text:
    JOSEPH BOYLE PRICE, Administrator of Estate of EMELINE G. BOYLE, v. SIDNEY E. BOYLE, Executrix of Will of WILBUR F. BOYLE, Appellant.
    Division Two,
    April 7, 1921.
    1. EVIDENCE: Statement Called For by Memorandum. Where a so-called declaration of trust recites that the maker has this day rendered the beneficiary and her daughter “a statement setting forth in full all assets of the estate, including the amount which appears in the probate court,” such statement, submitted with the declaration of trust, is of equal value as evidence.
    2. -: -: Common Experience. Where the executor of his father’s will, which gave to the widow a life estate in all the property, had made four annual settlements which showed he had paid the widow an average of $1391.10 annually, and at the time of the final settlement, made eighteen months after the fourth settlement, he gave to her a written memorandum which recited he had received from her a receipt for $4,241.10, to be" filed with the final settlement, “yet as a matter of fact I have not paid this amount of money to her, and have obtained her receipt simply for the purpose of closing up the administration in the probate court,” and further recited that he had “this day rendered” to her and her daughter “a statement setting forth in full all the assets of the estate, including the above amount which appears in the probate court,” reason and common sense must be allowed their common functions, if resort must be had to evidence outside the probate court to impeach the final settlement, and it is contrary to reason that the executor should have paid his mother nothing to live on during said eighteen months, and the “statement” mentioned in the declaration showing that during about six months of the eighteen he had paid her $762, the presumption must be indulged that he paid her a corresponding amount during the other twelve months, and there being no other evidence that he. 287 Mo. — 17 appropriated the $4,241.10 mentioned in the memorandum, his executrix cannot, after his and his mother’s death, and nearly forty years after the final settlement, be charged, in a suit for an accounting brought on the theory that he was a trustee of an express trust, with the whole of said $4,241.10.
    3. -: Sale of Trust Property: Consideration Recited in Deed. A consideration recited in the trustee’s deed conveying property to a purchaser is prima-facie evidence of the real consideration, and holds until the contrary is shown. But where the property in 1875 rented for about $1000 a year, which indicated a value of about $17,000, evidence that by 1890 the neighborhood had become bad, that the rents had decreased to $250 a year, and that it was in 1897 traded for other real estate, is some evidence that the recited consideration of $17,000 was not the real consideration, for it is a well known fact that, in trading real estate, the consideration mentioned in the deed is often not the cash value.
    4. TRUSTEE: Accounting to Cestui Que Trust A trustee in charge of trust property must account to his cestui que trust, and he is accountable on the termination of the trust at her death; and in a suit for an accounting brought against his executrix, it is significant that there is no showing that he did not account at the death of the cestui que trust, although he survived her four years; without such a showing, it is a matter of grave doubt whether plaintiff makes out a prima-facie case.
    5. LACHES: Unreasonable Delay. Where a party rests upon his rights, and fails to bring a suit when he might have done so, for a period short of the period of limitations, in a proceeding in equity, relief may be denied on the ground of unreasonable delay, where circumstances intervene to work hardship upon defendant m «making his defense. Where, by reason of delay, evidence becomes unavailable, or important witnesses have died and it becomes impossible to ascertain the facts, laches will bar recovery.
    6. -: -: Accounting by Trustee. Where the administration of the estate closed in 1877, and the trustee, who was executor, if he appropriated any of the life estate, began to do so during that administration, and the cestui que trust, then sixty years of age, made no complaint; there was no complaint during the subsequent thirty years, but letters were introduced breathing the greatest confidence in him on the part of the cestui que trust and her daughter; there was no intimation that the mother during said thirty years was not entirely satisfied with his management of the estate; after her death in 1907, and his in 1911, all that remained to show the state of the account were the pub ic records and such statements as he had rendered his mother during her lifetime; such statements in detail rendered during several years of his trust were produced in evidence, which indicates that other statements covering the rest of the time were rendered; her daughter had possession of all papers her mother possessed relating to the estate, and she testified that she destroyed most of those papers; no account book was presented; the suit for an accounting was brought by the administrator of the eestui que trust four years and 364 days after her death, and at the instigation of her daughter, who was disappointed in the provisions of the trustee’s will, and was brought more than a year after his death; by the suit it is attempted to charge him with the consideration mentioned in a deed for real estate exchanged for other property, and the trustee alone could explain whether such named sum was the real consideration, and the only evidence that he had not accounted in full for the trust estate is the fragmentary papers which his sister had neglected to destroy when she destroyed the other statements rendered, it will be held that the suit is barred by laches.
    Appeal from St. Louis City Circuit Court. — Son. A. B. Frey, Judge.
    Reversed and remanded (with directions).

      Boyle & Priest for appellant.
    (1) The suit must fail for lack of proof sustaining the charge and for laches. Hinchman v. Kelley, 54 Fed. 63; State ex rel. v.' Collier, 15 Mo. 293; Ladd v. Stephens, 147 Mo. 342; 39 Cyc. 476; McCreery v. First Nat. Bank, 47 S. E. 890; Gee v. Hicks, Rich. (S. C.) Eq. Cases, 5; Chamberlayne on Modern Law of Evid., sec. 1219; Jones on Evid. (2 Ed.) sec. 12. (2) The legal presumptions are against the right of recovery. As length of time generally obscures evidence and.deprives parties of the means of ascertaining the nature of the original transactions, it operates by way of presumption in favor of innocence and against the imputation of fraud. Alston v. Hawkins, 18 Am. St. 879, 888; Dixon v. Gourdin, 1 L. R. A. 628; Kellogg v. Dickinson, 1 L. R. A. 346; Beekman v. Hamlin, 10 L. R. A. 454; Eoulk v. Brown, 2 Watts (Pa.) 209, 215; Bean v. Tonnelle, 94 N. Y. 381, 46 Am. Rep. 153; 1 Jones on Evid. (Horwitz) secs. 65, 68, 78; Prevost v. Gratz, 6 Wheat. (U. S.) 481; 2 Notes on United States Reports, 92; Hinchman v. Kelley, 54 Fed. 63, 65; James v. James, 41 Ark. 301.

      Joseph H. Zumbalen and W. B. <fc Ford W. Thompson for respondent.
    (1) The land on McPherson Avenue,, which is the basis of the first count of the petition, was obtained by W. F. Boyle by quitclaim deed from the widow, May 22, 1875, at which date the widow was the owner of a life estate therein under the provisions of the will of Joseph Boyle. The grantee in this quitclaim deed was her son, also a practicing lawyer and her sole and only legal adviser, and was at the time also the duly appointed and acting executor of the will of said Joseph Boyle, and as such had taken charge of this piece of real estate, together with the balance of the 'real estate belonging to the estate, from which he was collecting the rents, paying the taxes, also the allowed claims and expenses of administration, and reporting the same to the probate court, and claiming and being allowed a five per cent commission upon disbursements so made by him. He was, therefore, at the date of acquiring this property from the widow for an inadequate consideration of but five dollars, trustee of the express trust created by the will of his father, Joseph Boyle. Therefore the rules of law relative to a trustee of an express trust are applicable to such transaction. (2) As between the cestui que trust and the trustee the Statute of Limitations can never run. Davidson v. Davidson, 262 S. W. 493; Coal Co. v. Squier, 219 S. W. 693; Moulden v. Train, 199 Mo. App. 509, 204 S. W. 65; Ruby v. Barnett, 12 Mo. 9; Dillon’s Admr. v. Bates, 39 Mo. 301; Elliott v. Machine Co., 236 Mo. 567; Case v. Goodman, 250 Mo. 114, 115; Canada v. Daniels, 175 Mo. App. 68; Dyers v. Waters, 46 N. J. Eq. 484; Oliver v. Piatt, 3 How. 411; Poe v. Domic, 54 Mo. 127; Newton v. Rebenack, 90 Mo. App. 659; Smith v. Riceras, 52 Mo. 582; Goodwin v. Goodwin, 69 Mo. 621; Bntler v. Lawson, 72 Mo. 249. (4) Laches and the Statute of Limitations are both affirmative defenses, and if intended to be interposed as such, must be pleaded, and the facts relied upon as constituting such defense must be stated. The pleadings in this case show no such defense. (5) All agreements or contracts between trustee and cestui que trust are looked upon with suspicion by the court and are closely scrutinized. Therefore, in order that a release, confirmation or acquiescence may have any effect, the cestui que trust must be shown to have had full knowledge of all the facts and circumstances of the case; he must also know the law and what his rights are, and their value, and how they would be dealt with by the court. 2 Perry on Trusts & Trustees (6 Ed.), pp. 1394, 1305, and cases under Point 2. (3) In order to bind a cestui que trust by acquiescence in a breach of trust by the trustee, it must appear that the cestui que trust knew all the facts and was possessed of his legal rights and was under no disability to assert them. Such proof must be full and satisfactory. The cestui que trust must be shown, in such case, to have acted freely, deliberately and advisedly, with the intention of confirming a transaction which he knew, or might or ought with reasonable or proper diligence to have known, to be impeachable. His acquiescence amounts to nothing if his right to impeach is concealed from him, or if a free disclosure is not made to him of every circumstance which it is material for him to know. Garesche v. Levering Inv. Co., 146 Mo. 436; Newton v. Rebenack, 90 Mo. App. 650; Bank v. Kennett Estate, 101 Mo. App. 370; "White v. Sherman, 168 111. 605; 1 Bigelow on Fraud, pp. 315, 316; 2 Perry on Trusts and Trustees (6 Ed.), pp. 1394-5; Butler v. Lawson, 72 Mo. 249; Chouteau v. Allen, 70 Mo. 343; Rutter v. Carothers, 223 Mo. 640; Perry on Trusts and Trustees (6 Ed.), sec. 850, p. 1393.
   WHITE, C.

This is a suit in equity, and as originally filed the bill was in two counts: In the first count the plaintiff sought to set aside a certain deed executed in May, 1875, wherein the plaintiff’s, intestate conveyed certain property to the defendant’s testator; the second count demanded an accounting of the trusteeship of Wilbur F. Boyle, deceased, concerning certain property which it is alleged he held in trust for plaintiff’s intestate.

By consent of the parties William B. Homer was appointed referee to try the issues involved. It was stipulated that he should take the evidence, but make no finding of facts. Accordingly the referee, took the evidence, reported the same, and upon the consideration of that evidence the trial court rendered judgment for the defendant on both counts, Judge F. L. English, being judge. Subsequently a motion for new trial was filed, and at that time Judge A. B. Frey had succeeded Judge English. Judge Frey overruled the motion as to the first count, and sustained it as to the second count. From that order sustaining the motion for new trial on the second count the defendant appealed.

Emeline G. Boyle was the widow, and Wilbur F. Boyle the son, of Joseph Boyle, deceased. Joseph Boyle died in 1872, leaving a will in which he appointed Wilbur F. Boyle his executor. He had two other children — Leonidas H. Boyle, a son, and Virginia, a daughter. At the time of her father’s death Virginia Avas the wife of William M. Price; previously, she had been married to one McDonald, who died in 1868. The defendant, executrix, is the daughter, of Wilbur F. Boyle, deceased. It is claimed by plaintiff that Emeline G. Boyle was devised a life estate in all the property, real and personal. Wilbur F. Boyle, executor, appears to have treated the estate as if his mother had a life interest in all the property; the case was tried on that theory, so it is unnecessary to set out the will.

Emeline G. Boyle died June 11, 1907; Wilbur F. Boyle died in March, 1911; this suit Avas filed on the tenth day of June, 1912, five years, lacking one day, from the death of Emeline G. Boyle.

It is claimed by the plaintiff that Wilbur -F. Boyle was the trustee of an express trust, having charge of all the interest and estate of his mother in Joseph Boyle’s property. This is disputed by defendant, but for the purpose of this case it may be conceded that he was such trustee, and acknowledged himself as such in writing by executing in 1877 what is claimed to be a declaration of trust. The case may be treated then as one in which Emeline G. Boyle, the plaintiff’s intestate, had a life interest in all the propelty, real and personal, left by Joseph Boyle, deceased, at his death in 1872. Wilbur F. Boyle took charge of and managed the property as trustee, and was accountable to the cestui que trust for the income arising from the property, during the life of his mother, the trust terminating on her death in 1907.

The inventory of Joseph Boyle’s estate filed by the executor showed personal property, consisting mainly of notes, amounting to §6,103.02, and seven pieces of real estate. This inventory of the estate was filed September 18, 1872. The executor thereafter filed four annual settlements in the Probate Court of St. Louis, the first in September, 1873; the second in July, 1874; the third in June, 1.875; the fourth in June, 1876; and a final settlement sworn to December 31, 1877, was filed January 15, 18.8, about eighteen months after the fourth annual settlement. These annual settlements show the amounts of rents and interest received by the executor, and the amounts paid to the widow during the period of administration up to the fourth annual settlement. At the first annual settlement the executor took credit for §2220 60 paid to the widow Emeline G. Boyle on the second annual settlement he took credit for §1206.40; in the third, for 81351.30 and in the fourth for ‘"1786.10. In the final settlement, executed D ■ em.be- 31, 1877, there is this entry: u By anr unt paid Mrs. F. G. Boyle who is, under the will of deceased, entitled to the estate during life, §4241.10.” That credit, after accounting for all other receipts and disbursements, balances the estate, showing no property in the executor’s hands. December 26, 1877, three days before lie swore to Ms final settlement, he executed the following document:

“ This memorandum witnesseth, that whereas I have this day received from Mrs. E. (It. Boyle her receipt to be filed with my final settlement of the estate of Joseph Boyle, deceased, for the sum of $4,241.10, yet as a matter of fact I have not paid this amount of-money to her, and have obtained her receipt simply for the purpose of closing up the administration in the probate court. This ainount, together with the other assets of the estate of Joseph Boyle, are held by me as trustee or agent with the consent of Mrs. E. G. Boyle and of my sister, Mrs. Virginia Price, and I am to pay the income from the property to Mrs. E. G. Boyle during her life, and upon her death to divide the remainder between my said sister and myself as directed by the will of Joseph Boyle, deceased. I have this day rendered to Mrs. E. G. Boyle and . Mrs. Virginia Price a statement setting forth in full all of the assets of the estate, including the above amount lohich appears in the probate court, all of Avhich assets are in my hands for the purposes above mentioned.
Wilbur F. Boyle.
“St. Louis, December 26, 1877.”

We have italicized some parts of the document which seem significant. He bad sold all the real estate except three pieces, and had on hand, not shown in the final settlement, as the proceeds of such sale, $9,706 in cash, notes representing deferred payments from the sale of real estate $2,200, and one share of Biddle Market stock .$25. The plaintiff adds to these amounts the $4241.10 mentioned, marking a total of $16,172.10, and seeks to charge the estate of Wilbur F. Boyle with that amount, and interest on it from the time of final settlement in 1877 to the time suit was filed in 1912. Of the three pieces of real estate remaining in the hands of the executor, two were sold and conveyed together, June 1, 1895, for a recited consideration of $3,500. The other piece of real estate was sold in 1897, and conveyed for a recited consideration of $17,000. The plaintiff takes these two sums, $3500 and $17,000, recited in the deeds charges the amount to the trustee, Wilbur F. Boyle, with interest on same from the dates of the deed until the filing’ of the suit.

No books or accounts were discovered satisfactorily showing the moneys received and disbursed by Wilbur F. Boyle while he was acting in the alleged capacity of trustee, but he presented to his mother from time to time statements of his accounts, as trustee, some of which were introduced in evidence. The plaintiff, administrator, is the son of Virginia Price, and she would be the principal beneficiary in any proceeds resulting from this suit. Her mother lived with her for many years prior to her death, though perhaps not continuously. Mrs. Price had possession of all the papers her mother possessed relating to the estate. She testified that she destroyed most of those papers, and what were rescued from the destruction were turned over to Mr. Laurie for examination after Wilbur F. Boyle’s death. She did not know what sort of papers were destroyed, nor what papers she turned over to Mr. Laurie. She claimed to be extremely ignorant of business matters in general and knew nothing about the business transactions connected with the estate; she trusted everything to her brother, and never suspected that anything was wrong with the estate until after her brother’s death in 1919. She admitted she was disappointed by the provisions of his will, and on account of that disappointment started some investigations which aroused her suspicions and caused her to have an administrator of her mother’s estate appointed, and this suit to be brought.

Among the papers rescued in the general destruction was a statement of moneys belonging to Joseph Boyle’s estate received and expended by W. F. Boyle from May, 1872, to July 2, 1875; also a statement covering the period from May 12, to December 26, 1877; also one for the period from December 31, 1877, to July 1, 1879; one for the years 1880, 1881 and 1882, and one for the years 1883 to 1890, inclusive. No statements were rescued showing what was received and expended between the periods mentioned, or what was received or disbursed after 1890. What was received and disbursed during these periods is largely conjectural.

The plaintiff proceeds to charge the estate of Wilbur F. Boyle with the amounts above mentioned as in his hands at the final settlement of his father’s estate, with the amounts acknowledged by him in those statements handed his mother, to have been received, with the recited considerations in the two deeds mentioned, and gives him credit for no payments or expenses during all the time except those proven, and by dint of figuring brings out the estate of Boyle indebted to the plaintiff’s intestate in an amount exceeding fifty thousand dollars.

The defendant employed an expert accountant to go over the matter, and this expert, by making certain estimates and by taking into account entries in the diary of Wilbur F. Boyle, which was found among his papers and the stubs of his check books, reached the conclusion that the estate was indebted to him at the time of his mother’s death in an amount of nearly eight thousand dollars; that is, he had overpaid his mother that amount. It is likely that some of the figures fixed by the accountant were not proper charges against the beneficiary, and for some estimates he had no certain basis. All of which shows the difficulty of ascertaining the true state of the account at the time of the trial, after the two parties who knew most about it, Wilbur F. Boyle and his mother, were dead.

I. At the death of Emeline Gr. Boyle in June, 1907, the so-called trust terminated and the administrator of her estate, if he had been appointed at that time, could have demanded of Wilbur F. Boyle that he account in all particulars and show in what manner he had executed his trust; but in order to maintain a suit it would have to be shown that he had not accounted to his mother in her lifetime, for all her property in his hands. The proceeding'at that time would have saved the embarrassment caused by Wilbur F. Boyle’s death. During the four years which elapsed between his mother’s death and his own, he was in position to account strictly for everything that took place in the management of the trust property. After his death, however, the only evidence which would show whether or not he had accounted, and, if not, in what manner he had discharged his trust, were papers and records left, many of which possibly were destroyed by Mrs. Price.

The plaintiff assumes that in the absence of proof the defendant should not he credited with any payments, notwithstanding the unsatisfactory condition of the evidence and the manifest lack of evidence which once existed. He starts out with charging defendant’s testator with an account, as follows:

“Personal estate as shown by final settlement and declaration of trust ........................ $4241.10
“Proceeds of real estate actually collected 9706.00
“Proceeds of real estate, deferred payment, represented by two notes.................... 2200.00
“One share of Biddle Market stock...... 25.00
“Total........ $16,172.10”

He also assumes that Boyle’s final settlement is conclusive against him. If it is conclusive he should have credit for $4241.10, for which he filed his mother’s receipt. The plaintiff, however, discards his own assumption and resorts to other evidence to show that he did not pay her that money. He resorts to the so-called declaration of trust, above set out, in which Wilbur F. Boyle stated he did not pay her “that amount of money,” but that he held it as “trustee or agent.” That same paper says further that Boyle has “this day rendered to Mrs. E. G. Boyle and Mrs. Virginia Price a statement setting forth in full all the assets of the estate, including the amount which appears in the pro-hate court.” That statement, submitted with the declaration of trust, is of equal value as evidence. It shows the amount due the estate was $14,656, which is over $1500 less than plaintiff charges him with. Plaintiff, however, in looking for evidence to overthrow the final settlement, ignores the very evidence which shows the trustee had in fact' paid his mother a large part of that $4241.10, for which she gave her receipt. In the final settlement made in December, 1877, he did not take credit for any money paid his mother after the fourth annual settlement, filed eighteen months before, unless it was included in that sum. Yet, during each previous year he had paid her a large sum as shown by his annual settlements, as follows:

At first annual settlement filed September 23, 1873 ...............................$ 2220.60
At second annual settlement filed July 15, 1874 ..................................... 1206.40
At third annual settlement filed June 28, 1875 ................................... 1351.30
At fourth annual settlement filed June 30, 1876. ................................ $1786.10
Total..........$ 6564.40
An average per year of..................$ 1391.10

It is absolutely unreasonable to conclude that after paying his mother, yearly, sums like that’ up to the fourth annual settlement, he then absolutely ceased to pay her anything whatever for over eighteen months until the final settlement. If resort must be had to evidence outside the probate record to impeach the final settlement, reason and common sense must be allowed their common functions. That the executor should have paid his mother nothing' to live on during eighteen months is not only contrary to reason, but in the statement which he handed her at the time he gave her the £‘declaration of trust,” December 26, 1877, he shows that he had paid her sums of money every month from May 14, 1877, to December 26, 1877, amounting altogether to $762.50 for the last six months of the period. The plaintiff, however, chooses to ignore that part of the statement as modifying the amount which he seeks to charge. It is to be noted that, in the statements rendered by Wilbur F. Boyle to his mother, that particular period from the fourth annual settlement in June, 1876, to May, 1877, was not covered by the papers rescued from destruction. The account during that period, if it had been recovered, together with the payments listed in the last half of the year 1877, probably would show exactly how much of the $4241.10 had been actually paid at that time and how much was remaining in his hands. Since the statement showed that he had paid out $762 during the last half of the year 1877, it is likely that he paid a proportional amount during, the year preceding. The interpretation of the “declaration of trust” to mean that Boyle had all the $4241.10, cannot be correct because modified by the statement submitted with it. The statements which Wilbur F. Boyle rendered his mother were in her possession all the time until her death and afterwards in the possession of Mrs. Price until she saw fit to destroy papers which probably included portions of them.

Thus the plaintiff, beginning without sufficient evidence by charging the defendant with a sum largely in excess of what Wilbur F. Boyle had in his hands at that date, charges him with compound interest on it for thirty years.

There is another particular in which the plaintiff assumes a gross sum of money in Wilbur F. Boyle’s hands; when in 1897 he conveyed the last tract of land for a recited consideration of $17,000. It is true the recited consideration in the deed is prima-facie evidence of the real consideration, and holds until the contrary is shown. That was the old home place of Joseph Boyle, it seems. In 1875 it rented for $86 'a month, and continued to rent at that rate for some time thereafter, but it began to deteriorate in value because of conditions in the neighborhood. It got to be a disreputable neighborhood so that it could scarcely be rented. The rents, as stated by Wilbur F'. Boyle, prior to 1890 showed a steady decline. The total rents in 1888 were something over $700; in 1889, something over $250; in 1890, the first six months, about $120. Mrs. Price in her testimony said that it couldn’t be rented to good people, and her mother would not allow it to be rented to people who would pay a good price; the neighborhood had become very bad. It must have been, then, that the property depreciated in selling value along with the rental value'. No one would pay a large price for it, either to live in or to rent. The rental of about a thousand dollars a year, paid during the early years of the trust, would probably indicate a value of $17,000; possibly the property might have been sold at that time for that price. At the time it was sold in 1897, if rents had continued to decline, it probably did not rent for enough to pay the taxes. It is highly improbable that it was worth anything like the amount recited in the deed. There is some evidence to indicate that the property was traded for other real estate. What became of the other real estate is not shown. It is a well known fact that, in trading real estate, often it is not cash values which are mentioned as the consideration in the deed. So there is some evidence to indicate that the consideration recited in the deed is not a correct one.

A trustee in charge of property must account to his cestui que trust, and Wilbur F. Boyle was accountable on the termination of the trust at the death of his mother. But it must be shown that he had not accounted at that time.

Taking all these things into consideration on tb state of the evidence here, we might say it is such as to give rise to great doubt whether the plaintiff has made out a prima-facie case on the facts, a matter that might be considered more fully and would require a completer analysis of the evidence, but for the point to be noted in the next paragraph.

II. This suit was brought four years and three hundred and sixty-four days after the termination c the trust. Laches is urged as a defense. Where a party rests upon his rights, and fails to bring suit when he might have done so, for a time short of the perio of limitations, in a proceeding in equity, the courts sometimes deny relief on the ground of an unreasonable delay, where circumstances intervene to work hardship upon the defendant in making his defense. Where, by reason of delay, evidence becomes unavailable, or important witnesses have died and it becomes impossible to ascertain the facts, laches will bar recovery. [Casebolt v. Courtney, 195 S. W. 746, and cases cited.]

In the present case there was no suspicion at any time during the life .of Wilbur P. Boyle that he was not faithfully discharging his duties as trustee; that he did faithfully discharge them during the five years’ administration is not now in dispute. Not only was there no complaint during the subsequent years, but letters were introduced in evidence breathing the greatest confidence in him on the part of his sister and his mother. There was no intimation anywhere that his mother during her life was not entirely satisfied with his management of the estate. After his death no witness who knew the facts remained alive. All that remained were the public records and such statements as he had rendered to his mother. That he rendered such statements in detail during several years of his trust indicates that other statements were rendered covering the rest of the time, which in all probability were destroyed at the time Mrs. Price committed to destruction the papers in her possession — the best evidence then available to show whether or not Boyle had accounted for his trust. The strong probability, aluftost certainty, that he paid his mother large sums of money between the fourth annual settlement and the final settlement, for which the plaintiff gives no credit, indicates that at other intervals between his statements as preserved, he made similar accounting. The trustee, had he been alive, could have explained all that.

The recital in the last deed for $17,000, is primafacie correct, and the only person who certainly kne” whether it was correct or not was Wilbur F. Boyle himself. The fact that he was dead rendered that evidence unavailable. There were several circumstances indicating that such was not the consideration paid in cash.

All these circumstances, which place upon the defendant the burden of making proof after the plaintiff has waited until that burden cannot be sustained, because the proof is destroyed, furnish reasons for applying the doctrine of laches. It is true Mrs. Price testified she had no reason to suspect anything wrong until after her brother’s death when, on account of dissatisfaction with his will, an investigation of his papers led to discoveries. The discoveries, however, are shown in the fragmentary papers which she neglected to destroy. These, as we have seen, do not warrant the conclusion which plaintiff has drawn from them, and we are not at liberty to say that these alleged discoveries would warrant Mrs. Price in assuming a different state of mind in regard to the matter from that she maintained during the life of her brother.

The respondent urges as a reason why laches should not be imputed to him and his intestate, that Emeline Gr. Boyle placed the utmost confidence in her son, was ignorant of business, and did not know or suspect that his accounts were incorrect or irregular in any manner. At the time of the final settlement which occurred thirty years before her death, she must have been in full possession of all her faculties; something over sixty years of age — the time of life when a woman’s knowledge of business and property affairs is often at its best. She had received from her son, trustee, the income from the estate amounting on an average to nearly fourteen hundred dollars a year, for four years, then suddenly she received nothing for a period of eighteen months from the fourth annual settlement until the final settlement; on respondent’s theory, a trifling neglect of that sort escaped her notice. She lived that eighteen months without anything to live on without being aware that she was living on nothing, and for thirty years it was never brought to her attention. It remained for her administrator, thirty-five years afterwards, to dig up evidence of her destitution during that period, from the remnant and shreds of papers, most of which had been destroyed.

The judgment is reversed and the cause is remanded with directions to the trial court to set aside the order granting a new trial on the second count, and to reinstate the judgment as originally entered.

Mosley, C., concurs; Railey, C., not sitting.

PER CURIAM:

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

All of the judges concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    GERMO MANUFACTURING COMPANY, Appellant, v. ROBERT C. COMBS et al.
    Division Two,
    April 7, 1921.
    APPELLATE JURISDICTION: Amount in Dispute: Demand. In a suit in equity to restrain defendants from transgressing upon plaintiff’s property rights, in which it is alleged that defendants have “damaged the plaintiff in a sum in excess of $10,000” and praying that the court “award the plaintiff such damages as it has sustained in the sum of $7,500,” the plaintiff’s appeal, upon a finding in the trial court for defendants, is to the Court of Appeals. Plaintiff, under the prayer, could in no case recover in excess of $7,500, and that is the amount in dispute upon its appeal.
    Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.
    Transferred to Kansas City Court of Appeals.

      Bruce Barnett, G. W. Barnett and J. H. Bodes for appellant; Henry Lamm of counsel.

      Ingraham, Guthrie é Durham for respondents.
   WALKER, J.

This is a suit in equity to enjoin defendants from using an alleged secret formula used by plaintiff in the compounding of a poultry remedy. The trial judge, after a review of all of the testimony, found in favor of the defendants. Plaintiff appealed to the Kansas City Court of Appeals, which, on its own motion, transferred the case to this court on the ground that the amount in dispute exceeded the jurisdiction of that court. That question confronts us at the threshold of the case.

After numerous specific allegations of unfair competition, the petition states:

“That the defendants have wrongfully taken from the plaintiff and appropriated to their own use many customers and prospective customers of plaintiff, and the profit on a large business that it has built up, and has materially damaged the plaintiff in a sum in excess of $10,000; that defendants are now engaged in said unlawful competition, and propose to continue the same to the further great loss and damage to this plaintiff.
“Plaintiff says that on account of the continuing nature .of defendants’ wrongful acts and the inability of the plaintiff to determine fully the amount or extent of its damages, and the fact that it is a constantly continuing and recurring injury, which renders it impossible to definitely estimate the extent and nature of plaintiff’s injury and damage, and because plaintiff has no adequate remedy at law, it appeals to the equitable interposition of this court for injunctive relief. That if defendants are not restrained and enjoined from'their unlawful competition, plaintiff will continue to suffer and sustain great and irreparable loss and injury from which no adequate remedy is given at law. ’ ’

After other general allegations of injury, not pertinent here, the petition closes with the following prayer:

“That the court, upon restraining and enjoining defendants, may take an account as to the extent of plaintiff’s damages, and award the plaintiff such damages that it has sustained, by reason of such unfair competition, in the sum of seven thousand five hundred dollars; and that the plaintiff may have and recover from the defendants the costs in its behalf laid out and expended.”

General averments as to the extent of plaintiff’s damages as disclosed in the foregoing excerpts from the petition are only rendered definitive by the prayer, which fixes the maximum amount claimed at $7,500. Under no circumstances could the plaintiff recover a greater amount. Cases, therefore, are not applicable which hold that in ascertaining the appellate jurisdiction of the Supreme Court we are not restricted to the amount claimed in the petition, but may look into the entire record and from that determine the amount in dispute dr the monetary value of the right claimed to have been lost. Cases illustrative of the application of that rule are numerous. It is significant, in distinguishing them from the case at bar, that in none of them was it attempted in looking into the record to ascertain if the plaintiff was entitled to a larger amount of damages than claimed in his petition, but to ascertain if there were substantial grounds upon which a right of recovery of the claim as made could be based. To illustrate: In Ferguson v. Comfort, 264 Mo. 274, property of the value of $6,000 and damages in the sum of $5,000 were claimed. The record disclosed an abandonment of the claim of $5000 and hence it was held that there was no jurisdiction in the Supreme Court. In State ex rel. Electric L. & P. Co. v. Reynolds, 256 Mo. 710, the amount in dispute upon which the jurisdiction depended was not definitely stated in the petition, but the proceeding being one to oust a corporation of its franchise which had a capital stock of an amount and a going business of a value far in excess of the maximum limit of the jurisdiction of the Court of Appeals, it was held that the case should be determined in the Supreme Court. In Wilson v. Drainage District, 237 Mo. 39, the amount claimed in the prayer of the petition, with interest, was found, upon an inspection of the record, to be less than the maximum amount of the pecuniary jurisdiction of the Court of Appeals and the case was transferred to that court for final determination. In McCoy v. Randall, 222 Mo. 24, special tax-bills belonging to the same person were sought by plaintiff to be declared void by injunction. An inspection of the record disclosed that their aggregate amount exceeded the sum of $4,500, the then maximum jurisdictional limit of the Court of Appeals’ right of review. In Vanderberg v. Gas Co., 199 Mo. 455, the plaintiff laid her claim at $5,000 actual and $5,000 puni-, tive damages. Looking into the record, the court found that “there was.not a shadow of evidence for the claim of punitive damages.” This left only the claim of $5,000 for actual damages, and as a consequence the case was transferred to the Court of Appeals. Numerous earlier rulings of this court are cited in this case, page 460. In Clothing Co. v. Watson, 168 Mo. 143, a proceeding for an injunction, plaintiff alleged that if the defendants be not restrained plaintiff would be damaged in excess of $10,000. This was held sufficient to show jurisdiction in this court. “The test,” said the court, “is the value in money of the relief afforded plaintiff should the relief prayed for be granted, or, vice versa, should the relief be denied.” [Citing Fire Brick Co. v. St. Louis Smelting Co., 48 Mo. App. 634; Gast Co. v. Assn., 147 Mo. 557.] The differentiation of these cases from those in which the plaintiff has made an unequivocal demand for damages in a certain sum but conforms to the statute (Sec. 1699, R. S. 1919) which provides that “in all actions not founded on contract the damages claimed in the petition shall determine the jurisdiction of the court. ’ ’

This statute has received our approval in Kane v. Kane’s Admr., 146 Mo. 605, in which we held that the amount claimed in the petition is the amount involved where the judgment, as at bar, was for the defendant; and in Hennessey v. Bavarian Br. Co., 145 Mo. l. c. 116, in which we held, citing with approval Vineyard v. Lynch, 86 Mo. 684, that the only safe rule is to regard the amount claimed in the petition as the amount in dispute until the claim has been reduced to a judgment.

The application of a test other than that which makes the definite amount claimed by the plaintiff the measure of jurisdiction would create the anomalous condition of conferring* upon the appellate court the right of review but limit its judgment, as it would, of necessity, have to be limited, in recognition of the regularity of the proceedings and to preserve the integrity of the judgment, to the amount claimed by the plaintiff. [Smith v. Royse, 165 Mo. 654; State ex rel. Snyder v. Davidson, 87 Mo. 683; Moore v. Dixon, 50 Mo. 424; Moore v. Railroad, 117 Mo. App. 384; Payne v. King, 141 Mo. App. 246.] In short, the plaintiff who designates, as at bar, a certain sum as comprehending the whole amount of his damages cannot recover anything in excess thereof. It is elementary that the sum thus designated constitutes the amount in dispute and to disregard it in the rendition of the judgment would not answer the purpose of the proceeding or settle the matter at issue. Certainly the fact cannot be gainsaid that the^ petition is as much a part of the record as the judgment, and if the judgment be not authorized by the allegations of the petition is it erroneous. [St. Louis v. Wright Const. Co., 210 Mo. 499.]

Plaintiff’s general allegations as in excess of $10,-000 and its inability to definitely estimate same, may, in the absence of a prayer for general relief be interpreted as reasons in support of its plea for equitable intervention. Especially is this true where a specific sum is subsequently claimed as the total of plaintiff’s demand. Such total being within the monetary jurisdiction of the Court of Appeals, and no other jurisdictional question being present, the case should be transferred to that court for final determination. It is so ordered.

AH concur,


author: JAMES T. BLAIR, J.

text:
    MARTHA J. LITTLE et al., Appellants, v. VIDA C. BROWNING et al.
    Division One,
    April 9, 1921.
    1. PROCESS: Idem Sonans. A defendant named I-Iornbeck was served with a summons under the name of Hornback. Held, that the service and a judgment founded on it were valid, the two names being idem, sonans.

    2. INFANCY: No Guardian:'Judgment. Service of summons upon an infant defendant gives the court jurisdiction to proceed, and if it does proceed to judgment without appointing a guardian ad litem and there is no general guardian, the judgment, while erroneous, will not be subject to collateral attack.
    3. JUDGMENT: Appearance of Attorney: Infant. In a suit against several defendants, one of them, an infant, was not served with process, but an attorney appeared and obtained leave of the court to file answer for all the defendants within ninety days. After the lapse of this time an entry of record was made setting forth the names of all the parties, reciting that the defendants had appeared at the last term of court and taken leave to file answer, but had said nothing further in bar of plaintiffs’ action, and thereupon judgment followed. Held, that as to the infant defendant the judgment was void, first, because the leave to- answer had been granted ex mero motu and constituted no evidence of an appearance by an unserved defendant; second, because of the infancy of this defendant.
    Appeal from Linn Circuit Court. — Hon. Fred Lamb, Judge.
    Reversed and remanded.

      Willard P. Gave for appellants.
    The judgment was absolutely void as to Alice Horn-beck-Reynolds. She was only fifteen years old. McMurtry v. Fairley, 194 Mo. 502. Lack of service made the judgment open to collateral attack. McClanahan v. West, 100 Mo. 309; Winningham v. Trueblood, 149 Mo. 572.

      II. J. West and IJ. B. Fields for respondent.
    (1) The judgment as to Martha J. Little is valid and binding, but if not it is only voidable and cannot be attacked in this collateral proceeding. Chrisxnan v. Divinia, 141 Mo. 122; Charley v. Kelley, 120 Mo. 134; Cochran v. Thomas, 131 Mo. 258; Townsend v. Cox, 45 Mo. 401; Fulbright v. Cannefox, 30 Mo. 425; Bailey v. McGinniss, 57 Mo. 362; Weiss v. Coudrey, 102 Mo. App. 69; Shaffer v. Detie, 191 Mo. 388; Baker v. Kennett, 54 Mo. 88. (2) And a judgment against an infant is valid until set aside in same direct proceeding. Smith v. Perkins,. 124 Mo. 50. (3) The service on Alice J. Hornbeck (now Little, although by misspelled name, being personal was good. Roberts v. Stone, 99 Mo. App. 431; Turner v. Gregory, 151 Mo. 103; Corrigan v..Schmidt, 126 Mo. 311. (4) The judgment as to Alice Hornbeck Avas not void but voidable, she and all defendants having as shoAvn by the record appeared by attorney and asked for time to file ansvver. Christman v. Divinia, 141 Mo. 122; Cochran v. Thomas, 131 Mo. 258; Townsend v. Cox, 45 Mo. 401; Bailey v. Mc-Ginniss, 57 Mo. 362; Fulbright v. Cannefox, 30 Mo. 425; Charley v. Kelley, 120 Mo. 134; Weiss v. Coudrey, 102 Mo. App. 69; Shaffer v. Detie, 191 Mo. 388; Baker v. Kennett, 54 Mo. 88.
   JAMES T. BLAIR, J.

The petition is drawn under Section 1970, Revised Statutes 1919. The purpose of the proceeding is to quiet title to land in Linn County. No equities are set up in either the petition or answer. The case was tried to the court sitting as a jury. No declarations of laAV Avere asked or given.

It is stipulated that Eliza J. Hornbeck is the common source of title. She acquired the land in 1874. Tn 1880 she died intestate. She Avas survived by her husband, Isaac, and by six children, the plaintiffs Martha J. Little and Alice H. Reynolds and defendants John Hornbeck, Frank Hornbeck, Mary Young Zimmerman and Elizabeth Sherwood. In 1882 Mary J. Malloy bought the interest of Prank Hornbeck at sheriff’s sale. May 5, 1883, Mary J. Malloy and her husband, P. B. Malloy, commenced suit in the Linn Circuit Court to partition the remainder subject to the curtesy of Isaac J. Hornbeck. The latter and the five children, other than Frank, were named as defendants. On May 12, 1883, summons was issued to the sheriff of Livingston County for Mary A. Young and Nathaniel Young, her husband, and for Martha J. Horn back. The return, under date of May 14, ,1883, shows service on Nathaniel Young, Mary A. Young and Martha J. Horn-back. Summons was issued May 12, 1883, to the sheriff of Linn County for Isaac Hornback, and a return appears thereon, under date of May 18, 1883. At the June term, 1883, the Circuit Court of Linn County entered an order giving leave to answer. The decree was entered on December 15, 1883. It recites: “ Now come plaintiffs by attorney, and the defendants having appeared at the last term of court and taken leave to file answer herein, say nothing further in bar of plaintiff’s action.” The court then entered its decree to the effect that plaintiff Mary J. Malloy and the five defendant children of Elizabeth Horn-beck owned the remainder in the land subject to the life estate of Isaac Hornbeck, and ordered the remainder interest sold and the proceeds distributed in accordance with its finding as to the title. The sale was made in due time and reported and the money paid into court. The sheriff’s deed to Mary J. Malloy, H. K. West and A. W. Mullins was acknowledged in open court June 30, 1884. The same persons, in August, 1884, bought the interest of Isaac Hornbeck at sheriff’s sale. West and Mullins acquired Mrs. Malloy’s interest, and in 1887 conveyed by warranty deed to Craig, whose title respondent Yida C. Browning now has, through mesne conveyances.

There Avas evidence that Mrs. Malloy, West and Mullins, upon their purchase, Avent into immediate possession; that they and their grantees have been in “ the open, notorious, adverse and exclusive possession of the land ever since, claiming to oavu the same, paying taxes and making valuable improvements thereon,” There was conflicting testimony concerning the ages which appellants had attained in 1883. There is substantial evidence that Martha J. Avas born November 12, 1865, and that Alice Avas born in June, 1867. This is the evidence relied upon by respondents. In the circumstances, it will be assumed in support of the judgment that the trial court so found the facts.

I. Respondents concede the life estate of Isaac Hornbeclc, Avhich fell in in 1907, prevented the Statute of Limitations from beginning to run time to bar this action, Avhich Avas begun in 1916. [Reed v. LoAve, 163 Mo. 1. c. 535.]

II. It is contended the court had no jurisdiction of appellants in the partition suit.

(1) (a) There Avas service upon Mrs. Little. While the summons and return give her name as Martha J. Hornback, though her name was then Hornbeck, she was called upon to take cognizance of it. The judgxneiit is not void because her name was mispelled. [Turner v. Gregory, 151 Mo. l. c. 103; Corrigan v. Schmidt, 126 Mo. l. c. 311; Martin v. Barron, 37 Mo. 301.] The names Hornbeck and Hornback are idem sonans. This rule applies if the attentive ear finds difficulty in distinguishing the names when pronounced. [Simonson v. Dolan, 114 Mo. l. c. 179; Heberling v. Moudy, 247 Mo. l. c. 541.] The accent is upon the first syllable of both Hornbeck and Hornback and the resultant remission, lack or weakening of stress upon the final syllable in each name modifies the sound of both the a and e in those syllables toward a neutral sound. This is formulated into a rule of pronunciation by lexicographers which is derived from common practice and common knowledge. The similarity in sound between a and e, even in accented syllables, has been held sufficient to justify holding names idem sonans. [Bergman’s Appeal, 88 Pa. St. l. c. 123; State v. Bean, 19 Vt. 532.]

(b) Martha J. was not of age when the partition suit was begun. She had no general guardian and no guardian ad litem was appointed for her. Nevertheless, even if it could be conceded she remained a m:'-nor until judgment was rendered, the service upon her gave the court jurisdiction to proceed; and the omission to appoint a guardian ad litem, while erroneous, does not subject the judgment to collateral attack. [Charley v. Kelley, 120 Mo. l. c. 143, 144, and cases cited; Reineman v. Larkin, 222 Mo. l. c. 171, 172; Townsend v. Cox, 45 Mo. l. c. 403, 404; Bailey & Woods v. McGinnis, 57 Mo. l. c. 373, 374; Cochran v. Thomas, 131 Mo. l. c. 275, 276.]

(2) The judgment roll, files and records in the partition suit were put in evidence. The abstract shows that everything in that case was offered in this. It is stated, in effect, that the offerings included the summonses issued, the service upon delendants and the entire record m the case. The judgment in that case does not recite that service was had but, on its face, proceeds upon a recital that defendants had previously appeared. It shows Mrs. Reynolds did not appear at the trial. There was no summons issued for Mrs. Reynolds (then Hornbeck) am" no service was had upon her. Three other defendants had been served. An effort at service upon a fourth ha been made. Respondents contend appellant Alice appeared June 8, 1883, by her attorney, and took leave to file answer and thereby waived objections to lack of service. The record in the partition suit shows that on June 8, 1883, the following entry was made: “P. B. Malloy et al. v. Isaac Hornbeck et al. Now come the defendants by attorney and move the court to file answer in ninety days, which is granted and the cause continued. ’ ’. The judgment was entered under a caption giving the names of plaintiffs and of all of the defendants. It recited: “Now come the plaintiffs by attorney, and the defendants having appeared at the last term of tl court and taken leave to file answer herein,” etc. Respondents’ position is that these entries show such an appearance by Alice Hornbeck as to render the judgment invulnerable to collateral attack. The question is not new in this court. In Bell v. Brinkman, 123 Mo. 270, this Court in Banc, had before it a record in which the party defending the former judgment was in a position resembling that of respondents here. In that case it appeared that some defendants had been served and some had not, that leave had been granted to answer', and that the assailed judgment, under a caption which named all the parties, recited that “At this day come the said parties, by their respective attorneys,” etc. This court held the leave to answer in question had been granted by the court ex mero motu and constituted no evidence of an appearance by unserved defendants; and that the recital in the judgment as to the appearance of defendant must be confined to “such of the parties as it appears from the roll the court had acquired jurisdiction over, the parties plaintiff who have brought the. suit, and the parties defendant who had been brought into court by process.” There were ten defendants in that case. Two had been served. The rule is equally applicable to the order with respect to leave to answer in the partition suit involved in this case. The judg ment recital refers to and is based upon that order. In Mullins v. Rieger, 169 Mo. 521, this Division reached similar conclusion in a similar case, and that decision was followed in Barron v. Cooperage Co., 185 Mo. App. l. c. 634, 635. The rule of these cases is said in 2 Ency. of Pl. & Pr. p. 600, to be supported by “the better considered cases and the probable weight of authority.” The decisions bear this out. [Foster v. Hall, 2 J. J. Marsh, 546; Violet v. Waters, 1 J. J. Marsh, 303; Crump v. Bennett, 2 Litt. l. c. 214; Moores v. Parker, 3 Litt. l. c. 268; Phelps v. Brewer, 9 Cush. 390; Hubbard v. Dubois, 37 Vt. l. c. 97; Edwards v. Toomer, 14 Smed. & M. l. c. 80; Dawson v. Bridges, 19 Ill. App. 280; Correll v. Greider, 245 Ill. 378; McCall v. Lesher, 7 Ill. l. c. 48, 49; Gardner v. Hall, 29 Ill. 277; Barker v. Shepard, 42 Miss. 277; Kite v. Bonafield, 3 G. Greene, l. c. 199, 200; Rhoades v. Delaney, 50 Ind. l. c. 470, 471; Anderson v. Sloan, 1 Colo. l. c. 488; Gargan v. School Dist., 4 Colo. l. c. 57; Chester v. Miller, 13 Cal. l. c. 561; Davis v. Whittaker, 38 Ark. l. c. 438; Snow v. Grace, 25 Ark. l. c. 572; Bank v. Bank, 171 Ind. l. c, 332; Dougherty v. Shown, 1 Heisk. 302.] Rulings that a pleading or motion filed or made for “defendants,” when there are but two and but one of these is served, contitutes an appearance for all (McCreary v. Jones, 96 Ala. l. c. 594; Frazier v. Resor, 23 Ill. l. c. 89; Solomon v. Tupelo Compress, 70 Miss. 822; Abbott v. Semple, 25 Ill. 107), decide a different question in that they seem to be based upon the view that the word “defendants” will be construed to include both defendants in order to explain the use of the plural number.

For a like reason a case in which only one of several defendants has been served and an appearance is made .for “the defendants,” such as Beal v. Harrington, 116 Ill. l. c. 119, 120, is distinguishable. In Kerr v. Swallow. 33 Ill. l. c. 380, the same rule was applied to defendants, none of whom had been served.

A rule contrary to that in Bell v. Brinkman, supra, and like cases was applied in Ely v. Tallman, 14 Wis. 28; Kenyon v. Skreck, 52 Ill. l. c. 384; Hunt’s Heirs v. Ellison’s Heir, 32 Ala. l. c. 181, et seq.; Cole v. Johnson, 53 Miss. l. c. 97; Seedhouse v. Broward, 34 Fla. l. c. 520; Sullivan v. Sullivan, 42 Ill. 315.

In no case,- however, do we find it held that a person non s%d juris, who has not been served, is brought in by such recitals as were held good as to persons sui juris in the cases last cited. In fact, it is indicated (Hunt’s Heirs v. Ellison’s Heirs, supra) that the rule is applicable only to persons sui juris. Alice Hombeck was a minor. Her capacity to act for herself was limited. We are of opinion she is not shown to have appeared.

III. This disposes of the questions raised by counsel. It results that the judgment- is affirmed as to Martha J. Little, and is reversed and the cause remanded as to Alice Reynolds.

All concur.


author: SMALL, C. PER CURIAM:

text:
    ARNOLD STAPENHORST et al., Appellants, v. CITY OF ST. LOUIS.
    Division One,
    April 9, 1921.
    1. DAMAGES: Grade of Street: Waiver: Estoppel. Where there was embodied in the deed of dedication of a sub-division a clause to the effect that “all avenues and alleys laid out in said subdivision, and for better identification etched on the above plat, are hereby dedicated to public use forever, and any claims for damages which may arise by reason of changing the present surface of said avenues and alleys to conform to such grades as may hereafter be established by the city, are hereby waived,” and said deed of dedication was accepted by the city and duly recorded, and thereafter the grade of one of said avenues was changed to seven feet below the natural surface, after plaintiffs, with notice, bought lands abutting thereon from the dedicator, they are estopped to claim damages contrary to , said waiver
    2. -: -:-: Consideration: Acceptance. The acceptance by the city of a deed dedicating streets to public use and containing a waiver of damages for changes in the grade is in itself a sufficient consideration to sustain both the dedication and waiver.
    3. -: -: -: Damages to Abutting Property. The Constitution of 1875, in declaring that private property cannot be taken or damaged for public use without just compensation, did not prevent a proprietor of a sub-division of land, who wishes to subdivide it into blocks, streets, lots and alleys, from expressly authorizing the city, in the deed of dedication, to grade the streets without paying damages to abutting property, By his deed of dedication, the proprietor may give up his right to compensation, for the uses included in the dedication, both for the taking of the property used as the street and for damages to the adjoining property resulting from such use.
    4. -: -: -: Running With Title: Easement. Where the owner of land by his deed of dedication gives and dedicates to the public an easement to use and grade the land embraced in the street without the payment of damages to the dedicator’s adjoining land, and such deed is accepted by the city and is acknowledged and recorded, subsequent purchasers from such owner of lots abutting on the street take title subject and servient to such public easement, which becomes an encumbrance upon their lots and runs with the title. The city’s right to grade without paying damages, in such case, is an easement, and not a mere revokable license.
    5. -: -: -: Coerced by City: Evidence. That the board of public improvements refused to approve the plat of the subdivision unless the deed of dedication contained a release of damages for subsequent grading of the streets, can only be shown by its records; for neither the city nor the public is bound to take knowledge of its acts or words unless they are of record.
    6. -: -: -: -: Power of Board: Abuse of Discretion. Under the old charter of St. Louis declaring that “the Board of Public Improvements shall have authority to approve maps or plats of sub-divisions which fully dedicate to the public use, streets, alleys and public places,” said board had authority to accept a deed of dedication or plat waiving damages for subsequent grading of the streets so dedicated, and having such authority it did not abuse its discretion by refusing to approve such plat or deed unless it contained a waiver of such damages.
    7. -: -: -: Ultra Vires. The acceptance by the Citj of St. Louis of a deed of dedication containing a waiver of damages for subsequent change in the grade of streets is not beyond 'the power of the city, nor of any statute, nor of any provision of the Constitution. And since the statute expressly provides that when property owners lawfully entitled to damages for grading a street “shall not have waived all right or claim thereto” ordinances providing for such grading shall also provide for ascertaining ana paying the damages, there is no more proper or timely way of making a waiver of such damages than in the deed of dedication.
    Appeal from St. Louis City Circuit Court. — Hon Charles JB. Davis, Judge.
    Affirmed.

      Joseph Reilly for appellant.
    (1) The “waiver” is void, (a) Because it attempts to permit the damage of private property for public use, contrary to the Constitution of Missouri, Article 2, Section 21. (b) Because there is no consideration mentioned therein to support the promise of the grantor in the deed of dedication to waive the contemplated damages. Hudson v. Browning, 264 Mo. 58; Bailey v. Austrian, 19 Minn. 535; Crane v. Crane & Co., 105 Fed. 869; Riegart v. Coal Co., 217 Mo. 142. (c) Because it does not define and specify what is meant by all “claims for damages.” Hudson v. Browning, 264 Mo. 58. (d) Because it empowers tbe defendant city to arbitrarily and despotically change the level of the street without restriction or limitation either as to the depths to which it might lower the street or to the heights it might elevate the street. Under the provisions of the “waiver” the city could lower the street to below the level of the bottom of the Dead Sea, or raise it to the cloud line, (e) Because there is no mutuality of promise. The city does not promise to make the street, or to change the grade. It might make the street on the natural level of the surface of the ground or it might grade it as it pleased. There is nothing in the waiver to indicate what was in the minds of the parties. One party might have had the intention of making a great ditch in the street, while the other might have believed that the city would scratch the surface of the hills and throw a little earth on the street in the valleys. It is most probable that neither party at the time thought that any portion of this street would be dug down seven feet below the natural surface of the street, as was done in front of the plaintiffs’ property, to their great damage. The deed-of dedication was recorded June 25, 1909, the work done on the street was done in the year 1916, seven years after. Cold Blast Trans. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77; 40 Cyc. 259. “Before a waiver can be valid the parties sought to be bound thereby must have a full knowledge of all the facts appertaining to the thing waived. ’ ’ At the time of the execution of the “waiver” neither party had any knowledge of any of the facts, because they were not in existence at the time of-its execution. A fact means something done, an act. There was nothing done at the time, so how could they have knowledge of something which was not only not executed, but not even in -the minds or contemplation of either of the parties? (f) Because it is against publ'U policy, (g) Because the damages waived is coextensive only with the land dedicated, to-wit, the streets and alleys, as shown by the agreement of Alice B. Von Versen, the holder of the deed of trust on the land wherein she releases her rights under the mortgage to the land embraced in the streets and alleys. The “waiver” is void as to her. If the damage had accrued to her interests under the mortgage on the land she was not barred from her action for damages. The city knew that she had rights in all the property covered by the mortgage. It took the precaution to have her release as to the land embraced by the streets and alleys, but she was not joined in the waiver for damages. And she was a necessary party. The owner of the land could not make such an' agreement without the holder of the deed of trust being a party thereto. If the “waiver” is void as to one it is void as to all, because it says, “All claims for damages.” It would not cover possible or probable or certain damages to her, therefore it is void ab initio as to all. (h) Because it is ultra vires. (2) The “waiver” is a mere license, and was revoked by the grantor in the deed of dedication, when she sold the land covered and affected by the “waiver.” Black’s Law Dictionary; 25 Cyc. 640, 650. (3) The “waiver” is void because it is meaningless, ambiguous, indefinite and uncertain. McGuire v. Wilson, 187 S. W. 612; Delmar Inv. Co. v. Lewis, 196 S. W. 1137; Brick and Const. Co. v. Gentry County, 257 Mo. 392; Barber Asphalt Co. v. O’Brien, 128 Mo. Ápp. 267; Coulter v. Brick & Const. Co., 131 Mo. App. 230; City of Poplar Bluff v. Bacon, 144 Mo. App. 476; Webb v. Aylor, 163 Mo. App. 476; Custer v. Springfield, 167 Mo. App. 354; Schulte v. Currey, 173 Mo. App. 578.

      Chas. H. Daues, Oliver Senti and H. A. Milton for respondent.
    (1) The waiver of damages for the grading of Beacon Avenue is not in violation of Article 2, Section 21, of the Constitution of Missouri. The Legislature and courts of this State have declared that municipalities may and in some cases must secure a waiver of damages before changing the grades of their streets. E. 5. 1909, secs. 9828, 9044, 9050; Sec. 5665, E. S. 1899; McQuarter v. St. Joseph, 134 Mo. App. 645. (2) Appellants’ predecessor in interest, the dedicator, received a good and valuable consideration for the rights that she waived. This consideration-was the approval of her plat by the city and the advantages resulting to her therefrom. These advantages were: First: The right to have the map or plat recorded, which could not be done without the city’s approval. Old Charter, Art. 6, sec. 1. Second: The right to sell or offer for sale the lots in the subdivision which could not be done without incurring a penalty of $300 for each lot sold or offered for sale, until the approval by the City, through its Board of Public Improvements, permitting the recording of the plat. Sec. 8959, E. S. 1909. Third: The advantage of having the lots in the subdivision front or abut on the public streets and public alleys indicated on the plat, and this advantage is still enjoyed by the appellants. Without an approval of the plat and dedication the street in front of appellants’ lot would not be a public street and the alley in the rear thereof would not be a public alley. . (3) The waiver is not void for uncertainty as it included any claims for damages which might arise by reason of changing the then present surface of the streets and alleys to conform to such grades as might thereafter be established which clearly means and includes all claims that might arise by reason thereof. The language of the waiver is to be construed in the light of the circumstances surrounding the parties at the time it was executed and the intention of the parties gathered from the whole instrument. Wame v. Sarge, 258 Mo. 168. (4) The city had the power to grade its streets when the waiver was executed. Old Charter, Art. 3, sec. 6, cl. 2. The fact that damages had been waived could not affect the manner in which the power might be exercised. (5) The performance of an act is sufficient inducement for a party entering into a contract. Cold Blast Trans. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77. The act inducing the dedicator to execute the waiver was the approval of the plat and dedication. Where the public is granted an easement the grantor is presumed to have intended that it will be exercised in the manner that its enjoyment by the public may require. Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258. To safeguard the taxpayer -of the city against damage suits resulting from the grading of Beacon Avenue by requiring the waiver of damages to be embodied in the deed of dedication is in keeping with sound public policy and those who seek the advantages which grow out of the subdividing of the property and .the dedication of the streets therein should not be permitted to shift the burden thereof to the taxpayers of the entire city. Protection of the taxpayers from this burden has received the sanction of the Legislature and of the courts. R. S. 1909, secs. 9828; 9044, 9050 (Sec. 5665, R. S. 1899); McQuarter v. St. Joseph, 134 Mo. App. 645; Taber Street No. 1, 26 Pa. Sup. 107. (6) The language of a deed is to be construed against the grantee. Grooms v. Morrison, 249 Mo. 554; Lineville v. Greer, 165 Mo. 380. And in the light of the circumstances surrounding the parties at the time of its execution. Warne v. Sarge, 258 Mo. 168. (7) The act of the Board of Public Improvements in accepting and approving the deed of dedication embodying the waiver was not ultra vires. Old Charter, Art. 6, see. 1. (8) A deed of dedication is not a mere license that may be revoked by a subsequent conveyance. Pierce v. Chamberlain, 82 Mo. 622; Davis v. Railroad, 119 Mo. 180; Waldron v. Kansas City, 69 Mo. App. 50; Alton v. Columbia, 145 Mo. App. ,182. A condition in a deed of dedications runs with the land. Snoddy v. Bolin, 122 Mo. 479. The heirs and assigns are bound by the grantor’s deed. R. S. 1909, sec. 2870.
   SMALL, C.

Appeal from the Circuit Court of the City of St, Louis. The petition states that plaintiffs, being the owners of certain real estate in the City of St. Louis on Beacon Street, the city established a grade on said street seven feet below the natural surface in front of plaintiffs’ property, and graded the street to such established.grade, whereby plaintiffs’ property and improvements thereon were damaged in the sum of $3000, for which they pray judgment.

The answer, besides a general denial, alleged that the damages sued for were waived by reason of the fact that when “Florissant Avenue Hill Sub-division was opened, and the streets and avenues and alleys therein were dedicated, there was embodied in the deed of dedication, the following clause: ‘All of the avenues and alleys laid out in said subdivision, and for better identification etched on the above plat, are hereby dedicated to public use forever, and any claims for damages which may arise by i*eason of changing the present surface of said avenues and alleys to conform to such grades as, may hereafter be established by the city, are hereby waived,’ which deed of dedication containing the above waiver and the plat referred to in the said deed was then and there accepted by the City of St. Louis, and all of which is recorded in Plat Book 18, at pages 60 and 61, in the office of the Eecorder of Deeds in and for the City of St. Louis, Missouri, and that the property described in plaintiffs’ petition, as well as that part of Beacon Avenue fronting and abutting thereon, is located in said Florissant Avenue Hills Subdivision.”

The reply admitted and charged the making on the 6th day of April, 1909, by Josephine A. Collins, plaintiffs’ grantor, of said deed of dedication and the due acknowledgment and recording thereof on June 26, 1909. It further set up the joinder in said deed of dedication of the holder of a mortgage but who did not waive said damages for grading. That on June 25, 1909, the day on which the Board of Public Improvements of said city accepted and approved said deed and the plat subdividing said land, said mortgages was duly recorded, and when defendant accepted said waiver of damages for

grading the streets, it did so with full knowledge that such waiver did not affect the rights of the holder of said mortgage. The reply further alleged that said waiver was void as to plaintiffs, because said Josephine A. Collins parted with the ownership of plaintiffs’ property before said street was graded or damages accrued to said property, and before said Josephine A. Collins knew what she was waiving, as such damages were not then in esse; that there was no consideration for her making said waiver; that plaintiffs were not bound by said waiver, because no grade of said street was established when they bought said property; that they erected a substantial two-story brick dwelling on said property, and thereafter defendant city, by such grading, changed the natural surface of the street, whereby plaintiffs were damaged, as alleged in the petition. That said waiver is also void, because it is against the Constitution of the State of Missouri, Section 21, Article II, in that it permitted the damage of plaintiffs’ property for public use without just compensation. The reply further alleged that plaintiffs claimed title by mesne conveyances from said Josephine A. Collins. There is no allegation that said mortgage was ever foreclosed, or that plaintiffs claimed title by any sale thereunder.

The city demurred to the reply, which the court sustained, and the plaintiffs, refusing to plead further, the court rendered judgment on the pleadings for the defendant.

Plaintiffs thereupon appealed to this court.

I. We think the learned court below committed no error.

There is no claim, on plaintiffs' part, that they were purchasers without notice of the deed of dedication made by their grantor, which released the public and the city from damages sued for in grading said street. The pe~ tition shows that the street was graded before plaintiffs brought their suit. The presumption is that the city acted upon said waiver of damage in grading said street, and, therefore, plaintiffs would be estopped to set up that there was no consideration therefor. Independently, however, of the plaintiffs being estopped by waiting until after the street was graded to complain of the want of consideration for such wa^ver> we h°ld f^at the acceptance of the deed dedicating the street and containing the waiver of damages for grading was, in itself, a sufficient consideration to sustain both such dedication and waiver. It is alleged, in the answer and the reply, that the city and its Board of Public Improvements approved and accepted said deed of dedication with said waiver therein, and also the plat subdividing said property laying out said street. The acceptance of a ordinary deed of dedication is sufficient consideration on the part of the public. [Pierce v. Chamberlain, 82 Mo. l. c. 621; Borchers v. Brewer, 271 Mo. l. c. 141-2.] We see no reason why the same rule should not apply when, in addition to the usual dedication of the street, the proprietor also waives damages from grading, or dedicates the right to grade the street in favor of the public.

II. But, it is strenuously argued that the damages sued for are in the nature of a chose in action that did not belong to the said Josephine A. Collins, plaintiffs’ grantor, because said damages had not then accrued to her land; that such waiver did not run with' the land, and plaintiffs are not bound thereby; that the damages claimed only accrued after the plaintiffs became the owners of the property, and that they became entitled thereto under the Constitution of the State when such damages accrued, that the city’s right was a mere license, and was revoked by the conveyance of said land to the plaintiffs, that the city’s right to grade, granted by said waiver, is and was not an easement in plaintiffs’ land.

We must rule this contention against the plaintiffs. In our opinion said release and waiver of damages to the adjoining property in grading the street was incorporated in and part of the easement granted the public for street purposes in the land dedicated for the street itself by said deed of dedication.

Prior to the adoption of the Constitution of 1875 the dedication of a street for public use, without more, was held (except in Thurston v. St. Joseph, 51 Mo. 510, where the court divided) not only to dedicate the right to use the natural surface, as a public highway, but also to change the grade of the natural surface, either by lowering or raising it, and all damage to the adjoining property caused thereby was considered damnum absque injuria. [City of St. Louis v. Gurno, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Thurston v. St. Joseph, 51 Mo. 510; Clemens v. Ins. Co., 184 Mo. l. c. 53.]

By prohibiting the “damage” to, as well as “taking” of private property for public use without just compensation (the old Constitution only prohibited the “taking”), the Constitution of 1875 excluded the right to grade the street and damage adjoining property thereby, where there was a mere g-eneral dedication of the street for street purposes. Accordingly, in such cases, since the adoption of the Constitution of 1875, the adjoining landowner, when damaged by the grading of a street, has had his action therefor. [Householder v. Kansas City, 83 Mo. 488; Sheehy v. Railroad, 94 Mo. 574; Clemens v. Ins. Co., 184 Mo. 46.]

But it has never been held that when the dedicator in his deed of dedication goes further and adds to such dedication an express provision, that the public may also grade the street in any way it sees fit, without paying damages, which the waiver in this case, in substance did, the public would still have to respond in damages for doing such grading.

We hold that the Constitution of 1875 did. not prevent a proprietor of a subdivision of land, who wishes to subdivide it into lots and blocks and streets, avenues and alleys, from expressly making his dedication L street purposes, as broad and full as it was held by implication to be under the old Constitution, and to in-elude the right to grade the street, on the part of the public, without paying damages done to his adjoining land. He can give any right to the public in making such dedication, especially if the dedication is made by deed duly signed, acknowledged and recorded, he sees fit to give. This is well illustrated in the case of Julia Bldg. Assn. v. Telephone Co., 88 Mo. 258. In that case, this court held that making an excavation in a street and placing and maintaining a telephone pole therein gave the adjoining property owner no cause of action for. the injuries he sustained thereby, because that was one of the uses and purposes for which the street was originally dedicated, although the dedication was simply general, and contained no express provisions for the erection of telephone poles in the street. Judges Henry and Sherwood dissented, but on the ground that such use was not embraced within the terms, express or implied, of the dedication, but they conceded that no suit for damages could arise to the adjoining landowner from any use embraced within the dedication. The majority opinion, uses this language (88 Mo. l. c. 274-5): “If, by reason of the dedication the public have the right to apply the private property of the plaintiff to the use proposed without his being entitled to compensation, how can it be that it becomes entitled to compensation for damages, flowing as an incident from an act, which the dedicator by his dedication, has authorized to be done? . . . If by dedicating property for a street, the dedicator gives up his right to compensation for the uses included in the dedication, how can it be said that he does not also give up his right to compensation for damages to adjacent property not taken, resulting from the application of the street to a use which by his dedication he authorized?”

In the case before us, the deed of dedication by plaintiffs’ grantor to the city gave and dedicated to th public an easement to use and grade the land embraced within the street without payment of damages to her adjacent land, and such deed having been made, acknowledged and recorded before plaintiff's purchased their property, they took title, subject and servient to such public easement. Such easement was an encumbrance on the plaintiffs’ lot, which ran with the title thereto.

The nature of the rights of the city comes clearly within the definition and characteristics of an easement, as laid down in Black’s Law Dictionary, quoted by learned counsel for appellants, to-wit: “A privilege which the owner of an adjacent tenement hath of another, existing in respect to their several tenements, by which that owner against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose land the privilege exists.” "While the city, or the public, is not the technical owner of the fee in the land in the street, but holds it as trustee for the public for street purposes, its easement for street purposes makes it, in this case, the beneficial ‘ ‘ owner of an adjacent tenement,’ having a privilege against the tenement “of another” by which the latter “is obliged to suffer some thing on or in regard to his own land for the advantage” of the former.

The public’s right to grade without paying damages was, therefore, an easement, and not a mere license, revocable and revoked by the transfer of the land to plaintiffs, as contended by appellants’ learned counsel.

111. It has also been suggested that the Board of Public Improvements refused to approve the plat of the subdivision unless the deed of dedication containing the release of damages for grading was also signed, which said board had no authority to do, and, therefore, said release was void. It is true, counsel for the city in their brief contend that said board would have refused to approve the plat unless said deed contained said waiver, as it was the policy of the board to do; but they so contend more by way of argument to show a consideration for such waiver, than as the statement of a fact, in this particular case. They nowhere suggest that the board acted officially, or that any record exists showing any such refusal, rule or policy. The said board could only speak and act by its record, and neither the city nor the public is bound to take notice of its acts and words unless of record. In any event, there is nothing in the record of this case showing any such refusal, nor anything other than a voluntary action of her own initiative, on the part of the plaintiffs’ grantor, in making said deed of dedication.

IV. (a) It is said, too, that the Board of Public Improvements had no authority to accept a deed, of dedication or plat waiving damages for grading the streets. We cannot agree to this contention. Section 1, Article VI, of the old Charter of St. Louis, in force when this deed and plat were made, after providing that the streets laid out in such subdivisions should conform to the existing streets of the city, and that such plat should be submitted to said board for approval, and should be of no validity, and should not be recorded by the Recorder of Deeds, “until the approval of said board is endorsed thereon,” provided as follows: “The Board of Public Improvements shall have authority to approve maps or plats of sub-divisions which fully dedicate to the public use, streets, alleys and public places, and which are made as herein required.” (Italics ours). As we have seen, the waiver of damages herein was part of and appurtenant to the public easement in the streets given and dedicated for street purposes, and was, therefore, clearly authorized to be approved or accepted when contained in any such map or plat or deed by said board on behalf of the city.

(b) It also follows that said board would not abuse its discretion as to approving such plats and deeds of dedication connected therewith by refusing to approve them, unless they expressly waived damages in grading the streets, as well as dedicated them to public use. Said board could not be held to abuse its discretionary powers in requiring, in such plats or deeds, such full public easement in the streets, as it was authorised to approve and accept on behalf of the city.

Y. Nor can we find anything ultra vires the city, itself, in the law, or the city charter,.nor anything contrary to the spirit of the Constitution, in the city accepting this deed of dedication with the waiver therein contained. Section 9828, Revised Statutes 1909, being Section 6239, Revised Statutes 1899, governing cities of 300,000 inhabitants or more, and which applied to the city of St. Louis at the date of said dedicatory deed, expressly provided that when property owners lawfully entitled to damages for grading a street “shall not have waived all right or claim thereto,” then the ordinance providing for such grading should provide for ascertaining and paying such damages. There is no limitation as to the time or manner in which such property owners may make such waiver, and we can imagine no more proper way than by a deed duly executed, acknowledged and recorded as was done in this case, and no more proper time for so doing than the time when the property is platted into lots and blocks, and the street, avenues and alleys are dedicated to public use — as was done in the case before us.

The judgment below should be affirmed, in our opinion.

It is so ordered. Brown C., dissents; Ragland, G., concurs.

PER CURIAM:

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

All of the judges concur.