author: GANTT, P. J. —

text:
    THE STATE v. FRANK D. GEBHARDT, Appellant.
    Division Two,
    May 18, 1909.
    1. EMBEZZLEMENT: After Date Alleged in Information. .Where the information charges that the embezzlement was committed on a certain day and defendant is shown to have received $12.50 on that date, it is competent to show that subs-quently he received other moneys which made the entire amount embezzled prior to the filing of the information $39.75 as charged therein. Time is not of the essence of the information, and the State is not to be restricted to the amount embezzled prior to the date named therein, but it is sufficent to state any date within three years prior to filing the information.
    2. -: Different Amounts On Different Dates: One Offense. Defendant, a trusted agent for the collection of rents, insists that if his employer’s money received by him was received at different times in separate amounts then each embezzlement constituted a separate and distinct offense, and as neither of the amounts received at one time amounted to thirty dollars, the offense at most was but a misdemeanor, if eld, untenable, under the statute (Sec. 2531, ft. S. 1899). Where there is but one count in the information, the charge being that defendant within three years next preceding the filing of the information,, as a collector of rents, embezzled $39.75 from his employer, the charge is sustained by proving an embezzlement by him of different amounts aggregating said sum within the, time limited hy the statute, and the court did not err in so instructing the jury.
    3. -: Defendant’s Age: No Formal Proof: Attorney: Presence at Trial. Where the statute requires the defendant to be over sixteen years of age, and there is no formal or direct proof that he was over sixteen, yet the evidence shows that he was an attorney at law and a member of the bar of the court in which the trial took place, and that he was present at the trial and assisted in the examination of witnesses, the court did not err in expressly áubmitting the question of his age to the jury and in requiring them to find he was over sixteen years of age, for three reasons: (1), our statutes require an attorney to be twenty-one years of age,- and courts will take judicial cognizance of that fact; (2), courts are frequently called upon to act upon evidence addressed-to the senses, often called view or inspection, and to recognize without proof that the person before them is an aged person, or a male or a female, etc., and defendant was present at the trial and the jury and court were authorized to determine from his appearance, without the testimony of witnesses, that he was over sixteen;- and (3), if witnesses had been called they could have testified to no more than the jury saw, namely, that from his appearance he seemed to be over that age.
    4. -; Evidence of Agency. The evidence is set out in the statement, and held sufficient to show that defendant received the money collected as rents on houses owned by another in his capacity as an agent of such owner.
    Appeal from. Butler Circuit Court. — Eon. J. C. Sheppard, Judge.
    Affirmed.

      James Orchard and E. R. Lents for appellant.
    (1) The information alleges that the offense was committed on the 11th day of December, 1906, thus charging but -one offense. The time is not laid with a continuando, so as to include other offenses committed after that date, but alleges a day certain, and does not inform the defendant that he is .required to meet any other charge of an offense committed on any other day. Every traversable fact must be alleged with time. It is usually necessary both at common law and under the statute to state some particular day. 10 Ency. Plead, and Prac. 511-513; Jane v. State, 3 Mo. 61; State v. Hayes, 24 Mo. 358. (a) The doctrine is familiar that, if it is necessary to allege a fact, it is necessary to prove it. (b) In this case the proof shows that defendant received $12.50 on the 11th day of December, 1906; $8 in the latter part of December, date does not appear; $2.50 on January 13, 1907; $.12 on January 16; 25 cents on February 16, and $5 on March 2, 1907, making a total of $40.25, but the information does not inform defendant that he is charged with embezzling any money received by him on any other day than December 11th. Besides, the prosecuting witness says that defendant made repairs on his property and that the bills for labor and material amounted to seventeen dollars and some cents. So that the total amount defendant could have embezzled was about $23 which reduces the offense, if any, to the grade of a misdemeanor, and will not sustain a conviction for a felony, (c). When the offense may have been continuous, the time may be laid with a continuando, that is, it may be laid to have been on a single day certain and also on divers other days without charging more than one offense, but those other days must be alleged with the same legal exactness which is required in alleging a single day. 10 Ency. Plead, and Prac., 517, 518. (2) The demurrer to the testimony should have been sustained for the reasons: 1st. There was absolutely no testimony to show that defendant was over sixteen years of age. This is an essential element of the offense and must be proven as a fact. The jury could not find this fact without evidence to that effect. 2nd. There was no competent evidence that defendant had ever been employed by the prosecuting witness, either as attorney, agent or collector. The information charges as one of the essential elements that defendant occupied the relation of attorney, agent or collector to the prosecuting witness, and the proof must establish this relation, and show that the money embezzled came to him hv virtue of that relation. State v. Brown, 171 Mo. 477. (3) The evidence clearly establishes that if the defendant was guilty of embezzling any money, it was less than thirty dollars, and the offense was at most a misdemeanor and the jury should have been so instructed. The failure of the court to so instruct constitutes reversible error. State v. Musick, 101 Mo. 260; State v. Thompson, 137 Mo. 620.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) The information follows the statute and the precedents. Sec. 1912, R. S. 3899; State v. Wissing, 187 Mo. 99; State v. Shour, 196 Mo. 206; State v. Lipscomb, 160 Mo. 338; State v. Manley, 107 Mo. 368. (2) The record justifies the lower court’s action in submitting the case to the jury, (a) That defendant was Treece’s agent and collector is shown by the evidence. Further, defendant admitted the relation both expressly and by implication. State v. Lentz, 184 Mo. 229; State v. Silva, 130 Mo. 462 ; 2 Bishop’s New Crim. Law, sec. 339; 1 Wharton’s Crim. Law, sec. 1053a. (b) The receipt by defendant in his capacity as agent of sums aggregating more than thirty dollars, is too clearly shown by this record to require comment, (e) There was sufficient evidence to justify, fully, the jury’s finding of the conversion and the unlawful intent. Defendant ignored Treece’s letters; made frivolous excuses when Treece in person confronted him; failed to keep his promise to “fix it up all right in á few days;” falsely denied the collection of part of the money; made conflicting statements; made claims as for expenditures which the jury on the evidence could reasonably have found to be false; and failed altogether to pay Treece what was due him. This, under the authorities, was amply sufficient to authorize the submission of the criminal intent to the jury and supports their finding of defendant’s guilt. State v. Adams, 108 Mo. 214; 1 Wharton’s Crim. Law, sec. 1053; State v. Lentz, 184 Mo. 240’; 1 McLain on Crim. Law, secs. 640, 641; 2 Bishop’s New Crim. Law, 376, 377; State v. Rigall, 169 Mo. 664; State v. Merkel, 189 Mo. 320;. State v. Cunningham, 154 Mo. 180; State v. Silva, 130 Mo. 464. While it is true that an evil intent is a necessary element of embezzlement (State v. Reilly, 4 Mo. App. 397) it is also true that this intent may be, in fact, it generally must be, proved by circumstantial evidence. Authorities, supra; State v. Porter, 26 Mo. 209; State v. Schilb, 159 Mo. 140. (d) The statute on which this prosecution is based requires that the defendant be over sixteen years of age. Sec. 1912, R. S. 1899. The information charges defendant properly in that respect and the court submitted the question to the jury, who evidently found the fact in accordance with the instruction. But there is no direct testimony in the record on the point. It is in evidence, however, that defendant was an attorney at law in Poplar Bluff:, with an office in that city, and was a candidate for city attorney of Poplar Bluff. In addition, the presumption is and the record shows that defendant was present in person at the trial. State v. Long, 209 Mo. 381; State v. Cunningham, 154 Mo. 178; State v. Thompson, 155 Mo. 300. The statute requires an attorney at law to be twenty-one years of age. It is a fact of which courts will take judicial notice. Booth v. Bldg. Assn., 18 App. Div. (N. Y.) 409. Also it has been said that: “ Where the appearance of the prisoner sufficiently indicates his probable age, that rnay be acted upon as evidence of the fact.” People v. Justices, 10 linn (N. Y.) 225; Garoasky v. Sim-kin, 36 Mise. (N. Y.) 196; People v. Ragone, 54 App. Div. 499; Com. v. Emmons, 98 Mass. 8; Com. v. Hollis, 170 Mass. 435; Garvin v. State, 52 Miss. 209.
   GANTT, P. J. —

This prosecution was commenced by the prosecuting attorney of Butler county filing in the circuit court of said county an information wherein he charged that the defendant on or about the 11th day of December, 1906, at the county of Butler, State of Missouri, being then and there the attorney, agent and collector of one John W. Treece, the said Prank D. Gebhardt not being then and there a person not under the age of sixteen years, then and there by virtue of such employment and office of attorney, agent and collector as aforesaid, did have, receive and take into his possession and under his care and' control, certain money to the amount and value of $39.75, the same being then and there lawful money of the United States of the value of $39.75, the money and personal property of the said John W. Treece, the employer of him, the said Prank D. Gebhardt, and that the said Prank D. Gebhardt the said money then and there unlawfully, feloniously, fraudulently and intentionally did embezzle and convert to his own use without the assent of the said John "W. Treece, the owner of said money, and with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said John W. Treece, of the use thereof, against the peace and dignity of the State.

The defendant was duly arraigned and pleaded not guilty and was tried and convicted, and his punishment assessed at two years in the penitentiary. In due time he filed his motions for a new trial and in arrest of judgment, which were overruled, and he was sentenced in accordance with the verdict and from that sentence he has appealed to this court.

The evidence tended to show that John W. Treece was the owner of three houses in Poplar Bluff. Treece lived in Predericktown, Missouri, and the defendant resided in Poplar Bluff and was an attorney at law. It appears that a Mr. Armstrong was an agent of Treece to rent this property, but he had died prior to the trial of this cause. Prior to Armstrong’s death and at his suggestion, the agency of this property had been conferred upon the defendant. The evidence tended to show defendant’s agency for Treece, both by his oral statements to Treece and to the tenants and by the receipts which he gave for the rent. From these receipts it appeared that from December 11, 1906, to March 2, 1907, the defendant collected from these tenants at different times rents aggregating a little more than forty dollars. It appears that Treece wrote the defendant several letters in regard to the rent, none of which defendant answered. Whereupon on or about the 8th or 9th of March, 1907, Treece went to Poplar Bluff and attempted to secure a settlement with the defendant. The defendant made various excuses for not settling, but promised to fix it up all right in a few days. Some days later they met and the defendant admitted having collected $24.50 from George W. Rey-ister, one of the tenants, but denied having collected any other money. Being told by Treece that other tenants had receipts for other payments to defendant, defendant then declared he sent the money to Armstrong.

Defendant also made the claim that he had expended $17 of the $24.50 collected by him for .repairs, which claim Treece repudiated, stating that he had never authorized any repairs. The evidence, however, tended to prove that defendant had not paid out this sum for repairs. Treece told the defendant that he would pay these bills and did later pay them.

Treece testified that he was never able to get any settlement of the rents with defendant on any basis and that defendant had never paid him any part thereof. The defendant offered no evidence and the cause was submitted to the jury under instructions of the court. Yarious errors are relied upon by the defendant for the reversal of the judgment.

I. It is insisted that because the information alleges that the embezzlement was committed on the 11th day of December, 1906, and as the defendant was shown to have received only $12.50 on that date, it was not competent for the State to show subsequent payments of rent to the defendant which increased the amount to about $40 prior to the time of filing the information. In other words, it is insisted that the State should be restricted to the amount it named in the information. This contention is obviously without merit as time was not of the essence of the offense, and it was sufficient to state any date within three years prior to the filing of the information and the court so instructed the jury, and there was no error in so doing.

In this connection we are called upon to consider the insistence of counsel for the defendant, that if this money was received at different times in separate amounts, then each taking constituted a separate and distinct offense and as neither of the amounts received at any one time amounted to more than thirty dollars, the offense at most was but a misdemeanor and the court erred in not so instructing the jury. This is by no means a new question in this State. In State v. Shour, 196 Mo. l. c. 214, it was said by this court:

“It'is insisted by appellant that he is charged in the information with embezzlement of a specific sum of money upon a certain day from an incorporated company, hence the court committed error in permitting the State to show all the transactions of the defendant as secretary of the loan association and the receipt of different smaller amounts than that charged at various times during the period of three years prior to the fib ing of the information.
“The rule of law as applicable to this proposition is no longer an open question in this State; it is clearly- and correctly stated in the case of State v. Pratt, 98 Mo. l. c. 491, in which it was held that ‘ where the offense of embezzlement is committed by a trusted servant, agent, clerk, etc., and where, as here, the abstraction occurred daily or whenever cupidity prompts, it is an impossible thing to describe the identical money taken or the precise date upon which it was taken; and it was this impossibility which occasioned the enactment of section 1817 [now sec. 2531, R. S. 1899'], which was borrowed from an English statute, and for a similar reason, section 1821, Revised Statutes 1879 [now section 2535, R. S. 1899] was passed.’ The law as announced in that case has met the approval of this court in the recent cases of State v. Wise, 186 Mo. 42; and State v. Wissing, 187 Mo. 96. The testimony in the Wise case tended to prove the receipt by the defendant of money at different dates, which amount aggregated the sum charged to have been embezzled in the information. It was expressly ruled in that case that the defendant, who was the secretary of a benevolent organization, notwithstanding he had received the amounts of money at different dates during his term of office, was in default for the whole sum, and that the substantive charge of embezzlement was supported by proof of the receipt at different dates of the amount he was charged to have embezzled and one conversion of the whole.”

In the Wissing case, it was said by this court that “where there is but one count in an information, the charge being that defendant within three years next preceding the filing of the information embezzled a certain sum of money of the Crocker-Wheeler Company, a corporation,. etc., the charge is sustained by proving the embezzlement by him of any such sum or portion thereof, as set forth in the instructions, within the time limited by statute. ’ ’

The law announced in the foregoing cases must govern in this, and the court committed no error in admitting this testimony, and in instructing the jury as it did in its first instruction.

II. The statute on which this instruction is based requires that the defendant be over sixteen years of age. [Sec. 1912, R. S. 1899.] The information properly charges the defendant in this respect and the court expressly submitted the question to the jury as to whether the defendant was over sixteen years of age. They evidently found that fact to be true, but it is earnestly insisted that the evidence was wholly insufficient to warrant conviction, as there was no evidence that defendant at the time of the alleged commission of the offense was over sixteen.

It is true there is no direct testimony in the record on’ this point. There is evidence, however, that the defendant was an attorney at law in Poplar Bluff with an office in that city and was a 'candidate for city attorney of Poplar Bluff at the time the prosecuting witness went there for the purpose of making a demand for these rents. As this was a trial for felony and the defendant was shown to have been present in person at the commencement of the trial, every presumption will be indulged that he was in fact present. The question presented then is whether there was evidence sufficient to warrant the submission of the case to the jury as to the age of the defendant.

In State v. Cunningham, 154 Mo. l. c. 178, it was said by Burgess, J., for this court: “The evidence showed that the defendant at the time of the trial was about .forty-five years of age. In fact there is no pretense that he was under sixteen years of age at the time of the commission of the ¡offense, and while the statute under which he was indicted applied only to persons over that age, defendant was in no way prejudiced by the failure of the instruction to submit the question of his age to the jury; still it would be less objectionable if it did slo>. But the judgment should not be reversed upon that ground alone.”

In State v. Thomson, 155 Mo. 300, the point was presented to this court under conditions similar to those disclosed by this record. In that case it was said by this court: “It is also urged that the proof was not sufficient that defendant was over sixteen years of age. The defendant was a witness on the stand and the jury were required to find as a fact that he was over sixteen years old. Not only could they use their eyes in determining that fact, but the defendant testified that he was a graduate of the University of Michigan, in the law department; that he was licensed to practice law in the courts of Illinois and the Federal courts at Chicago; that he had been admitted to the bar in Texas and had represented various insurance companies in St. Louis for four or five years. There was ample evidence before the jury from which they could find he was over sixteen years old.”

Our statutes require an attorney at law to be twenty-one years old. This is a fact of which courts will take judicial cognizance. Courts are frequently called upon to act upon evidence addressed to the senses, often called view or inspection, and to recognize without further proof that the person before them is an aged person, male or female, a child, a boy or a girl, white or black, a person with or without physical deformity of limbs and the like. [People ex rel. Ziegler v. Justices, 10 Hun l. c. 225, 226.] In Garvin v. State, 52 Miss. l. c. 209, the court said: “No error is perceived in the charges. By one of them the jury were instructed that inasmuch as the indictment described the defendant as being a colored person he must be shown to be such by proof, but that actual profert of him before them was sufficient if they were satisfied, from their inspection, that he was colored. It is urged that this was erroneous, because it is said that the jury can know nothing except by the testimony of witnesses. This is not true as to physical facts, which may be brought to their attention by ocular demonstrations. It would not be necessary to prove by other testimony than pro-fert of the party that he was ‘a person,’ or a ‘man,’ if so described in the indictment. Under certain circumstances jurors may use their eyes as well as their ears. ’ ’

To say that the defendant was not identified or pointed out to the jury, so that they could not exercise their judgment from a general view of the defendant, is utterly unreasonable, in view of our law which requires his presence, and the disclosures of this record which shows that the defendant in part conducted his own defense by malring objections to testimony. There is another consideration. "While this court is not in the position that the circuit court was, when this proposition wa.s first presented to it, the defendant is represented by counsel, who earnestly urges a reversal of this judgment, and in so doing spoke of the defendant as an attorney, who for a number of years had borne a good reputation in that section of the State. After all these facts are considered it seems to us, to reverse this judgment because some witness was not called to formally testify to defendant’s age, would be a reproach to the administration of justice. If witnesses had been called they could in all probability have merely testified to the same appearance which the jury witnessed. The defendant could not have been required to testify without violating his constitutional right not to furnish evidence against himself. The circuit judge saw the defendant and must be presumed to Lave known him as a member of the bar of his circuit and he approved the verdict.

Jealous as we are of the rights of a defendant, we feel absolutely assured that no possible prejudice resulted to him, by the failure to make this formal proof that he was over sixteen years of age. The court did not err in refusing defendant's first instruction on this point as it had already required the jury to so find.

III. The final proposition is that the evidence did not show that defendant received the money in his capacity as an agent of Treece. On this point, we think the evidence abundantly established that defendant was the agent of Treeoe and by. virtue thereof demanded and collected the rents and gave receipts therefor as agent, and the jury were so justified in so finding.

After a careful review of every line of the record, we are of the opinion that the defendant had a fair and impartial trial and there is no reversible error in the record.

The judgment is affirmed.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE STATE v. G. M. ROBERTS, Appellant.
    Division Two,
    May 18, 1909.
    NO BILL OF EXCEPTIONS: No Motion for New Trial. Where no motion for a new trial and no bill of exceptions were filed in the trial court, and the record proper is found upon inspection to conform to the requirements of the law in all respects, the judgment adjudging defendant guilty of an assault with malice aforethought with intent to kill and assessing his punishment at a fine of $250, will be affirmed.
    Appeal from Texas Circuit Court. — Hon. L. B. Wood-side, Judge.
    ARFIRMUD.

      Elliott W. Major, Attorney- General, and Chas. G. Rev elle, Assistant Attorney-General, for the State.
    Where no bill of exceptions is filed and the record proper is free from error, the judgment will be affirmed. State v. Miller, 209 Mo. 389; State v. Brown, 206 Mo. 718. The information charges with certainty and particularly all essential facts and elements, and fully informs defendant of the exact nature and cause of the accusation against him. State v. Layeock, 141 Mo. 279; State v. Harrin, 209 Mo. 435.
   GANTT, P. J. —

This is an appeal from a judgment of the circnt court of Texas county, imposing a fine of two hundred and fifty dollars opon the defendant for an assault with intent to do great bodily harm upon one Otto Berry.

The information charged an assault with malice aforethought with intent to kill and murder. The defendant was duly arraigned and pleaded not guilty. He was tried and convicted by the jury at the May term, 1907. No motion for a new trial or in arrest of judgment was filed and no bill of exceptions.

The information is in all respects sufficient and all the steps, leading up to, and including the trial, return of verdict and sentence of the court are in due and regular form.

The judgment is affirmed.

Burgess and Fox, JJ., concur.


text:
    THE STATE v. JAMES R. WILLARD, Appellant.
    Division Two,
    May 18, 1909.
    1.INDICTMENT: Insufficient: Omission of Word Feloniously. Every offense which by statute is made a felony must be charged to have been feloniously done, and a failure to charge that it was feloniously done is fatal.
    2. -: -: -: Forgery. An indictment which charges that defendant James R. Willard “did then and there wilfully and unlawfully forge, counterfeit and falsely make and alter a certain check purporting to be made by one P. M. Willard, under the name of P. M. Willard, on/’ etc., is fatally defective for that it does not charge that the forgery was fel-oniously done, defendant’s punishment being assessed by the verdict at five years’ imprisonment in the penitentiary.
    3. -: -: -: -: With Intent Feloniously to Injure. And the indictment Having failed to charge that defendant feloniously forged the check, is not saved by the fact that it charges that the forgery was done “with intent then and there feloniously to injure and defraud, against the peace and dignity of the State.” That is not a sufficient charge of a felony.
    4. FELONY: What Is? The term “felony” when used in the statute means any offense for which the offender on conviction will he liable by law to be punished with death or by imprisonment in the penitentiary, and no others. It is an offense for which the offender on conviction may be imprisoned in the penitentiary, and not only one for which upon conviction he must be imprisoned in the penitentiary.
    Appeal from Howell Circuit Court. — How. W. N. Evans, Judge.
    REVERSED AND REMANDED.

      Elliott W. Major, Attorney-G-eneral, and John M. Atkinson, Assistant Attorney-General for the State.
    (a) The first count of the information is sufficient in form and substance. It is drawn under Sec. 2001, R. S. 1899. If the word “feloniously” appeared just after the word “wilfully” in the first part of the information, it would a,ppear better as to form, yet this count charges that the forgery and alteration were done “with the intent then and there feloniously to injure and defraud, against the peace and dignity of the State.” The element essential is to charge that the forgery and alteration were done with a felonious intent. This is plainly done. State v. Brown, 104 Mo. 371; State v. Snell, 78 Mo. 240; State v. Cunningham, 154 Mo! 179; State v. Boyle, 28 Iowa 522; State v. Has-seltine, 130 Mo. 468; Sherwood’s Crim. Law, pp. 345, 346; Kelley’s Crim. Law (2 Ed.), sec. 773 ; 3 Words and Phrases, p. 2730; Carroll v. State, 71 Ark. 403; State v. Halpin, 91 N. W. 605. (b) It is held that the term “feloniously” is a description of the grade of the.offense rather than the criminal act which constitutes the offense. State v. Parker, 172 Mo. 206; State v. Scott, 109 Mo. 232. (c) The objection urged by appellant is technical in the extreme. He regards form all and disregards substance and intent. The information clearly charges that the forgeiy and alteration were done with a felonious intent, and this is sufficient, (d) In the first part of the information it is.charged that appellant “did then and there willfully and unlawfully forge, counterfeit and falsely make,” etc. In State v. Parker, 106 Mo. 224, it is said, “An unlawful intent to kill would he a felonious intent.” Chinn v. State, 68 Ind. 425.
   GANTT, P. J. —

This is an appeal from a judgment and sentence of the circuit court of Howell county.

On the 31st of July, 1907, the prosecuting attorney of Howell county filed in the circuit court of said county an amended information in three counts charging the defendant in the first count with having made and altered a certain check on the 31st day of May, 1907, under the name of F. M. "Willard, payable to one Hamon Judd, on the First National Bank of West Plains, Missouri, for the sum of twenty dollars, dated May 29, 1907. The second count charged the defendant with having sold, exchanged and delivered said forged and altered check to said bank, and the third count charged him with having made, altered and forged said check by which a pecuniary demand and obligation was purported to be created. The defendant was tried at the December term of the Howell Circuit Court, and found guilty under the first count of said information, and his punishment assessed at five years imprisonment in the State penitentiary. After unsuccessful motions for new trial and in arrest of judgment, he appealed to this court.

The first count of the information is in these words:

“J. L. Bess, prosecuting attorney within and for the county of Howell, in the State of Missouri, for his amended information, informs the court that one James R. Willard, on the 31st day of May, A. D. 1907, at the said county of Howell, did then and there willfully and unlawfully forge, counterfeit and falsely make and alter a certain check purporting to he made by one F. M. Willard, under the name of F. M. Willard, on the First National Bank of West Plains, a corporation duly incorporated and existing under the laws of the United States, payable to one Hamon Judd, or bearer, for twenty dollars, and dated May 29, 1907; which said false, forged, counterfeit and altered check of the tenor following;
FIRST NATIONAL BANK,
No.-. West Plains, Mo., May 29, 1907.
Pay to Hamon Judd, or bearer, twenty dollars ($20.00)
F. M. WrLLAKD.

With intent'then and there, feloniously to injure and defraud, against the peace and dignity of the State.”

As the court submitted the case to the jury on the first count only, it is not necessary to notice the other two counts. In his motion for a new trial and in arrest of judgment, the defendant challenged the sufficiency of the first count in the information, on the ground that he was not charged with having “ feloniously” forged and falsely made said check, and this presents the one important question in this case. In State v. Murdock, 9 Mo. l. c. 740, Judge Scott, speaking for this court, said: “Every offense, which is made a felony by statute, must be charged to have been done feloniously, whether it was a felony by common law or not. The word ‘feloniously’ is indispensably necessary in all indictments for felony, whether statutory or by common law. ’ ’ In State v. Deffenbacher, 51 Mo. 26, it is said: “The term ‘felony,’ when used in the statute, is ‘construed to mean any offense for which the offender, on conviction, shall be liable, by law, to be punished with death or imprisonment in the penitentiary, and no others.’ This provision was construed in the ease of Johnston v. State, 7 Mo. 183, and it was held that a statutory felony is an offense for which a party, on conviction, may be imprisoned in the penitentiary, and not where, on conviction, he must be-so imprisoned. It is the settled law of this State that an offense which is made a felony by statute, whether it were a felony at common law or not, must be charged to have been committed feloniously. [State v. Murdock, 9 Mo. 739.] The word ‘feloniously’ is indispensably necessary in all indictments for felony.” This doctrine has never been departed from in any subsequent decision of this court. The offense denounced in-section 2001, Revised Statutes 1899, under which the information in this case is drawn, is forgery in the second degree and forgery in the second degree, by section 2024, Revised Statutes 1899, is punishable by imprisonment in the penitentiary not less than five or more than ten years. The Attorney-General urges that this indictment is sufficient, because, while it does not charge that the defendant “feloniously” forged the said check, it does charge that he made the same “with intent then and there feloniously to injure and defraud, against the peace and dignity of the State, ” and cites in support of his contention State v. Brown, 104 Mo. l. c. 371, in which this court, speaking of the-necessity of using the word “feloniously” in instructions, says: “It is not necessary that the court should-use the word ‘feloniously’ in the instructions,’ ” and', also State v. Hesseltine, 130 Mo. 468, in which the indictment is in practically the same form as this count: of the indictment. A reference to that case will show that the sufficiency of this count of the indictment was-not passed upon in that case. But neither of these: cases reaches the error in this inf,ormation, and neither of them can be held- to have overruled or changed the well settled law announced in the cases which we have cited.

In onr opinion this count of tlie information upon which the defendant.was convicted is fatally defective, and tlie circuit court erred in overruling the motion in arrest of judgment. Indeed, in the absence of such a motion under the well established practice of this court, we are bound to look to the indictment, and if found fatally defective, reverse the judgment. The judgment of the circuit court of Howell county is reversed and the cause remanded, and in the meantime the prisoner will be remanded to jail, or if on bail, held to answer another indictment or information if the prosecuting attorney shall elect to further prosecute.

The judgment is reversed and the cause remanded to be proceeded with as herein directed.

Burgess and Fox, JJ., concur.


author: Scott, Judge,

text:
    Woodson, Respondent, vs. Skinner and Breck, Appellants.
    '1. A power to “araml a sale” of a lot in the St. Louis common, made under the authorily of ‘e an act to authorize the sale of the St. Louis common,*’ approved March 18, 1835, is substantially ..pursued by declaring the lot uforfeited to the city of St. Louis.”
    B. The seventh section of the above act provided that the “ board” of aider-men of the city of St. Louis might, by resolution, &e., “ annul” a sale made under the said act, upon the non-payment of interest due^ in a deed of the “ mayor, aldermen and citizens of the city of St. Louis,” dated March 10, 1836, made under said act, a power was reserved te the “ mayor and aider-men” to “ annul the salé” upon the non-payment of interest* held, that.it Was the intent of the act that the body in which the legislative power of th'e city should at the time reside, should annul Ihe sale; that, consequently,'a resolution of the city council, consisting of the board of aldermen and board of delegates, (to whom by the act of February 8th, Í839, the legislative power of the city had passed,) approved January 3, 1841, declaring ■a lot “ forfeited to the city of St. Louis, was a .good annulment of the sale ‘of said lot.’”

      3. The city of St. Louis has a fee simple title to its common, and may, under its charter, pass such a title to a purchaser.
    4. There is a marked difference between a forfeiture imposed by a statute- and one arising under the contract of parties. In the one case it can not he relieved against; in the other, it may.

      Appeal from St. Louis Land Court.

    This was an action, in the nature of an action of ejectment, to recover possession of the south-east quarter of block No, 79, in the St. Louis common. It is alleged in the' petition that on the 23d day of June, 1848, the “ city of St. Louis,” being the owner in fee simple of the above tract of land, conveyed the same to John Laughton and D. II. Armstrong, who, on the 24th day of October, 1849, conveyed to the plaintiff, Woodson-, The defendants, in their answer, set up a prior title from the city of St. Louis, under a previous corporate name, and allege that “ the mayor and aldermen of the city of St. Louis, claiming the power to dispose of said premises under an act of the general assembly of the state of Missouri, entitled “ An act to authorize the sale of the St. Louis common,” approved March 18,1835, by indenture of léase dated March 10, 1836, leased •said premises to Nathaniel B. Atwood, for a term of fifty years from date of said lease, which term has not expired. The defendants claim under the said Atwood.
    Upon the trial, the plaintiff showed the original title of the inhabitants of St. Louis to the common, which it is unnecessary to set forth here. Plaintiff then introduced in evidence a deed dated June 23d, 1848, from the city of St. Louis, to John .Laughton and David H. Armstrong, purporting to convey-the ■premises in controversy in the present suit; also a deed of conveyance of the same premises from the said Laughton and Armstrong to plaintiff, Woodson, dated October 24, 1849. There Was evidence tending to show the value of the premises 'claimed to be f>16,000, also tending to show the yearly value of the same. The plaintiff here rested, and the defendant then introduced in evidence a deed, dated March 10, 1836, of the mayor, aldermen and citizens of St. Louis, (the corporate name at the date of the deed) to Nathaniel B. Atwood ; which deed is as follows : “ This indenture, made at the city of St. Louis, Missouri, the 10th day of March, 1836, by and between the mayor, aldermen and citizens of the city of St. Louis, of the county of St. Louis, and state of Missouri, of the one part, and Nathaniel B. Atwood, &c., (of same place) of the other part, to comply with the ninth section of 1 An act to authorize the sale of the St. Louis common,5 approved March 18, 1835, witnesseth, that the mayor, aldermen and citizens of the city of St. Louis, for and in consideration of the rents' reserved, &c., have demised, granted and to farm let, and by these presents do demise, grant and to farm let unto the said Atwood, his executors, administrators and assigns, all that lot, messuage or tract of land, situate within the limits of the St. Louis common, in the county aforesaid, containing 9 and 70-100ths acres, and described as follows : The S. E. block 79, of the survey of the St. Louis common, made by Charles DeWard, by order and direction of the board of aldermen of the city of St. Louis, together with all the rights, members and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the rent, issues and profits thereof : To have and to hold the said lot, messuage and tract of land, and all and singular the premises hereby demised, with the appurtenances, unto the said Atwood, his executors, administrators and assigns, from the date hereof, for and during the term, and upon the condition following, being those prescribed by an act of the general assembly of the state of Missouri, passed March 18, 1835, entitled ‘ An act to authorize the sale of the St. Louis common.5 That is to say :
    “ 1st. Yielding and paying for the same as a yearly rent, unto the mayor, aldermen and citizens of the city of St. Louis, and their successors, the interest of five per cent, a year on the amount bid for said lot or parcel of ground, being the sum of $36 86, at the expiration of one year from the date of these presents ; and to secure the payment of which a note has beea éxecuted by the said Atwood, and the like sum at the expiration? of every year thereafter.
    “ 2d. That at the end of fifty years from the day of sale, being the 8th day of March, 1886, and every fifty years thereafter, and after the assessment made by the public assessor,agreeably to the act of the general assembly above mentioned,* the said Atwood shall pay five per centum a year upon such assessed value as a yearly rent.
    “ 3d. That should the interest aforesaid remain unpaid for six? mouths after due, the mayor and aldeimen of the city aforesaid may annul the sale, and proceed to sell again, according to the act of the assembly aforesaid.
    “ 4th. That at the expiration of ten years from the day of sale, or at any time after such term, if the annual per cent, aforesaid be duly paid, the said Atwood may pay the sum off $5737 20, being the amount bid for the lot aforesaid, and receive a deed i'n fee simple, with special warranty only against the inhabitants of the city of St. Louis, and all persons claiming under the» } and the said Atwood,” &c., (here follows a covenant to pay the rent, &c.)
    “In witness whereof, the parties aforesaid' have executed this deed in duplicate, the mayor of the city of St. Louis and the city register signing their names, and causing the common seal of the city of St. Louis to be' affixed to both parts, and the said Atwood signing his name and affixing his seal to both parts of this indenture, on the 10th day of March, 1836.
    “ John F. Darby, Mayor.
    “Nath’l. B. AtwooB1, (seal)
    “ J. A. Wherry, Register, (seal of city.)”
    The defendants also gave in evidence a deed from N. B. Atwood to J. W. Skinner, the defendant, assigning to said Skinner a portion of his (Atwood’s) interest in the premises. This-deed is dated September 6th, 1850.
    The plaintiff then in rebuttal introduced Socrates Newman, who testified that he was the register of the city of St. Louis, and that ordinances 766 and 2826, as they appear in the vol-«me of published ordinances, were duly enrolled on the records of the board of aldermen and board of delegates of the city council. These ordinances were then offered in evidence, and admitted in evidence against objection of'defendants. Ordinance 766, approved January 3d, 1041, is as follows:
    “ A joint resolution providing for the forfeiture and sale of certain lots in the city common.
    •“ Whereas, the parties hereinafter named have failed to comply with the conditions of'sale set forth in. the conveyances to them made respectively of lots in the city common, viz., being in arrears for more than six months’ interest on their respective purchase ; and, whereas, by the conveyance made to thém, the ffight of forfeiture is reserved to the city in certain cases therein provided:
    “ Be it resolved by the city council of the city of St. Louis, that the following described lots in the city common are hereby ■declared forfeited to the city of St. Louis, viz: (among others) a lot sold to N. B. Atwood, containing nine and acres, being the south-east quarter of block seventy-nine,” &c.
    There was a further resolution ordering the forfeited lots to be sold again. Ordinance 2826, approved June 19, 1852, is as follows :
    ■“ Joint resolution concerning the city common. Whereas, there have been verbal criticisms upon the phraseology of the several resolutions of the board of aldermen annulling the sales of certain lots in the St. Louis common; that any apprehension of subsequent purchasers may be quieted, be it resolved by the board of aldermen and board of delegates of the city of St. Louis, that, inasmuch as the interest or rent reserved to be paid to the mayor, aldermen, and citizens of the city of St. Louis, in the respective deeds made by the mayor, aldermen, and citizens of the city of St. Louis, and the interest or rent reserved to be paid to the city of St. Louis in the deeds made by the city of St. Louis to the purchaser, and for .the lots in the St. Louis common hereinafter named, has remained unpaid either to the mayor, aldermen, and citizens o£ the city'of St. Louis, or the said city of St. Louis, for more than six months after the same became due and payable, which said lot and the names of the purchasers thereof are as follows (among others) : a lot sold to N. B. 'Atwood, containing nine acres and seventy-one-hundredths, being the south-east quarter of block 79.
    “ Now, therefore, the said several sales of lots in the St. Louis common above named, and to the purchasers above named, are hereby annulled, and are declared null and void.”
    Plaintiff then introduced Robert Simpson, who testified that he was comptroller of the city of St. Louis in the year 1841, and had the control of the St. Louis common. He knew of the sale of the premises to N. B. Atwood, and that he failed to pay the rent due under the lease to him more than six months after it was due, and that he was actually unable to pay. It was the practice to put the accounts in the hands of a collector, and if they were not paid to put them in suit. He had no doubt it was so done in this case. On cross-examination, witness stated that he had never called on Atwood for the rent, and could not recollect the time when the rent bills were put in the hands of the collector. The court, upon motion of plaintiff, gave the following instruction :
    “ If the jury find from the evidence that, at the time of the passage of the resolutions offered in evidence, (ordinances Nos. 766 and 2826,) a year’s rent or interest, to be paid by N B. Atwood to the mayor, aldermen and citizens of the city of St. Louis, by virtue of the indenture given in evidence, dated March 10, 1837, was in arrear and had remained unpaid for six months after due, then said sale to Atwood was by said ordinance annulled ; and if the jury believe in the genuineness of the instruments by which plaintiff deduces title from the city as read in evidence, they must find for the plaintiff.”
    To the giving of this instruction, the defendant duly excepted.
    An instruction asked for by the defendants was given. Several instructions asked by the defendants were refused by the-court. It is unnecessary to set these forth, as all the questions of law discussed arise upon the ¿riving of the instruction above set forth. There was a verdict and judgment for plaintiff, and defendants appealed.

      J. W. Skinner, for self and other defendants, appellants..
    1. The lease to Atwood was not annulled by ordinances 766 and 2826. The act of March 18, 1835, authorized a lease. Erom an examination of the character of the act,, we may see that the prominent features take rightly a leasehold character. The subject of the act — commons—are no.t properly or generally subjects of sale, .(See Bac.- Abr. tit. Common.) The object of the act was to provide a yearly fund for the support of schools. Though styled “ An act to authorize a sale,” &c., it in part authorizes only a sale to fix the rent, ór a contract to sell, whereby at a public auction the bidder states what sum he .may pay in ten years or more. He is forbidden to pay under ten years, and he is not bound to pay it any time. He is to enter into covenant to pay rent for fifty years, and on a reassessment after fifty years to .pay a rent on the re-assessment. These peculiar and remarkable features of the act show that the prime object was not to sell, in order to transfer the absolute property, but to make the .sale a means of ascertaining the amount of rent to be paid. The indenture of March 10, 1836, vested a leasehold in Atwood. It is not a deed of conveyance upon a sale; no words of conveyance, or covenant for the conveyance of a fee are to be found in it. It merely gives permission to receive a deed of conveyance in the future. The words used are “demised, grant and to farm let.” These, are the operative words of a lease. The term extends to fifty years certainly ; and if the provision concerning the extension is valid, for fifty years longer, at least, subject to re-assessment, If that provision be pronounced invalid, it is limited to fifty years.
    In Pbwd. 271, “ a lease for ten years, lessee to pay in tiles at the end of every ten years, and have a perpetual demise of «the premise, from ten years .to ten years, forever; it was held that it was a good lease for ten or twenty years, and that if the* condition had been properly worded, it would have made a good; perpetual demise.” Bac. Ab. Leases, 633, 835, 890. Thus-the-indenture has all the qualities of a good lease, and-none of a conditional sale.
    “ In a lease to a man for eight years, rendering rent yearly,, and if he should-hold over to have the fee to him and his heirs forever, on covenant for rent brought within eight years : held,, it was a lease and not a conditional fee.” Plowd. 271.
    “-When a lease is made by A. to B. for five years, with the privilege of a fee-on paying a certain sum in two years,” this-is held by Littleton to be “ a lease united to a conditional fee,. pro tempore.,:> Plowd. 271, Co. Litt. II. p. 11. This decision is misquoted and misapplied (18 John. 174). See City of St. Louis v. Morton, (6» Mo. Rep. 480). If this indenture is a conditional deed, the law of forfeiture is still applicable, so far as the lease extends, and the forfeiture must betaken in the same way. (18 John. 174.) The city had power-to make the lease. (13. Mo. 606. The leasehold interest of Atwood can be divested against his will only by forfeiture orejectment. As there is an interest' in possession under the lease, and an interest in future under the permission to receive a deed, which are entirely separable,, so the penalties are separable which/affect either of them. A penalty may be imposed by- which, under certain contigencies,. our right to the fee may be cut off, yet leave the lease good. If the city intends to annul the sale, it must proceed in the manner-directed in the act. If it would forfeit our lease (the act and deed being silent) it must proceed according to law. The common law requires, as-necessary to a forfeiture, a demand of the rent, on- the ground,, at the last hour of the last day. (Dumfries’ case, 4 Coke,. Í19; 1 Saund. 287 ; Cowp. 804 ; 17 Johns. 66 ; 1 How. 211.) Our statute requires an action of ejectment by landlord; as a substitute for the demand under the common law. Neither-of these is claimed to- exist in. this case. Ordinances 766 and 2826 did not affect the leasehold interest created by the indent ture of March 10, 1836. The first attempted it in vain. The second did not attempt to affect it. The right of “ forfeiture” is not reserved to the city of St. Louis. The city council and the city of St. Louis are strangers to our contract. The forfeiture claimed is exercised under an assumed power to forfeit reserved in the deed. If no power to forfeit is found in the deed, the forfeiture is invalid. The power to annul the sale is not a power to forfeit. • The power to annul the sale was given by the act of Mareh 16, 1835, to the “ mayor and aldermen,” and not to the corporation. No mention is made of a power to their successors. The charter under which they acted as the agent of the corporation was extinguished February 8th, 1839. In this new charter there is no reservation of the power to annul the sales made by the “ mayor and aldermen.” See Charleton R. 342. Ordinance 2826, if operative at all, affects only whatever interest, right or contract we have for the fee. It leaves the lease, under which alone we claim, unaffected and unimpaired. The city authorities may have meant to forfeit the lease, but did not adopt apt means to accomplish their object. This, ordinance was passed without any demand of rent, and without notice to those claiming under the indenture of March 10, 1836 ; also long after the conveyance to Laughton and Arm- . strong, on June 23, 1848. 2. The annulment of the sale to Atwood did not revest a fee simple in the city of St. Louis. It was not proven that the city, before the sale to Atwood, was the absolute owner of the. premises in fee simple. (Reily v. Chouquette, 18 Mo. 225; see also 1 McLean, 41; 6 Wheat. 597 ; 2 Kent’s Com. 277, 262; 1 Black. Com. 475; Co. Litt. 2 ; 1 Hallam’s Mid Ages, 165 ; 6 Mo. 524, 481 ; 11 Mo. 150; 13 Mo. 611, 431; 6 N. H. 269.) 3. The verdict of the jury as to damages was not sustained by the evidence.

      B. Bates, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The main point in the argument for appellants was founded in the conception, that the deed which has given rise, to this controversy was similar as to the estate or interest conveyed by it to that conveyed by the indenture in the case of Say v. Smith, Plowden, 271. It is only necessary to look at that case in order to be satisfied that this is a misconception. In the case cited, the lease is only for the term of ten years fully to be complete. The lessee agreed at the end of the said term, to pay ten thousand tiles, or the value thereof in money; and it was further agreed, that if the ten thousand tiles should be punctually paid at the end of every ten years, the lessee should have a perpetual demise. In that case, the judges take the distinction between a conditional lease and condition to have a lease, and in that distinction consists the difference between the case under consideration and of Say v. Smith.

We do not deem it necessary to enter into any discussion as to the proper name of the instrument executed by the authorities of the city of St. Louis to N. B. Atwood, under whom the appellants claim. The instrument was effectual to convey away all the interest the city had in the premises in dispute, and a compliance with its terms on the part of the lessee and his assigns, would have effectually barred all right the city might have had in the lot. It is true, there were conditions annexed in the instrument on the performance of which the lessee or his assigns would have been entitled to an estate in fee. But these conditions constituted no separate and distinct estate ; they were mere incidents to the lease or sale, and would naturally terminate with ic. Any act which avoided or annulled the lease would destroy all conditions annexed to it.

How, then, does this case stand? The instrument under which the appellants claim, purports to have been made in compliance with the ninth section of the act of the general assembly, entitled “ An act to authorize the sale of the St. Louis commons,” approved March 18, 1835. This instrument is a substantial compliance with the act. It is, in effect, a perpetual lease, with a privilege in the lessee to convert it into an estate in fee, by complying with the conditions contained in the instrument of lease. There is also a clause in the deed by which the mayor and aldermen of the city are authorized to annul the sale upon the non-payment of interest on the purchase money as stipulated. This clause is inserted in virtue of an express provision in the act of assembly empowering the city to sell her commons. Now, admitting this Avas strictly a lease, there is an error in supposing that the city could only enforce a forfeiture of it by the course of the common law. The city, in leasing her commons, did not act of her mere volition as an individual proprietor would in leasing lands belonging to him. She acted under a law of the state, and that law expressly empowered her to enforce the performance of the conditions of the lease by means of a forfeiture. The case is as though the general assembly had declared that the lease should be forfeited in the event of non-payment of the interest on the purchase money. There is a marked difference betAveen a forfeiture imposed by a statute and one arising under the contract of the parties. The legislature can impose it as a punishment, whilst individuals can only make it a matter of contract. In the one case it can not be relieved against, in the other it may. In the one case it may be taken advantage of in the manner prescribed by the law imposing it, in the other only according to the course of the common law. (How. 3 U. S. Rep. 534.)

The right to enforce a forfeiture or annulment of the lease being conferred by an act of the general assembly, Avhich can not be relieved against, it remains to be inquired into, Avhether the appropriate steps Avere taken by the city authorities to carry it into effect. Whilst courts will not incline to forfeitures, yet when a right to exact forfeiture is given, they should not withhold a reasonable construction from the written instruments by which they are designed to be enforced. Taken'in connection with the facts, it is impossible to place any other interpretation on ordinance 766 than that which will make it effectual for the purpose for which it was intended. The objections to the ordinance are verbal. There is no force in them. No one can read the ordinance in connection with the deed or conveyance and entertain any doubt as to its meaning. The right reserved in the deed is to annul the sale. The ordinance declares it forfeited, for the non-performance of the very act, for the nonperformance of which it may be annulled. It is not pretended that there was more than one deed or conveyance between the parties respecting this lot. “ Annul” is not a technical word. There is nothing which prevents the idea conveyed by it from being expressed in equivalent words. The annuling of a lease is nothing more in effect than causing a forfeiture of it. The recital in the preamble to the ordinance, that the right of forfeiture is reserved to the city, can not affect its validity. It means nothing more than that the right of forfeiture' is reserved for the benefit of the city. Besides, if this was an error, it could produce no harm. If the right of forfeiture was enforced by the authority empowered to do it, a mis-recital of the authority to whom it was reserved could work no wrong. There are several other criticisms on the language of the ordinance which we do not deem it necessary to notice.

The view we have taken of ordinance 766 relieves us of the necessity of saying any thing in relation to ordinance 2826, not intending thereby to detract any thing from the weight to which it is entitled.

The change of the name of a corporation does not affect its. rights. In its new name, a corporation may proceed to enforce rights acquired under a former name, and the same remedy is open to those who had claims upon it before the change. A corporation which has been suspended by the loss of the governing members may be revived by a name different from that by which it ivas formerly known, still preserving its identity and ancient lights. (Willock, 36.)

The act of 18th March, 1835, under which the sale or lease was made, took effect on the 1st December, 1835. On the 26th February, 1835, an act was passed conferring a new charter on the city by the name and style of the “ mayor, aldermen and citizens of the city of St. Louis.” This act, too, it would seem, took effect on the first December, 1835. The name of the incorporation given by this act is the same by which the city stood incorporated before its passage. By an act approved February 8th, 1889, the city received a charter by which she Was incorporated under the name and style of “ the city of St. Louis.” This act changed the former charters and vested the legislative power in a city council, consisting of a board of aldermen and a board of delegates. Ordinance 766 was passed under this last charter, and it purports to have been passed by the city council. Now, it is maintained that, inasmuch as the deed requires that the act of annulment should be made by the mayor and aldermen, the ordinance or resolution made by the city council, declaring a forfeiture, is ineffectual for that purpose. The act under which the commons were sold or leased, directed that the deed should contain a condition to the effect that if the interest on the purchase money remained unpaid for six months, the board might, by resolution to be entered of record on the minutes of their proceedings, annul the sale of any lot which was delinquent. This is the act. Its meaning and purpose are obvious. That meaning was not changed by transferring the words of the law into the contract. The idea intended was that the body in which the legislative power of the city resided should annul the sale. It never was contemplated that the organization of the legislative power of the corporation should forever remain unchanged, in order that advantage might be taken of the condition. Suppose that after all legislative power had been taken by charter from the board and vested in another body, and the charter had provided that two men should be a board of aldermen, with no legislative powers or duties whatever, would the annulment of the sale by such a hoard be within the spirit or meaning of the condition ? The concurrence of the mayor in the act, if it were conceded that his consent was not required, can not prejudice the vendee or lessee. ■ As his action is separate and independent of the board, the requiring of his concurrence is an advantage to the vendee of which he can not complain. To obtain the joint concurrence of two separate bodies to an act, is more difficult than to obtain the consent of one of those bodies ; besides, if the resolution, without his approval, was sufficient, the putting his signature to it could not affect its validity.

What has been said in relation to the change of names of corporations, is an answer to the objection that, in the new charter of 1839, under which ordinance 766 was passed, there was no reservation of the power to annul the sales made by the mayor'and aldermen. In addition to this, the seventh and eighth sections of the seventh article of the charter of 1839 are sufficient to preserve all rights belonging to the city under former charters.

Another point made by the appellants was, that the annulment of the sale to Atwood did not revest a fee simple in the lot in the city of St. Louis ; that such an effect could not be produced unless the city had been the owner before the annulment. The case of Swartz v. Page, (13 Mo. 610,) certainly goes on the idea that the city had power to convey a fee simple title to the commons. In the case of DuBois v. Bramell, (4 How. U. S. Rep. 458,) the court says : “ In January, 1831, the city of St. Louis and other towns applied to have their rights of common further confirmed and regulated, and an act of congress was passed declaring that the United States do hereby relinquish to the inhabitants of the several towns of St. Louis, &c., all right, title and interest in and to the town or village lots, out-lots, common-field lots and commons, to be held by the inhabitants of the said towns in ‘ full property,’ and to be regulated or disposed of for the use of the inhabitants according to the laws of the state of Missouri. This law vested in the city corporation the town common in fee simple, and gave full power to the legislature of Missouri to incorporate it into the city by extending the city charter over it.” The right of congress to pass any law affecting the right to commons, after the act of 1812, has been questioned ;'but this exercise of power has its foundation, it is presumed, in the nature of commons. The right to commons in the inhabitants was not inconsistent with the idea of a fee in the sovereignty under which they existed. The words “ in full property,” in the act above cited, seem to show that such was the opinion entertained by its authors. The act of 18th March, 1835, was passed in pursuance to this act of congress by the legislature of Missouri, to enable the city to dispose of her commons.

There was an admission in the answer that the lot was cultivated, and that one. of the defendants lived upon it. Under these circumstances, the amount of the damages was exclusively for the jury.

Judgment affirmed,

the other judges concurring.


text:
    Pensenneau, Respondent, vs. Pensenneau et al., Appellants.
    1. A. B. and C (A. and B. having husbands living) owning land in co parcenary, an amicable partition is made and equal shares allotted to each ; in making the mutual conveyances to complete and perfect the partition, B. and husband and C. convey to A.’s husband instead of to A. herself; and the deeds of A. and her husband to B.’s husband and to C. are so acknowledged as to pass only the life interest of the husband : held, in a suit by A. against the heirs of her deceased husband, that there is no equity in her favor to obtain a devestiture of the title that descended to the defendants from the husband of plaintiff.
    2. Semble: That lands acquired in this state in exchange for land in the state of Illinois, clothed with a trust in the latter state, will be held subject to the same trust; but the question whether the land in Illinois is held subject to a trust must be determined by the law of Illinois.
    3. Where a suit is brought to enforce a trust, with reference to specific property, and the plaintiff prays a devestiture of title; and also prays that, if the court should refuse the first prayer, the rights of plaintiff and also of defendants may be ascertained and a partition and division decreed accordingly: held, that the alternative relief prayed is founded on the assumption that the cause of action is wholly misconceived, and should not be granted. A plaintiff cannot ask in his petition, that, if he should have mistaken his i emedy, and should fail to obtain the relief prayed, another and a different cause of action may be tried.

      Appeal from St. Louis Circuit Court.

    This was an action, in the nature of suit in chancery, brought by the plaintiff, Elizabeth Pensenneau, widow of Laurent Pensenneau, against defendants, the heirs at law of said Laurent, to establish and set up a trust as against the said defendants. The facts as found by the court, and as they appear from the admissions of parties, are as follows :
    In the year 1885, one John Hays died seized of the northwest quarter of block No.- 78 in the city of St. Louis, and of ■■a tract of land in St. Clair county, Illinois, as shown by the following diagrams';

      Block JV'o. 78. Illinois Land.

    Hays left three daughters, his only heirs at law, viz : the plaintiff, Elizabeth Pensenneau, then wife of Laurent Pensenneau ; Catherine, then wife of Edward Caya, and Jane Mc-Kenney, a widow. In the year 183-9, an amicable partition and division of the said tracts was made by the plaintiff, and her husband, Laurent Pensenneau, the said Catherine Caya and her husband, Edward, and the said Jane McKenney, as follows : for the plaintiff’s share they allotted the lots marked upon the above diagrams, E. P., No. 1, E. P., No. 2, and E. P., No-. 3; for Jane McKenney’s share they allotted' the 'lots marked on the above diagrams, J. McK.,-No.-1, and J. McK., No. 2; for Catherine Caya’s share they allotted the lots marked C. C.-, No. 1, and'C. C., No. 2. On the 9th day of July, in the said year 1839, the plaintiff and her husband, Laurent Pensenneau, the said. Catherine Caya 'and her husband, Edward Gaya, and the said Jane McKenney, with a view to complete and perfect the said partition, executed to each other mutual conveyances, according to the allotments above stated ; but in conveying the share which had been allotted to plaintiff', the said Catherine Caya and husband, -and the said Jane McKenney, made their conveyances to the said Laurent -Pensenneau, instead of to plaintiff; so also the said Elizabeth and her husband, and the said Jane McKenney, in conveying the share which had been allotted to Catherine Caya, conveyed the same to her husband, Edward. The deeds executed by Pensenneau and wife to E. Caya, and to Jane McKenney, and also the deeds executed by the said Caya and wife to the said Laurent Pensenneau and 'the said Jane McKenney, were not acknowledged so as to pass the interest of the wives, Elizabeth and Catherine, in the lots in block No. 78, but were duly acknowledged so as to pass the Illinois land.
    On the 15th day of April, 1840, the said Laurent Pensenneau and Elizabeth Pensenneau, his wife, conveyed to Jane ■McKenney the lot situated in block 78, and marked upon the 'above diagram E. P., No. 2, in consideration -of a conveyance executed the same day by the said Jane to the said Laurent, 'of her portion of the Illinois land, to-wit s that marked J. McK.-, No. 2, on the above diagram.
    On the 16th day of September, 1842, the said Catherine Caya and her husband, Edward'Caya, conveyed to said Laurent Pensenneau the lot in block, 78, marked upon the above diagram C. C., No. 1, which had, in making partition, been allotted for part of said Catherine’s share, in consideration of a conveyance executed on the 14th of the same month by plaintiff and her husband to said Edward Caya, of the two parcels of •land marked upon the above diagram E. P., No. 3, and J. McK., No. 2. It is further found by the court that the plaintiff is illiterate, being unable to read or to write, and that the partition deeds above mentioned were drawn and executed under the direction of the said Laurent Pensenneau and Edward Caya; that the said Laurent died July 18, 1848, leaving the defendants his heirs at law ; that said Laurent, in his lifetime, expended the sum of $1000 in improvements upon the lots in controversy in the present suit. In the year 1848, after the death of said Laurent Pensenneau, Edward Caya and Catherine, his wife, conveyed to plaintiff all their interest in the lots in block 78, marked upon the above diagram E. P., No. 1, and C. C., No. 1. The plaintiff prays that the title of defendants to the lots in block 78, marked upon the above diagram E. P., No. 1, and C. C., No. 1, acquired by descent from Laurent Pensenneau, be devested out of them and vested in the plaintiff. The petition contains the further prayers : u or that the same decree may be made as to so much of the said interest and estate as she may be entitled to; but, if the court shall be of opinion, and shall decide upon the trial or hearing of this cause, that plaintiff is not entitled to the relief above prayed in equity and in conscience, the plaintiff prays that her rights and the rights of the defendants In the said lots of ground may bo ascertained, and a partition and division of the same decreed accordingly. Plaintiff claiming and insisting that she is entitled to the whole of the two lots last above described, is yet desirous that the defendants, if the court shall adjudge they have any equitable and just title thereto, may have their interest ascertained and set off to them, and plaintiff avers that she is entitled to the following interest in the said lots at all events : First, as to the lot at the corner of Fourth and Poplar streets, she is entitled to one-third in fee as one of the heirs at law of John Hays, deceased ; second, she is entitled to the interest of the said Catherine Caya as one of the heirs of said Hays, because the said interest was not conveyed by the deed of July 9, 1839, to said Laurent Pensenneau, but was conveyed to plaintiff by said Catherine Gaya and husband, after the death of said Pensenneau ; and, third, that as widow of said Laurent Pensenneau, she is entitled to one half of the residue as her dower, she being entitled by law to take by election one half of the real estate of her said husband as dower. Secondly, as to the lot fronting on Poplar street, (that marked in diagram C. C., No. 1,) plaintiff is entitled to as follows : First, one third thereof as one of the heirs of said Hays, the deed to Edward Caya being inoperative and void as to her, and not conveying her third io said Caya; second, she "is entitled to the interest of said Catherine Caya as one of the heirs of said Hays, the said interest not having been conveyed to said Laurent by said deed No. 3, because the same is inoperative to convey it, but the said interest is vested in plaintiff by deed B, No. 4 ; and, third, she is entitled to one half of the residue as dower by her election as above stated.”
    The court decreed that the lots marked E. P., No. 1, and C. C., No. 1, be devested out of the defendants and vested in the plaintiff; whereupon the defendant appealed to this court.

      Krum & Harding, for appellant.
    1. The respondent’s petition contains no case for relief ; taking its allegations to he true, Jane McKenneyis the person entitled to such relief. 2. The respondent failed to show an implied or resulting trust. No declaration of respondent’s husband was shown to the effect that such a trust existed. No consideration moved from the respondent in the conveyances made by Laurent Pensenneau, nor was any portion of the purchase money named in the deed ever paid by her. The conveyance to Laurent Pensenneau was made for a good and valid consideration, moving from him, to-wit, his conveyance of his interest in his wife’s estate.

      S. Reber, for respondent.
    1. The only question that arises as to the lot at the corner of Fourth and Poplar streets, (marked E. P., No. 1,) is, whether the deed executed to make and consummate a partition of the wife’s property, though executed to the husband, enured to the benefit of the wife. The consideration moved from her and there is a resulting trust in her favor. The object was not to acquire land for the husband, but to make partition of the land of which the wife and her sisters were owners. (Weeks v. Haas, 3 W. & S. 520 ; 4 Grattan; 2 Yes. 488; Trustees of M. E. Church®. Jacques, 1 Johns. Ch. 450, 457.) 2. As to the lot marked on diagram C. C.,No. 1, two questions arise. The first is the same as that just stated; the second is whether when trust property is exchanged for or converted into other property, such other property is also clothed with a trust. That it is, see 2 Sto. Eq. p. 443, and cases cited above; also Malin v. Malin, 1 Wend. 625, 680-1. 8. The evidence offered to show the consideration of the conveyances was properly admitted. (16 Wend. 465; 14 Mo. 580 ; 17 Mo. 58 ; 1 John. Ch. 582 ; 2 id. 405.) 4. It is contended on the other side that some of the partition deeds are defectively executed; that by reason of these defects, the interests of the wives did not pass ; that Laurent Pensenneau and wife, by their deeds to Edward Caya and Jane McKenney, only passed the interest of Laurent Pensenneau, and that consequently no part of the consideration for the conveyances to Laurent Pensenneau moved from his wife, the present plaintiff. To this it is answered that the deeds of the Illinois land were executed in due form, so as to pass all the interest of Laurent Pensenneau and wife; that this is a ease of partition — the parties divided and allotted the land and held it in severalty, and although they failed to execute the deeds, so as to fully carry out their intention, the quality and effect of what was well done wei'e not changed on account of the failure to do every thing well. If Laurent Pensenneau would have taken the land subject to a trust in favor of his wife, if the deeds had .all been duly executed, he could not claim that he was a purchaser, because they were not executed. The partition might have been by parol. (Co. Litt. p. 169 ; 25 Wend. 436.) A married woman may avoid an unequal partition when she becomes discovert; but if she acquiesces after her coverture ceases, she will be bound by it. (Co. Litt. 170.) . Plaintiff does not seek to disturb the partition; she could not do it if she-would, having acted upon and acquiesced in it. It can make-no difference to Mrs. MeKenney, whether the title she conveyed to L. Pensenneau is in him or in the plaintiffs. But the interest actually conveyed to Mrs. MeKenney was the property of the plaintiff; held by her husband, it is true, in right of their marriage, but still it was hers. If Mrs. MeKenney did not get all that was intended by the deed of L. Pensenneau and wife, what she did get was at least part of the interest of one of the co-parceners, and it was in consideration of that interest (which she supposed to be larger) that‘she conveyed one-third in fee to that co-parcener’s husband, not as purchaser, but to make partition. • It does not lie in the mouth of L. Pensenneau or his heirs, to say that Mrs. MeKenney never received the whole' consideration for which she conveyed an interest to him. If Mrs. MeKenney is satisfied, shall Pensenneau or his heirs complain for her ? They are strangers, and can not assert her rights. (Guest v. Earley, .19 Mo.- 151.) The plaintiff, by seeking to obtain the land conveyed by Mrs. MeKenney, confirms the other part to her.
   Scott, Judge,

delivered the opinion of the eourt.

Elizabeth Pensenneau, the plaintiff, claims that a trust results to her in the land in controversy, because it was an inheritance derived from her father ; and her husband, in making a partition with her co-heirs, took a deed for her share in his own name, by which he clothed himself with a trust as to it; and now that he is dead, that she is entitled to have it executed by a conveyance to her of the title in fee simple.

If it were conceded that the law is as assumed by the plaintiff in relation to a resulting trust in her favor, yet a difficulty arises from the fact that the deed in which she joined with her husband in making partition with her co-heirs, was not executed by her in such a way as to pass her interest in the inheri - tance derived from her father, so that she is now in the same situation she would have been had no partition been made. Her husband had a life estate in her land, and, as the matter stands, that estate was the sole consideration which was given for the land, which he acquired by the partition among the co-heirs of his wife, the plaintiff. Elizabeth Pensenneau, the complainant, not having acknowledged the deed in such manner as to pass the estate she had in the land, she now stands as though the partition had not been made, and is at liberty to assert her rights, freed from all embarrassments, so far as appears from the record, created by her husband’s deed to her co-heirs.

The foregoing observations apply to the lot situated in St. Louis. As to the tract of land lying in the state-of Illinois, the deed of partition was effectual to convey all the estate owned there by the plaintiff. In the partition made in Illinois, the husband of the plaintiff took the conveyance in his own name, and the portion thus acquired he conveyed as part of the consideration for the lot originally assigned to Caya and wife in the partition made of the inheritance situated in St. Louis. Now, if, in making a partition of lands in Illinois, belonging to the wife, as a co-parcener, the deed should he taken in the name of her husband, whether a trust results to the wife is a question to be settled by the laws of that state. If it should be found that the husband in such case would hold as a trustee for his wife, then the question arises whether lands here acquired by an exchange or sale of land in Illinois will be impressed with the trust with which it was clothed in that state. According to the views heretofore entertained by this court, it would seem that lands thus acquired would be held subject to the trust with which the land was clothed, for which they are exchanged or sold. (Depas v. Mays and wife, 11 Mo. 317.) The question arising under the partition made in Illinois, by reason of the husband taking the deed in his own name, has not been discussed in reference to tho laws of that state, and we are unwilling to hazard an opinion in reference to it, especially as it is not necessary in the aspect which the case now assumes.

We are embarrassed in relation to that part of the petition which asks for a partition of the premises as alternative relief to that sought by the case as state 1. We do not know on what principle it is founded. Is it to be sustained by the provision contained in the third section of the 17th article of the present practice act, which says: “The court may grant any relief consistent with the case made by the complainant, and embraced within the issue ?” What is the meaning of this provision ? Oan it be that the plaintiff may, in his petition, ask that, if he fails to make out his case, as stated, that then the court may from the facts, as they turn out, try another and a different action, and give the party the alternative relief sought ? Can a plaintiff'say the facts of his ease are one way, and ask the relief to which they entitle him, and then require the court, if he should on the trial fail to prove his case, to try another cause of action, and ascertain whether he is not entitled to other relief ? Here is a petition to enforce a trust. The facts are stated with an eye to that relief. Now, .on what principle can the plaintiff ask that, if he is mistaken in the faets, as stated, that then his case may be turned into a petition for partition. The plaintiff' must ascertain the faets of his case before he v brings his suit. He must state them in a way to entitle him to the lelief he seeks. If, on the trial, it turns out that he was mistaken as to the facts of his case, the third section of the 11th article of the practice act affords him a remedy. We understand the clause above cited to mean, that, if on the facts as stated, the plaintiff is entitled to relief of two or more kinds, and he asks for only one kind, yet failing to obtain that, he may have any other relief to which his case, as made, entitles him. He eannot ask in his petition that, iff he should be mistaken as to its remedy and fails to obtain the relief he seeks, then that another and a different cause of action may be tried. Eor the purposes of his action, he must assume., that the facts ¡are one way and asks the appropriate relief. He must rely o.n the facts as stated; if he is mistaken, then the third section of the 11th article of the practice act prescribes a remedy which he must ask from-the court, and' not come here and object for the-first time that it was not allowed him. (Robinson v. Rice, 20 Mo. 229.)

The alternative relief here sought is founded on the assumption that the cause of aetionis wholly misconceived, and is entirely inconsistent with and-foreign to the case as stated in the-petition. Moreover, the necessary parties were not before the-court in order to-make a partition of the premises. .

The difficulty in this case grows out of the omission or unwillingness of the plaintiff' to determine on what grounds she ■ will stand. She must either abide by. the partition or disclaim it. If she insists that there was a binding partition, let her-make a deed; confirming it, the only effectual mode by which it-can be done; Then she will be in a position to claim an enforcement of the trust, if there is any. If she is unwilling to-do this, then let her declare the nullity of the deed, of partition, growing, out of the imperfect mode of executing it:.. Failing to-do one or the other of these-things, she will not be permitted to-litigate-her rights, without' determining what they are, before-she institutes her suit. The judgment is reversed, and the bill, dismissed without prejudice.