating liquors” a liberal construction and sucb as it was understood to mean in tbe dramshop laws then in force in tbis State. State v. Intoxicating Liquors, 76 la. 245. (2) Tbe appellant treated tbe two counts as charging but a single offense. It would be manifestly unfair to tbe trial court now to permit appellant to urge that tbe two counts in tbe indictment charge more than one offense, tbe unlawful sale of one quart of beer. Where all tbe counts in an indictment -relate to tbe same transaction, and charge but a single offense, a general verdict of guilty is proper. State v. Stewart, 90 Mo. 507; State v. Yan Waye, 136 Mo. 227; State v. Schmidt, 137 Mo. 266; State v. Bedell, 35 Mo. App. 551; State v. Pitts, 58 Mo. 556; State v. McDonald, 85 Mo. 539; State v. Noland, 111 Mo. 473. Appellant, by submitting tbis case on tbe agreed statement of facts, and treating both counts as charging but a single offense, waived any right, if be bad sucb a right, to have a separate finding on each count. State v. Spurgeon, 102, Mo. App. 34.
   FOX, J.

On October 20, 1908, tbe grand jury'of DeKalb county duly returned an indictment in two counts, charging appellant with a violation of tbe Local Option Law of this State. Tbe first count of said indictment charged that appellant ‘ ‘ did then and there unlawfully sell one quart of beer” on August 12, 1908, for tbe price and sum of twenty-five cents, contrary to tbe provisions of tbe statute in sucb cases made and provided, and against tbe peace and dignity of tbe State. Tbe second count of said indictment charged that appellant “did then and there sell a fermented, malt beverage containing alcohol, to-wit, one quárt of temperance beer, a fermented and malted beverage, containing alcohol, ’ ’ on August 12, 1908, for the price and sum of twenty-five cents, contrary to the provisions of the statutes in such cases made and provided and against the peace and dignity of the State.

Appellant challenged the sufficiency of said indictment, by what he denominated a “plea in abatement, or demurrer,” which the court overruled.

This cause was submitted to the court on the following agreed statement of facts:

“agreed statement oe eacts.
“It is agreed that this case may be submitted and tried on the following facts as evidence.
“1st. That on or about the 12th day of October, 1907, an act of the Legislature of the State of Missouri, approved 1887, commonly known as Local Option Law, and being article 3, chapter 22, Revised Statutes of Missouri 1899, was duly and legally adopted in said county, and was thereafter in full force and effect in said county.
“2d. 'That said county contained no town with a population of twenty-five hundred inhabitants.
“3d. That afterwards, on or about the 12th day of August, 1908, the defendant, Charles H. Martin, at and in DeKalb county, Missouri, did sell one quart of a certain non-intoxicating beverage known as ‘ Tern-, perance Beer,’ and bearing the following label: ‘Temperance Beer. Non-intoxicant. Brewed from Malt and Hops. Contains less than one-half per cent 'of alcohol in volume. Guaranteed under the Pure Food and Drugs Act, Serial Number 8650'. Brewed and bottled by M. K. Goetz Brewing Co., St. Joseph, Mo.,’ to Howard Wilson, Jr., for the sum of 25' cents of lawful money of the United States.
“4th. IV is further admitted that the substance sold was the same substance described in the above label, and was sold for a beverage, and that said beverage contained some alcohol at the time of said sale in the following quantities: By weight it contained 32-100 of one per cent, and by volume it contained 40'-100 of one per cent.
“5th. It is further admitted that the United States Government does not require-a license for the manufacture or sale of a beverage that contains no more than one-half per cent by volume, and that such beverages do not come within the internal revenue laws of the United States, either as to the sale or manufacture. Said sale was not made for scientific or sacramental purposes and was not under a dramshop license nor on a prescription, and defendant is not a physician.
“It is agreed that the foregoing is all of the evidence in the case.
“Edward G. Robison,
Prosecuting Attorney.
. “W. M. Fitch,
Attorney for Defendant.”

The court rendered a general verdict, finding defendant guilty as charged, and assessed his punishment at a fine of three hundred dollars.

Appellant thereafter filed timely motions for new trial and in arrest of judgment, both of which were overruled. Judgment was rendered in accordance with the finding of the court and from this judgment defendant prosecutes this appeal, and the record is now before us for consideration.

OPINION.

I.

The record in this cause discloses the filing by defendant of what is termed a plea in abatement. This plea is in fact not a plea in abatement. The numerous grounds alleged in this so-called p-lea are directed at the insufficiency of the indictment. The grounds’ alleged substantially charge that the respective counts in the indictment are violative of certain provisions (pointing them out) of the Constitution of this State, and by reason of the violation of such constitutional provisions charged in the so-called plea in abatement, the defendant says that the indictment should be quashed and the prosecution abated. It manifestly is not a plea in abatement as contemplated by the provisions of section 2563, Revised Statutes 1899, wherein it is provided that “no plea in abatement or other dilatory plea to an indictment or information shall be received by any court, unless the party offering such plea shall prove the truth thereof by affidavit or some other evidence.”

We have reached the conclusion that this plea cannot be treated by this court as a plea in abatement. If it is to be considered as a demurrer to the indictment, then we are confronted with the question as to whether or not it has been properly preserved by the record before us for consideration. Section 596, Revised Statutes 1899; Ann. St. 1906, p. 622, recognizes a demurrer as a pleading; hence it follows that it should be made a part of the record proper. As a demurrer this plea was not made a part of the record proper and its preservation in the bill of exceptions is insufficient to preserve it for review in the appellate court. This proposition was, in the recent case of State v. Earll, 225 Mo. 537, fully reviewed by Burgess, J., and the conclusion reached after a clear and exhaustive discussion of the proposition was as heretofore indicated.

II.

At the very inception of the consideration of this cause we are confronted with the suggestion by the learned Attorney-General that this court has no jurisdiction of this cause, it being a misdemeanor, and that no constitutional question was raised and properly preserved in the trial and disposition of the cause.

It is sufficient to say respecting that suggestion that while as indicated in the first paragraph of this opinion the so-called plea in abatement or demurrer which sought to raise certain constitutional questions is not before us for review, yet we have reached the conclusion that as applicable to the questions involved in this cause, and upon the agreed statement of facts upon which this cause was submitted to the court, learned counsel could preserve for review the constitutional question to which he has directed our attention, in the motion for new trial and in arrest of judgment. Having fully presented this question to the trial court in his motion for new trial and in arrest of judgment, we will assume jurisdiction of the cause in this court and dispose of the legal propositions confronting us.

III.

The leading and controlling proposition disclosed by the record in this cause is the one challenging the constitutionality of that portion of section 3032, Eevised Statutes 1899, which prohibits the sale of any “beverage containing alcohol, in any quantity whatever.” It is earnestly insisted by learned counsel for appellant that the provision of section 3032, as above designated, is unconstitutional and void, being violative of and in contravention of section 28 of article 4 of the Constitution of this State. That constitutional provision, as applicable to the proposition now under consideration, declares that “no bill . . . shall contain more than one subject, which shall be clearly expressed in its title.”

That we may fully appreciate the proposition which has been so ably presented in the brief, as well as in oral argument, by learned counsel for appellant, it is well to keep in mind the enacting clause to which the argument of counsel for appellant is principally directed1. The enacting clause of the Local Option Law (Laws 1887, p. 179) is as follows: “An act to provide for the preventing of the evils of intemperance hy local option in any couhty in this State, and in cities of twenty-five hundred inhabitants or more, hy submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation and for other purposes.”

In the third and fourth paragraphs of the agreed statement of facts it is admitted that the defendant “did sell one quart of a certain non-intoxicating beverage known as ‘Temperance Beer,’ and hearing the following label: ‘Temperance Beer. Non-intoxicant,’ ” and that it was sold as a beverage, and that said beverage contained alcohol “at the time of said sale in the following quantities: By weight it contained thirty-two hundred of one per cent, and hy volume it. contained forty hundredths of one per cent.’’’ Upon these statements embraced in the agreed statement of facts counsel for appellant insists that the prohibition of selling a beverage containing alcohol in any quantity whatever, is not embraced in the subject of the title of the act, and is therefore violative of the provisions of section 28 of article 4 of the Constitution of this State. In other words, the insistence of appellant is that the Local Option Law was leveled at the sale of intoxicating beverages, and was not intended to prohibit the' sale of beverages of the nature and character designated in this proceeding, which contain less than one-half of one per cent of alcohol, and that the subject as expressed in the title, “submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation and for other purposes,” does not embrace beverages of the nature and character in judgment before us, which contain less than one-half of one per cent of alcohol.

At the very threshold of the treatment of this proposition it is highly important that we do not lose sight of the state of the law respecting the sale of intoxicating liquors at the date of the enactment of the Local Option Law in 1887. At the date of the passage of the Local Option Act of 1887 we had in this State, as we now have, a general Dramshop’ Law, which made full provision for the obtaining of a license as a dram-shop keeper to dispense intoxicating drinks. 'No person was permitted, directly or indirectly, to sell intoxicating liquors in any quantity less than three gallons, either at retail or in the original package, without taking out a license as a dramshop keeper. The lawmakers of this State, to the end that there should be no misunderstanding as to what was meant by “intoxicating liquor, ’ ’ defined the term intoxicating liquor in this way: “The term ‘intoxicating liquor,’ as used in this chapter, shall be construed to mean fermented, vinous and spirituous liquors, or any composition of which fermented, vinous or spirituous liquors is a part, and all the foregoing provisions shall be liberally construed as remedial in their character.”

The Legislature of this State when approaching the passage of the Local Option Act 'of 1887 were fully cognizant of the then existing general law providing for the sale of intoxicating liquors by dramshop keepers; this being true, we see no escape from the conclusion that the intention of the Legislature, in the passage of the Local Option Act, was to. afford the people in their respective counties and cities an opportunity at an election duly called, of passing upon the question as to whether or not intoxicating liquors should be sold. In other words, it was to furnish an opportunity to the people to say whether or not intoxicating liquors should longer be sold under the provisions of the law in existence at the time of the submission of the question to the voters in the respective counties and cities.

In oral argument, as well as in the brief, in support of the contention of appellant, it is said that “before the Local Option Law was adopted, one was at liberty to sell any beverage in this State which was not intoxicating, even though such beverage may contain some alcohol. But after the adoption of the Local Option Law, if it is to have the construction placed upon it by the learned trial court in this case, then it becomes a misdemeanor for one to sell a beverage which contains less than one-half of one per cent of alcohol.” Obviously this is a misconception of the result to be deduced from the holding of the learned trial judge in this cause. The general Dramshop Law regulating the sale of intoxicating liquors recognized that any composition of which alcohol formed a part, was an intoxicating liquor, and this was true regardless of the percentage of alcohol forming the párt of the composition; hence, it follows that, under the general Dramshop Law in existence at the time of the adoption of the Local Option Act involved in this proceeding, any composition of which any amount of alcohol whatever formed a part was treated as an intoxicating liquor and its sale prohibited, except upon the obtaining of a license as a dramshop keeper for the purpose of making such sale. Therefore, prior to the adoption of the Local Option Law any person selling p.s a beverage any composition of which any alcohol whatever formed a part, was guilty of a misdemeanor, unless it should be made to appear that he was duly licensed as a dramshop keeper authorized to sell such beverage. Therefore, if the insistence of the learned counsel for appellant is to be maintained, it would result in the following novel application of the law in the respective counties in this State, that is to say, in a county that had not adopted the Local Option Law any person who should sell a composition of which any alcohol whatever formed a part would he treated as selling intoxicating liquor and subjected to a penalty for the commission of a misdemeanor (provided of course he did not have a license as a dramshop keeper); in any county that adopted the Local Option Law persons might sell any sort of a composition as a beverage if it contained less than one-half of one per cent of alcohol.

Directing our attention to the definition of “intoxicating liquor,”.as contained in the general Dram-shop Law, it is insisted that that definition has no application to the Local Option Act. Responding to this insistence it is sufficient to say that while that may be true in a sense, for the reason that they áre separate and independent acts, but it is conceded in the brief of counsel for appellant that the Local Option Law is supplemental to the Dramshop Law, and is m pari materia with it, and they should be considered together in construing the Local Option Law; Hence, it follows that it is equally true that the lawmaking power in the adoption of the Local Option Act had in mind the provisions of the general Dramshop Law which in express terms defined what should be construed to be intoxicating liquor. The definition of “intoxicating liquor” as contained in the statute at this date, was first adopted by the General Assembly in the year 1855, and has remained in full force as the law of this State from that date to the present time. In our opinion, the General Assembly in the adoption of the Local Option Act of 1887, in the employment of the terms “intoxicating liquor,” had in contemplation intoxicating liquor as defined by the general Dramshop Law, and such act was leveled at the evils of intemperance which might result from the sale of intoxicating liquor in the manner provided by the general Dramshop Law. The provisions of section 3031 of the Local Option Act clearly emphasize the correctness of this conclusion. It in substance provides that if a majority of the votes cast at such election he for the sale of intoxicating .liquors, such intoxicating liquors may he sold under the provisions of existing laws regulating the sale thereof, and if a majority of the votes cast at such election be against the sale of intoxicating liquors then no license to sell intoxicating liquors shall be granted as provided for by the general Dramshop Law of this State. In other words, if a majority of the votes are cast in favor of intoxicating liquors then such intoxicating liquors as defined by the general Dramshop Law may be sold under the provisions of that law, but on the other hand if a majority of the votes cast are against the sale of intoxicating liquors then such intoxicating liquors as defined by the general Dramshop Law cannot be sold.

Manifestly, as heretofore stated, the General Assembly in the enactment of the Local Option Law, had specially in view the provision authorizing the sale of intoxicating liquors under the general Dram-shop Law.

In arriving at the conclusion upon this proposition, as herein indicated, we have not been unmindful of the authorities to which our attention has been directed by counsel for appellant. In fact we fully recognize that the proposition confronting us in this case has been presented in its strongest light and about everything has been said in assailing the constitutionality of the provisions of section 3032 that can be said; however, at last the correct solution of this proposition and the true intention of the Legislature enacting the Local Option Law which is assailed, must be sought by a consideration of the legislation concerning the subject in hand, that is, the sale of intoxicating liquors.

The provisions of section 3031 of the Local Option Act of 1887 in effect provide that the voters at the local option election pass upon the question as to whether in the county or city where the question is submitted to the voters the Dramshop Law shall be continued in force, or whether the right to sell intoxicating liquors under the provisions of the Dramshop Law should be denied to all persons. Manifestly the intoxicating liquors mentioned in that section have reference to intoxicating liquors as defined under the general Dramshop Law for the reason that the section in plain terms says that if a majority of the votes cast at such election be for the sale of intoxicating liquors such intoxicating liquors may be sold under the provisions of existing laws regulating the sale thereof and the procuring of licenses for that purpose. It follows from this and it must be so held that the Legislature of this State in the adoption of the Local Option Law treated the terms “intoxicating liquor,” and so understood such terms, to mean intoxicating liquor as defined by the general Dramshop Law.

The law of this State having definitely determined as to what the terms “intoxicating liquor” should be construed to mean, it follows that it is not permissible, and there is no necessity for so doing, to examine into the actual intoxicating properties of the composition sold as a beverage which contains any alcohol whatever. This conclusion finds support in Black on Intoxicating Liquors (section 2), which states the rule in this language: “The meaning of this term is in some instances prescribed in the statute itself. And when that is the case, there is no room for further inquiry into its scope, nor are the courts called upon to construe it. Neither, in the face of a statutory definition, is it permissible to examine into the actual intoxicating properties of any liquor named or indicated in the law. Thus, if the law provides that the term shall be construed to mean alcohol, wine, beer, spirituous, vinous, and malt liquors, and all intoxicating liquors whatever, a beverage containing alcohol is an intoxicant, regardless of whether the quantity of alcohol contained in it is or is not, of itself, intoxicating. ’ ’ A similar rule was announced in State v. Intoxicating Liquors, 76 Ia. l. c. 245. The Supreme Court of that State in discussing this proposition very clearly stated the rule and said: “The statute provides that the words ‘intoxicating liquors,-’ as used therein ‘shall he construed to mean alcohol, wine, beer, spirituous, vinous and malt liquors, and all intoxicating liquors whatever. ’ Alcohol is therefore an intoxicating liquor, regardless of the fact that the quantity drunk at any one time would not have that effect. It is immaterial, in a statutory sense, what effect alcohol may have on the human system; it is an intoxicating liquor. However much it may be diluted, it must remain an intoxicant when used as a beverage. That is to say, the statute provides that alcohol is an intoxicant whenever and however used as a beverage; and no matter how it may be diluted or disguised, it so remains, simply because the statute so declares. The liquor in question contained alcohol, and therefore it,. as a matter of law, was intoxicating. ’ ’

Entertaining the views upon this proposition to which we have given expression, our conclusion is that the term “intoxicating liquor” as employed in the title of the act necessarily embraced any beverage containing alcohol in any quantity whatever. Doubtless the central idea in the minds of the lawmakers when defining intoxicating liquor and -in avoiding the dealing with any percentages of alcohol in compositions in order to make them an intoxicating liquor, and simply making compositions sold as a beverage containing any alcohol whatever an intoxicating liquor, was to prevent the facilities for violating the laws of this State regulating the sale of intoxicating liquors. Manifestly the Legislature deemed it best to definitely state what should be. termed and treated as intoxicating liquors, rather than to leave that subject to be determined by experts in the numerous prosecutions by the State, which, would have necessarily arisen had the General Assembly failed to have definitely settled as to what should constitute intoxicating liquors. We are unwilling, in view of the legislation in this State upon the subject of the sale of intoxicating liquors, to hold that there must at least be one-half of one per cent of alcohol in the composition sold as a beverage in order for it to be termed “intoxicating liquor” under the provisions of the Local Option Act. To so hold would give rise to hundreds of prosecutions by the State for the violation of the liquor laws and furnish a field for the display of the knowledge of the expert, both as to the amount of alcohol contained in the composition sold as a beverage and as to whether or not the beverage was in fact intoxicating. The ruling upon this proposition must be adverse to the appellant.

rv.

It is next insisted by counsel for appellant that the second count of the indictment fails to charge that the “Temperance Beer” was an intoxicating liquor or beverage. For this reason it' is insisted that said second count is insufficient and states no offense against the laws of this State. We have carefully analyzed the allegations embraced in the second count of the indictment ’and we are unable to give our assent to the contention of appellant that it fails to charge any offense. While it is true that the second count does not in terms charge that the “Temperance Beer” was' an intoxicating liquor or beverage, it does charge that said defendant did unlawfully sell a fermented and malt beverage containing alcohol, that is to say, one quart of “Temperance Beer,” a fermented and malt beverage containing alcohol. The legal effect is that he sold an intoxicating beverage or liquor. It was not absolutely essential that the indictment should use the terms “sold intoxicating liquor,” or “that the liquor or beverage sold was intoxicating liquor,” but if tbe indictment charged and designated the ingredients the composition sold as a beverage contáined, and the component parts made it an intoxicating liquor, this in our opinion was a sufficient charge of a sale of an intoxicating beverage or liquor.

V.

It is next insisted that there were two counts in the indictment and the trial court made a general finding of guilty, and that this constitutes such error as would warrant the court in reversing the judgment and remanding the cause. It will be observed that the first count was a plain charge of selling one quart of beer. In the second count the charge was he sold one quart of “Temperance Beer” which was a malt or fermented liquor containing alcohol, and upon this indictment the case was submitted to the court' upon' an agreed statement of facts. It is apparent from the record that the two counts in the indictment have reference to a single transaction and that counsel, both for the state and the defendant, by the agreed statement of facts, treated the charge in the indictment as having-reference simply to one offense. In other words, counsel for the defendant and the State, with commendable frankness, stated the facts to the courtreduced them to writing for the express purpose of having the court simply determine whether or not the defendant was guilty of a violation of the Local Option Law which had been adopted in that county. The manner in which this cause was submitted, as indicated by the record, indicates clearly that it was understood that they were submitting for decision to the trial court but one offense. That being true we are unwilling to reverse the judgment in this cause and remand the case for another trial. [State v. Stewart, 90 Mo. 507; State v. Van Wye, 136 Mo. 228; State v. Schmidt, 137 Mo. 266; State v. Noland, 111 Mo. 473, ana cases cited; State v. Spurgeon, 102 Mo. App. 34.]

VI.

Complaint is made by appellant that tbe court failed to give any instructions. This was a trial for a misdemeanor before tbe court; no declarations of law were requested and there was no necessity for the court of its own motion directing itself as to the law of the case. Had the case been tried before a jury then of course it would have been the duty of the cotirt in guiding the jury to a correct conclusion to declare the law as applicable to the facts in evidence.

VII.

Finally appellant insists that the agreed statement of facts admits that the beverage.as sold was non-intoxicating. We confess that the agreed statement of facts is somewhat inconsistent; however, we take it that the statement in which it is said that a non-intoxicating beverage was sold would not be binding upon the court where the parties then in detail recited the component parts of which the beverage was composed, and it is in such statement unqualifiedly .admitted that this composition sold as a beverage contained alcohol, and the court was fully justified in finding that that was an intoxicating drink, as we have, heretofore pointed out in the discussion of the leading proposition involved in this proceeding.

We have indicated our views upon all the questions disclosed by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.