text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. BUTLER et al.
    Division One,
    February 22, 1907.
    WRIT OF ERROR: Wrong Title: Dismissal. An application for a writ of error to issue “in a certain cause lately pending in the St. Louis Court of Criminal Correction wherein the city of St. Louis was plaintiff and the Empire Theatre Company was defendant,” and a writ issued in strict conformance with the terms of the application, are not sufficient to transfer to the appellate court a case entitled, “City of St. Louis vs. Edwards Butler and Empire Circuit Company, a corporation.” A writ of error, unlike an appeal, -which is a continuation of the old action, is considered a new action, and the two titles above set out indicating two different causes of action, the writ must be dismissed.
    Error to St. Louis Court of Criminal Correction.— lion. E. M. Hughes, Special Judge.
    Writ dismissed.

      Charles W. Bates and Benjamin H. Charles for plaintiff in error.

      Louis A. Steber and Henry M. Walsh for defendants in error.
   GRAVES, J.

A cause entitled, The City of St. Louis vs. Edward Butler and Empire Circuit Company, a corporation, originated in the First District Police Court of the city of St. Louis, by statement or information in language, as follows:

“Edward Butler and
Empire Circuit Company,
a corporation, To the City of St. Louis, Dr.
“To five hundred dollars for the violation of an ordinance of said city, entitled, ‘An Ordinance in revision of the General Ordinances of the City of St. Louis,’ being ordinance number 19991, section 1157, as amended by ordinance number 205291, approved December 11, 1901, and section 1184, approved April 3, 1900.
“In this to-wit: In the city of St. Louis, and State of Missouri, on the 1st day of August, 1902, and on divers other days and times prior thereto, the said Edward Butler and Empire Circuit Company, a corporation, did then and there at and in front of premises at N. E. Cor. Seventh and Walnut streets maintain, set up and cause to be set up a certain sign, sign box and other fixture, to-wit, a sign extending over and upon a public sidewalk more than eighteen inches from the building line and inside of said sidewalk.
‘ ‘ Contrary to the ordinance in such case made and provided.
“On information of Chief of Police.
“P. P. Taylor,
“City Attorney of the City of St. Louis.”

Upon application of defendant, Edward Butler, change of venue was taken to the police court for the district south of Arsenal street. Later, after the change of venue, and on the same day, defendants filed both a lengthy demurrer and answer, each of which raises practically the same defenses. It is unnecessary to set them out in detail, but such portions of them as may be necessary, if necessary at ail, will be noted in tbe course of our remarks.

It appears that trial was bad in tbis cause in tbe police court, where upon bearing tbe evidence tbe defendants were discharged. Tbe plaintiff thereupon took an appeal to tbe St. Louis Court of Criminal Correction, where later a trial was bad before Hon. E. M. Hughes, then a circuit judge of tbe Eleventh Judicial Circuit, which likewise resulted in a discharge of defendants. Motion for new trial being overruled, tbe plaintiff, in tbe time allowed by tbe court, filed its bill of exceptions. Tbe trial last mentioned was bad May 25,1903, and bill of . exceptions filed June 4,1903, within tbe ten days allowed by tbe court for filing tbe same.

On November 10,1903, the plaintiff sued out a writ of error in tbis court directed to tbe Court of Criminal Correction of tbe city of St. Louis, which said writ directed tbe court to send up a perfect transcript of the record “in a certain cause lately pending in tbe St. Louis Court of Criminal Correction wherein city of St. Louis was plaintiff and tbe Empire Theatre Company was defendant.” Tbis writ was issued in strict accordance with the terms of tbe application made for tbe writ, now on file in tbe clerk’s office. April 1, 1904, return to tbe writ was made, and filed in tbis court April 26,1904. Tbe record returned is one in a case entitled, “City of St. Louis v. Edward Butler and Empire Circuit Company, a corporation.” No record was called for in a case of tbe “City of St. Louis against Edward Butler and Empire Circuit Company, a corporation.” Tbe writ of error sued out by plaintiff in error called for a record in a case of “City of St. Louis v. Empire Theatre Company.” Edward Butler was left out of tbe writ, and in nowise mentioned. Instead of “Empire Circuit Company, a corporation,” we have “Empire Theatre Company,” which may be a co-partnership or corporation.

From the above it appears from the return that we have no such record here as was called for by the writ of error issued by this court. These cases are denominated civil, or at most quasi-criminal, but we know of no law which will authorize this court to issue a writ of error in one case and try another. The entire record returned here is in a case entitled, “City of St. Louis v. Edward Butler and Empire Circuit Company, a corporation.”

The writ sued out by plaintiff was in the case of “ City of St. Louis v. Empire Theatre Company. ’ ’ Can we say the two mentioned cases are the same? Had the writ of error said, “Edward Butler et al.,” it would have been different. Upon the face of the record here we issue a writ of error in one case, and the record in another is returned and submitted to us. What can we do with it? Writs of error are different from appeals. An appeal is the continuation of an old action. “A writ of error, however, is considered a new action and that it is a new action has been repeatedly and often held by many courts.” [Macklin v. Allenberg, 100 Mo. l. c. 343, and cases cited.] So that we have a new case here styied one way, and the record of the case from the court below styled another way, and the case submitted to us for determination. That the two titles above set out would indicate two different causes goes without question. Shall we have one case submitted to us and then try and determine another, the record of which the plaintiff by its writ of error never asked to be brought here? We think not. It thus appears that there is no record here in the cause mentioned in the writ of error, and for that reason said writ should be dismissed. It is so ordered..

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    ASPHALT & GRANITOID CONSTRUCTION COMPANY, v. HAUESSLER, Appellant.
    Division One,
    February 22, 1907.
    1. CITY CHARTER: Conflicting Ordinance. The charter of the city of St. Louis is the fundamental law of the city, and all ordinances in conflict therewith or violative thereof are null and void.
    2. -: -: General and Special: Width of Sidewalks: Tax Bills: Void. The city charter provided that “no special or general ordinance which is in conflict or inconsistent with the general ordinances of prior date shall be valid or effectual unless such prior ordinance or the conflicting parts thereof are repealed by express terms.” The general ordinance prescribed that “all streets of fifty and under sixty feet in width shall have sidewalks ten feet wide.” Wyoming street was sixty feet wide except between Pennsylvania and Nebraska avenues, , where it was fifty feet wide, and the special ordinance, passed at a time the prior general ordinance was in existence, said “the width of the roadway on the part of Wyoming street between Nebraska and Pennsylvania avenues is hereby established at 36 feet, the center line of the roadway to be 30 feet south of the north line of Wyoming street as now opened,” and did not expressly repeal the general ordinance. Held, that the special ordinance required eighteen feet south of the center line of the street between these two avenues to be roadway, and allowed only two feet for a sidewalk there, and was therefore void, and the tax bills issued in payment of said two-foot sidewalk against the abutting property were also void. Distinguishing State ex rel. v. Schweickardt, 109 Mo. 496, and Ruschenberg v. Railroad, 161 Mo. 70.
    3. -: Benefit Assessments: Theory. It should be constantly borne in mind, in construing the statutes authorizing benefit assessments, that the taxing power rests upon the theory of benefits and the principles of equality, and cannot be sustained on any other theory.
    4. -: -: Upon Entire Depth of Property. The city charter provided that “whenever the estimated special taxes to be assessed against any property shall, in the aggregate, amount to more than 25 per cent of the assessed value of said property, calculating a depth to such property of 150- feet, then the assembly shall provide out of the general revenue fund for the payment of the amount in excess of the said 25 per cent.” Held, that where the abutting property had a depth of over 600 feet, and extended from street to street, the whole depth could not be assessed with the tax-bill, but only 150 feet thereof. To make the tax bill a lien against the entire property would not be an assessment according to benefits, but for the remote portions thereof might amount to a practical confiscation.
    5. -: -: Notice: Benefit or Damage. The property-owner in this case notified the contractor in advance that the ordinance under which the work was to be done was in violation of the city charter, and that he objected to the improvement being made, and would not pay for it if made. Besides, it is very questionable whether the sidewalk two feet wide was not a damage, rather than a benefit, to his property.
    Transferred from St. Louis Court of Appeals.
    Circuit court judgment reversed.

      H. A, & E. E. Eauessler for appellant; Charles S. Reber of counsel.
    (1) An ordinance in conflict -with, a general ordinance of prior date, the conflicting parts whereof are not in express terms repealed, is in conflict with section 28 of article 3 of the city charter, and void. The improvement ordinance involved in this case is such an ordinance. It is therefore void and the majority opinion of the Court of Appeals so holding is clearly right. St. Louis v. Sanguinet, 49 Mo. 581. (2) And that decision so holding is not in conflict with the decisions of this court in the cases of State ex rel. v. Schweickardt, 109 Mo. 496, and Ruschenberg v. Railroad, 161 Mo. 70. (2) The improvement ordinance authorizes an improvement to be made on the street improved, in front of defendant’s property, as though said street was sixty feet wide, whereas its actual width at said point is only fifty feet. It is therefore in conflict with section 15 of article 6 of the city charter, and void. Poupenny v. Barman, 6 Mo. App. 573. (3) The tax bill sued on is assessed against defendant’s entire property to its full depth, 611 feet. It thereby violates section 18 of article 6 of the charter and for that reason, if for none other, is absolutely void. Wolfort v. St. Louis, 115 Mo. 139.

      Geo. W. Lu'bke for respondent.
    (1) Appellant’s second point is based on a provision to section 15 of article 6 of the St. Louis charter of 1876 (R. S. 1899, vol. 2, p. 2511), which reads, “that no improvement or repairs shall be ordered upon any future street, alley or highway which shall not have been opened, dedicated or established according to the provisions of this charter and law.” Although the evidence showed that this Wyoming street had been established long before the adoption of this charter provision, appellant asks the court to strike the word “future” from the charter so that he may thereby avoid the payment of his share of the improvement of this street. But the rule governing the courts in construing enactments of this character will not permit this. Like the word “hereafter” this word “future” must be construed to mean the time after tlie charter took effect; and it must also be taken in its plain or ordinary and usual sense. R. S. 1899', secs. 4155', 4160, p. 996. By limiting this provision to future streets, alleys and highways the charter-framers designed to make uniform the laying out and improvement of streets in the new additions to the city. This purpose must also be taken into consideration in determining the meaning of the provision. Pembroke v. Huston, 180' Mo. 636; Ross v. Railroad, 111 Mo. 26; Spitler v. Young, 63 Mo. 44. (2) Because Wyoming street when first established in 1839 was given a width of forty feet which was changed to fifty in 1855 by the addition of ten feet on the north side of it, appellant insists that the city had no right thereafter to deal with and improve it otherwise than as a fifty-foot street, although Ms neighbors to the right and left of him on the south side had made it a sixty-foot street by dedicating ten feet of their ground for it. The street had a length of about one and one-half miles and the property fronting it was laid out into lots and built up except the block owned by appellant. He used Ms for agricultural purposes as one piece fronting Wyoming street 270 feet, declined to make dedication of any part of it and wanted condemnation proceedings taken for his ten feet. This was the situation when on March 24, 1899, the ordinance was approved, by the fourth section of which the roadway of this street was established the width of thirty-six feet, the center of this roadway to be thirty feet south of the north line of the street “as now opened.” TMs ordinance also provided for the improvement of this roadway with Telford pavement a distance of five blocks, the letting of a contract for this work and the issuance of special taxbills for the cost against the adjoining property in accordance with the charter. Tinder the ordinance respondent became the contractor, did the work and received the taxbills, including the one against appellant’s property. The amount of this bill was less than twenty-five per cent of the assessed value of appellant’s property calculated to a depth of one hundred and fifty feet. When this ordinance was passed there was in force a general ordinance of the city which provided that all streets of the width of fifty feet and under sixty feet should have sidewalks ten feet wide and those of sixty feet and under seventy-five feet sidewalks twelve feet wide. And a part of section 28 of article 3 of the city charter provided that “no special or general ordinance which is in conflict or inconsistent with general ordinances of prior date, shall be valid or effectual until such prior ordinance, or the conflicting part thereof, are repealed by express terms” (B. S. 1899, vol. 2, p. 2488). The circuit court by instruction Y, given for plaintiff, declared that this direction of the general ordinance of the city as to the width of sidewalks “did not invalidate the action of the Board of Public Improvements and Municipal Assembly of the city in recommending and adopting the ordinance, No. 19753, establishing the width or extent of the roadway of Wyoming street adjoining the property of the defendant, and providing for the improvement of said roadway; and that it was not essential to the validity of said proceedings of the Board of Public Improvements and Municipal Assembly of the city that said city first take steps to acquire the additional ten feet of the defendant’s property so as to provide for a sidewalk twelve feet wide in front of his premises. ’ ’ Bespondent insists that this instruction was correct, and that the holding to the contrary by a majority of the judges of the Court of Appeals conflicted with the previous decisions of the Supreme Court cited- by Judge Bevbubn in his dissenting opinion. St. Louis v. Sanguinette, 49 Mo. 581; State ex rel. v. Schweickardt, 109 Mo. 496; Buschenberg v. Bail-road, 161 Mo. 82; Campbell v. Bailroad, 175 Mo. 177.
   WOODSON, J.

This is a suit on a special tax-bill, for the- improvement of a street in- the city of St. Louis, and was instituted in the circuit court of that city, where a judgment was rendered sustaining the validity of the bill, and adjudged a foreclosure of the lien against appellant’s property. He appealed to the St. Louis Court of Appeals, where the judgment of the circuit .court was reversed, by a divided court, and the dissenting judge has certified the cause to this court, because, in his opinion, the opinion of the court is in conflict with the decisions of this court.

There seems to be no dispute regarding the facts in the case, and as they appear to be fully and fairly stated in the opinion of the Court of Appeals, we will adopt its statement, with a few slight additions, and it is as follows:

“Wyoming street in the city of St. Louis extends east and west from east of Oregon avenue to G-ravois avenue and heyond, and is open for the uniform width of sixty feet except in the block between Nebraska and Pennsylvania avenues, where it is only fifty feet wide. On the south side of the street appellant Hauessler owns the entire block of ground between those avenues, which has a frontage of 270 feet by 611.58 feet deep, and the narrowness of the street in that block in comparison with its breadth elseAvhere, is caused by the projection of his land ten feet beyond the street’s south line as it extends east and west of the block and beyond Nebraska and Pennsylvania avenues.
“In March, 1889, the Municipal Assembly of the city of St. Louis passed an ordinance entitled, ‘An ordinance to improve Wyoming street between Oregon and Gravois avenues and to establish the width of the roadway of the part thereof between Nebraska and Pennsylvania avenues.’ Said ordinance directed that Wyoming street between Oregon and Gravois avenues be improved by grading, curbing, guttering and paving the roadway Avith Telford pavement, and prescribed various specifications as to the details of the work, the cost of which it enacted should be charged as a lien on the adjoining property, except as to contemplated surplus over and above twenty-five per cent of the assessed value of the adjacent lots, which excess the city was to bear, and an appropriation to pay it was made.
“The width of the roadway in front of the block of ground on the south side, owned by appellant, was fixed by section 4 of said ordinance as follows: ‘ The width of the roadway on the part of Wyoming street between Nebraska and Pennsylvania avenues is hereby established at thirty-six feet, the center line of the roadway to be thirty feet south of the north line of Wyoming street as now opened. ’
“Pursuant to this ordinance said street was curbed, guttered and paved between Oregon and Gravois avenues as provided, the curbing on the north side being set at the uniform distance of twelve feet from the north line of the street, and on the south side the same distance from the south line of the street except in front of appellant’s block between Nebraska and Pennsylvania avenues, where the curb was set only two feet from the south line of the street and the roadway was graded up to the curb pursuant to' said section 4, which fixed the center of the roadway thirty feet south of the north line of the street and, of course, left only twenty feet from the center of the roadway to the south line of the street, of which eighteen feet were taken up by the roadway, thus leaving two feet between the curb and the north line of the appellant’s ground, or the south line of the street.
“Both before the work was begun and during its progress Hauessler notified the Asphalt & Granitoid Construction Company, which had the contract for the improvement, that he objected to the improvement being made, and would not pay for it. Taxbills were afterwards issued against the abutting property; one for $696.48 against the appellant’s block, which is the subject-matter of this action.
“Osterhaus, the city official who calculated the assessments for the work and made out the taxbills, testified: ‘Under the ordinance the street was to be improved between these two streets thirty-six feet wide commencing at the north line of Wyoming street at the building line. That gave sidewalk of twelve feet on the north side. Then the other was for thirty-six feet of roadway and two' feet of sidewalk in front of defendant’s property — fifty feet in all.”
“At the time the work was ordered the following general ordinance in regard to the construction of sidewalks along streets in the city of St. Louis was in force:
“ ‘In all streets of thirty and under thirty-eight and one-half feet in width the sidewalks shall be five and one-half feet wide; those of thirty-eight and one-half feet wide and under forty feet in width shall have sidewalks six and one-half feet wide; those of forty and under fifty feet in width shall have sidewalks eight feet wide: those of fifty and under sixty feet in width shall have sidewalks ten feet wide; thosé of sixty and under seventy-five feet in width shall have sidewalks twelve feet wide; those of seventy-five feet and under eighty feet in width shall have sidewalks fourteen feet wide; those of eighty and under one hundred feet in width shall have sidewalks fifteen feet wide.’ [R. O. 1892, sec. 599; St. Louis Municipal Code, s.ec. 897.]
“The charter of the city of St. Louis provides that: ‘No sjjecial or genera] ordinance which is in conflict or inconsistent with the general ordinances of prior date shall be valid or effectual unless such prior ordinance or the conflicting parts thereof are repealed by express terms.’ ”

I. The charter of the city of St. Louis is the fundamental law thereof, and all ordinances of the city which are in conflict therewith, or violative of its mandates, are null and void, upon the same principle that a statute which contravenes the Constitution must fall. That being true, it becomes necessary for us to examine the provisions of the general ordinance, above quoted, and those of the special ordinance ordering the improvements to be made in Wyoming street, and to determine whether or not these are in conflict with each other; and, if so, which one must stand and which must fall.

The material portion of the general ordinance, which was in force at the time of the enactment of the special, is as follows:

“In all streets of thirty and under thirty-eight and one-half feet in width, the said walks shall be five and oné-half feet wide; . . . those of fifty and under sixty feet in width shall have sidewalks ten feet wide, those of sixty and under seventy-five feet in width shall have sidewalks twelve feet wide.”

At the time of the passage of the special ordinance, the general ordinance, just quoted, was in full force and effect.

Sectiou four of the special ordinance, ordering the street improved, is in the following words:

“The.width of the roadway on the part of Wyoming street between Nebraska and Pennsylvania avenues is hereby established at thirty-six feet, the center line of the roadway to be thirty feet south of the north line of Wyoming street as now opened.”

Wyoming street was opened for the uniform width of sixty feet, excepting in front of appellant’s property, where it was only fifty feet wide.

Under this state of facts, the question presented is, is the special ordinance in conflict with the general and, therefore, void on that account? The general ordinance fixed the width of the sidewalks on streets of fifty feet in width at ten feet; and, as Wyoming street in front of appellant’s property was only fifty feet in width, the sidewalk at that point was by that ordinance required to- be ten feet wide. Section four of the special ordinance, by establishing the width of the roadway in front of his property at thirty-six feet in width, with the center line thereof .thirty feet south of the north line of Wyoming street, as then located, by necessary implication established the width of the sidewalk in,-front of his property at two feet. The correctness of that statement is susceptible of mathematical demonstration. The improvement in front of his property was to be thirty-six feet in width; commencing thirty feet south of the north line of Wyoming street would leáve a space of twelve feet for a sidewalk between tbe north line of the improvement and the north line of that street, and to that twelve feet add the thirty-six feet, the width of the roadway, and the sum is forty-eight feet, and deduct that sum from the width of the street in front of appellant’s property, which was fifty feet, and the remainder is two feet, the width of the sidewalk at that point.

There is no pretense that the prior conflicting parts of the general ordinance had been, in express terms, repealed, as provided for by the section of the charter heretofore mentioned. At that point the roadway, under the general ordinance, should have been thirty feet wide, and the sidewalk should have been ten. It must, therefore, follow, that the special ordinance establishing the width of the roadway at thirty-six feet, and that of the sidewalk at two feet, in front of appellant’s property, is null and void. By so holding we simply give full force and effect to the charter provision, which declares that an ordinance in conflict with a general ordinance of prior date, whose conflicting parts are not expressly repealed, shall be null and void.

II. It is stated in the dissenting opinion of the Court of Appeals, and urged upon us by counsel for respondent, that the majority opinion of that court, which is substantially the same as the conclusions reached here, is in conflict with the cases of State ex rel. v. Schweickardt, 109 Mo. 496, and Ruschenberg v. Railroad, 161 Mo. 70.

We do not concur in that view of either of those cases. Upon a close examination of those cases it will be seen that in the Schweickardt case, at page 504, it is expressly stated that both ordinances were upheld on the ground that the conflicting parts of the prior ordinances had been repealed in express terms, as prescribed by the charter. And in the Ruschenberg case both ordinances were sustained because the court held there was no- conflict between the two, and therefore there was no violation of the city charter. [See pages 84 and 85 of that case.]

III. It appears from the record in this case that appellant’s property is 611.58 feet deep, extending back to the next parallel street, and that this entire property, to its whole depth, was assessed for the payment of these improvements.

In the construction of statutes prescribing the mode of taxation, it should be constantly borne in mind that the taxing power rests upon the theory of benefits and the principles of equality. It cannot be sustained upon any other theory. The framers of the charter, when they drew the section regarding the taxing power of the city for street improvements, must have had that idea in mind, and drew it accordingly. And in construing that section, which is section Í8 of article 6 of the charter, we also should not lose sight of those rules. The portion of that section which is material for, its proper construction is as follows:

“Whenever the estimated special taxes to be assessed against any property shall, in the aggregate, amount to more than twenty-five per c'ent of the assessed value of said property, calculating a depth to such property of one hundred and fifty feet, then the assembly shall provide out of the general revenue fund for the payment of the amount in excess of the said twenty-five per cent. ’ ’

Respondent contends that the one hundred and fifty feet limit, above stated, does not say or mean that the adjoining property can only be assessed to a depth of one hundred and fifty feet, but that this one hundred and fifty feet shall be taken simply as a limit of the area of ground to be assessed, for the purpose of limiting the amount to be paid by the property-owner, and thereby establishing the basis from which to calculate the amount to be paid by the city; and that where the improvement is made, the whole of the adjoining property, whether it is a hundred and fifty feet in depth, or any other distance, however great, for that matter, is properly assessable for the payment of its portion of the cost.

We do not believe such a construction is the correct meaning of the charter provision, because, as in this case, where the property extends from street to street, a distance of more than six hundred feet, or in cases where the depth might be much greater, the benefits to be derived by the remote portion of the property might be so small as to amount to a practical confiscation of that part.

We believe it was the intention to not only limit the amount of the assessment to twenty-five per cent of the assessed value of the property, but also' to prescribe the bounds of the property beyond which the assessment should not extend. If it was not for the double limitation, property, however remote from the benefited district, might be taxed therefor, if the front thereof only adjoined the improved street.

This court in construing this same section of the charter in a previous case used the following language:

“By the limitation of the taxing power above expressed, the right to charge the ‘adjoining property’ for improvements, such as are here in view, is qualified by the phrase ‘calculating a depth to such property of one. hundred and fifty feet,’ as well as m respect of the amount of the special taco.” [Wolfort v. St. Louis, 115 Mo. l. c. 143.]

IV. The appellant in this case does not occupy the position which most property-owners do in this class of eases. Generally they stand idly by and see their property improved at the expense of the contractor, and, when called upon to pay the cost, refuse to do so because of some technicality which has no bearing whatever upon the merits of the case. Here the property-owner notified the contractor in advance that the ordinance under which the work was to he done was in violation of the city charter, and would result in injury to his property rights. Under the facts of this case it may be seriously doubted whether his property was benefited or damaged by this improvement. Before he or anyone else would be likely to improve that property he, or they, would have to dedicate ten- feet off of the front of the property to the city in order to make the sidewalk in front thereof to conform to the sidewalk on either side of him. Unquestionably he is damaged at least to the'extent of the value of that ten feet of ground, and whether the benefits to be derived from the improvements exceed that sum or not may be very questionable.

For the reasons above stated, the judgment of the St. Louis Court of Appeals, reversing the judgment of the circuit court, is affirmed.

All concur.


author: LAMM, J.

text:
    STUMPE, Appellant, v. KOPP.
    Division One,
    February 22, 1907.
    1. EJECTMENT: Evidence: Unofficial Survey. A survey which does not purport to he the official act of the county surveyor, hut (naming no principal) was signed hy “Jul. Wilhelmi, D. C. S.,” was not entitled to record and the record is not admissible in evidence. But if the record is introduced by defendant, plaintiff, who had introduced a like survey of the same land signed hy the same person in the same way and recorded in the same record, cannot complain.
    2. -: -: -: Appellate Practice: Harmless Error: Cured By Instruction. A judgment will not he reversed unless error materially affecting the merits of the case, as finally put to the jury, was committed by the trial court. And where the court, in effect, told the jury that the line as contended for by plaintiff was the true division line between plaintiff’s and defendant’s land, error in admitting in evidence for defendant a survey made by an unauthorized person, which made the division line as contended for by defendant, will not work a reversal.
    3. -: True Line: Showing Witness to Be Mortgagee. Where a witness who holds a warranty deed from defendant testifies that he only claims under his deed up to the true line, wherever it is, it is not error to permit the defendant to show by him on cross-examination that his deed is in fact a mortgage, and that defendant is a mortgagor in possession and the real party in interest. In such case, where no element of estoppel interposes, it is permissible to show by oral evidence that a deed absolute on its face is a mortgage.
    4. -: Boundary Line: Acquiescence: Limitations. Acquiescence in a division line by adjoining owners, litigant’s ancestors, is sufficient to authorize the jury to find the line was an agreed line, and is sufficient to establish adverse possession for more than ten years; and such acquiescence may be shown by oral testimony of acts, possession, establishing of fences, surveys, field courts, etc.
    5. -: -: Agreed Settlement. An agreement settling a disputed boundary line need not be shown by direct evidence, but may be shown by such conduct of the parties, théir acts, and such long acquiescence and recognition of a given line as will justify the jury in inferring that there was a prior agreement settling such line.
    Appeal from Franklin Circuit Court. — Eon. Wm. A. Davidson, Judge.
    Affirmed.

      Jesse H. Schaper for appellant.
    (1) The trial court committed error in admitting in evidence the statements of witness Thias to the effect that the warranty deed dated August 29,1898, from Kopp to Thias, was an agreement to secure a debt owing by Kopp to Thias. The error is that the court permitted verbal evidence to be admitted to' vary or contradict a valid deed, containing covenants of general warranty, which by its terms is wholly free from uncertainty as to its object or extent. The effect was to substitute a new and different contract for the one embodied in the deed itself. Greenleaf on Evidence (14 Ed.), sec. 275; Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25. (2) Conforming to an erroneous line, while in good faith believing it to be the true line, and intending to claim only to the true line, estops no man from claiming to the true line whenever it is after-wards ascertained. Patton v. Smith, 171 Mo. 243; 4 Am. and Eng. Ency. Law (2 Ed.), 872; 1 Jones on Real Prop., sec. 356 ; Kincaid v. Dormey, 51 Mo. 552; Knowlton v. Smith, 36 Mo. 513; Schad v. Sharp, 95 Mo. 579. It is impossible for defendant to maintain this defense under his answer asserting paramount title to the land adjoining plaintiff on the north, in the face of the undisputed proof that defendant Thias is and was the owner in fee of all such land at and before the commencement of this suit. (3) There was no substantial evidence in the case to support the verdict of the jury. Westmeyer v. Gallenkamp, 154 Mo. 36; Brown v. Hartford, 173 Mo. 194; R. S. 1899, sec. 866.
    O. E. Meyersiech for respondent.
    (1) Where adjoining proprietors of land are both ignorant as to the location of the true line between their respective lands, and they fix and agree upon a boundary line and take possession in accordance with such agreement, it is binding not only on the parties to such agreement but also on all persons claiming through or under them. Ernsting v. Gleason, 137 Mo. 594; Goltermann v. Sehiermeyer, 111 Mo. 422; Jacobs v. Mosely, 91 Mo. 457. Such agreement may be shown by facts and circumstances as well as by direct evidence. The long and continued occupancy and acquiescence in location of boundary line, and the acts of the parties treating the same as the true boundary line, will authorize the jury to infer an agreement between the parties establishing such line. Turner v. Baker, 64 Mo. 218; Sehwartzer v. Gehhardt, 157 Mo. 90. The building and maintaining of the division fence, in the manner the fence mentioned in the evidence in this case was built and maintained, is strong evidence of such agreement. P'ossession and use up to such line is evidence of such agreement. Sehwartzer v. Gebhardt, 157 Mo. 99. And where the possession up to the fence under an apparent claim of ownership has been held for more than ten years, the burden is on the plaintiff to show that the holding was subject to future ascertainment of the true line. Lemmons v. McKinney, 162 Mo. 531. This the plaintiff did not show by any evidence in the case. (2) The court did not err in admitting statements of Niederholtmeyer on the question of boundary. This class of cases comes within the exceptions to the hearsay rule. 1 Greenleaf, Evidence (13 Ed.), sec. 1452; 4 Am. and.Eng. Ency. Law (2 Ed.), 850'. Defendant has had open, notorious, exclusive and adverse possession so long that the evidence as to same comes within the rule applicable to ancient boundaries.
   LAMM, J.

Stumpe and Kopp are neighbors' in Franklin county, owning farms coterminous with each other — Stumpe in section 24, township 44, range 2, and Kopp in section 13, bordering on the north. There is an. ancient rail fence dividing the possessions of one from those of the other — a partition fence. After this fence was built, time flew by and Kopp’s part ran down’ at the heel — fell into decay. Thereat as the fence fell down, these neighbors fell out and a squabble arose over the mending of this fence. Thereat Stumpe, on March 5, 1903, procured Mr. Moore, the surveyor of Franklin county, to run the line between said sections 13 and 24. Moore’s line showed Kopp had one and four-fifths acres of Stumpe’s land in his field. Thereat. Stumpe laid claim to it. Kopp, being in possession and claiming the land as his, denied Stumpe’s title. Thereupon Stumpe sued Kopp and one Thias in ejectment, was cast below (on a jury trial) and appeals here.

The parcel of land in dispute is described as.-. “A strip of land off of the north side of the northwest quarter of the northeast quarter of section 24, township 44, range 2, said strip of land being of the width of seventy-five feet on the west end thereof, and of the width of forty-five and one-half feet on the east end thereof.” Prom a third to one-half acre is in cultivation, and the balance does not lie to the plow. It is worth little, and its rental value is put at $2.50 per annum on Stumpe’s own estimate; so that the litigation may be justly designated as, “Much Ado About (little or) Nothing” — literally, a fuss.

The petition is in conventional form, laying the ouster as of March 6,1903.

Defendant Kopp alone answered; and his defense was: (1) a general denial, (2) adverse possession for more than ten years, and (3) an agreed line, to-wit, the line of said old rail fence; which line, the answer said, was established by agreement more than twenty years before by plaintiff’s and defendant’s grantors; that the fence was built on said, agreed line and defendant claimed the land up to said line for more than twenty years, had made valuable improvements and had occupied and claimed said strip of land for said four lustrums without objection on the part of plaintiff’s grantors. Wherefore, defendant says, plaintiff is es-topped from making any claim to said land.

I. At the trial plaintiff introduced evidence showing a complete paper title to the whole of the northwest quarter of the northeast quarter of said section 24 from an original Spanish grant to one Mackay, confirmed by a United States government survey, through mesne conveyances down to him. He also introduced the survey of Mr. Moore; as aforesaid, and other surveys (one in March, 1873, and one in November, 1878) showing that the strip of land in dispute, hounded on the north by the Moore line and on the south by the rail fence, lay within the bounds of said northwest quarter of the northeast quarter and his proof was further of such character that, among other instructions, the court felt constrained to give him the following:

“The court instructs the jury that plaintiff, William Stumpe, has shown by the deeds and title papers read in evidence that he is the owner of the record title from the United States Government to date of the northwest quarter of the northeast quarter of section 24 in township 44, range 2 west, in Franklin county, Missouri, including the land described in the petition in this suit. ’ ’

Closely read, it will be seen that the force and effect of this instruction was to declare Moore’s line the true line; and its force was further to make a prima facie case for plaintiff. In this condition of things plaintiff complains of the introduction of certain documentary evidence which tended to show that the true line was a line run in August, 1873, by one Wilhelmi, which line agrees practically with the rail fence. All this came about in this way: As wé gather from the record, there was a dispute in 1873 between defendant’s father, Charles T. Kopp, who then owned defendant’s land, and one Niederholtmeyer, who then owned plaintiff’s land. As a sequel thereto-, it was discovered that certain Government comers were lost; and the then adjoining' proprietors paid the expense of what is called in the record a “field court” to re-establish these lost corners and thereby establish the true line. This field court, ostensibly, seems to have been held under Revised Statutes 1899; chapter 59, entitled, “On the Perpetuation of Testimony” — that is, article 2 of said chapter entitled, “Establishing Land Boundaries.” [See 2 Wag. Stat. 1872, p. 994, secs. 22, et seq.] But if notice was given of the taking of depositions by said field court, as required by the statute, if depositions were taken, signed and filed and properly certified by two disinterested justices, and if a survey was made in accordance with said depositions and a certificate and plat thereof executed, and the same, with said depositions, etc., recorded in the recorder’s office as contemplated by that statute, no attempt was made to show such facts by defendant But defendant did offer and was allowed over plaintiff’s Objection (and exception saved) to introduce in evidence the record of a certificate and plat of survey, found in a book kept by the surveyor of Franklin county, and called survey No. 97, in which certificate the acting surveyor ("Wilhelmi) refers to depositions taken before two justices of the peace of Franklin county, naming them, on May 14th, 1873. He further certified that he ran a line in accordance with said depositions; and it seems the line SO' ran and the corners thus re-established agree with the line of said rail fence substantially.

It will not be necessary to set forth plaintiff’s objections to survey No. 97, nor consider them by or large. In our opinion the record of the survey might have been properly excluded, strietissimi juris, if for no other reason than that such survey did not purport to be the official act of the county surveyor, but seems to have been the act of Wilhelmi, who (naming no principal) signs himself “ Jul. Wilhelmi, D. C. S.” Hence, the plat and certificate were not entitled to record, and the record was inadmissible in evidence. [Carter v. Hornback, 139 Mo. 238.]

But we cannot see that plaintiff was either materially hurt by, or, under the whole record, is entitled to much judicial sympathy because of the introduction of that survey and certificate. And this is so, because:

In the first place,- plaintiff himself introduced the record of a certificate and survey made by the same man a few months prior, who signs himself in that instance, “Jnl. Wilhelmi, County Surveyor D.” This record was read from the same book as the other, and by its introduction plaintiff should be deemed to have measurably vouched for both book and officer; that is, it comes with ill grace for him to discredit either. By so doing plaintiff blows hot and blows cold in the same breath; and the infelicity of blowing in that way is illustrated in the fable of the Man and Satyr (see Aesop’s Fables) — it being permissible, we think, to levy on and seize a parcel of the homely wisdom of these immortal fables to point a moral in the law, now and then; (for may not a judicial wayfarer, traveling in the dry and dusty highways of the law, at spells lighten his labor without lowering the dignity of his ease by gathering a nosegay for use as do other wayfarers, so long as he does not loiter afield and miss the main-traveled road to ultimate justice?)

If we read the abbreviations “D. C. S.,” in defendant’s certificate, as standing for “deputy county surveyor,” we ought also to go upon the theory that courts are presumed to know what everybody else knows, and, hence, we should interpret “County Surveyor D.,” in plaintiff’s certificate, as meaning “county surveyor, deputy” — that is, that Wilhelmi was merely a deputy in both instances, and, by casting the shadow of his own personality over his unknown principal, placed said principal in (at least) partial eclipse, while at the same time he “exalted his own horn” unduly.

In the second place, the last Wilhelmi line, in the evolution of the case, is no more and no less than the “agreed line” referred to in defendant’s answer, presently to be considered.

In the third place, the court (as heretofore said), flatly told the jury in effect, in the foregoing instruction, that Moore’s line was the true line, that is, that the strip of land in dispute lay within the borders of northwest quarter of the northeast quarter of section 24 and did not lie within the borders of Kopp’s land in section 13, as it would do if Wilhelmi’s last line was the true line between the sections.

We conclude, then, that the error (if any) in admitting the record of that certificate and plat of survey did not materially affect the merits of the case as finally put to the jury, and, therefore, we aré forbidden' to reverse and remand the cause on that score under Revised Statutes 1899, section 865.

II. Defendant Thias was placed on the stand by plaintiff. It seems that Kopp had made a deed to Thias of forty acres of land lying in section 13, hard by plaintiff’s on the north. It seems that as part of the same transaction Kopp had taken back a bond for a deed and a lease from Thias. It is not contradicted in the record that this deed, bond and'lease were intended as security for a loan of money from Thias to Kopp — in legal effect, but in a roundabout way, all these papers,, read together in the light of the understanding between Kopp and Tifias, constituted a mortgage. When Thias was on the stand he testified for plaintiff that he only claimed under his deed up to the true line (unknown to him) wherever it was. On cross-examination, however, he was allowed to testify that his only interest in the land was as security for a loan of money — in effect, that Kopp owned the land. The object of this oral testimony elicited by cross-examination was to show that Kopp was a mortgagor in possession, and, in the eye of the law, Thias was a mere mortgagee out of possession; and that, in considering the issue of adverse possession, tendered in Kopp’s answer, the question was not the claim of Thias as to the line, but the question was the claim of Kopp.

Plaintiff’s learned attorney objected to the introduction of this oral proof and saved an exception to the adverse ruling of the trial court. Here he argues-that the effect of such testimony was to vary the terms of a written instrument, and, hence, it was inadmissible. But we think the position untenable. As between Kopp and Thias it could not be contended that Kopp’s deed, absolute on its face, could not be shown by oral testimony to be a mortgage. [Book v. Beasly, 138 Mo. l. c. 460, and cases cited.]

Why should the same rule not obtain between Kopp and Stumpe? If Stumpe had been misled by Kopp’s use of his conveyance to Thias and thereby had materially changed his situation by placing reliance upon the fact that the deed was absolute, there might be some force in the argument that, as to him, Kopp would be estopped to show the truth — that is, the truth about that deed, bond and lease. But there is no element of estoppel in the matter; there.has been no change of situation here based on any such fact. Kopp is in possession and is defending his possession; he did not mislead Stumpe and ought not to be precluded in his defense by a mere superficial view of the dealings between himself and Thias, which dealings, as between him and Stumpe, come within the maxim, res inter alios acta.

A mortgage is literally a dead-pledge. Figuratively, a mortgagee may be said to hold with a death-grip — a mailed hand. May a mortgagee who sits complacently in the security of such pledge (as though in the shadow of a great rock in a thirsty land), holding an estate subject to a defeasance, be allowed the further privilege of precluding or frittering away the rights of the mortgagor to a strip of land on the edge of the estate by admitting his indifference as to where the line runs? Certainly not. We find no fault in the ruling of the trial court on this testimony; and the assignment of error on that behalf is disallowed.

III. At the trial defendant introduced evidence tending to establish the averments of his answer as to adverse possession and an agreed line and estoppel. Defendant offered himself as a witness and testified in chief in support of both his said defenses. On cross-examination his testimony was shaken and the jury would have been justified in finding either way on his oral testimony. But the jury was the judge of his credibility; we are not; for while appellate courts have never released their hold on testimony so that they may not say there is no proof, yet the rule is to graciously accord to the triers of fact, who see and hear, the correlative right to- weigh the testimony.

But the defenses of adverse possession for over ten years and of an agreed line, with improvements constituting estoppel, do not rest alone on the oral testimony of defendant. There are uncontradicted facts in the case which indirectly point with great cogency to an agreed line and such possession. For instance, after the field court was held plaintiff’s grantors cleared their land up to the line then marked out on the earth’s surface. The elder Kopp transferred the adjacent land in section 13 to- Daniel Kopp-, the defendant, in 18-77. At that time one of plaintiff’s grantors, Niederholtmeyer, owned the land south, in section 24. About 1882 the fence was built, half by Niederholtmeyer and half by -defendant, and the clearing done as aforesaid. A little jog was put in this fence so that Kopp’s half should be wholly on his side of the line, and Niederholtmeyer’s half wholly on his side. Other subsequent surveys were made, covering the entire section line between sections 13 and 24. Niederholtmeyer, relying on these subsequent surveys, seems to have contested with other land-owners the correctness of Wilhelmi’s survey made as a result of the field court; but he never did contest or dispute with defendant his right to hold up to the line represented by sáid rail fence. To the contrary, he entirely acquiesced in the same, leaving defendant in undisputed and full possession and claiming ownership. In this condition of peace and accord, plaintiff appeared on .the scene and took a warranty deed from Niederholtmeyer on September 20, 1894. He entered into possession of the land south of said rail fence, and, so far as this record shows, acquiesced in that line and Kopp’s possession and use until he and Kopp disagreed over repairs of the fence. It is plain that plaintiff’s position while at peace with Kopp was that the line was settled and satisfactory; but when ill humor took the place of good humor, and the Moore survey followed, then his acquiescence vanished and he went to law. Behold! how great a matter, a little fire kindleth.

Whatever was the very right of this case during the time these neighbors were in accord remains the very right of the case when in discord. Justice is not a weathercock to veer about with the moods of parties litigant, and, in our opinion, the case in its legal phase is determined by the proposition that an agreement settling a disputed boundary line need not be shown by direct evidence, but may be shown by such conduct of the parties, their acts, and such long acquiescence and recognition of a given line as will justify the jury in inferring there was a prior agreement settling such line. [Schwartzer v. Gebhardt, 157 Mo. l. c. 104; Jacobs v. Moseley; 91 Mo. l. c. 462-3; Goltermann v. Schiermeyer, 111 Mo. l. c. 422-3; Ernsting v. Gleason, 137 Mo. l. c. 597.]

It has also been held that where title in land has once matured by adverse possession, mere loose talk subsequently is not sufficient to unsettle such title. [Lemmons v. McKinney, 162 Mo. l. c. 530, et seq., and cases cited.]

Plaintiff complains that certain instructions were refused to him that were mandatory in form. We think •the trial court was right in not giving those instructions.

Plaintiff claims that certain erroneous instructions were given for defendant. These instructions put the case to the jury on the theories of adverse possession and an agreed line. Plaintiff’s counsel argues there was no evidence to sustain those instructions; hut, as said before, We do not so read the record. There was oral testimony, possession, acts, conduct, acquiescence for over twenty years, from which the jury could infer the agreement, and from which they could find adverse possession for more than ten years.

The decisions of this court are many and rich with learning on the question of boundary disputes; but the amount involved in this case (and no need of jurisprudence) will justify an extended consideration of these adjudications, the principles involved in boundary controversies being well settled and needing no- new formulation.

The verdict was right and the judgment entered1 thereon is, accordingly, affirmed.

All concur.