text:
    PORTER A. THOMPSON v. E. M. LINDSAY and HETTIE LINDSAY, Appellants.
    Division One,
    March 29, 1912.
    1. PLEADING : Cause of Action: Objection at Trial. An objection that the petition does not state facts sufficient to constitute a cause of action, made for the first time at the beginning of the trial, comes late, and the bill is entitled to every reasonable intendment and implication in its favor.
    2. CONTRACT: Construction. The proper construction of a contract arises on the whole subject-matter — parties, their relations to each other, the object to be conserved by it, and the language used.
    3. -: -: To Pay: To Buy. A contract by a purchaser of a lot to pay an existing outstanding taxbill is not a contract authorizing the seller to purchase that taxbill.
    4. -: To Purchase Lot: To Pay Special Tax Bill: Amount at Which Suit Thereon is Compromised: Illegal Deed of Trust: Redemption. The purchaser of a town lot paid a small amount in cash, and agreed to pay the balance in monthly installments, and to pay a special tax bill for street grading, and was to have a warranty deed when all was paid. The contract further gave the seller the right and option, at any time before payment in full was made, to put a deed of trust upon the lot for the amount unpaid on said contract, with usual commissions and expenses, to receive the proceeds of the loan, and thereupon to execute to the purchaser a warranty deed wi£h a provision therein that the grantee assumes the payment of such loan. At the time the contract was made there was a special taxbill which had been outstanding and unpaid for three years, and in suit for over a year, and that bill the seller had disputed as being void, but two years later he compromised the suit by paying sixty per cent of the principal. He then demanded of the purchaser payment of the whole, with ten per cent interest from its dato, and on the purchaser’s failure to pay, he made a deed of trust on the lot for the balance of the purchase price unpaid and for the amount of the taxbill with interest, etc., and made a warranty deed to the purchaser, and when the semi-annual interest on the amount became due and was not paid had the property sold and bought it in in the name of his mother. KeUl, that a contract to pay the taxbill did not mean a contract to buy it; and to interpret the contract to mean that the seller could fasten the whole of the disputed taxbill, principal and interest, upon the purchaser, would be to make it a trap to catch the purchaser. What the contract meant, when it said the purchaser agrees to pay the taxbill, was that the purchaser should . bear the burden of defending the suit then pending on the tax-bill. And this view is strengthened by its other provisions that if the seller paid any taxes or liens the amount so paid was to be reimbursed to him at eight per cent and distributed throughout the monthly installments, and if he exercised his option to borrow money on the lots the amounts paid by him on liens and taxes should merge in the amount of the loan to be secured by the deed of trust and assumed by the purchaser. The seller was entitled to demand only the amount at which the taxbill was compromised, and the illegal excess carried by him into the deed of trust tainted it and the consequent trustee’s deed with illegality.
    5. TRUSTEE’S SALE: Purchaser: Alter Ego: Notice of Illegality. Where the deed of trust is illegal, a purchaser with notice of its illegality takes subject to be divested of what the sale brought her; and a mother of the seller of the property, who, under a contract of sale authorizing him to place a deed of trust thereon for the amount of the deferred payments and all liens and taxes paid by him, carried into the deed of trust such illegal excesses as tainted it with illegality and, without receiving any money from her, made the note to her and then procured foreclosure and purchased the property in her name, takes with full notice.
    6. -: Loan: None In Fact: Sale. Where the contract of sale of a lot contemplated a real loan by the seller to pay the deferred purchase price, and no loan in fact was made, a deed of trust given by him to secure the fictitious note is a mere shell, and a sale thereunder to a purchaser with notice was made subject to the equitable right of the purchaser of the lot to redeem — unless that right is defeated by estoppel or some other equitable or legal ground.
    7. ESTOPPEL: Not Pleaded. Estoppel to be available usually must be pleaded.
    8. -: Change in Situation. The facts relied on by the party as constituting estoppel, as a general rule, must have caused him to change his situation or in some way to suffer detriment or loss by reason of such reliance. One who voluntarily takes the wrong road and travels it to the end cannot urge that his adversary is estopped to claim his legal rights.
    9. NEGLIGENCE: Delay in Bringing Suit: Inattention. Negligence that bars equitable relief may be stated thus: No man is entitled to the aid of a court of equity when that aid is made necessary by his own fault. But where plaintiff was guilty of no negligence at the outset, and defendant undertook to fasten upon him' an illegal demand for money, and when he would not yield thereto, defendant under an unwarranted construction of a contract existing between them undertook by means of a fictitious deed of trust to get possession of his property, plaintiff is not to be charged with negligence because he did not bring suit at once, but out of a slovenly inattention to business waited a whole year before appealing to a court of equity to redress his wrongs.
    10. STATED ACCOUNT: Not Pleaded. The doctrines applicable to an agreed and stated account are not available unless the issue is pleaded.
    11. EJECTMENT: Res Adjudicata: Illegal Deed of Trust. A judgment in ejectment, after foreclosure under an illegal deed of trust, which, with the consequent sale, is attacked by the equitable suit to set aside, is not res adjudicata where no equitable defense was pleaded.
    12. SETTING ASIDE DEED OF TRUST: Restitution and Rents. Where a cause is in equity and there is a prayer for general relief, the chancellor should "give rounded and perfect relief, although that relief may embrace matters cognizable at law. Where the suit is to set -aside an illegal deed of trust and a consequent illegal sale, under which defendant, with full notice, got possession, the decree awarding plaintiff possession and rents will not be disturbed.
    13. -: Interest. Where plaintiff, who lost possession of the real estate by reason of a foreclosure sale of an illegal deed of trust, was yet nevertheless* indebted under his contract of purchase for a part of the purchase price, made no tender that would stop the running of interest, he should pay interest according to the contract as the price of his decree.
    Appeal from Buchanan Circuit Court. — Eon. E. M. Barney, Judge.
    Reversed and remanded {with directions).

      Kendall B. Bandolph for appellants.
    (1) The court erred in overruling the defendant’s objection to the introduction of any evidence on the part of the plaintiff, made before any evidence was introduced, on the ground that there was no equity in the petition, that no cause of action was stated in the petition. Mulholland v. Rapp, 50 Mo. 42. (2) Negligence amounting to a breach of duty supplies the place of intent. Creen v. Smith, 57 Yt. 268; Pence v. Arbuckle, 22 Minn. 417; Hardy v. Bank, 51 Md. 562; Bank v. Hazard, 30 N. Y. 226; Horn v. Cole, 51 N. PI. 227; Kingman v. Craham, 51 Wis. 232; Brant v. Coal Co., 93 U. S. 326; Cornish v. Abington, 4 Hurl. & N. 549. (3) All the parties to a deed are estopped from denying the recitals therein. Dickson v. Anderson, 9 Mo. 156; Clamorgan v. Creene, 32 Mo. 285; Taylor v. Saugrain, 1 Mo. App. 312; Skinner v. Stouse, 4 Mo. 93; Smith v. Hutchison, 61 Mo. 83; Rice v. Bunce, 49 Mo. 231; Philipps v. Edmonson, 17 Mo. 579; Austin v. Loring, 63 Mo. 19; Rollins v. McIntyre, 87 Mo. 496. (4) The contract in evidence is a mere option to purchase coupled with possession. Warren v. Castello, 109 Mo. 343; Pluggins v. Stafford, 67 Mo. App. 469; Mastín v. Crimes, 88 Mo. 479. Plaintiff was entitled to possession only by virtue of his contract. De Bernardi v. McElroy, 110 Mo. 657. (5) The respondent should not be permitted to maintain this suit, unless he has shown performance of the contract on his part, which would necessarily include the payment of the monthly installments provided for in the contract and could not be met by a default of ten months. De Bernard! v. McElroy, 110 Mo. 657; Gibbs v. Sullens, 48 Mo. 237; Bose v. Perkins, 98 Mo. 253; Fulkerson v. Brqwnlee, 69 Mo. 371. (6) A tender of all arrearages was an essential prerequisite to the bringing of this suit. Ailey v. Burnett, 134 Mo. 319. (7) Respondent is by his conduct estopped to claim any right whatever to the real estate in suit. Gregg v. Von Phul, 1 Wall. 274. (8) The purchase by Hettie Lindsay of the property in controversy at the foreclosure sale at least had the effect to convey to her all of the interest of E. M. Lindsay in and to the real estate and to the contract under consideration. Ailey v. Burnett, 134 Mo. 319. (9) If respondent’s contention with reference to the amount of his liability on the special taxbill for grading and paving Cherokee street, were correct, then his remedy with reference to the trust deed and note would have been to have made timely objections to the amount of the note and to have asked for a credit thereon reducing same. Gregg v. Von Phul, 1 Wall. 274. (10) The rendition of the account which accompanied the warranty deed and the notice of the execution of the note and trust deed would at the very least create as good an estoppel as an account stated and acquiesced in. Powell v. Bailroad, 65 Mo. 658; Kent v. Highleyman, 17 Mo. App. 9; Shepherd v. Bank, 15 Mo. 143; Brown y. Kimmel, 67 Mo. 430; McCormack v. Sawyer, 104 Mo. 36; McKeene v. Bank, 74 Mo. App. 281; Railroad v. Com. Co., 71 Mo. App. 299; Columbia B. Co. v. Berney, 90 Mo. App. 96. (11) The judgment is erroneous. It orders the cancellation of a trust deed and note which E. M. Lindsay, under his contract, had full and complete power to -make. It does not undertake to deal in any manner with the trustee’s deed. It decrees possession of the real estate, when no such relief was sought by the petition. It gives a judgment against Hettie Lindsay for thirty dollars per month rent, when no snch issue was made hy the petition. No such issue was tried by the court. The court does not take into account the expenses of the foreclosure of the trust deed, nor the expenses, of the ejectment suit. The judgment was entered November 16, 1908, yet no interest is allowed on the item of $1207 found to have been due March 19, 1907, twenty months before this judgment was rendered, and nine months before the judgment in the ejectment suit, although the contract provides that the debt shall bear interest at the rate of six per cent per annum. (12) Nothing short of a tender will stop the running of interest, and such tender must be kept good. Landis v. Saxton, 89 Mo. 382; Knollenberg v. Nixon, 171 Mo. 454; Ruppel v. Sav. & Bldg. Ass’n, 158 Mo. 622.

      Culver, Phillips & Spencer for respondent.
    (1) If the right was reserved to the vendor to mortgage the property only for five hundred dollars a mortgage made by him for one thousand dollars would be wholly unauthorized, and if the mortgagee had knowledge of the facts at the time the mortgage was taken the mortgagee would acquire no rights by the mortgage nor any title by a purchase at the sale under the mortgage as against the mortgagor’s vendee. It therefore follows that if the power was reserved to Ernest Lindsay to give a deed of trust on the property at any time before the deed was delivered “for the full amount remaining unpaid,” a deed of trust executed by him to secure a sum substantially in excess of the full amount unpaid would carry no title to Mrs. Lindsay as against the plaintiff if she took the mortgage and bought at the foreclosure sale with knowledge of the facts. Since Ernest Lindsay had knowledge of all the facts, and since he represented his mother in taking the deed of trust, in having it foreclosed, and in purchasing the property at the sale, she must be charged with the knowledge of her agent, and must be held to have known that Ernest Lindsay had no right to execute the deed of trust, if the amount for which it was given exceeded “the full amount remaining unpaid” under the contract. (2) That the taxbill was void and created no lien against the property is not open to serious question. The hill was owned by the Barber Asphalt Co. Lindsay had no interest in it whatever. He had no interest in having it paid unless it was a lien against the property, and he did not want it paid, because he resisted the suit brought by the owner of the bill to collect it. In these circumstances it is clear that the parties intended that the purchaser, and not the vendor, was to pay the taxbill if it was a lien on the property. The object of the provision in the contract was not to create an obligation, if none existed, in favor of the Barber Asphalt Co., in which neither was interested, hut to show clearly that the vendee and not the vendor was to take care of the taxbill if it was a lien. The provision that the purchaser agrees “to pay the special taxbills for paving and grading Cherokee street” is a part of a single sentence which treats entirely of the payment of obligations which should constitute liens against the property. The payment of liens, and who should pay them were the only things in the minds of the parties when they placed that single sentence in the contract.
   LAMM, J.

Equity. On March 18, 1908, plaintiff sued in the Buchanan Circuit Court to set aside a deed of trust and trustee’s deed purporting to convey to defendant Hettie Lindsay lot one in block 3, South St. Joseph Town Company’s Second Addition to the city of St. Joseph, and for an accounting. The prayer of the bill was further that defendants he compelled to convey in default of such conveyance, title to he vested out of them and into plaintiff,

From a decree finding the issues for plaintiff and granting relief in kind, witlu an accounting of the amount due on the contract and for rents (defendant Iiettie being then in possession), and a writ of restitution, defendants come up by appeal.

Questions raised seek a summary of the pleadings and facts, to-wit:

In brief the bill alleges that in August, 1904, E. M. Lindsay contracted in writing with named purchasers Waller and Arthur in consideration of $1945 (to be paid in a cash payment of $150, and thereafter in monthly installments of twenty-five dollars, with interest at six per cent from date of contract on each installment), to sell said purchasers said lot and convey same by warranty deed in fee simple when the purchase price was fully paid. The purchasers were to have possession and pay State and county taxes for 1904, and a special taxbill for grading and paving Cherokee street. (The terms of this contract will appear more fully hereafter.)

The bill then pleads a further provision in said contract giving Lindsay the option and right, at any time before said warranty deed was executed, to put a deed of trust on the lot for the amount unpaid on said contract at that date, with usual commissions and expenses — this to be by way of a loan from any person willing''to loan such amount on the premises. In that event Lindsay was to receive the proceeds of such loan, and thereupon execute to said purchasers a warranty deed with a provision therein that grantees assume the payment of such loan.

There follow allegations to the effect that the contract permitted its own assignment and that by several intermediate assignments it came finally to plaintiff who now holds all rights thereunder; that the cash payment was made, together with all monthly installments with interest, in accordance with the contract terms; that after plaintiff became the owner of the contract it was agreed between him and E. M. Lindsay that the monthly payments were to be made at plaintiff’s office; that on the 19th of March, 1907 (and on the 21st of said month), there remained dne on the contract (exclusive of the Cherokee special tax-bill) $1207, principal and interest.

Referring to the Cherokee special tax, the bill alleges that it was outstanding, but the special tax-bill was void and created no lien against the lot; that on its face it called for $268.16; that on May 11, 1906, the interest accrued on said pretended taxbill was $131.91; that, without the consent of plaintiff, E'. M. Lindsay on said last mentioned date paid to the holder of said void taxbill, by way of compromise and settlement, sixty per cent thereof; that although the bill was void and the compromise unauthorized, yet on the 19th of March, 1907, plaintiff was ready and willing to pay, not only the amount remaining due on the purchase contract, but the amount paid by way of compromise on the void taxbill, together with interest.

Plaintiff then goes on to set forth in his bill the particulars of an alleged plan concocted between defendants to defeat and defraud him out of his interest in the lot. In a nutshell, as there told, that plan was for E. M. Lindsay to execute to his codefendant a pretended deed of trust to secure a pretended indebtedness of $1623, which said E. M. Lindsay pretended remained unpaid on the contract, instead of $1207, the true amount, of all of which defendant Iiettie had knowledge; that to further such covinous contrivance, on the 19th of March, 1907, E. M. Lindsay executed such deed of trust to a trustee securing on said lot a pretended note for such pretended amount due in three years, with semi-annual interest coupons at seven per cent; that said deed of trust provided for a default on the nonpayment of any coupon; that when the first coupon became dne E. M. Lindsay, in order to create a default, failed to pay it and at once brought about a foreclosure sale under the pretended deed of trust, at which, his codefendant pretended to become a purchaser for $1700 and a pretended trustee deed was executed to her; that both said deed of trust and said trustee’s deed were spread of record, and defendant Hettie Lindsay now appears of record as the owner of the lot; and that he was not notified of the execution of said deed of trust and the foreclosure thereof and had no knowledge until afterwards that the record title was vested in her by the means aforesaid.

The bill then makes an offer to pay into court such sum as may be found due, and prays relief as hereinbefore stated.

The joint answer of defendants admits that E. M. Lindsay made the contract of sale with Waller and Arthur as pleaded in the bill and then goes on to set forth its terms more fully.

Among such additional provisions of the contract pleaded in the answer was one to the effect that though the purchasers were to have possession, ad interim, it was as tenants of E. M. Lindsay at a monthly rental equalling the monthly payment installments, plus accrued interest, and if they failed to make such monthly payments then E. M. Lindsay was entitled to take possession.

Another was that' the purchasers should take out insurance and on failure to .do so Lindsay might insure and the purchasers were to. reimburse him.

Another was that if E. M. Lindsay paid any taxes, “liens” or insurance the purchasers were to reimburse him, with eight per cent interest on such items — all guch outlays by Lindsay with interest were to merge in and be distributed among the monthly installments and were to be repaid prior to his making a deed to the purchasers. -

Another was that it was optional with Lindsay whether he paid any taxes, insurance or liens.

{Nota-bene-. “The above additional provisions of the contract of purchase, taken in' connection with the provisions pleaded in plaintiff’s bill, fairly summarize the material contract terms appearing in the pleadings.)

The answer then goes on to aver that the Barber Asphalt Paving Company held a certain taxbill against the property for paving Cherokee street; that said taxbill bore date October 2, 1901, and on its face called for $268.16, with interest at ten per cent per annum; that said bill was the one referred to in the contract of purchase; and that it was sued on by its owner on the first day of October, 1903, in the Buchanan Circuit Court.

Prom this point on, for several pages, the averments of the answer are directed to pleading facts showing good faith and exercise of contract rights by defendants. It is alleged that on March 19,1907, there was due under the contract purchase $1623 to defendant E. M. Lindsay; that pursuant to the contract power he on that day executed to one A. L. T., as trustee, a deed of trust securing to his co defendant said sum on said lot; that said sum was evidenced by a note due in three years with interest payable semi-annually at seven per cent; that the. deed of trust provided for default and foreclosure on the non-payment of any interest installment; that afterwards E. M. Lindsay (still pursuant to the contract power) executed a warranty deed to plaintiff with a provision therein that plaintiff assumed and agreed to pay said mortgage indebtedness ;• that said warranty deed was received by plaintiff on the - day of April, 1907; that in September of that year the first semi-annual installment of interest came due; that thereupon said trustee proceeded to execute the power of sale donated, and on November llth of that year made a sale at which the property was struck off to Hettie Lindsay for $1700; that thereupon he executed to her a trustee’s deed and the same was duly spread of record; that at the time of the advertisement of the sale defendants mailed to plaintiff, then a resident of Buchanan county, a copy of the sale notice and previously notified him by letter that the interest was due and ■unpaid; that after the sale and execution of said trustee’s deed Hettie Lindsay sued one Lansaw (then plaintiff’s tenant) in ejectment to the January term, 1908, of the Buchanan Circuit Court and that steps were taken in that suit culminating in a judgment at that term for possession and a writ of restitution; that said writ was presently executed and Hettie Lindsay was put in, and now holds, rightful possession.

Finally it is alleged that plaintiff had full knowledge of said ejectment suit and of the execution of the deed of trust, the warranty deed and trustee’s deed; that after the execution of said deeds plaintiff stopped making monthly payments under the centract and failed to pay interest on the note or do anything else towards paying for the property; that plaintiff has no right, title or interest therein and wilfully failed to keep and perform the purchase contract; but through his agents, after his tenant was ousted in ejectment, attempted, vi et armis, to obtain possession by breaking doors and locks.

The reply was a general denial. .

At the trial the contract of purchase was read into the record and so far as material is in substance as set forth in the pleadings. So, certain ordinances and a contract relating to the improvement of Cherokee street were introduced. Their terms are immaterial.

{Note-. A proper construction to put upon plaintiff’s bill is that the special tax was compromised by Lindsay and that plaintiff in asking equity wanted to do equity and therefore was willing to pay the compromise sum with interest. In this view of the matter the validity of the tax is a mere moot question. Especially so as the chancellor took plaintiff at his word, found against him for the compromise sum and plaintiff abided the decree without an appeal.)

A special taxbill was issued against the lot, under the ordinances and paving contract, on October 2, 1901, for the amount mentioned in the pleadings and drawing interest at ten per cent from date. It, in terms, was chargeable against the lot and Ernest Lindsay as owner. We infer that Ernest Lindsay is deceased, was the husband of defendant Hettie and the father of defendant E. M. We gather, from indirect testimony, that the lot belonged to an estate and that the title came to E. M. Lindsay through some domestic arrangement or by descent cast. At any rate he assumed the right to make a sale of it to Waller and Arthur and that right stands unquestioned. When he made that sale in August, 1904, the taxbill had then been outstanding and unpaid for about three years, and at said sale date said taxbill had been in suit for over a year. It seems all the property owners on the street united in contesting the validity of the taxbills issued for paving Cherokee street and employed the same attorneys to make a defense. As we make out those attorneys were to have a contingent fee of one-third of the amount saved off of the face of each bill. It seems, too, that E. M. Lindsay had charge of the defense against the taxbill in question, that he had been sued thereon and had been conducting that defense, as said, for over a year at the very time he made the contract with Waller and Arthur. It does not appear that Waller and Arthur or their assignees had anything to do with the defense or had been called upon to assist therein or pay the bill while the suit was pending. At a certain time in 1906 (probably in May) Lindsay on his own motion took part in a general compromise agreement whereby the lots on Cherokee street were relieved of the liens of the taxbills by the payment of a compromise snm, to-wit, sixty per cent of the face of each bill. As we understand it this left an attorney fee due of one-third of forty per cent of the face of his bill, and this fee Lindsay also paid. Whether plaintiff at that very time was the owner of the interest of Waller and Arthur through intermediate transfers is not vital and is not clear on this record. It appears that plaintiff was the president of a bank and had interests in Colorado and business in Texas. Being away a great deal of the time he and Mr. Lindsay made an agreement that Lindsay’s collecting agent should call at plaintiff’s bank for all monthly installments on the purchase contract and plaintiff arranged with his bank to have these monthly payments made on presentation and demand and when so made they were to be charged to his account. That plan was put in operation and was continued without interruption on down until the things we are about to narrate happened. On December 5, 1906, after the compromise, E. M. Lindsay wrote plaintiff requesting that he pay the full face of the taxbill. The letter making this demand stated that if Lindsay received a check for the face within^two weeks he would waive the interest. That letter said nothing about spreading the amount over the monthly installments, or about changing the plan of making monthly installments and seeking a loan under the contract option. To that letter plaintiff responded, in effect, that there had been a compromise at sixty cents of the face of the bills and that he was willing to pay that amount, it being the same rate he had paid on other lots he owned on the street. Both of these letters were silent about an attorney’s fee. The record indicates that the matter then dropped and Lindsay continued to collect the monthly installments. On March 19, 1907, things began to move off at a smartish pace. On that date, at a time when there was no monthly installment due, Mr. Lindsay computed the amount of the taxbill at ten per cent from its date in 1901 up to May 11, 1906 (the date he paid it), and at six per cent after that. He then added that sum to the balance to become due on the purchase contract, with interest to date. He then made a note payable to his mother for the gross amount, securing the note by a deed of trust on the lot, put the deed of record and put the note in his own safe among his mother’s papers. The note ran for three years with semi-annual interest installments. The deed of trust provided for a default on the non-payment of any such semi-annual installment, and a foreclosure sale. He next made a warranty deed to plaintiff in terms subject to said deed of trust and with a provision therein to the effect that the grantee (plaintiff) assumed and agreed to pay the indebtedness secured by the'deed of trust and sent the same by a registered letter to plaintiff. A foreclosure of that deed of trust followed in the ensuing November and Hettie Lindsay, through her codefendant, was the purchaser and took a trustee’s deed on an alleged bid of $1700. This deed was also put of record.

(Note: As there is a contention by defendants that the deed of trust and warranty deed were executed in accordance with the contract and in good faith, and one by plaintiff to the contrary, the facts on this score are material to a just determination of the case.)

Attending to the facts with more particularity, it seems Mr. Lindsay was the general agent for his mother, and seems to have had a sort of carte blanche -in all her business. Doing the best we can with the testimony, after an extended and analytical study of it, we cannot find she actually made any loan of money to her son on the lot, or accepted any loan, or paid out anything on account of such loan, or made or lost anything by the transaction, or took any personal or conscious part in the scheme from end to end, or that Mr. Lindsay, himself, got any money by such loan. So, the plan was alone his, and whatever was done in consummating it he did on his own initiative — she remaining passive.

In the above version, we have given our impressions of the testimony, avoiding detail and not unmindful of the fact that Mr. Lindsay seems to have drawn and signed a check against his mother’s money kept by him in his name as agent in the Bartlett Trust Company, on March 16, 1907, for $5000. This check was drawn in connection with his purchase of corporate stocks in Kansas City on private account. The record seems to show, that in Mr. Lindsay’s dealings as agent the line between mine and thine was not closely observed, all this, however, by his mother’s acquiescence. There is a suggestion (or belief) indulged by Mr. Lindsay when on the stand that the check covered the proceeds of the loan in question in a bundle with other matters, but a close scrutiny does not satisfactorily sustain that suggestion, when taken with other testimony by him and his mother. One of his theories as a witness seems to be that he put up the loan with his mother as security for that check, but the testimony does not satisfy us on that score.

There are some facts relating to the letters written by Mr. Lindsay to plaintiff in March, 1907, bearing, it is claimed, on the equities of the case. G-oing back a little to that time, on March 16, 1907, he wrote and mailed the following letter to plaintiff:

Dear Sir:
I want to bring the matter of tbe Cherokee Avenue paving bills in front of Lots 1 and 2, Block 3, Second Addition, to a settlement, as I do not care to bave it in its present unsettled state any longer. I note that you state in your letter of Dec. 24, ’06, that you will settle these bills for 60 per cent of the face value of them. Is this your ultimatum in the matter and your final answer in regard to same ? I will appreciate it very much if you will give me an answer to this by return mail and also mail me the insurance policies on the two places to keep in my files with the contracts. It is usual to do this just as you would do if there was a loan on the property, the man making the loan, holding the insurance policies.
Yours truly,

That letter was unanswered and plaintiff testified lie never saw it until after the foreclosure sale. He then found it opened in a bundle of other papers relating to the matter in Ms desk in Ms bank after Ms return from a prolonged absence. There is some testimony, however, indicating that he was in St. Joseph a day or so after March 16th.

On March 21, 1907, Mr. Lindsay sent the .mentioned warranty deed by registered mail to plaintiff, and a postof&ce receipt therefor, signed by plaintiff, is shown by the testimony. Inclosed in the envelope containing the deed was the following letter and statement :

“Mr. Porter A. Thompson,
So. St.*Joseph', Mo.
.Dear Sir:
About Dec. 5th, ’06, I wrote you concerning taxbills against lots 1 and 2, block 3, Second Addition property. These were taxbills issued for asphalting Cherokee street. On Dec. 24, ’06, you wrote me stating that you would not pay more than sixty per cent of the face value of these bills, in answer to which letter I wrote you on the 16th of March, 1907, asking you if this was your ultimatum in the matter and asking you to kindly write me by return mail, if possible, stating your wishes in the matter as the bills were long past due. As is customary and essential in such transactions, I also asked you to mail me the insurance policies on your two places so that I would be protected in my loan in case the buildings should burn. I have not as yet had the courtesy of a reply of any nature from you. I have therefore decided to place lot 1, block 3, in a loan and herewith send you warranty deed for this lot, which deed is second and subject to a deed of trust dated March 19, ’07, securing note amounting to $1623 running three years with interest at seven per cent per annum, payable semi-annually, the first installment of which interest comes due Sept. 19, ’07. I herewith inclose you a statement showing the items of which this $1623 is made up. Unless X hear from you soon in regard to the matter I will take it for granted that you have no insurance policies on this building so that I will have to take out insurance policy myself for $700 and file with this first mortgage as per the terms of same.
Yours respectfully,
E. M. Lindsay,

The statement referred to in the letter was this:

March 21, ’07.
$1045.00 Prin. due on Contract to Mar. 19, ’07.
162.00 Int. due on Contract to Mar. 19, ’07.
$1207.00
268.16 Taxbill Lot 1, Block 3.
131.91 10% Int. due on Taxbill to May 11, ’06.
14.30 6% Int. due on Taxbill from May 1, ’06, to Mch. 19, ’07.
1.75 Recording Deed of Trust.
$1623.12”

Speaking of the last letter, there was evidence tending to show that plaintiff on March 21st received information there was a registered letter at the post-office. The postal officials refused to deliver it as ordinary mail, hut sent plaintiff, through his messenger, a receipt to sign. This receipt he signed when traveling bag in hand he was about to leave for Colorado, on a waiting train. The signed receipt was taken to the postoffice by a clerk of plaintiff’s bank and the letter was handed to the clerk, who brought it and laid it on plaintiff’s desk, he having gone to his train. When he returned at a certain time after the foreclosure he saw the letter and statement for the first time then open with the letter of March 16th. Plaintiff had left instructions to forward his mail. This mail was not forwarded to him. He left behind no authority with any one to deal with any phase of the matter in his business with Lindsay except to pay the monthly' installments, as heretofore stated. Who opened these letters or why they (or their contents) were not forwarded to him is not disclosed. These letters were eventually found in a drawer or other receptacle of plaintiff’s desk, but who put them away there is not disclosed. Neither is it clear that plaintiff was absent from St. Joseph during the whole of the summer of 1907.

After the 21st of March, 1907, Lindsay quit calling for and receiving the monthly installments dne on the contract at plaintiff’s bank, but plaintiff did not know of that fact until after the foreclosure. It sufficiently appears also that the monthly rental value of the property was thirty dollars per month.

When the foreclosure sale was advertised, Lindsay cut out the advertisement from the newspaper and mailed it to plaintiff, but there is testimony that he addressed the envelope improperly and that plaintiff did not get it and knew" nothing of the foreclosure until after the event. c

Other evidence may be summed up in this way: there is some to the effect that plaintiff caused to be furnished a policy of insurance in obedience to the request of the March 21st letter, and testimony to the contrary.

There is evidence of an attempt over the telephone, by personal interview and by correspondence, to compromise the matter after the foreclosure and allow plaintiff to redeem — we deem it unimportant.

At no time until after the decree, did plaintiff tender the amount he claimed to be due Lindsay. He offered to pay, but made no tender as that term is defined in the law.

Defendants put in evidence showing that after Lindsay’s mother got her trustee’s deed he caused a suit to be brought in her name against plaintiff’s tenant in straight ejectment and that such suit, on default, ripened into a judgment followed by the execution of a writ of restitution. The proof sustained the answer on that score and plaintiff, at some uncertain time before the end of that suit, had notice of it.

Any other necessary facts anent proof, pleadings or decree will appear in the opinion.

The brief of defendants’ industrious counsel takes a wide range. We think it better to formulate questions here in our own way.

(a) Defendants objected below to the introduction of any testimony. This, on tbe theory the bill did not state facts sufficient to constitute a cause of action. The objection was overruled and that ruling is now assigned for error. We hold the petition good and the ruling well enough. A challenge of that sort comes late and the bill is entitled to every reasonable intendment and implication in its favor. [East St. Louis Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 685, 142 S. W. 253.]

The argument in support of the assignment, as we grasp the run of it, is that plaintiff stated himself out of court when he pleaded the clause in the contract requiring the purchaser to pay the Cherokee street tax-bill. But that clause, as presently seen, was one of several relating to liens and taxes. A proper construction of a contract arises on the whole subject-matter —parties, their relations to each other, the object to be subserved by the contract, and the language all considered. Prom that view-point neither do the pleaded terms of the contract nor the allegations of the bill mean that plaintiff was to pay this whole taxbill, whether or no and at all events, as contended. The matter is further dealt with in the next paragraph. We disallow the point to defendants. '

(b) It is argued that (under the contract) Lindsay had the right to buy this taxbill, and when bought had the right (still under the contract) to collect its face with interest at ten per cent from date from the lot purchasers; and to that end (still under the contract) he had the further right and option to merge the amount of the taxbill, so computed, into the balance due on the contract, borrow enough on the lot to pay himself such aggregated sum ánd then make a warranty deed with a provision therein binding the prior lot purchaser, without any voice in the matter, to assume and pay the whole amount. But if Lindsay had the right to buy that taxbill such right did not arise from the contract itself. It is silent on that point. It arose, if at all, from general principles of law giving to an individual the right to lawfully buy a vendible thing. A discussion of that theory would be academic; for under this record Lindsay did not buy the taxbill — he paid the taxbill. To buy is not to pay. If he had actually bought that bill then we would confront the situation whether the purchase contract for the lot contemplated such purchase of the bill, and its enforcement in full, whether void or not, as against the purchaser of the lot by means of the option to borrow money and force the payment of the borrowed money by an assumption in the warranty deed to follow the loan under that option. Since we rule he did not buy the bill it is not necessary for us to determine the question of what rights he might have under such hypothetical purchase.

We may say, in passing, that when the contract of purchase is read from end to end and corner to corner and its cold letter is illuminated and made alive by existing facts and circumstances and the relations of the parties, it would be a harsh and unnatural construction of the contract that would permit Lindsay, while he was defending against an over-due taxbill as void, to sell the lot, thereafter carry on the defense of invalidity and then (presto! change!) without notice to the lot purchaser of his change in attitude, or the existence of any overpowering necessity, turn about, abandon the defense, and buy the bill he claimed was invalid at the time he sold the lot and fasten it at his own volition with its accumulated burdens upon the lot as a valid lien. That would be to make of the purchase contract a trap to catch the unwary purchaser by the heel. Justice to.Mr. Lindsay in this case requires us to save him from the imputation of making such a contract, for the contract does not -read that way.

At the time Waller and Arthur contracted to buy this lot the taxbill was three years old, it had then been in suit for a year and two months. Mr. Lindsay’s hostile attitude to it was that of all the other lot owners on the street, to-wit, that it was void. He then had assumed contractual relations with his attorneys to defend against the bill. When things were in that fix, and the defense in full vigor and controlled by him, he made a sale looking to a payment for the lot in installments running for many months. The defense against the bill might fail, since, as has been aptly (if tartly) said, the uncertainty of a law suit is the only thing certain about it. Naturally enough he-wanted the lot to carry that burden and take that chance. That is what the contract means, when it says the purchasers agree to pay the bill. This becomes certain when we consider other contract provisions meaning that if Lindsay paid any taxes or liens the amount so paid by him was to be reimbursed to him by the lot purchasers by a distribution of such amount throughout the monthly installments with eight per cent interest; or, if he exercised his option to borrow money and thereafter convey by warranty deed to the lot purchasers, such payments so made by him on taxes and liens should merge in the amount of the loan to be secured by a deed of trust and be assumed by the purchasers. This interpretation of the contract allowed Lindsay to pay the special tax-bill whenever the exigencies of the suit on the bill demanded it. Under this record that is precisely what he did, and by the contract the amount so paid by him could be added to the purchase price of the lot and funded in a loan to be assumed by the purchasers.

In the above view Mr. Lindsay violated the contract when he assumed the right to compel the purchaser to repay, not only the amount of the outlay in the compromise, but several hundred dollars more, to-wit, the face of the bill and its accumulation of interest at ten per cent. The leaven of- that illegal excess, carried into the note, leavened the whole lump of the deed of trust. That instrument had no legal right to existence, and did not bind the lot purchaser. As figs do not grow on thorns, or sweet water flow from a bitter fountain in nature, so,' in equity a superstructure of legality cannot be built on a substratum of illegality.

(c) Under this record E. M. Lindsay was in legal effect, his mother — only one person acted in the so-called loan, deed of trust and foreclosure and he was that person. The eye of equity cannot see her without seeing him. It must look through him to see her at all. Hence notice to him was notice to her and his knowledge was hers. We cannot hold her an innocent party in the loan nor an innocent purchaser at the sale. The equitable yardstick, then, that measures his rights measures hers and she may not with full notice, as here, hold a gift fetched to her by his hand.

(d) So, under this record the purchase contract contemplated a real loan of real money really borrowed — not a loan in name only, a simulated and color-able contrivance. Here there was no loan at all. So, the deed of trust purporting to secure the imaginary loan was ill of the same infirmity afflicting the loan. In equity it was a mere idle aggregation of words, a shell to be broken into dust by the hammer of the chancellor. So, a sale under such trust deed to a purchaser with notice, as here, conveyed subject to the equitable right of the holder of the lot purchase contract to redeem, unless there is something else in the case defeating redemption.

(e) It is earnestly argued there is something else in the case defeating the right to redemption. It is argued that plaintiff cannot redeem because of estoppel, because of negligence, because the statement furnished by Lindsay to plaintiff on the 21st of March, 1907, became through, plaintiff’s subsequent conduct in tbe nature of an agreed or stated account, not to be tbencefortb challenged by plaintiff. We disallow these contentions. Because:

(1) As to estoppel it was not pleaded. It makes its virgin appearance in this court. It is trite general doctrine (with exceptions not material here) that a litigant who relies on estoppel must plead estoppel. Moreover, the virtue in the plea of estoppel lies, as a general rulé, in the proposition that, the facts constituting the estoppel were relied on by the party to' be affected, caused "him to change his situation or in some way to suffer detriment or loss by reason of such reliance. All these elements are wanting in the facts of this case. Lindsay without persuasion of plaintiff, with wide open eyes, for his own by-ends and purposes voluntarily took the wrong road and travel-led it to the end. Plaintiff said nothing to him and did no acts in pais that led him to take that road. The letters of March 16th and March 21st show beyond peradventure that he made up his own mind on his own knowledge for his own ends and acted accordingly. There had been a disagreement between him and plaintiff over the amount due on the taxbill. He cut the Gordian knot himself and took his own course at his own will. There would be no estoppel if the pleading warranted that defense.

(2) As to negligence. The rule is that no man is entitled to the aid of a court of equity when that aid becomes necessary by his own fault. That doctrine is invoked' by defendants. The full statement of the facts heretofore made must be our justification for omitting an extended reference to them or a prolonged discussion of them. We rule that plaintiff’s inattention to his business is not the cause of and gave no rise to the claimed right to the equitable relief here invoked. Mr. Lindsay,.without any negligence on plaintiff’s part at the outset, wrongfully fastened upon liim a simulated loan swollen by an improper excess of indebtedness in violation of the existing contract. The next day after he did that plaintiff had the right to sue. And the right was not lost to him because of mere subsequent inattention and slovenly business conduct from March, 1907, to March, 1908, keeping him from finding it out. Suppose he had found it out at once, could he have awed Lindsay from the career of his humor? Or was it his duty to try? Take a homely case to illustrate: If Boe notify his neighbor Doe that he is about to visit or has visited Doe’s henroost to wrongfully appropriate or has wrongfully appropriated his hens, must Doe protest at once or lose his right to pick a bone with Boe in court?

(3) Defendants invoke the doctrine applicable to an agreed or stated account. No such issue was raised by the pleadings nor would the facts warrant such defense if it had been raised. Defendant Lindsay was not lulled into the belief by plaintiff’s silence that he agreed to the account. His letters show that plaintiff was not agreeing to it. So, Lindsay did not wait to see if plaintiff by silence would agree. His blow followed his word like an echo. We know of no rule of law preventing the surcharging and falsification even of a stated account. We prefer, however, to let our ruling rest on the fafct that no such issue was raised by the pleadings, hence is not here.

(f) While the answer pleaded a prior judgment in favor of Mrs. Lindsay in ejectment for possession against plaintiff’s tenant, yet such judgment is not res adjudicate, where there is no equitable defense pleaded. That part of the answer together with the facts sustaining it are put out of view.

(g) Complaint is made because the decree awarded rents and possession to plaintiff. The testimony on rental value went in without objection. With sonie hesitation we rule the point against defendants. We are constrained to this course because the doctrine of equity is to avoid multiplicity of suits. So, when a cause is in equity the duty of the chancellor is to give rounded and perfect relief, although in doing so that relief may cover matter cognizable at law. So, under a prayer for general relief all relief may go which the proof warrants and which is within the fair intendment of the bill. The writ of restitution and the award of rents were plaintiff’s due under the facts of this case and the motions for a new trial and in arrest do not clearly raise the point now made by defendants. We shall not disturb the decree on that score.

(h) Complaint is made that the chancellor did not award interest on the amount due on the contract from March 19, 1907, down to the rendition of the decree. We find that is so and for that reason and to that extent the judgment is reversed and remanded to correct that error. Plaintiff invokes and was entitled to invoke the contract of purchase. But he must stand by it and comply with it. He made no' tender that would stop the running of interest and he should pay interest according to the contract as the price of his decree.

For the reason -stated in the last paragraph of the opinion the judgment is reversed and the cause remanded with directions to the chancellor to compute the interest due from plaintiff as indicated and include it in the redemption price found due, and decree accordingly.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    JAMES J. KILROY v. CITY OF ST. LOUIS, ADAM WACKMAN, and ST. LOUIS BREWING ASSOCIATION; ST. LOUIS BREWING ASSOCIATION, Appellant.
    Division One,
    March 29, 1912.
    1. JOINT TORTFEASORS: Nonsuit as to One: Motion by Other to Set Aside. Where the owner of the property, the lessee in possession and the city have been joined as defendants, in a suit for damages to a pedestrian on the sidewalk, and, after demurrers to the evidence offered by the property-owner and the lessee have been sustained, the plaintiff has taken a non-suit with leave as to them, the city, though a joint tortfeasor, has the right to move to have the nonsuit set aside as to the lessee or other codefendant, and that right it has under the statute (Sec. 9801, R. S. 1909) though the plaintiff filed no motion to set aside the nonsuit.
    2. SIDEWALK: Possession of Premises: Liability. Where the abutting property is leased and has been for twenty years, yet is in the actual occupancy of a subtenant) it is the subtenant and not the lessee, if either, that is liable for damages for injury to a pedestrian due to a defective sidewalk. In such case the lessee is in constructive possession only, and not ' actual possession, and the liability attaches to the one whose duty it is to keep the premises in order, and that duty devolves upon him who is in actual occupancy with immediate control of the premises.
    8. -: -: Liability of City. Although the lessee of the abutting premises may not be liable for injuries to a pedestrian due to a defective covering of a coal chute in the sidewalk, because not in actual possession of the premises', and a demurrer may properly be sustained as to it on that ground, yet the city may be liable, and a nonsuit as to the lessee, though properly upheld on that ground, does not relieve the city of its liability.
    Appeal from St. Louis City Circuit Court. — Hon. W. M. Kinsey, Judge.
    Reversed and remanded {with directions).

      Kehr & Tittman and Marion C, Early for appellant.
    (1) The abutting owner bas tbe right to construct and maintain a cellar opening in tbe sidewalk and be incurs no liability by placing and maintaining it there, provided tbe sidewalk is left and kept in reasonably' safe condition for public travel. Peblbauer v. City, 178 Mo. 635; Cordon v. Peltzer, 56 Mo. App. 599; Jegglin v. Boeder, 79 Mo. App. 434. (2) Tbe action is for alleged negligence in allowing tbe covering or grating of tbe coal chute to become worn and defective. Por such negligence, if any there be, tbe occupant at tbe time of tbe injury is alone liable. (3) Tbe plaintiff’s son was guilty of contributory negligence in tbe occurrence complained of and hence plaintiff was properly nonsuited.

      Lambert E. Walther, Robert Burkham, J. O’More and D. J. O’Keefe for respondent.
    (1) Tbe city bad the right to move that the non-suit ordered as to its codefendants be set aside. Dillon on Mun. Corp. (5 Ed.), see. 1725; Perringo v. St. Louis, 185 Mo. 274; Reedy v. Brewing Ass’n, 161 Mo. 523; Carvin v. St. Louis, 151 Mo. 334; Wiggin v. St. Louis, 135 Mo. 558; Benjamin v. Railroad, 133 Mo. 274; Christman v. Meierhoffer, 116 Mo. App. 46; Dillon on Mun. Corp. (5 Ed.), sec. 1728; R. S. 1909, sec. 9801. (2) Tbe court should not have nonsuited as to appellant (without at tbe same time nonsuiting as to tbe city) for: (a) There was evidence that appellant was in possession of tbe premises at tbe time of tbe mjury and that it was therefore responsible for tbe defective condition complained of; (b) There was evidence that tbe dangerous condition bad existed for some time prior to tbe date of tbe injury and therefore appellant was liable unless it appeared that tbe defective condition arose subsequent to any letting. Tate v. Railroad, 64 Mo. 149; Maneuso v. City, 74 Mo. App. 138; Stoetzele v.. Swearingen, 90 Mo. App. 588; Gordon v. Peltzer, 56 Mo. App. 599.
   VALLIANT, J.

Plaintiff’s minor son fell through a hole in the sidewalk and received injuries to his person. The plaintiff sues for damages to cover the loss of his son’s services and the expenses incurred in treating him for his injuries. The defendants are Adam Wackman, the owner of the abutting property ; St. Louis Brewing Association, alleged to be the lessee in possession; and the city of St. Louis, the proprietor of the street. The theory of the plaintiff’s petition is that the city is liable because it owns the street and is charged with the duty of exercising ordinary care to keep it in a reasonably safe condition for persons passing along it; that Wackman, the owner, is liable because he caused the hole to be made in the sidewalk; and the Brewing Association is liable because, as tenant in possession, it maintained the hole in an unsafe condition.

The cause came on for trial before the court and jury; at the conclusion of the plaintiff’s evidence each of the defendants asked an instruction in the nature of a demurrer to the evidence; the court gave an instruction asked by Wackman, and also that asked by the Brewing Association, but overruled that asked by the city. The plaintiff took a nonsuit with leave as to Wackman and the Brewing Association. Thereupon the city asked leave to file a motion to set aside the nonsuit as to the Brewing Association, which leave the court granted and on a further motion of the city the court granted it a continuance of the cause. The plaintiff did not file a motion to set aside the nonsuit as to either defendant. Within four days the city filed a motion to set aside the nonsuit as to the Brewing Association, which motion the court sustained and from that order the Brewing Association prosecutes this appeal.

I. The first question is, assuming that it was error to have given the instruction looking to a nonsuit in favor of the Brewing Association, had the city a right to move to set the nonsuit aside?

The general rule of law is that in case of joint tortfeasors they are jointly and severally liable, and the party wronged may sue them all in an action or he may sue one or more of them as he sees fit, and the one sued has no right to complain that the others are not sued, because each is liable to the plaintiff for the wrong done by all. And, for the same reason, if all the joint tortfeasors are sued in one action the plaintiff may, if he sees fit, dismiss his suit as to all hut one and that one would have no right to complain. And, as a general rule, if judgment goes against one of several joint tortfeasors, he has no right of contribution from the others. “The general rule may he found in the maxim that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of his own wrongdoing the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one concerned in committing it. But there are some exceptions to the general rule which rest upon reasons, at least as forcible as those which support the rule itself. There are cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by the reason of some relation, is made chargeable with the conduct of others.” [Cooley on Torts (3 Ed.), p. 254.] In a case like this it was recognized that the city might come within that exception and might have a right to its action against a codefendant for contribution or reimbursement. [Wiggin v. St. Louis, 135 Mo. 558.] In that case the city and the owner of the property abutting on the street were sued as joint wrongdoers; there was a judgment in favor of the property owner and against the city alone; the city appealed and one of the questions was, could the city complain of the judgment in favor if its codefendant? It was held that whilst the property owner and the city had a common defense as to certain features of the case, yet they were antagonists on the question of primary liability for the plaintiff’s injuries, and that since the judgment in favor of the city’s codefendant would, unless reversed on appeal or writ of error, be conclusive against both the plaintiff and the city, and effectually bar the city’s right of action over against its codefendant, therefore it was held that the city could appeal from that judgment. The theory of that case is that although the city was liable to the plaintiff, yet if the negligence of the property owner was the primary cause of the injury, the city had the right to satisfy the judgment and then sue the property owner for the amount it had been forced to pay. In that case the court discussed a section of the city charter, section 9, article 16, which is to the effect that in a case of this kind where the city is liable for the negligent or wrongful act of another and that other is also liable, the plaintiff cannot sue the city unless he joins the other party also, and if judgment goes against both, satisfaction shall not be had of the city if it can be obtained of the other. But that section of the city charter has since been declared unconstitutional by this court. [Badgley v. St. Louis, 149 Mo. 122.] In that case it was said that whilst the Constitution gave the city of St. Louis authority to adopt a charter of its own making yet it was only for the purpose of city government, and the charter so formed was required to be “in harmony with and subject to the Constitution and laws of Missouri,” and it could not regulate the practice and proceedings in the State courts. But the General Assembly in 1901 (Laws 1901, p. 78) passed what is now section 9801, Revised Statutes 1909, applicable to all cities having over 150,000 inhabitants, which provides that when the city is sued in such case it may require the person or corporation which committed the act complained of to be joined as a party defendant, if he is within reach- of the process of the court. This statute only gives the city the right to require the plaintiff to do what he might have done without being required if he had so chosen; the effect of the judgment rendered for or against one or both defendants is the same whether they were joined because the plaintiff so preferred or under constraint of the statute. In either event the judgment in favor of one and against the other would be binding on all and would bar the city’s right of action against its codefendant, unless reversed on appeal or writ of error ; hence when the city in such case appeals from the judgment against it, it has the right to assign for error the rulings on which the judgment in favor of its co-defendant were based. Therefore, the city had the right in this case to move the trial court to set aside the judgment of nonsuit in favor of the Brewing Association, and when the court sustained the motion it opened the issues as to that defendant for a new trial, at least so far as affects the city’s rights against that defendant. Although the plaintiff has joined the property owner and the city as codefendants, yet his right to a judgment against the city does not depend on his right to a judgment against the property owner if the evidence justifies one and does not justify the other. His failure to except to the ruling of the court which forced him to take.a nonsuit as to the Brewing-Association precludes him from a judgment in this case against that defendant, but does not preclude the city from preserving its right of action against that defendant by showing, if it can, that the evidence did not justify the ruling of the court in forcing the non-suit.

II. We turn now to the facts of the case. Plaintiff’s son, fourteen years old, May 26, 1905, passing along the north side of Clark avenue in front of building No. 1629, stepped on what the witnesses call a man-hole in the sidewalk, the cover of which broke, yielding to his weight, and he fell through the hole into the cellar and received injuries to his person. The hole was made for a coal chute, through which the occupant of the building received his coal. As to the condition of the cover, or grating, that covered the hole, the testimony was to the following effect: Defendant Wackman, called as a witness by plaintiff, testified that he was the owner of the building, had had it built, and the coal chute was constructed at the same time by the contractor who built the house; that in 1904 he leased the premises to the Brewing Association, who caused a new front to be put into the building and a new cover or grating over the coal chute; the grating was substantially constructed, the frame of cedar and the slats of oak; it would naturally last twenty years. Witness observed it about three weeks before the accident and it-was then in good condition. The plaintiff testified that he had passed the premises four to six times a day for three months prior to the accident and had observed for that space of time the grating was in bad order, the slats worn and in a dangerous condition. The boy testified that just before stepping on the slats he noticed them and they seemed in good condition. But as to the condition of the grating the prominent fact is that when the boy stepped on it, it broke and he fell through the hole. If it had been in good condition it would not have broken with the weight of an ordinary person. Wackman testified that at the date of the accident the Brewing Association was lessee in possession of the- premises and had been for twenty years, but he also testified that the building at the time of the accident was in the occupancy of a subtenant of the Brewing Association who kept a saloon and boarding house in it.

The only statement in the petition on which the Brewing Association is sought to be held liable is that it was in possession of the premises, had control of the coal chute and was in duty bound to see that it was kept in a reasonably safe condition for persons passing over it, but that in disregard of that duty it suffered tbe coal cbute to become and remain in a dangerous condition. Altbougb tbe Brewing Association was lessee yet if tbe premises were in tbe actual possession and occupancy of a subtenant, it would not be liable under tbe theory of tbe petition. Tbe only witness on this point was Wackman. Part of bis testimony seems to conflict with another part. In bis examination in chief be was asked.wbo was tenant of tbe premises during tbe year 1905; be answered tbe Brewing Association; asked if it made use of tbe coal cbute, be .answered be did not know; asked if they bad possession during tbe first half of tbe year 1905, be answered, “They were, they have bad a lease, on tbe property for twenty years.” Witness then produced tbe lease. In view of bis testimony on cross-examination it is evident that when be said tbe Brewing Association was in possession be meant tbe constructive possession that follows tbe lease; it was in possession because it bad bad a lease for twenty years. Tbe witness was a defendant in tbe suit himself and was very willing to throw tbe responsibility off bis own shoulders; tbe Brewing Association was bis lessee and therefore it was in possession. Whether or not a party is in possession is often a mixed question of law and fact. Tbe owner of a bouse is in contemplation of law for certain purposes in possession, altbougb it is actually occupied by bis tenant. But when tbe inquiry is, whose duty was it to keep tbe premises in order? the answer is, it was his duty who was in actual occupancy with immediate control of the same. When Wackman on cross-examination was asked who was in the occupancy of the building at the time of the accident his answer was: “Why the brewery had a subtenant in there; I forget — I never learned his name, but I know that he was a saloon keeper, running a saloon and boarding house, occupied that building. Q. In other words 1629 and 1631 were occupied by a saloon keeper? A. Occupied by a saloon keeper, yes; a boarding house keeper.” The testimony shows the distinction that was in the witness’s mind between technical possession, and actual occupancy.

The burden of proving that the Brewing Association was in the actual possession of the premises was on the plaintiff and the above is all the evidence that there was on that point.

Under the evidence the court was justified in giving the instruction that as to the Brewing Association the plaintiff was not entitled to recover, and it was therefore error to have sustained the city’s motion to set aside the nonsuit.

TTT- Counsel for the city contends that if the instruction in favor of the Brewing Association was right, for the same reason the instruction for a non-suit asked by the city should also have been given, the one following as a consequence of the other.

If the evidence had shown that the Brewing Association was in the occupancy of the building yet the instruction for a nonsuit was given because it was not shown that the grating over the coal chute was in bad order, the city’s contention would be correct, but that was not the case; the Brewing Association was let off because the evidence did not show that it was in the occupancy of the building.

The order of the trial court sustaining the city’s motion to set aside the nonsuit as to the Brewing Association is reversed, and the cause remanded to the circuit court with directions to overrule that motion, and proceed to try the cause.

All concur.


author: LAMM, J.

text:
    CITY OF ST. LOUIS v. A. H. HANDLAN et al.; A. H. HANDLAN, HECTOR A. PIEDNOIR, Jr., PAUL BAKEWELL, BUCKINGHAM HOTEL COMPANY and SIMON VAN RAALTE, Appellants.
    Division One,
    March 29, 1912.
    1. BUILDING LINE: Straight or Boundary Line: Meaning of Article A. The city charter, by authorizing the municipal assembly to establish “a building line,” did not, by the use of the article a, mean a straight line, but simply meant that it should establish a limit or boundary line. It would be a strained, illogical and narrow construction to give to the article a a fixed and unalterable meaning. The words “a building line” mean at least two lines, one on each side of the boulevard.
    2. -: -: Irregular Line: Valid Ordinance. Boulevards, either by the historical origin and development of the word, or by the present general method of their construction, are not confined by straight lines, and there is no inherent reason why their boundaries should be so confined. The charter in authorizing the municipal assembly by ordinance to establish “a boundary line” to a boulevard,' meant that houses in certain blocks may be constructed within certain distances of the boulevard line and at different distances in other blocks.
    3. BOULEVARD: Building Line Restrictions: Exemptions of Certain Properties: Invalid Ordinances. In the face of a charter provision authorizing the city to “establish a building line to which all buildings, fences and other structures thereon shall conform,” an ordinance exempting certain abutting properties from building line restrictions and authorizing the owners to build regardless pf the line established, and requiring all houses or. other buildings hereafter constructed on other lots to be located within the building lines, with no'reason given or attempted for such classification of properties, is invalid. That is a capricious, arbitrary and irregular exercise of the lawmaking power confided to the municipal assembly. It is a classification that is not lawmaking in the sense of making one rule for all within the scope of the law. It lays the burden upon some property holders and exempts it from others.
    Appeal from St. Louis City Circuit Court. — Hon. Robert M. Foster and Hon. George H. Williams, Judges. .
    Reversed.

      Hornsby, Collins é Chappelle for appellants.
    Ordinances numbered 20729 and 21162 are void in that they are not in conformity with tbe city charter, and the final judgment founded on said ordinances is also void for the reasons that: (1) Said ordinances attempt to establish several building lines in West Pine boulevard, although the .charter, section 1, article 6, authorizes but one such building line. (2) Said ordinances attempt to exempt certain parcels of ground fronting on said street from the restrictions of said ordinances, although the city charter authorizes no such exemptions.

      Lambert E. Walther, Elmer E. Pearcy, C. W. Bates and C. P. Williams for respondent.
    (1) The amended petition did not state a new cause of action because of the exemption of an additional seventy-three feet of the property of the Buckingham Hotel Company from the building line. Railroad v. Reinhardt, 14 Ind. App. 588; Railroad v. Jones, 103 Ind. 386; Railroad v. Clark, 121 Mo. 200; Wind-ham v. Litchfield, 22 Conn. 226 ;• Martin v. Railroad, 220 111. 97; Syracuse v. Stacey, 8,6 Hun, 441; Darrow v. Railroad, 169 Ind. 104; McClarren v. School, 169 Ind. 140; Robinson v; Railroad, 174 Pa. St. 199; Railroad v. Water Co., 10 Ky. 175. Each separate owner of property is to be considered separately in a suit of this character. He is independent of the other owners of property taken as to the question of damages and benefits to- bis property, and cannot complain of injuries affecting other defendants in the case, which have no application to his own. Kansas City v. Smart, 128 Mo. 293; City v. Lanigan, 97 Mo. 180. If such exemption did constitute a change in the cause of action, the only party that could complain would be the owner of the property exempted, that is, the Buckingham Hotel Company, and it has waived its right to object on this ground by entering its voluntary appearance as a defendant in this case, filing exceptions to the commissioners’ report, and going to trial upon the merits. St. Louis v. Gleason, 89 Mo. 72; Grymes v. Mill Co., Ill Mo. App. 361; Walker v. Railroad, 193 Mo. 453; Railroad v. Donovan, 149 Mo. 101. (2) The charter does not contemplate that in the establishment of a building line along a boulevard, such line must be at a uniform distance from the roadway. Such an interpretation of the charter would make it practically impossible for the city to ever change a street upon which improvements have already been made, into a boulevard. The result and consequence of any particular interpretation may properly be considered as a guide to the probable intent of the language. State ex rel. v. Slover, 126 Mo. 661. The intent of the framers of the charter amendments, as gathered from the instrument itself, when applied to the facts of this case, clearly negatives the idea that the building line on either side of the roadway must be at a uniform distance therefrom. Art. 6, sec. 1, Charter of St. Louis; St. Louis v. Hill, 116 Mo. 527.
   LAMM, J.

In June, 1902, an ordinance went into effect in St. Louis entitled, “An ordinance to establish West Pine boulevard as a boulevard,” there being at that time an east-and-west street in that city known as “West Pine boulevard” running from Grand avenue to Kingshighway. The ordinance object was to make a real boulevard out of a real street then designated (on paper only) as a boulevard.

Counting on tbat ordinance, condemnation proceedings were commenced by tbe city-in January, 1903, in the St. Louis Circuit Court, whereby damages and benefits were to be assessed and collected and tbe boulevard established by tbe exercise of tbe right of eminent domain. After certain steps in tbat case tbe • city in July, 1903, passed another ordinance purporting to amend tbe first one by striking out tbe old and inserting a new title, viz.: “An ordinance to change tbe street now designated as West Pine boulevard into a boulevard.” Other changes were made to make it conform to tbe new title, and yet another whereby certain property exemptions in tbe old ordinance were enlarged by tbe new.

Afterwards in April, 1904, tbe city filed an amended petition setting up both tbe old and tbe new ordinances and counting on both. Thereafter such steps were taken as resulted in tbe appointment of commissioners to assess benefits and damages, followed by a report of those commissioners, exceptions to tbat report on tbe part of certain property owners, a ruling on those exceptions, whereby tbe report was amended, and (as amended) approved, and finally a judgment in favor of tbe city. Prom tbat judgment certain interested property owners appeal.

In this court on motion of tbe Thrift Eealty Company it was substituted for appellant Hector A. Piednoir, for tbe reason tbat since tbe appeal it acquired by purchase tbe land then owned by Piednoir and affected by tbe judgment.

One question, a primary one, is, should tbe judgment be'reversed because there are several building lines established by tbe ordinances, whereas (it is argued) under the charter, there could be but one on a boulevard? Again, both ordinances exempt certain fronting lots and-parcels of ground from ordinance restrictions, whereas (it is argued) the charter authorizes no such exemptions. On one or both of said grounds are the ordinances void and the judgment erroneous 1

There are other interesting questions here. In all there are six main and several subsidiary propositions discussed in briefs, all of them, except the foregoing, relating to alleged errors in procedure. It is manifest, however, that if the ordinances on which the suit is grounded are void as contended, then mere questions made on this, that, or the other phase of the proceedings are not regularly reached and should be reserved until, becoming vital in some other case, they call for judicial determination. Accordingly to that primary question, lying at the door-way, we address ourselves.

The determination of that question seeks certain provisions of the charter and of the two ordinances assailed.

The material charter provisions are:

“The Municipal Assembly may, by ordinance recommended by the board of public improvements, establish and open boulevards, or change existing streets into boulevards, and fix the width thereof, and the manner of laying out and improving the same; and may regulate the traffic thereon, and may exclude heavy driving thereon or any kind of vehicle therefrom, and may exclude and prohibit the erection or establishment or maintenance of any business house, or the carrying on of any business vocation on the property fronting on such boulevard, and may establish a building line to which all buildings, fences, or other structures thereon shall conform. And may provide for grading,” etc. • .

Turning to the two ordinances held in judgment, they outline, as said, a scheme for changing that part of Pine between Grand and Kingshighway into a boulevard. By some provisions they forbid heavy hauling, the use of heavy vehicles and those not having springs, the driving of herds of cattle and droves of horses, sheep and hogs thereon, etc. By still another the erection, establishing or maintaining upon the property fronting on said boulevard, “where said building line has been established,” of any business house, is forbidden. By still ánother provision -is made for beautifying the boulevard with shrubbery, etc.

Coming closer to the point the ordinances lay down eight different building lines. On the north of the boulevard these lines vary from thirty-five to forty-five feet distant from the north line of the boulevard, to-wit: Thirty-five feet between Grand and Sarah, forty feet between Sarah and Boyle, and forty-five feet between Boyle and Kingshighway. On the south they vary from thirty to forty-five feet, to-wit: thirty-five feet between Grand and Spring, thirty feet between Spring and Yandeventer, thirty-five feet between Vandeventer and Boyle, forty feet between Boyle and Newstead, and forty-five feet between New-stead and Kingshighway.

The ordinances further provide that of the abutting property on the proposed boulevard four parcels, aggregating 930 feet and four inches, are exempted by specific descriptions from building line restrictions. These exemptions cover the property of four named owners. Further that (quoting) “all houses or buildings thereafter to be erected on said West Pine boulevard, except as hereinafter provided for, shall be located within the building lines;” and then goes on to say that “the establishment of this building line shall not compel the removal of the structures which now exist upon the lots and extend beyond said line, and the same may remain advanced beyond said line to the extent now existing at the option of the present owners thereof, their heirs, executors, administrators, or assigns. ’ ’

The foregoing is enough of the record to decide the proposition now up.

(a) Do the zigzag contour lines of the proposed boulevard invalidate the ordinances?

(1) It is argued that the charter authorizes an ordinance establishing “a building line.” That the meaning of that phrase is one straight line on each side, and stress is put upon the use of the indefinite article “a.” It is not worth while to try to conceal (or explain) my indisposition to be drawn into a judicial exposition of the meaning and office of the indefinite article “a.” We could hardly come by the true and broad intendment of the charter by such a discussion, however refined, accurate and learned. In jurisprudence, as in the other affairs of mankind, a mountain should not be made out of a mole hill. Those judges who strain at gnats are in the same category of thoso who swallows camels (Matt, xxiii. 24.) It is likely the lawmaker cunningly hid away the meaning of his law in a word of not only one syllable but of one letter— a meaning to be got at by boring with a gimlet of grammatical construction? That would be to try to stand a cone on its apex. It would be multum in parvo with a vengeance, indicating a legislative power of condensation hitherto undreamed of. Appellants’ counsel concedes that two lines are meant by the charter language and this although the word “line” is used in the singular number. That concession is due to the very reason of the thing, since there are two sides to every boulevard and therefore two building lines both of which must be within the purview of the law. Reason therefore teaches us, concedes counsel in effect, that the phrase “a building line” means two building lines. Does not the same reason teach us that if the lawmaker had meant two straight lines he would have said so? The word “line,” in and of itself, may (but does not necessarily) mean a straight line, even in mathematics, and certainly not in everyday speech. Hogarth’s line of beauty was a combination of curves somewhat like cupid’s bow. We speak of a boundary line, but we do not mean in all cases a straight line. We speak of a line fence and may mean a Virginia worm fence — a zigzag fence. We speak of a bee line and then we mean a straight one. The subject-matter must be looked to to see whether “line” means a straight line. As used in the charter we think the word means a mark of division or demarkation, an outline or contour, a limit or boundary. [Vide, Web.]

Since there is no disputing about tastes {De gustibus, etc.) it is not worth while to argue that good taste requires a straight building line in a street reconstructed for travel as well as beauty and pleasure to the eye. Jones may like straight lines; Brown, curves; Smith, broken lines. The legislative mind may prefer a combination of all — a fantastic or rococo style.

(2) Is there anything in the word “boulevard” that necessarily means straight building lines? Let us look into that. It was once a warlike term, and meant the flat top of a bulwark or rampart — the fortified wall roundabout a city. For all I know Belshazzar, the son of gráss-eating Nebuchadnezzar, drove his chariots on the walls of Babylon and hurled defiance at his foes. If he did he drove on a boulevard. As though beating a sword into a plowshare or a. spear into a pruning hook, we are told by scholars that when in the course of time a city’s obsolete walls were razed, the space occupied by the foundations was. frequently turned into a street or avenue for the use and pleasure of citizens, and that the name boulevard was given to such street out of respect to and to connect it with its original use. Thereto all the lexicographers agree (q. v.). Gradually its meaning was modified and enlarged until now it means a street constructed with parklike features, a wide street, or a street encircling a town, one with sides or center for shade trees, flowers, seats, etc., and not used for heavy teaming. [Howe v. Lowell, 171 Mass. l. c. 580-1.] A broad street, promenade or walk planted with rows of trees, a broad avenue -in or around a city — one specially designed for pleasure walking or driving. [West Chicago Park Comm’rs v. Farber, 171 Ill. l. c. 160-1.] “. . . So the word ‘boulevard,’ which originally indicated a bulwark or rampart, and was afterwards applied to a public walk or road on the site of a demolished fortification, is now employed in the same sense as public drive.” [People ex rel. v. Green, 52 How. Pr. l. c. 445.]

It is manifest that the military walls, known as boulevards, were not confined by straight lines and there is no inherent reason why the pleasure drives on the site of such demolished fortifications should be confined by straight lines. As the idea of a boulevard is borrowed, was not the character of its sides also borrowed from the original? May we not assume to know as a matter of common knowledge that many a boulevard is of irregular dimensions and sides, sometimes a drive with wide borders which, a little further on, swells into a wide street with irregular sides and parklike proportions and effects? We think so.

The point is ruled against appellants.

(b) Do the ordinances violate the charter because of their exemptions?

The provision of that instrument giving to the municipal legislature power to pass ordinances relating to establishing building lines on boulevards runs in these words: “and may establish a building line to which all buildings, fences or other structures thereon shall conform.” The ordinances in question established a building line and in the same breath exempted certain properties from the established line. The owners of those exempted properties were authorized to build regardless of the line established and to that extent the ordinances fly in the face of both the language and intendment of the charter. No reason is given or attempted for such classification of properties and we know of none that could be given, where the ordi ■ nances (as here) do not require existing structures to be razed. No ordinance can make fish of one and fowl of another in the same natural class and be valid. To loose one and bind another abutting property owner is not lawmaking in the sense of making one rule for all within the scope of the law. It ignores the primal lawmaking idea of equality and uniformity. It is a mere capricious, arbitrary and irregular exercise of the lawmaking power- confided to the municipal assembly. The benefits of the ordinances are unequally distributed among the property owners from G-rand to Kingshighway, and its burdens are unequally laid on the necks of the same property owners. Evil would be the fruit if the precedent were established for such transparent favoritism. If the named exemptions are to be allowed, then why not (as put by appellant’s counsel) indefinitely extend them, exempt most of the property owners and thereby buy peace for the scheme? Or the powerful be loosed and the weak bound?

We think the ordinances violate the charter provision quoted and are void. It is not necessary to cite authority for the trite doctrine that a void ordinance is equivalent to none at all and that where a court proceeding cannot go on without an ordinance, as here, a valid one is essential to the court’s jurisdiction. Damages and • benefits must needs be assessed in view of property restrictions affecting the street as a street. It follows that the mischiefs flowing from the invalidity of these ordinances permeate the judgment rendered.

As the ordinances are invalid other questions are not reached. The judgment is reversed.

All concur.