author: DAYID E. BLAIR, J.

text:
    THOMAS BROOK v. SYLVESTER BARKER and ANNIE E. BARKER, Appellants.
    Division Two,
    March 7, 1921.
    1. APPELLATE PRACTICE: Verdict for Right Party: Decision oa Point Not Raised hy Instructions. Plaintiff sued for curtesy consummate in his wife’s lands conveyed by her alone in her lifetime. The answer was a general denial, and verdict was for defendants. The court granted a new trial on the ground that the verdict was “unsupported by any evidence,” and the defendants appeal. Both plaintiff and defendants tried the case on the theory that if plaintiff and the sole grantor in the deed were husband and wife, that issue was born alive of the marriage, that she was seized of the premises during coverture and died before suit was brought, and that defendants were then in possession, plaintiff was entitled to recover. Plaintiff’s instructions were framed on this theory, and defendants filed no demurrer and the only instructions asked by them were given, and these related only to the burden resting upon plaintiff to prove the birth of living issue and the other issues of fact set out in plaintiff’s petition. Held, that, notwithstanding court and counsel were mistaken as to the law of the case, in that their theory was that the husband, not having joined in his wife’s deed, had a curtesy estate in the land, yet, the verdict being for the right party in view of the facts and the law, the order granting a new trial will be reversed, and the cause remanded with directions to set it aside and to reinstate the judgment.
    2. CURTESY: Deed by Wife Alone. The estate of the husband, both by the curtesy initiate and by the curtesy consummate, - is completely wiped out by a conveyance by the wife of her separate real estate during her lifetime, regardless of his failure or refusal to join in her deed.
    3. -: -: Married Woman’s Acts. The Married Woman’s Acts of 1889, declaring (in Sec. 7328, R. S. 1919) that all real estate belonging to any woman at her marriage, or which may have come to her during coverture by gift or inheritance, or by purchase with her separate money or means, shall be and remain “her separate property and under her separate control,” and by declaring (in Sec, 7323, R. S. 1919) that “a married woman shall be deemed a femme sole” so far as to enable her “to contract and be contracted with,” gave to a married woman the unrestricted right to convey her said real estate by her sole deed, without her husband joining therein, and such a conveyance by her alone extinguishes his curtesy in her real estate so conveyed.
    Appeal from Scotland Circuit Court. — Eon. N. 'M. Pet-, tin gill,. Judge.
    Reversed and remanded {with directions).

      J. E. Luther and G. G. Fogle for appellants.
    (1) The assignment “that the verdict rendered by the jury is unsupported by any evidence” is too general and indefinite to .constitute a ground for a new trial. (2) The verdict is supported by the evidence for tlie reason that the evidence introduced by both sides conclusively shows that the defendants have ever since the date of the execution of.the deed from Sill to the defendants been the owners, and entitled to the possession, of the real property in question. (3) The burden of jjx'oof was on the plaintiff to show that at the times alleged in his petition he was the owner, and entitled to the possession, of the said real property. As he did not sustain the burden the verdict was supported by the evidence. (4) As the evidence introduced by both sides shows defendants were the owners, and entitled to the possession, of the said real property ever since the Sill’s deed to them, the plaintiff could not show that he was the owner and entitled to the possession thereof. Therefore no verdict in favor of plaintiff could be allowed to stand. (5) The effect of the Married Women’s Acts is to abolish the estate by the curtesy, both initiate and consúmate, in all property of the wife acquired after their enactment. Hence plaintiff did not, and could nor, show that he was the owner, and entitled to the possession of the said real property. (6) Since the enactment of the Married Woman’s Acts the separate conveyance by the wife of property thereafter acquired by her destroys the husband’s estate by the curtesy, both initiate and consummate, if any, therein. Hence plaintiff did not, and could not, show that he was the owner, and entitled to the possession, of the said real property. Bank v. HageRken, 165 Mo. 443; Kirkpatrick v. Pease, 202 Mo. HI, 490; Riggs v. Price, 227 Mo. 333, 351; Kirkpatrick v. Pease, 202 Mo. 471.

      Hudson V. Smoot for respondent.
    (1) The assignment in the motion for a new trial “that the verdict rendered by the jury is unsupported by any evidence’ ’ is sufficient to warrant the court in examining the record to ascertain if there is any evidence which can sustain the verdict. Securities Co. v. Kansas City, 265 Mo. 264; State v. Scott, 214 Mo. 261. (2) The Married Woman’s Act of 1889, Sec. 6869, R. S. 1909, now Sec. 8309, does not destroy the curtesy interest or estate of the husband, but merely gives to the wife the entire control and management of her real estate, and enjoyment of the usufruct free from her husband’s control. She can convey it without her husband joining in the deed and pass a fee simple title, subject only to the contingency that her husband might outlive her and claim his curtesy therein. Moseley v. Bogy, 272 Mo. 328; Teckenbrock v. McLaughlin, 246 Mo. 717; Myers v. Hansbrough, 202 Mo. 500; Brown v. Dressier, 125 Mo. 589; Donovan v. Boyd, 215 Mo. 162; Healey v. Tillberry, 192 Mo. App. 513; Rutledge v. Rutledge, 177 Mo. App. 476.
   DAYID E. BLAIR, J.

The action is ejectment for possession of the west half of Lots Seven and Eight in Block Four in the original town, now city, of Memphis, in Scotland County, and for damages and for fixing the value of monthly rents and profits.

The answer contained a general denial, and set up defendant’s claim of title to the premises in controversy and alleged a certain agreement between respondent (plaintiff below) and his wife relating .to the property, purporting to authorize the conveyance of said property by her free of any claim by the respondent. The reply denied the new matter of the answer and alleged that the respondent was entitled to an estate by the curtesy in said property; that respondent was sixty-four years old when the petition was filed and entitled to the use of the property during his life or expectancy, and prayed the court to determine his interest in the property and require appellants to pay a gross sum in lieu thereof, as provided by Section 8499, Revised Statutes 1909.

Trial before a jury resulted in a verdict for appellants (defendants below). The trial court had struck out all testimony in a deposition of the appellants relating to the alleged agreement between respondent and his wife that she could convey her separate property. There was no other evidence on that issue. Upon motion a new trial was granted on the sole ground that the verdict is unsupported by any evidence. The appeal is from the order granting a new trial.

It is admitted that one John M. Nichols is the common source of title. On May 28, 190*3, he conveyed the property in question to Alvira Brook, the wife of respondent, and she conveyed to Joseph P. Sill on October 28, 1909, while said Alvira was the wife of respondent. Sill conveyed to appellant Sylvester Barker on April 25,1912. Appellant Annie E. Barker is the wife of Sylvester Barker. At the time the petition was filed and at the trial appellants were in possession of the property, claiming title. Respondent did not join in his wife’s deed to Sill. A child was born alive of the marriage between respondent and his wife. Alvira Brook died May 16, 1917, and this suit was begun on September 15, 1917.

The<funds for the purchase of the property in question were derived from the estate of Alvira Brook’s deceased father. The evidence tends to show that at the time Alvira Brook purchased the property in May, 1903, she and respondent had ceased to live together as man and wife. The testimony in the deposition which was stricken out by the court tended to. show an agreement that respondent and his wife should each own and control their individual property, and that respondent thereafter sold his farm and Alvira joined in the deed, and that when she conveyed the property in question to Sill in 1909 respondent, in violation of his alleged agreement, refused to join in the deed. This deed appears in full in-the record and recites “that Alvira Brook and her husband Thomas Brook, . . . grant, bargain, sell, convey and confirm mito Joseph P. Sill, ...” and it is signed and acknowledged only by Alvira Brook, without recital as to whether she was married or single.

After Alvira Brook conveyed the property to Sill valuable improvements were made thereon. There is some evidence in the record referring to the pendency of a divorce suit between respondent and his said wife. This undoubtedly was never pressed, because all parties are proceeding on the theory that the marriage relation existed at the death of Mrs. Brook in May, 1917.

I. Appellants contend that the assignment of error in the motion for a new trial, which the trial court stated to be the sole ground for sustaining the same, is not sufficient. Such assignment is as follows: “Because the verdict rendered by the jury is unsupported by any evidence.” Appellants cite Falloon v. Fenton, 182 Mo. App. 93, l. c. 98, in support of this contention. It was said in State v. Scott, 214 Mo. 261, “It is only in case there is no substantial evidence to support the verdict that this court will interfere.” The assignment here is that there was no evidence at all to support the verdict. The assignment itself is sufficient, and if, in fact, there was no evidence to support the verdict, the motion for a new trial was properly sustained. The determination of this question presents the real question for decision.

II. If the deed of Alvira Brook to Joseph P. Sill in which respondent did not join, was effectual to convey the fee simple title to the premises in controversy free from any claim of respondent to a life estate therein by the curtesy, then the court erred in granting a new trial. More broadly stated, the question to be here determined is: Does Section 8309, Revised Statutes 1909 (Sec. 7328, R. S. 1919), abolish the husband’s estate by the curtesy consummate in his wife’s separate real estate when she has conveyed same during her lifetime by a deed in which he has not joined?

It would appear upon an examination of the abstract of the record that both appellants and respondent tried the case below on the theory that if respondent was the husband of Alvira Brook and issue of the marriage was born alive and Alvira was seized of the premises during coverture and died before the suit was filed and appellants were then in possession of the premises, respondent was entitled to recover. Respondent’s instructions were framed on that theory. Appellants filed no demurrer at the close of all the evidence, and the only instructions asked by appellants were given by the court. These related only to the burden cast upon respondent of proving the birth of living issue, and other issues of fact set out in respondent’s instructions, and to the form of verdict if the jury found for appellants.

If the jury, out of sympathy for the unfortunate situation of appellants, disregarded the instructions of the court and found for appellants, yet must that verdict be permitted to stand nevertheless, if, perchance, court and counsel were' mistaken as to the law of the case and the verdict after all was for the right party? [In re Lankford Estate, 272 Mo. 1.] Such is the question to be determined.

Under the common law respondent would clearly have been entitled to possession of the premises at the time the petition was filed and at the date of the'trial. Marriage, birth of living issue, seizin in the wife during coverture, death of the wife — all the essentials of an estate by the curtesy consummate at common law — are here present. The husband’s right could only be cut off by joinder in the deed. He must prevail here unless the provisions of Sections 8304 and 8309, Revised Statutes 1909, are such that the separate deed of his wife was sufficient to cut him off.

Section 8309, Revised Statutes 1909 (Sec. 7328, R. S. 1919), or the part thereof involved here, is as follows:

“All real estate . . . belonging to any woman at her marriage, or which may have come to her during coverture by . . . purchase with her separate money or means . . . shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control.”

Section 8304, Revised Statutes 1909, (Sec. 7323, R. S. 1919), is as follows:

“A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity,, with or without her husband being joined as a party.

These sections of the statute are generally referred to as the Married Woman’s Act and were enacted in 1889.

This is the first time the exact question here involved has been before this court for decision. A great deal of judicial learning has been expended in construing the statute from various angles. The case nearest like this one,on the facts is Farmers Exchange Bank v. Hageluken, 165 Mo. 443. This was an action to foreclose a deed of trust executed by Mrs. Hageluken, in which her husband did not join. She made the defense that she was incompetent to convey the land mentioned in the deed of trust. She acquired title to the land in 1891. The trial court entered judgment foreclosing the deed of trust, and the judgment was affirmed by Court in Banc.

Sherwood, J., speaking for the court, after reviewing prior construction of the same statute in its effect on the separate personal property of the wife, at pag’e 448, said:

“If, under Section 3296 as it originally stood, the personal property and rights in action became a married woman’s separate property and under her sole control; and if as to such property she became a femme sole and could execute alone a valid release for injuries done her, it is difficult to see why larger and more comprehensive rights did not accrue to, and become hers, by reason of the broad provisions of Section 6861, aforesaid. We hold that they did, and that under that section she had full power to contract with, and to deal with, strangers, or indeed with any one else to the full extent of the property rights mentioned in that section, and such contracts when made were followed by such results as attend the contracts of all others. To hold otherwise would be to ignore the plain and broad language of that section, as well as to ignore the evident progress made in our legislation toward the ultimate emancipation of married women from the shackles by which she was fettered at common law, and by the final consummation of that purpose by the enactment of existing statutes. . . .
“The statute was designed to confer on a married woman the legal estate in her land in as full and complete manner and degree, as if she were a femme sole. This is the view taken in Illinois of a statute which provided lhat such property ‘shall be and remain during coverture, her sole and separate property, under her sole control, and be held, owned, possessed and enjoyed by her the same as thought she were sole and unmarried,’ McAllister, J., remarking: ‘An estate so derived is no longer the mere creature of equity, dependent upon its power alone for protection, and its principles for the right of enjoyment; but, in all cases, when by the nature of the gift, bequest, devise, conveyance or deed of settlement, an absolute legal title would be vested in a femme sole, the same title would, under the statute, be vested in a femme covert, and the property be held, owned, possessed and enjoyed by her the same as though she were sole and unmarried. When the estate is thus transformed from an equitable to a legal estate, all of the rights incident to it must be legal rights. So far as the statute goes, her disability and her husband’s marital rights are alike swept away.’ [Cookson v. Toale, 59 Ill. 515.]
“Being the possessor of the legal title, a married woman’s deed must be as broad in its conveying power as that legal title and her capacity to ‘contract and be contracted with,’ and would consequently pass that legal title or it would pass nothing. To hold to the opposite of this would be to reject the plain meaning of the statutory words; to dwarf, cripple and pervert that meaning in utter disregard of the whole history of our progressive legislation on the subject under discussion.
“Instances have been cited in Brown v. Dressier, 125 Mo. loc. cit. 595, where an equitable lien has been created by an imperfect conveyance or contract to convey, following the familiar rule in equity. [Adams Eq. (8 Ed.) 121.] But no instance can be found in the books, either of court-writer or text-writer, where such equitable lien was held to be created, where a transaction took place between a man or woman and third parties, unless the grantor in the attempted conveyance was sui juris, and had the power without assistance, to make a valid conveyance. Such status of sui juris,- and such power to convey, are denied in the case under comment, and yet the poioer to create an equitable lien is asserted.
“For these reasons we shall decline to follow the ruling in Brown v. Dressier, but on the contrary declare that Isabella received a full complete legal title by reason of the quitclaim deed made to her; and that she conveyed a title of like nature when she executed the deed of trust. And further that her husband was not a necessary party in this litigation.”

In Riggs v. Price, 277 Mo. 333, Walker, J., speaking for Court in Banc and discussing the competency of a husband to testify in a suit brought against his wife involving her separate real estate, where the husband’s status as a competent witness depended on his interest in his wife’s separate real estate, at page 351, said:

“This reasoning would have been more cogent if he had been made a party to the suit and his right to testify had been based on an interest acquired in his wife’s property prior to the enactment of the Married Woman’s Act in 1889, when the husband was, upon the birth of living issue, seized of an estate for life in his own right as a tenant by the curtesy initiate. Since the enactment of this statute, however, the wife as to the control and conveyance of her separate property is sui juris, and as such clothed with the right to sell her land and make a deed thereto independent of her husband. The- consequent effect of this grant of power is to destroy the tenancy by the curtesy initiate, because it can no longer exist as an estate or interest in the husband in the presence of the wife’s complete power of disposal of her property, but is reduced to a mere interest in expectancy.
“This conclusion finds its sufficient support in the language and purpose of the Married Woman’s Act itself, which provides as to the matter here at issue,, that she shall be deemed a femme sole, so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her; and that, in law or equity, she may sue or be sued without her husband being joined as a party. [Sec. 8304, R. S. 1909.]
“In construing this statute, we have explicitly held in Farmers’ Bk. v. Hageluken, 165 Mo. 446, that it empowers a married woman to convey her real estate without joining her bus-band in the deed.”

The Riggs case is the latest expression of Court in Banc in approval of tlie ruling made in the case of Bank v. Hageluken, supra. Four of the judges concurred. Woopson, J., did not sit; Fajris and Williams, JJ., concurred in the result and in all except the paragraph from which the quotation is taken.

Kirkpatrick v. Pease, 202 Mo. 471, was a suit for specific performance of a contract to sell the separate real estate of the wife. The contract of sale was made by the wife’s agent and the sale was subsequently ratified by her in writing. The husband was made a party defendant in the specific performance suit. The sub-stance of the petition is set out in the opinion, and it appears therefrom that Mrs. Pease’s husband in all things concerning the sale of the land and in the ratification thereof co-operated with her. The court found the husband did co-operate. The language used by Judge Lamm at page 490 is as follows:

“A married woman, as our statutes now run, is clothed with the right to sell lands held by her in her own separate right as her - own separate property. [Farmers Exchange Bank v. Hageluken, 165 Mo. 443; R. S. 1899, secs. 4335, 4340.] She may make a deed thereto as a femme sole; hence:, she may give authority to an agent to contract a sale, and it follows that she may ratify the act of her agent. ’ ’

While the above language possibly was not necessary to the decision in the Kirkpatrick case, it is very illuminating upon the view which that learned judge had of the effect of the decision of the Hageluken case.

Evans v. Morris, 234 Mo. 177, was a suit in equity to establish a resulting trust in certain lands. The trial court refused to admit in evidence a deed signed by two married women conveying their separate property wherein their husbands did not join. Brown, J., speaking for the court, at page 186, said:

“This deed was objected to and excluded on the ground that the said Eliza E. Shifflett and Dora E. Evans were then married women, and incapable of making a deed without their husbands - joining them. The trial court committed error in excluding this deed, because these ladies, if they had attained the age of eighteen, were competent to transfer by their deed whatever interest they -owned in the land, without their husbands joining them.”

In First National Bank v. Kirby, 175 S. W. l. c. 930, Brown, C., referring to Sections 8304 and 8309, Eevised Statutes 1909, said:

“It is evident that these statutes, purporting to secure a married woman’s property to her own use, with the right to contract with reference to it as if she were unmarried, and to permit it to be taken in execution for lier debts, could be of little use to her should she continue to be tied hand-and-foot with disabilities in handling it. The ability to make contracts necessarily implies the grant of the ability to perform them, by removing the restrictions that had disabled her from handling the property with which she must respond to their obligations ; and this court has so construed these statutes.”

The learned commissioner then refers approvingly to Bank v. Hageluken, supra. See also Bank v. Kirby, 269 Mo. 285, 190 S. W. 597, on second appeal.

The language used in some of the Missouri cases may be said to throw some doubt on the correctness of the ruling in the Hageluken case, although that case has never- been overruled or even criticised. In Moseley v. Bogy, 272 Mo. l. c. 328, White, C., said:

“The Married Woman’s Act of 1889 applied to this property because the marriage took place in 1890. The husband’s common-law curtesy was a mere life estate, contingent on his outliving her. The wife had entire control and management of her real estate, and enjoyment of the usufruct free from her husband’s control. She could convey it without his joining in the deed and pass a fee simple title, subject only to the contingency that he might outlive her and claim his curtesy in it.”

In the Moseley case the wife died seized of the property and the surviving husband was claiming curtesy in such property which the wife had undertaken to devise by will to her children.

In State v. Keller, 174 S. W. 67, which was a murder case wherein defendant had been refused an instruction telling the jury the defendant had the right to convey her separate property without the consent of her husband and without his joining in the deed, Fakes, J., held that the refusal was not error on other grounds, and in passing expressed his doubt' of the correctness of the rule attempted to be laid down in the refused instruction.

In Teckenbrock v. McLaughlin, 246 Mo. 711, Blair, C., expressly refrained from stating any opinion as to the right of the wife to defeat her husband’s curtesy in her separate real estate by her deed of conveyance independent of his joinder therein. In that case the wife had lost her suit to contest her mother’s will, and a second suit, had been brought by her, in which her husband joined. It was held that the Married Woman’s Act had wiped out the husband’s present interest in his wife’s property, and that the husband could not maintain such will contest.

In Brown v. Dressler, 125 Mo. 589, Brace, J., held that the Married Woman’s Act did not give the wife the power to dispose of her separate real estate without her husband had joined in the deed, as required by Section 2396, Revised Statutes 1889, but recognized her power to bind her separate property by a lien for the purchase price. Section 2396, Revised Statutes 1889, was carried forward from the 1879 Revised Statutes.

In the Hageluken case the court declined to follow the case of Brown v. Dressler, supra, thereby in effect holding that the provisions of Section 2396, Revised Statutes 1889, did not limit the power of the wife to convey her separate property, in view of the enactment of the Married Woman’s Act.

Section 2396, Revised Statutes 1889, was carried forward as Section 901, Revised Statutes 1899. In 1905 the General Assembly repealed Section 901, Revised Statutes 1899, and enacted a new section in lieu thereof. The first sentences of the repealed Section 901 and the new Section 901 are identical, and read as follows:

“A husband and wife may convey the real estate of the wife and the wife may relinquish her dower in the real estate of her husband, by their joint deed acknowledged and certified as herein'provided.”

The enactment of 1905 was carried forward as Section 2788, Revised Statutes 1909, and Section 2175, Revised Statutes 1919. .The decision in the Hageluken case declining to follow and practically overruling the case of Brown v. Dressier, which was based on Section 2396, Revised Statutes 1889, was handed down December 3, 1901. It is fair to assume that the Legislature in 1905, in re-enacting that portion of the statute, adopted the construction in effect put upon said section by the Supreme Court in 1901 in the Hageluken case, by declining to follow Brown v. Dressler, supra.

In Myers v. Hansbrough, 202 Mo. 495, the facts were that after the death of the wife seized of the property in question, the public administrator, under order- of the probate court, took possession of the property of the wife to collect the rents therefrom to pay the debts of her estate. The deceased wife had not encumbered the property to secure the debts. Division One of this court, in an opinion by Valltant, P. J., held that the surviving husband had an estate in said property by the curtesy consummate, which could not be postponed' or defeated by the creditors of the deceased wife. The facts are entirely different from those in the Hageluken case, and the two cases are thereby clearly distinguished.

Walker, J., in Riggs v. Price, supra, distinguished that case from Myers v. Hansbrough on the ground that in the latter case the husband had an estate by the curtesy consummate, while in the Riggs case he had only an estate by the curtesy initiate. Continuing the discussion of the Myers case, and incidentally the case of Teckenbrock v. McLaughlin, supra, Judge Walker, at page 353, said:

“The sole question upon which the language of the court could have any ruling force was one of preference between the creditors of the wife who had no lien, and the husband, as the owner of the estate by the curtesy consummate. This was independent of any consideration of the interest of the husband during the life of the wife. The expression, therefore, in that case, that curtesy initiate constitutes a vested interest cannot reasonably be construed as more than a passing remark, and being responsive to no issue is determinative of nothing. Otherwise construed, the effect .of the Myers case is to declare that a husband can have a vested interest by the curtesy initiate in his wife’s real estate, contemporaneously with her power under the statute of 1889, to convey same and invest the grantee with an absolute fee therein. Such a construction limits the letter and destroys the purpose of the Married Woman’s Act. It is repugnant to reason, and despite the remark made in Teckenbrock v. McLaughlin, 246 Mo. l. c. 717, that ‘there are two lines of authority in this State-on this question,’ the rulings here and elsewhere will be found in accord with that in the Hageluken case. The Teckenbroek case did not attempt, nor was it necessary for it*to define the nature of a husband’s interest as a tenant by the curtesy initiate in his wife’s property since the enactment of the Married Woman’s Act. All that it did decide was that when suit was brought by a husband and ivife to set aside a will, it' could not be maintained on the ground of the husband’s interest as tenant by the curtesy initiate in the property of his wife acquired by descent since the statute of 1889. That nothing therein gave any "authority to the maintenance of an action of this character under Section 555, Revised Statutes 1909, defining who may contest the validity of wills; and for the additional reason that the issue was res adjudicata, in having been determined in a former proceeding identical in its character.”

In the case of Donovan v. Griffith, 215 Mo. 149, the facts were that the wife died seized of the equitable title to land bought with her separate means. The husband had taken the legal title in himself. The issues involved were whether the husband had an estate by the curtesy in such land, the effect of the death of the child beforseizin in the wife, and whether partition of the land could be had. Conveyance by the wife was not in the case. Fox, P. J., at page 162, said:

“In Myers v. Hansbrough, 202 Mo. 495, it was expressly ruled that the Married Woman’s Statute, Section 4340, Revised Statutes 1899, which is the same as Section 6869, Revised Statutes 1889, did not further impair the rights of the husband’s estate by the curtesy in land held by the wife as her separate equitable estate than to take away from the husband his common-law right to the possession and usufruct of the land during the life of the wife.
“Applying the doctrine as announced in the cases above indicated, it is clear that the law is well settled in this State that a husband is entitled to curtesy in the equitable separate estate of the wife, and the provisions of ■ Section 4340, which is denominated the Married Woman’s Statute, has in no way changed the rights of the husband other than to the extent as heretofore indicated.”

This case cannot be regarded as out of harmony with the ruling in the Ilageluken case, because the wife died seized of the property.

It appears from the above cases that there - is a strong trend of opinion of this court toward the view that the Married Woman’s Act has completely emancipated married women in respect to their separate property and that they, now have full power under the Married Woman’s Act to dispose of their separate real estate without joinder of the husband in the deed of conveyance. This is the ruling in the Hageluken case clearly and unqualifiedly. Some subsequent decisions have thrown some doubt about the rule laid down in that case without in any wise overruling 'or even seriously criticising it.

It is difficult to understand how full force and effect can be given Sections 8304 and 8309, Revised Statutes 1909 (Secs 7323 and 7328, R. S. 1919), without holding that, where the wife during her lifetime has conveyed her separate real estate, the estate of the husband, both by the curtesy initiate and by the curtesy consummate, in such property is thereby completely wiped out, regardless of his failure or refusal to join in her deed of conveyance. Only by so holding can her separate real estate be truly said to “be and remain her separate property and under her sole control. ’ ’ If, when dealing on her own account,- she cannot contract debts which may be satisfied during her lifetime out of her separate real estate to the exclusion of her husband’s present or prospective interest therein, then she cannot be truly said to be able to carry on and transact business on her own account as a femme sole. To declare that her husband has an indefeasible interest in her separate real estate; unless he has joined, her in conveying same, is to put restrictions on her nse of her separate property and to cripple her activities as a femme sole.

The argument that such construction gives the wife more rights in her husband’s separate property than he has in hers is one that might be very persuasive if made to the Legislature. It has no place and can avail nothing as a legal argument before a court.

The rights of the husband by the curtesy consummate in the separate lands of wife of which she died seized are not involved here. In determining those rights in a proper case, full effect will necessarily be given to the provisions of Section 536, Revised Statutes 1909 (Sec. 506, R. S. 1919).

We hold as under the facts in this case that where the wife during her lifetime has conveyed her separate real estate without joining the husband in the deed of conveyance, the husband, after her death, cannot assert any interest in such real estate by virtue of being the surviving husband.

It follows that respondent had no right of possession or any interest in the premises in controversy at the time that the suit was filed or thereafter, and that the verdict of the jury was for the right party. The order of the trial court granting a new trial is reversed and the cause remanded with directions to set aside the order granting a new trial and to reinstate the judgment on the verdict of the jury.

All concur.


source: Caselaw Access Project

author: MOZLEY, C. PER CURIAM:

license: Public Domain

text:
    WARD ABERNATHY, by JAMES SHEPARD, Curator of Estate of WARD ABERNATHY, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    March 9, 1921.
    1.JUDGMENT: Collateral Attack. A judgment rendered by a court of another state possessing jurisdiction of the subject-matter and of the parties, cannot be collaterally attacked in the courts of this State.
    2. —-: -: Fraud: Raised by Reply. Plaintiff, a minor, sued in this State, by his curator, for damages for personal injuries received in Kansas. The defendant pleaded that the father of plaintiff had been appointed his guardian by the probate court of the county in which the accident occurred, that said guardian had instituted suit in the district court of said county, that counsel for both parties appeared and it was agreed that judgment should be rendered for plaintiff in a certain amount, that judgment in said amount was rendered, and that the amount had been paid to the clerk of said court for use of said guardian. In his reply, plaintiff alleged that the order of the probate court appointing plaintiff’s guardian and the judgment of the district court were procured by fraud, deception and misrepresentation practiced upon those courts by defendant and were void, and that, certain attorneys, mentioned in said judgment as counsel for the plaintiff, did not represent him in said courts. Held, that the courts of Kansas having jurisdiction of the parties and of the subject-matter of the cause of action, with full power to hear and determine it, and having heard and determined it by said judgment, and the amount having been paid to the clerk tor the use of plaintiff’s guardian, plaintiff cannot now successfully attack said judgment collaterally by allegations in his reply in the Missouri action to the effect that said judgment was procured by fraud and deception practiced by defendant upon the courts in the act of procuring said judgment; but said judgment is a bar to his said action.
    3. -: -: Errors Apparent on Face. A judgment void on its face binds no one, but may be attacked collaterally in any court in which it is invoked. But a judgment rendered by a court of competent jurisdiction cannot be set aside in a collateral proceeding on account of mere irregularities or errors apparent on its face.

      4. .-: -: Attorneys: Power to Represent Plaintiff. In a collateral attack on a former agreed judgment rendered in behalf of plaintiff, an allegation that certain attorneys did not represent him in said former action is effectually disposed of by a recital in said judgment that said attorneys appeared for him.
    Appeal from Benton Circuit Court. — lion. C. A. Galvird, Judge.
    Reversed.

      J. F. Green and C. D. Corum for appellant.
    (1) This clearly was a collateral attack on these judgments, as' is shown by the following authorities. Johnson v. Realty Co., 167 Mo. 341; State ex rel. v. Merchants & Miners Bank, 213 S W. 817; 14 Current Law, p. 390; Gunby v. Cooper, 177 Mo. App. 356. (2) The procedure here presented clearly constitutes a collateral attack on these judgments for fraud in the procurement of them and they are invulnerable to attack in this way. State ex rel. v. Merchants & Miners Bank, 213 S. W. 818; Lovett v. Russell, 138 Mo. 482; Rivard v. Railroad, 257 Mo. 168; Maxwell v. Quinby, 90 Mo. App. 473; Abbington v. Townsend, 271 Mo. 615; State ex rel. v. Ross, 118 Mo. 46; Johnson v. Realty Co., 167 Mo. 339; Morris v. Sadler, 74 Kan. 892; Simpson v. Kimberlin, 12 Kan. 579; Pritchert v. Madern, 31 Kan. 38. (3) The facts alleged in plaintiff’s reply are insufficient to justify the setting aside these judgments even in a direct proceeding. If plaintiff had sought, by his petition filed in the District Court of Crawford County, Kansas, to set the judgment rendered by that court aside and had based the right to do so on the averments contained in this reply, such petition would be demurrable. It is well-settled law that before a judgment can be set aside for fraud, even in a direct proceeding instituted for that purpose, that the plaintiff must allege and prove that fraud was practiced in the very act of procurement of the judgment. It will be noticed that the reply in this case does not allege any fact tending to show any fraud in the procurement of the judgments rendered by the Kansas courts, but it is simply based on the alleged ground that fraudulent representations were made to the plaintiff’s guardian which induced him to consent to the judgment entered in the probate court and to settle his case for an inadequate amount, and that these representations were made to him by defendant’s agents outside of the court room and prior to the rendition of the judgments by the probate court, and, of course, prior to the rendition of the judgment in the District Court of Crawford County, Kansas. These averments would not satisfy the requirements of the law even in a direct proceeding assailing these judgments. Murphy v. De Prance, 101 Mo. 157; Payne v. O’Shea, 84 Mo. 133; Plamilton v. McLean, 130 Mo. 678; Nichols v. Stevens, 123 Mo. 96; Story on Equity Juris. (11 Ed.) sec. 1582; Railroad v. Mirrieless, 182 Mo. 126; Pears v. Riley, 148 Mo. 49; McDonald v. McDaniel, 242 Mo. 176; Trust Co. v. Stoneware Co., 197 Mo. App. 148; Cantwell v. Johnson, 236 Mo. 600 ; Wolf v. Brooks, 177 S. W- 337; McGillvray v. Assurance Co., 46 L. R. A. (N. S.) 110; Crouse v. Mc-Vickar, 207 N. Y. 213.; United States v. Beebe, 180-U. S. 344, 45 L. Ed. 563. (4) The court erred in not giving the judgments of the probate and district courts of Kansas the full faith and credit required by Section 1 of Article IV of the Constitution of the United States. Tootle v. Buckingham, 190 Mo. 196; Lieber v. Lieber, 239 Mo. 29; Railroad v. Deer, 200 U. S. 176; Harris v. Balk, 198 U. S. 215; Bindley v. Railroad, 47 Kan. 432; Morris v. Sadler, 74 Kan. 892; Anthony v. Halderman, 7 Kan. 50; G-arner v. State ex rel. Moon, 28 Kan. 790; Pritchard v. Madren, 31 Kan. 38.

      C. W. Prince, E. A. Harris, W. 8. Jachson, and James N. Berry for respondent.
    (1) The so-called release and discharge is void ab initio for the reason that the “journal entry” shows upon its face that the plaintiff was a minor, that a “jury” was “■waived” and that judgment was based upon the “agreement” of the parties.. The rights of infants can be extinguished only by legal proof; nothing can be waived; the guardian was utterly lacking in power to “waive” the substantial right of trial by jury, and the court was lacking in power to effectuate such waiver. Bevely v. Skinner, 33 Mo. 101; McClure v. Frithing, 51 Mo. 109; Le Bourgeoise v. McNamara, 10 Mo. App. 119. (2) An infant is incapable of making an admission which can effect his rights, and for a stronger reason an admission of another person made on behalf of the infant cannot affect his rights. Fink v. Bailroad, 161 Mo. App,., 314, 143 S. ~W. 568. (3) A guardian is without power to waive or consent to anything in cases involving rights of minors. Full proof must be made. Bevely v. Skinner, 33 Mo. 100'; McClure v. Farthing, 51 Mo. 109; Fink v. Bailway, 161 Mo. App. 324; Bailway Co. v. Lasca, 79 Kan. 311. (4) The discharge proved by defendant was a mere “journal entry” furnished by defendant’s counsel and filed in court. It lacked the- verity of a judgment and was not signed until ten years after it was filed and then by a man whose judicial powers had terminated many years before, a mere afterthought and makeshift in a vain attempt to validate a worthless document. But in addition to this a judgment is not such until it is rendered, and in Kansas even after rendition, is not complete until the record itself is signed by the judge. 1909 Kan. Gen. Stat. secs. 6008, 6010. (5) But whether it be called a direct or collateral attack to impugn a judgment by an answer or reply our statutes expressly authorize that thing to be done. Sec. 1812, B. S. 1909. (6) Though collateral attack is permissible where the judgment is infected with a jurisdictional flaw, an attack in reply on a release pleaded in the answer is direct and not collateral and a fortiori an attack on a judgment so pleaded is direct and not collateral. Harms v. Casualty Co., 172 Mo. App. 248; Martin v. Tumbaugh, 153 Mo. 172; Wonderly v. Lafayette, 150 Mo. 626; Engler v. Knoblaugh, 131 Mo. App. 481. Fraud which goes to the jurisdiction of a court may be shown in response, when a judgment entered by a court thus lacking jurisdiction, is sought to be enforced. Fraudulently simulating appearance by attorney is such a fraud, and judgments based thereon are open to collateral attack. Palmer v. Bank, 213 S. W. 873; Marx v. Fore, 51 Mo. 74; Eager v. Stover, 59 Mo. 87; Napton v. Leaton, 71 Mo. 358; .Hayes v. Merkle, 67 Mo. 57; Hayes v. Merlde, 78 Mo. 383; Hanks v. Hanks, 218 Mo. 673. (8) In Missouri a foreign judgment may be attacked when set up, and the want of jurisdiction and fraudulent simulated appearance may be shown by response. If obtained'by fraud and without jurisdiction it is no judgment at all and absolutely void and will be so declared if the fact is made to appear; the defense goes to its very existence. Marx v. Pore, 51 Mo. 74; Palmer v. Bank, 218 S. W. 873. (9) Citizens are not driven to foreign states to protect their rights. If they have a legal right, or are being subjected to a wrong they may look for protection to the tribunal having jurisdiction over them and the subject-matter, if the opposite party has placed himself within this jurisdiction. Marx v. Pore, 51 Mo. 74; Palmer v. Bank, 218 S. W. 873. (10) On objection of the defendant the court excluded the testimony of J. A. Van Houten, clerk of the District Court of Crawford County, Kansas, to the effect that the records and files of the court had been materially and unlawfully altered. The excluded proof is competent for this court to consider, bedause the respondent may point out errors committed by the trial court against him in order to sustain judgment in his favor. Savings Bank v. Denker, 205 S. W. 208. (11) The inference of authority arising from the words “attorneys for plaintiff” following the words “Curran and Curran” in the proceedings in the district court of Kansas was destroyed by the positive testimony of Burl Abernathy that he had not employed them. The issue thereon thus became ipso facto resolved in plaintiff’s favor as a matter of law. Guthrie v. Holmes, 272 Mo. 215; Mockowik v. K. C. Ry. Co., 196 Mo. 550.
   MOZLEY, C.

This suit was instituted on the 13th day of February, 1917, in the Circuit Court of Benton County, Missouri, - by Ward Abernathy, by the curator of his estate, James J. Shepard. The action was to recover damages for personal injuries sustained by plaintiff by being run over by a car being operated by the Missouri Pacific Railway Company at Cherokee, Kansas. The injury occurred on the 10th day of September, 1905. The petition states a common-law action for negligence, in that defendant negligently and carelessly backed a string of its cars on a side track with such force against a stationary car as to run it against and over plaintiff and so injury him that both of his legs had to be amputated, all of which, it is alleged, was done without the exercise of ordinary care, which, had it been exercised, would have disclosed plaintiff’s presence and his situation of imminent peril. Recovery was sought under the humanitarian rule. The petition alleges that plaintiff was a minor, nineteen years of age, when the present action was brought, and that he was seven years of age when the accident happened,- — thus disclosing a lapse of twelve years from the date of the accident to the date of the suit.

Defendant answered by general denial, a plea of contributory negligence that defendant railway was defunct, and plaintiff’s father, Burl Abernathy, desiring to make a settlement with defendant, arranged with it to pay plaintiff the -sum of $250 and costs of a friendly suit, which was to-be in full acquittance of all liabilities of defendant in the premises. To this end Burl Abernathy, father of plaintiff, was appointed guardian of plaintiff by the Probate Court of Crawford County, Kansas, the county in which the accident happened and the subsequent .proceedings were had, on the 17th day. of May, 1907, with full power under the laws of said State to collect, manage and dispose of said estate under the order of the court and to do and perform such acts as might be required of him by law or the decree, order, or judgment of any court of competent jurisdiction. Said guardian duly qualified in this behalf and was authorized to; and did, institute suit on May 17, 1907, in the district court of said county and, upon due appearance of both parties to said cause, the plaintiff by Curran & Curran, his attorneys, and defendant by J. J. Campbell, J. J. Richards and C. E. Benton, a hearing was had thereon (a jury being waived) upon the pleadings, evidence and agreement entered into between the parties, judgment was rendered in favor of plaintiff and against defendant for the sum of $250 and $8.40 costs. This sum was paid by defendant to the clerk of said court, for the use of plaintiff to his guardian. Defendant pleaded all the foregoing facts in bar of the present action. Some other matters, alleged to be defensive to the action are pleaded by defendant, but in the view we take of the matter they are immaterial and will not be further referred to.

Plaintiff’s reply was a general denial of the averments of the answer; a plea that the action of the probate court, in appointing plaintiff’s guardian, and of the District Court of Crawford County, Kansas, in rendering judgment for plaintiff, were both void and were procured by fraud, deception and misrepresentation practiced upon them by defendant; that Curran & Cur-ran did not represent the plaintiff in the Kansas courts, and that the judge did not sign the judgment rendered.

I. Plaintiff filed a motion to dismiss the appeal herein on the ground that the assignments of alleged error were not sufficiently specific and distinct in alleging what the supposed error was and, hence, is too general to justify review by us. Under the holding of the later cases it is not necessary for assignments of error to be more specific and distinct than those of the instant case. [Wampler v. Railroad, 269 Mo. l. c. 483; United Rys. Co. v. Reynolds, 278 Mo. 554.] We overrule said motion.

II. Defendant assigns as error the refusal of the court nisi to give its instruction, at the close of the testimony, directing a verdict in its favor. If this position is correct it will dispose of all other questions raised.

III. The judgment of the District Court of Crawford County, Nansas, where the cause originated and was tried, omitting caption, reads as follows:

“Now on this the 17th day of May, 1907, that being a day of the regular May term, 1907, of said court, the above entitled case comes on for trial, plaintiff appearing by Curran & Curran, his attorneys, the defendant appearing by J. J. Campbell, J. J. Richards and C. E. Benton, its attorneys, and a jury having been, waived, said cause is submitted to the court upon the pleadings, evidence and agreement of the parties, on consideration whereof the court finds for the plaintiff, and finds that plaintiff is entitled • to recover the sum of two hundred and fifty dollars and costs of suit. It is therefore considered, ordered and adjudged by the court that said plaintiff have and recover of and from said defendant, the Missouri Pacific Railway Company, the sum of two hundred and fifty dollars and costs herein, taxed at $8.40;

“Arthur N. Puller, Judge.”

Where a court of another state having jurisdiction of the person and subject-matter of the cause of action and full power to hear and determine it and, in pursuance thereof, does hear and determine it by rendering the judgment above set out which was duly paid to the clerk of said court, for the use of plaintiff, to his guardian (theretofore duly appointed by the probate court' of the county and state where said cause was pending), can the plaintiff successfully collaterally attack said judgment by alleging in his replication that it was procured by fraud, deception and misrepresentation practiced by defendant?

The probate court of Kansas had jurisdiction over the subject-matter before it and likewise jurisdiction over the person of Ward Abernathy.

In this collateral attack, the judgments and orders of said court are conclusive and cannot be called in question here. [Pritchard v. Madren, 31 Kan. 38; Morris v. Sadler, 74 Kan. 892; Smith v. Clausmeier, 136 Ind. 105; Oldaker v. Spiking, 210 S. W. l. c. 62, and cases cited; Wright v. Hetherlin, 209 S. W. l. c. 874; Thompson v. Pinnell, 199 S. W. l. c. 1018; Harter v. Petty, 266 Mo. 296.]

It is not necessary to cite authorities on the proposition that a judgment void on its face binds no one and may be collaterally attacked whenever or wherever it comes in the way.

But on the other hand, where the record shows on its face that the court had jurisdiction over the person and subject-matter and hears the cause and renders a judgment fair on its face, the rule is the reverse. See Kansas cases above cited and State ex rel. v. Ross, 118 Mo. 23; Lovitt v. Russell, 138 Mo. 474; Johnson v. Realty Co., 167 Mo. 325; Fitzgerald v. DeSoto Special Road Dist., 195 S. W. 695; Rivard v. Railroad, 257 Mo. 135, l. c. 168; Abington v. Townsend, 271 Mo. l. c. 615; Johnson v. Merchants’ & Miners’ Bank, 213 S. W. 815-16-17; 15 R. C. L. p. 835; State v. Case & Sipes, 217 S. W. 309; Boas v. Branch, 208 S. W. l. c. 86; State ex rel. v. Patton, 271 Mo. l. c. 559.

Nor can a judgment rendered by a court of competent jurisdiction be set aside in a collateral proceeding on account of mere irregularities or errors even where these appear of the face of the record. [15 R. C. L. p. 859; Smith v. Clausmeier, 136 Ind. supra; State ex rel. v. Brandhorst, 156 Mo. 457; Could v. Sternberg, 128 Ill. 510; Hine v. Morse, 218 U. S. 493; Fauntleroy v. Lum, 210 U. S. 230; Johnson v. Realty Co., supra.]

Nor does the contention made by plaintiff that Cur-ran & Curran did not represent him in his former suit in which he recovered damages against defendant, and which was paid to his guardian as above set out, and that said district court neglected to sign the judgment rendered, in anywise alter the situation. Both are effectually disproved by the recitals of the record and judgment in the cause.

As above pointed out plaintiff’s attempted attack on the validity of the appointment of said guardian and upon said judgment are collateral, and cannot be maintained in tbe present action, and it is our conclusion that defendant’s peremptory instruction should have been given.

Let the case be reversed. Railey and White, CC., concur.

PER CURIAM:

The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of .the judges concur.


author: HIGBEE, P. J.

text:
    THOMAS H. COBBS v. JOYCE-WATKINS COMPANY, P. R. WALSH TIE & TIMBER COMPANY et al., Appellants, and McCAULL-DRYER TIE COMPANY, Respondent.
    Division Two,
    March 19, 1921.
    1. FREIGHT RATES: Overcharges: As Between Agent and Consignee. Where the purchaser bore the burden of transportation and paid all the freight charges on railroad ties bought by his agent on commission, as between them he, and not such agent, is entitled to all overcharges made by the railroad.
    2. —;-: -: As Between Vendor and Purchaser. Where the price of the railroad ties to the vendors was the price at the station of destination less the freight charges from the loading station to said destination, and the vendors were paid that price, the freight charges being paid by the consignee, such vendors are not entitled to recover the excess in the overcharge of freight rates made by the railroad.
    3. -: -: -: F. O. B. Destination. The term “f. o. b. St. Louis,” if used at all in the contract for the sale of railroad ties in this case, was not used in its ordinary commercial sense; but the uniform manner of delivery, inspection, acceptance and payment of the purchase price, the assumption of the trouble and expense, by the agent of the purchaser, of ordering cars, loading the ties and paying the freight, and the fact that the vendors had no further interest or concern in the ties or their transportation after they were placed in the loading station yard, inspected and accepted, rebut the implication that the term “f. o. b. St. Louis” was understood as implying that the freight charges should be at the cost of such vendors, and on that term no judgment that they were, as between them and said purchaser, entitled to the excess of the overcharges made by the railroad company can be based.

      4. -: -: -■: Bill of Sal©: Proof. Bills of sale, executed by tbe seller of railroad ties, in which is set forth the name of the buyer, the number of ties sold, the price, the date and number of car by which shipped, and nothing more, while not required by law, the sales and deliveries being complete without them, and the acceptance in payment of drafts from the purchaser which recite that they are given for the purchase price and in settlement of said bills, in the absence of fraud or imposition, characterize the transaction, and furnish indubitable proof that the sellers were not chargeable with the freight charges, and are not entitled, as between them and the said purchaser, to the excess of overcharges in the freight rates made by the railroad and paid by said purchaser.
    5. -: -- — : -: Agreed Freight Bate. Where the seller and purchaser agreed on the price of ties at the station of destination, basing the price on a certain freight rate, if the rate was lower than that rate the seller to have the benefit of it, and if higher he was to stand it; and settlement was made on that basis, the seller is entitled to the excess of overcharges in the freight rate made by the railroad company.
    Appeal from St. Louis City Circuit Court. — Hon. Benjamin J. Klene, Judge.
    Affirmed.

      F. W. Bull, Harry A. Frank and Arthur 8. Lytton for appellant, Joyce-Watkins Co.
    (1) The arrangement with the McCaull-Dryer Tie Company was the same as with the other vendor defendants, and was a contract for the sale of the ties, not delivered f. o. b. St. Louis, and the actual freight charges thereon deducted from the selling price, but a contract, recognized and carried out by the parties, payment made by the Joyce-Watkins Company, that the McCaull-Dryer Tie Company should receive a certain price for the ties at said loading station. (2) The acceptance of the draft in payment of said ties, reciting “in full payment of material named in bill of sale of this date and number” and the written endorsement of the. McCaull-Dryer Tie Company on said draft, created a written contract "between said parties, into which was merged any anterior verbal understanding. (3) The acceptance of the drafts by the McCaull-Dryer Tie Company discharged the fund and securities as well as the Joyce-Watkins Company from any and all claim it now asserts. (4) The McCaull-Dryer Tie Company is now estopped by its conduct and the actions of its agent, Dahlberg, from asserting any claim against this fund or the Joyce-Watkins Company. (5) The counsel for respondent admits that the contract with the Walsh Company and Mc-Oaull was the identical arrangement as was made with the other defendants.

      E, T. & G. B. Allen for respondent, P. R. "Walsh Tie & Timber Co.
    (1) The only person entitled to recover the overcharges is the one who made the contract of affreightment, and from whom their exaction was made. McGrew Coal Co. v. Railroad, 217 S. W. 986; Southern Pacific Co. v. Lumber Co., 245 U. S. 531; State v. Ry. Co., 81 Yt. 46; 3 Michie on Carriers, pp. 1150-51. (2) If it is the intention of the parties that the one is to purchase on his own behalf and sell the goods to the other, the transaction is a contract to sell. Kelly v. Sibley, 137 Fed. 586; Black v. Webb, 20 Ohio 304; Moors v. Kidder, 106 N. Y. 32; Bank v. Logan, 74 N. Y. 568; Simonds v. Wrightman, 36 Ore. 120; 31 Cyc. 1204. (3) The one who directly bore the burden of transportation is the one entitled to the overcharges. Jennison v. Dixon, 133 Minn. 268. (4) The Watkins Company was not the real party in interest, and cannot recover. (5) Whether the Walsh Company was a vendor or an agent is not solely a question of fact; it is also a question of law. (6) The law presumes that á per.son is acting for himself and not as the agent of another, and unless there is proof either that the agency is a general continuing agency to endure until revoked, or that the agent fills some character from which such a general agency may be presumed, the fact that there has been a separate former agency for a different or even a similar purpose, does not raise a presumption of agency as to any subsequent transactions. 2 C. J. 920, sec. 648'.

      T. L. Philips and Arnold Just for interpleaders.
    (1) The parties having used the expression f. o. b. St. Louis in their contracts, the court should give these terms their usual meaning unless good reason to the contrary is shown. Heman Const. Co. v. City, 256 Mo. 339; Liggett v. Levy, 223 Mo. 601; Kansas City v. Pub. Serv. Cómm., 210 S. W. 385; 13 C. J. 531. (2) These appellants sold the ties “f. o. b. St. Louis” and bore the burden of transportation, and are in equity and good conscience entitled to the overcharges. Jennison Bros. v. Dixon, 133 Minn. 268.
   HIGBEE, P. J.

On March 13, 1909, the P. R. Walsh Tie & Timber Company entered into a contract with the Joyce-Watkins Company by which the Walsh Company undertook to act as exclusive agent for the Wátkins Company in purchasing railroad ties in the States of Missouri, Arkansas and Louisiana for a commission of two cents per tie. This contract was to be in force for one year.' The Walsh Company bought ties at various points bn the line of the St. Louis & San Francisco Railroad .in Missouri. The ties were inspected by the Burlington Railroad Company in the field, and by direction of the Watkins Company were billed to the Burlington Railroad Company at St. Louis, where that company received them, and paid the freight charges which were refunded by the Watkins Company when settlement was made for the ties. After the bxpiration of the year, the Burlington withdrew its inspectors from the field, and established a yard in ■ St. Louis, to which ties were shipped and inspected by the Burlington. The Walsh Company thereafter continued purchasing ties, making its own inspection in the field. Ties were purchased at various points bn the line of the Frisco Railroad from tlie other interpleaders and hilled to the Watkins Company at St. Louis over the Frisco road.

The Frisco Railroad Company had sued out a writ of injunction at St. Louis -restraining the state officials from enforcing the maximum freight rates established by Section 3241, Revised Statutes 1909. This Avas dissolved by the United States Supreme Court on appeal in May 1913. Thereafter, on May 27, 1913, the federal court at St Louis appointed receivers for the Frisco Railroad Company. Straightway the Watkins Company filed a claim in said court for alleged overcharges exacted by the Frisco Railroad for carrying the ties above mentioned, specifying the cars, dates of shipment and the excess charges paid on each car. The Walsh Company and all of the other interpleaders, except Hughes and Weatherford, filed similar claims. These claims were adjusted, so that on October 5, 1917, there was paid to the plaintiff, as trustee for all claimants, cash and interest bearing securities of the face value of $99,418.32. On November 12, 1917, plaintiff filed in the circuit court of the city of St. Louis, a petition in the nature of a bill of interpleader against all of the defendants who Avere severally asserting conflicting claims to all or portions of said funds. These various claims were for overcharges exacted prior to May 27, 1913, the date of the Frisco receivership. Thereupon the above-named defendants filed their separate answers and interpleas, admitting the allegations of the petition and asserting their respective claims in the matter of the overcharges paid to the Frisco Railroad Company. Answers and replies were filed by the several interpleaders. The issues thus framed were submitted by the court to the Honorable Davis Biggs, as referee, who heard the evidence and on March 10, 1919, submitted his report and findings on the evidence taken before him. Exceptions to the report were overruled, the report approved, and judgment rendered in accordance therewith. All of the parties, except the McCaullDryer Company, appealed.

I. The referee states the several claims of the inter-pleaders as follows:

“At the argument and in the briefs of counsel it is conceded by all of the various defendants that the claims f each to the overcharges as set forth in ‘Exhibit A’ attached to the intervening petition of the Joyce-Watkins Company are as follows:
“1. The Joyce-Watkins Company claims all of said overcharges, to-wit, $111,941.35.
“2. All of the defendants concede that of the said overcharges the Joyce-Watkins Company is entitled to the sum of $22,093.58.
“3. As against the Joyce-Watkins Company the Walsh Company claims the sum of $86,776.12.
“But of this sum and as against the other defendants, Johnson et al., t’he Walsh Company only claims the sum of $40,388.24, conceding that between it and the defendants, Johnson et al, each of said defendants is entitled to the amount claimed by them, respectively, which claims of the other defendants are as follows:
“Schneider Brothers................$ 478.88
McCaull-Dryer Tie Company......... 452.70
Hughes. ...:..........:............. 3,141.60
Angerer......................... 9,087.83
Weatherford........................ 2,675.56
Abeles............................ 4,852.86
Johnson............................ 26,696.56
Fisher Brothers ...................... 2,076.33
“The Walsh Company makes no claim to any overcharges on cars shipped prior to June 15, 1910, the tinm that the defendant Joyce-Watkins Company established a tie yard in the City of St. Louis, which shipments aggregate the sum of $25,166.02.”

Walsh, the president of the Walsh Company, had been buying ties for the Watkins Company since some time in the year 1908. On March 13,1909, the Walsh Company, as first party, and the Watkins Company, as second party, entered 'into a written contract which contains the following provisions:

“The first party, without expense to the second party, is to act and will use its best endeavors as the exclusive agent of the second party in the states of Missouri, Arkansas, Oklahoma and Louisiana, for the purchase of all kinds of railroad ties.
“Second party is to pay first party a commission of 2c on each railroad tie which the first party shall buy fo*’ the second party in any of the said four states at a price and on terms which shall be statisfactory to the second party.”

Walsh purchased ties from the other interpleaders at points along the line of the Frisco Railroad. Walsh and the defendants from whom he bought ties testified that he purchased them f. o. b. St. Louis, on the basis of the St Louis price. Walsh deducted from this price the freight from the loading stations to St. Louis, sometimes giving the sellers a check drawn by the Walsh Company on its own funds, but generally giving a draft on the Joyce-Watkins Company for the difference between the St. Louis price and the freight rates as charged by the railroad company. At first some of the sellers waited until the freight bills were returned before the settlement was made. Finally, to save delay, it was agreed that the average weight of the ties was 150 pounds each, and the freight was reckoned on that basis. Settlement was then made accordingly by draft as aforesaid. Usually a bill of sale was made by the seller of the ties, of which the following is a sample:

“Date Sept. 22nd, 1910. No. 17516.
“The undersigned hereby sells to Joyce-Watkins Co., of Chicago, 111., the following described material, certifying that the same is free from all liens and encumbrances of any character:
“Located at Anaconda, Mo.
“1185 No. 1 R. O. ties at 33y2c..........$396.97
“180 No. 2 R. O. ties at 16%c............30.15
1365 427.12
“Prisco 82215 1/431, 2/69
“Prisco 82669 1/392, 2/73 “Frisco 49762 1/362, 2/38
“J. W. Johnson, Vendor.”

The Walsh Company, as stated, makes no claim for the overcharges exacted prior to June 15, 1910, admitting that it was acting as purchasing agent during that period. It claims, however, that on the expiration of the contract of March 15, 1909, it made a new verbal contract with the Watkins Company which was put in writing on June 27, 1913, a month after the appointment of the receivers, and that under that contract the Walsh Company ceased to act as agent for the Watkins Company and expressly bound itself to pay all freight charges on ties it thereafter purchased for and shipped to the. Watkins Company, and that the Walsh Company is, therefore, entitled to the overcharges paid after June 15, 1910, when the tie yard was established in St. Louis. The referee found that issue against the Walsh Company.

There was conflicting evidence on this point. Prank W. Werner, secretary of the Watkins Company, and A. R. Joyce, assistant secretary and assistant treasurer thereof, testified that there was no new contract entered into with the Walsh Company, and that Walsh continued to buy ties as agent for the Watkins Company on a commission of two cents per tie. The change in their method of conducting business was that after June 15, 1910, the Burlington inspectors were withdrawn from the field, Walsh inspected the ties, drew drafts on the Watkins Company for the cost of the ties at the loading points, paid the freight to the Railroad Company by drawing-drafts on the Watkins Company therefor, and the commissions were settled monthly. The books of the Walsh Company, which were introduced, showed that it continued during the whole period to charge the Watkins Company with commissions at two cents per tie, which were settled monthly.

The testimony of Walsh, taken at the former hearing, was read in evidence. We quote from that as follows: '

“Q. How long did you continue to operate under that contract? A. One year.
“Q. At the end of one year what then happened? A. Well, we continued doing business right along practically on the same method.”

We think the referee Avas clearly warranted in finding that the Walsh Company bought the ties as agent for the Watkins Company after, as well as before, the expiration of the contract of March 13, 1909, and that it paid all the freight charges on the ties bought by the Walsh Company prior to May 27, 1913.

It Avas admitted by Walsh before the referee that the Watkins Company was entitled to all overcharges on ties purchased by the Walsh Company as its agent. The Watkins Company paid all the freight charged by the Frisco Railroad. It Avas, in fact, both consignor and consignee. It bore the burden of the transportation and, as against the Walsh Company, is clearly entitled to recover the overcharges.

In Jennison Brothers v. Dixon, 133 Minn. 268, the facts were: Dixon, a merchant at St. Charles, at various times bought flour and feed from the plaintiff in carload lots at Janesville, to be delivered by plaintiff at St. Charles, at an agreed price per barrel for flour and per ton for feed. Defendant paid the freight bills and was credited therefor on the purchase price. It developed that the freight charges were in excess of the legal rates. The excess was refunded by the railroad to the defendant. Plaintiff sued to recover the money so refunded. It was held that, as plaintifl: had borne the excess of such transportation, he was entitled to recover, citing State v. Central Vermont Ry. Co., 81 Vt. 459, 71 Atl. 193, 21 L. R. A. (N. S.) and other cases.

This question was considered by this court in McGrew Coal Co. v. Mo. Pac. Ry. Co., 280 Mo. 466. In that case plaintiff had quoted to its customer a price for coal f. o. b. destination. The coal was shipped by plaintiff from Myrick to Blackwater, points on defendant’s railroad. The court said, at page 475:

. “The stipulation stated that the plaintiff, instead of quoting to his customer a price for the coal f. o. b. at Myrick, quoted a price delivered at its destination. This means that the coal was sold to the consignee f. o. b. at .the station of destination. When the coal was delivered the purchaser paid the illegal freight bill and settled his account with the plaintiff by sending him the defendant’s receipt for the amount of freight paid, with the balance' in cash. The transaction of sale stated in the stipulation was a simple one. According-to its terms the less the purchaser of the coal paid for freight the more the plaintiff received in net proceeds from the transaction. The more he paid for freight the less the plaintiff received for his coal.
“The stipulation states that plaintiff’s quotation to the purchaser ‘was based upon the price at Myrick, plus the freight rate charged by the defendant. ’ This is probably true. The value of all commodities is based on all the conditions of cost, including transportation. When the consignee of this coal sold some or all of it to his customer, he no doubt based the price upon the cost of the coal in his yard, including the illegal charge paid to the defendant, but this would not transfer the right to bring the suit for the overcharge. We cannot see that the plaintiff stands on any different footing from that upon which it would stand had it paid the freight in advance. While it would, no doubt, then take it into consideration as an element in the selling price of his commodity, that fact would have no effect upon the liability of defendant for the illegal exaction.
“This litigation illustrates the just and salutary operation of the rule. The defendant had the physical power to enforce its illegal claim by withholding the delivery. The right of each consumer upon whom the burden ultimately falls to pursue the tortuous course of litigation which has resulted from these transactions would be a barren one. The remedy, to be effective, must lie with the shipper with whom the contract is made, and the amount of the recovery measured by the amount which he is, either directly or through his consignee, forced to pay. This conclusion is well supported by the authorities. [Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U. S. 531, 38 Sup. Ct. 186, 62 L. Ed. 451, 221 Fed. 890, 137 C. C. A. 460; Burgess v. Freight Bureau, 13 Interest. Com. Comn. R. 668, 680; Jennison v. Dixon, 133 Minn. 268, 158 N. W. 398.] ”

II. We come now to the consideration of the claims of the other defendants (except that of the McCaull-Dryer Co). Their testimony and that of Walsh was that the ties were- sold on the basis of the St. Bouis prices, f. O. b. St. Louis. As previously stated, some of thése defendants preferred to wait until the freight bills were returned, when the representative of the Walsh Company deducted the freight from the St. Louis price and paid the seller the difference. To avoid the delay incident to this course of dealing, by mutual consent, they adopted the plan of reckoning the freight on the basis of 150 pounds per tie, which all agreed was the average weight. On each delivery of ties at the loading stations the freight was accordingly deducted from the St. Louis price and the difference paid to the seller, as the price of the ties, by drafts, as heretofore stated. Usually, but not always^ each of the defendants at the time signed a bill of sale to the Watkins Company for the ties so delivered. They were then loaded by representatives of the Walsh Company at its expense and consigned in the name of that company to destination. This method, we think, was adopted to fix the price of the ties at the loading stations. We quote from the testimony of one of the defendants:

“Q. Mr. Angerer, you stated that this price that Walsh gave you was the St. Clair price: what did you mean by that? A. Well, my price, to arrive at a St. Clair price we took the St. Louis price on the ties and then took the freight rate from St. Clair on the basis of a hundred and fifty pounds to the tie and deducted it. That left us the St. Clair price.”

' The defendants took their money and had no further interest or concern about the ties. They were in no sense shippers. They did not load nor incur any of the trouble or expense of loading, nor assume the obligation or relation of consignors. If the ties had been lost or destroyed in transit, would the loss have fallen on them? Had either- of them the right of stoppage in transitul If the freight paid had proven to have been less than the legal rate, would these defendants have been liable in an action by the carriers to recover the undercharge? [Mobile and Ohio Railroad Co. v. Laclede Lumber Co., 216 S. W. 798.] Under the undisputed testimony the referee was right in holding that the title passed to and vested in the Watkins Company at the time of each delivery and settlement at the loading stations. The delivery was complete, the purchase price was paid, the contract was executed.

III. It is, however, contended that the contract of sale, in its inception, was made on the basis of the St. Louis price f. o. b. St. Louis, and that this term of the contract is determinative of the issue. If that Hue, then it follows that the ties while in transit were at the risk of these defendants. ^ We think that the course of dealing shows-that these words were not intended to be used, if they were used at all, in their ordinary commercial sense. The uniform manner of delivery, inspection, acceptance and payment of the purchase price, the assumption of the trouble and expense by the Walsh Company, as agent of the Watkins Company, of ordering cars, loading ties, payment of freight, and the fact that these defendants had no further interest or concern in the matter, rebut the implication that the words “f. o. b. St. Louis” were understood as implying that the freight charges should be at the cost of the sellers' of the ties. [United States v. Andrews, 207 U. S. 229-241.]

But the stubborn fact remains that on the delivery of the ties the seller, not always, as claimed by the Watkins Company, but usually, executed a bill of sale to that company, reciting the price paid and specifically describing the ties sold and delivered. The drafts also1 recited that they were given for the purchase price.

While these sale bills were not required by law and the sales and deliveries were complete without them, still they cannot be brushed aside as merely intended to identify the particular ties delivered, as contend-ed by counsel. In the absence of fraud or imposition they definitely and conclusively characterize the transactions. They furnish indubitable proofs of the execution of the contracts according to their terms. Judge Lamm well said: “When men sit down to put a contract in writing and do so the presumption is they write all there is of it. All prior or contemporaneous verbal conversations relating to the subject-matter are merged in in the writing.” [Beheret v. Myers, 240 Mo. 58, l. c. 75.] Further citations on a proposition so elemental would be mere affectation of learning.

IV. There is no merit in the objection that the bills of sale do not specify either time or place of delivery.' They bear witness to executed, not .executory, contracts. The sales and deliveries were accomplished. We quote from the report of the referee:

“In those instances where the defendants did not accept drafts and execute bills of sale, they nevertheless delivered the ties to the Walsh Company at the loading stations and gave up. th.eir title there. The legal effect of such method of business was to make these transactions sales at the loading stations, and not even f. o. b. cars at the loading stations, at the St. Louis price at the then rate of freight charged by the railroad, estimating each tie to weigh 150 pounds.

“This cannot be said, however, of defendant McC'aull Company. Mr. McCaull testified that he and Walsh agreed on a price for the ties at St. Louis, basing it on an 8% cent freight rate; that if the rate was lower than Sy2 cents he was to have the benefit thereof; if it was over he would have to stand for it. It is undisputed that the method of carrying on the business with the McOanll Company was different than with the other defendants, in this, that the McCaull Company always rendered invoices to the Walsh Company for the St. Louis price, less the freight charges, after the ties were shipped. The Walsh Company would pay such invoices by mailing the McCaull Company a draft on Joyce-Watkins Company.”

The conclusion of the referee is that the McCaullDryer Company was entitled to judgment for the overcharges exacted on the shipment of the ties sold by it. Walsh, as agent of the Joyce-Watkins Company, contracted with McCaull. In legal effect, that company and Mc-Caull mutually agreed on a price for the ties at St. Louis, basing it on an 8% cent freight rate; if the rate was higher, McCaull would “stand for it,” if it was lower, “Mc-Caull was to have the benefit thereof.” The contract was mutually obligatory.

It therefore results that the judgment of the circuit court should be and is affirmed.

All concur.