author: GRAVES, J. —

text:
    JOHN McCLANAHAN et al., Appellants, v. SAMUEL McCLANAHAN et al.
    Division One,
    June 2, 1914.
    1. LIMITATIONS: Permissive Possession: No Overt Acts of Adverse Claim. Although the son lived upon the land, paid the ' taxes a part of the time, cleared it up, cultivated "it, built an important addition to the house, used or sold the crops and appropriated the income, yet if the equitable title of the land was in his father and his possession in its inception was permissive and was continued in friendly subordination to and in recognition of his father’s right, in order for his possession to become adverse and to set the Statute of Limitations to running in his favor, there must have been an open and notorious claim of title, so made as to raise the presumption that his father knew thereof and acquiesced therein — there being no claim that the land was a gift to or purchased by the son. In such case the rule is the one applicable as between landlord and tenant, where the tenant claims by adverse possession.
    2. FRAUDULENT CONVEYANCE: To Defraud Creditors: Not Available to Adverse Claimant. The fact that the purchaser of land placed the title in his son William to hinder and delay his creditors will not help another son Samuel in his claim of title by adverse possession. Besides, in this case, where the purchaser of land in 1872 is shown to have paid 28 out of 30 judgments obtained against him between 1856 and 1871, and the executions in the other two could not be found, there is not sufficient proof that he had it deeded to his son William for the purpose of defrauding his creditors, where William disclaims, after his father’s death, the legal title.
    3. LIMITATIONS: Permissive Possession: Selling Part of Farm. The fact that the son, who claims by adverse possession as against his deceased father, made a deed to forty acres of the farm, which tlie father had sold and for which he had received the money (the title having been placed in the son after purchase and payment by the father, in order that the father, being an officer, might take the acknowledgment), is a strong circumstance going to show that the son did not at that time, claim the rest of the farm adversely to his father.
    4. -: -: Obtaining Patent to School Land. The equitable title of the father, who had, by an unrecorded deed, bought from the heirs of Calhoun school land which Calhoun Jiad paid for in his lifetime, was not affected by the fact that the son, after the father’s death, obtained a patent from the county, by order of the county court, without paying anything therefor.
    Appeal from Putnam Circuit Court — Hon. George W. Wanamaker, Judge.
    Reversed and remanded.

      W. H. Childers, John W. Clapp and D. M. Wilson for appellants.
    (1) .The trial court erred in its action dismissing plaintiffs’ petition and in finding as a matter of fact that the defendant, Samuel W. McClanahan, was not a trustee holding in trust for the use and benefit of the heirs of H. T. McClanahan, deceased, the legal title to the west half of the southwest quarter of section 16, and entering its finding and decree that the legal title to said lands is in the said Samuel W. McClanahan, for the reasons: First (a.) This was school land ceded by the Federal government to the State for schools and educational purposes; (b.) Was duly advertised and sold to Elijah Casteel. (c.) Casteel’s certificates of purchase were duly assigned to William Calhoun, (d.) Full payment of the purchase price was made by William. Calhoun and the fact of payment ordered certified to the register of lands that patent might issue to him. (e.) These uneontroverted facts put the equitable title to all the lands described in the petition in sec. 16, in William Calhoun. R. S. 1845, chap. 159, p. 989, secs 7-8; R. 8. 1909, sees. 7967, 7992. Second, (a.) The equitable title to the land in section 16 being now in William Calhoun, would at his death pass to his heirs, and, (b.) a patentee who secured a patent to this land with knowledge of the fact that the equitable title was in William Calhoun or his heirs, would not be permitted to retain the title, (c.) If Samuel W. McClanahan obtained the patent to this land with knowledge of the fact that the Calhoun heirs were the equitable owners, then he became a trustee for them or their grantee’s use and benefit, and the trial court committed an error in failing to declare him such trustee. Barksdale v. Brooks, 70 Mo. 197; Carman v.'Johnson, 20 Mo. 108; Boyd v. Springs Co., 137 Mo. 482; Yalle v. Bryan, 19 Mo. 423. (d.) The records of the county court were constructive notice to Samuel W. McClanahan that the court had directed the clerk to certify to the register of lands that the patent issue to Calhoun, (e.) The' answer admits notice, for it is alleged that the land was bought by Casteel, that he sold it to Calhoun and that Samuel W. McClanahan bought out the Calhoun heirs and that they made him a deed, (f.) The stipulation shows that Samuel W. paid no money for the land when the county court in September, 1896, ordered it to be certified that a patent issue „to him. (g.) Where a person purchases the legal title with the knowledge of an outstanding equitable title, he is but a trustee for the holder of the equitable title. McLaurin v. Morris, 30 Mo. 462; Smith v. Walser, 49 Mo. 250; Bailey v Winn, 101 Mo. 649. (h.) The procuring of the patent by Samuel W. McClanahan after the death of his father, and without the knowledge of the other heirs was fraud upon them. A patent thus obtained would convey no title to Samuel W. McClanahan, but would inure to the hems of H. T. McClanahan, and would be held in trust by Samuel W. for the use and benefit of all the heirs. Carman v. Johnson, 29 Mo. 84; Jones •v. Stanton, 11 Mo. 433; Pieot v. Page, 26 Mo. 398; Dillinger v. Kellym, 84 Mo. 561; Campbell v. Light Co., 84 Mo. 352; Boyd v. Springs Co., 137 Mo.'482; Phillips v. Sherman, 36 Ala. 192; Larkein v. Gold Mine Co., 25 Fed. 337. (i.) Nor does the fact that the name of the grantee in the deed from the Calhoun heirs was left blank affect the case, for the controversy here is not between those heirs and the heirs of H. T. McClanahan, but between the heirs of the latter and Samuel W. McClanahan. (j.) The blank could have been filled in by the order of H. T. McClanahan. Fields v. Staggs, 52 Mo. 534; Bank v. Worthington, 145 Mo. 91; Burnsides v. Wayman, 49 Mo. 356; Campbell v. Smith, 27 Am. Rep. 5; Otis v. Browning, 59 Mo. App. 326; Thummel v. Holden, 149 Mo. 684; Einstein v. Land Co., 132 Mo. App. 84. (2) The trial court erred in not finding and entering its decree declaring the defendant, Wiliam McClanahan, a trustee holding the legal title to the south half of the southeast quarter of section 17, in trust for the use and benefit of all the heirs of H. T. McClanahan, deceased, and in not ordering and directing that said land be partitioned and divided in kind, (a.) The letter of William McClanahan to his sister, Mrs. Helen Harvey, written after the institution of the suit admits the trust, (b.) Even where the conveyance is made in fraud, if the grantee admits the trust, the court will enforce it. Cottington v. Fletcher, Atkyn’s, 156; Chapin v. Chapin, 3 Pere Wiliams, 233; Muckleston v. Brown, 6 Ves., Sr., 68. (c.) There is no claim set up in the answer that William McClanahan ever paid for the land, or that he ever sold it, gave it-or deeded it to Samuel W. McClanahan, or to any other person, (d.) The answer further contains a disclaimer by William McClanahan of any interest in the land. 1 Perry on Trusts (2 Ed.), see. 151, p. 168. (e.) There is no claim set up in the answer that Samuel W. McClanahan ever bought the land of Wiliam McClanahan or his father, or that either of them ever gave the land to him. (f.) H. T. McClanahan bought and paid for the land and had the deed made to Wiliam. Where land is so purchased and deeded William would hold the land in trust for his father, and upon his father’s death for his heirs. 1 Perry on Trusts (2 Ed.), sec. 146, p. 163; Philips v. Phillips, 50 Mo. 603; Olden v. Hendrick, 100 Mo. 533; Gibson v. Foote, 40 Miss. 788; Cook v. Bremand, 27 Tex. 457; Sutherland v. Sutherland, 19 Iowa, 325. (3) The trial court erred in its finding and decree that the defendant, Samuel W. McClanahan is the owner in fee of the south half of the southeast quarter of section 17. (a.) As Samuel W. MeClanahan does not claim to hold the land as the grantee of either Wiliam McClanahan or his father, and as he does not claim it as a gift from either, the only title he could acquire would be by occupancy and adverse possession, (b.) Samuel W. McClanahan does not have color of title to even a part of the land in section 17, and possession without color of title, though adverse, does not extend the holding beyond the limits of the actual possession. Pharis v. Jones, 122 Mo. 125; Wilson v. Purl, 148 Mo. 449. (c.) The evidence clearly shows that the possession of Samuel W. McClanahan was not adverse to his father, but permissive. (4) The trial court erred in its finding and decree that the defendant, Samuel W. McClanahan is the owner in fee of the northwest fourth of the northeast quarter and the northeast fourth of the northwest quarter of section 20. (a.) There is no evidence that Samuel W. McClanahan bought this land or contracted to buy it of Robert Campbell, (b.) The evidence is that his father bought the land of Robert Campbell, but never received a deed for it. (c.) The pleadings show that in his suit to quiet the title brought by Samuel W. McClanahan against the unknown heirs of Robert Campbell he relied on his adverse possession of the land alone, (d.) The evidence of the defendants taken as a whole does not show that the possession of Samuel W. McClanahan was adverse to that of Ms father, but was permissive; wMle all the evidence of plaintiffs shows that he was there simply as the manager of his father, who was the real owner of the land. (5) That the trial court erred.in finding and rendering its decree in favor of the defendant, Samuel W. McClanahan, to any of the lands described in plaintiffs’ petition, and tMs case must be reversed. Barkesdale v. Brooks, 70 Mo. 197; Carman v. Johnson, 20 Mo. 108; Boyd v. Springs Co., 137 Mo. 482; Yalee v. Bryan, 19 Mo. 423; Truesdale v. Callaway, 6 Mo. 605. (6) To convert a friendly or subordinate possession into an adverse possession there must be a clear, positive and continued disclaimer and disavowal, and an assertion of an adverse right brought home to the owner. These are indispensable before any foundation can be laid for the operation of the statute. • Hamilton v. Boggess, 63 Mo. 249; Budd v. Collins, 69 Mo. 129; Meier v. Meier, 105 Mo. 431; Comstock v. Eastwood, 108 Mo. 41; Pitzman v. Boyce, 111 Mo. 387; Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440; Baber v. Henderson, 156 Mo. 566; Stevenson v. Black, 168 Mo. 561; Coberly v. Coberly, 189 Mo. 17; Lumber & Mining Co. v. Jewell, 200 Mo. 707; Heckerscher v. Cooper, 203 Mo. 278; McCune v. Goodwillie, 204 Mo. 339.

      John W. Bingham, Campbell & Ellison and N. A. Franklin for respondents.
    (1) Samuel W. McClanahan has been in the actual, exclusive and continuous possession of this land since 1875, exercising the right of ownership and holding himself out to the public as the owner. His acts in fencing and improving the land, as well as building a new house and barn thereon, which must have been well known to plaintiffs, would alone show such adverse holding as to preclude plaintiffs from recovering in this action. He rented and leased the farm at his own pleasure without consulting with anybody; collected the rents and profits and accounted to no one for the same. What further could he do to bring the attention of the public to his ownership? This farm was always known from 1875 as the Sam McClanahan farm. Furthermore he has the tax receipts in his own name showing he paid the taxes from 1880. In fact, no one but Sam ever paid any taxes on this land. Myers v. Schuehmann, 182 Mo. 159; Patton v. Smith, 171 Mo. 231; Swope v. Ward, 185 Mo. 316; Glascock v. Car & Foundry Co., 229 Mo. 598. One witness testified he cut and hauled saw logs from almost every part of this farm, which were cut into lumber and sold by Samuel W. McClanahan. This constitutes an act of ownership. Holladay-Klotz Co. v. Markham, 96 Mo. App. 51. After the death of H. T. McClanahan there was an administration of his estate and the administrator finally discharged, and likewise after the death of Mrs. H. T. McClanahan, there was an administrator of her estate appointed, who fully administered upon her estate and was discharged by the probate court. In neither of these administrations was this land belonging to Samuel W. McClanahan inventoried or any account taken of it whatever by the administrators. This was a recognition on the part of the heirs that Samuel W. McClanahan was the absolute owner of the land in question. (2) Samuel W. McClanahan gave a deed of trust on Calhoun land to Watson and again to Adams and finally sold the two north forties, making deeds therefor, which were put on record while John McClanahan was deputy recorder in the office at the time. The rule is that the sale of land and improvements thereon by one in possession, tends to show that his possession was under claim of ownership. Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 155 Mo. 440. If H. T. McClanahan ever claimed any interest in this.land, it would have been an easy matter for him to have observed many acts showing hostile slaims on part of Samuel W. McClanahan. Robinson v. Claggett, 149 Mo. 153. (3) The Statute of Limitations applies to resulting trust, when knowledge of the adverse claim is brought home to the cestui que trust even if the court should so construe this ease,. but which the defendants deny. Reed v. Painter, 145 Mo. 341. (4) Resulting trusts may be established by parol testimony, but such evidence must be clear, cogent and fully satisfying the mind of the chancellor. Hillman v. Allen, 145 Mo. 638; Condit v. Maxwell, 142 Mo. 266; Curd v. Brown, 148 Mo. 82; Wacker v. Wacker, 147 Mo. 246; McMúrray v. McMurray, 180 Mo. 246; Brinkman v. Sunken, 174 Mo. 709. Before any such a trust could have been created, there must have been some kind of a collateral agreement. In the case of the deed to William, he knew nothing about it. Condit v. Maxwell, 142 Mo. 266. There must have been an intention to create some kind of a trust or one can not be enforced. Where is there any evidence that H. T. McClanahan' ever had any title to the eighty acres in section 20, or the eighty acres in section 16, known as the Calhoun land? Neither is there any evidence that he ever paid a penny for it. In re Soulard, 141 Mo. 642. H. T. McClanahan never had the shadow of a title to either of the above tracts, nor did he ever claim to have. On the other hand every expression of his recognized Samuel W. McClanahan as the owner.
   GRAVES, J. —

The general outline of this case is so fairly and concisely stated by counsel for appellants, that we adopt their statement, as follows:

“This is a suit in equity. The parties are the heirs of the late Major H. T. McClanahan. The plaintiffs are the youngest son, John, the two daughters, Susan Crocker and Helen Harvey, and a granddaughter, Ada Dawson, the only child of a deceased son, Charles McClanahan. The defendants are the three sons, William, Samuel W. and Robert H. McClanahan. James E. Adams, the beneficiary, and Charles B. Linville, the trustee, in a deed of trust, were also made defendants, but as the deed of trust was paid off before the suit was tried, no further attention need be given them.
“Two hundred and seventy acres of land is involved in this litigation. It is all in township 63, range 20, Sullivan county, Missouri, and from five to six miles northwest of Milan. Almost every forty of it is touched by or lies along side Main Locust creek or Big creek, as it is commonly called, the largest stream of water in the county.
“The land is all in one body. One hundred and ten acres are in section 17, eighty acres in section 16, and eighty acres in section 20. Sections 16 and 17 are in Jackson township, and section twenty in Polk township.
“The legal title to eighty acres of the land in 17 is in the defendant William McClanahan, and the legal title to the remaining thirty acres is in the plaintiff John McClanahan. It is alleged in the petition that at the time of his death the equitable title to all of this hundred and ten acres was in their father, Major H. T. McClanahan, and the court was asked to declare each of them trustees, holding their respective tracts for all the heirs.
“The legal title to the land in 16, which at the time of the Major’s death was one hundred and twenty acres, was in the defendant, Samuel W. McClanahan, but it is alleged that the equitable title to all of it was in the Major at the time of his death, and that after his death, Samuel W. McClanahan had fraudulently procured a patent for the land to be issued to him, and had sold forty acres of it to one James H. White. The court was asked to declare Samuel W. a trustee holding the eighty acres in trust for all the heirs. In another count in the petition the court was asked to charge the purchase price of the forty sold, five hundred dollars, against Samuel W.’s share.
“The legal title to the land in section 20, was in the heirs of Robert Campbell, but the equitable title, it is alleged, was in the Major at the time of his death. Previous to the bringing of this suit, the defendant Samuel W. McClanahan had brought suit against the unknown heirs of Robert Campbell, to have the title to this land quieted. A count in the petition asked that Samuel W. be enjoined from litigating that suit until this one had been determined.
“As stated above, there was also a count for the partition of the two hundred and seventy acres.
“The case was taken by change of venue to Adair county, and from there to Putnam county, where it was tried at the November term, 1907. After trial it was taken and held under advisement by the court until the 4th day of May, 1909, when a decree was entered dismissing plaintiff’s bill, and adjudging Samuel W. McClanahan to be the owner in fee of the whole 270 acres.
“From that judgment, which the plaintiffs think is at variance with the facts in the case, as well as the law, an appeal has been taken to this court.”

It will be observed that the case naturally divides itself into four sub-divisions i. e. (1) the status of the land in section 17 (80 acres), the legal title of which stood in William McClanahan at the institution of this suit; (2) the status of the land in section 17 (30 acres), which stood in the name of John McClanahan at the institution of the suit; (3) the status of the land in section 16 (120 acres), the legal title of which stood in Samuel W. McClanahan and James H. White at the institution of the suit, and (4) the status of the land in section 20 (80 acres), the legal title of which stood in the heirs of Robert Campbell at the institution of the suit. Different legal principles and varying facts are urged as to each of these four tracts or parcels of land, and a clearer understanding can be reached by treating them separately, and recounting the applicable facts in connection with the legal proposition urged. Such will be the course of the opinion, and a fuller statement of facts and contentions will therefore be left to the opinion.

I. Major H. T. McClanahan, the father and grandfather of the parties to this suit, for some years prior to 1872 lived in Linneus, in Linn county, Missouri. He left that place and ™-°ved to the land involved in this suit in 1872. We shall take the land involved in section 17 first. It stands practically conceded, both by proof and pleading, that Major MeClanahan bought from. Robert Campbell 120 acres of land in section 17 some time before he moved from Linn county to Sullivan county. Eighty acres of this 120 is involved here. On this eighty stood a little log house, which the Major moved about a quarter of a mile to the west. It is not denied that the Major paid for this land, but the deed was made to his son William McClanahan, who at the time was in business in Linneus, but lived at his father’s house. William MeClanahan does not claim to be the owner of this land, although the' legal title stands in his name. He wrote a letter to his sister, one of the plaintiffs, in which he frankly says that the land belonged to his father, and that he held it in trust for the father. This letter is in evidence.

The answering defendants aver that the title to the eighty acres in section 17, is in Samuel W. McClanahan, by virtue of his adverse possession for the statutory period of thirty-one years or more, i. e., since 1872. They also aver that plaintiffs cannot claim title, because Major MeClanahan had the land deeded to William MeClanahan to defraud his creditors. To my mind the proof fails to show a conveyance to defraud creditors. It is true that there were, running from 1856 to 1871, numbers of judgments rendered against H. T. MeClanahan, but when the executions were looked up it was found that in one way or another they had all been satisfied, except in two instances. There were thirty of these judgments, and clear evidence of the satisfaction of twenty-eight of them long before this land deal in 1872. The satisfaction of most of them had to be shown by looking up the old executions and finding thereon the return of satisfaction. In the two remaining judgments no executions could be found; they were not with the papers. We would not feel like holding that this land was deeded to William MeClanahan to defraud creditors on this limited showing. The trial court not only found that this eighty acres in section 17 belonged to Samuel W. MeClanahan, but also that the thirty acres, the title to which stood in the name of the plaintiff John, likewise belonged to him. This calls for the evidence going to show adverse possession. Speaking now as to this eighty acres, it is clear that Major MeClanahan moved on it with his wife and two of his boys (Samuel W. and John) in the early part of the year 1872. Samuel W. was born in 1854 and hence was then about eighteen years of age. John was some years younger. That the Major lived there until January 1, 1875, when he moved to Milan to take possession of the office of circuit clerk and recorder, there can be' no question. Under the admission of William MeClanahan, found in this record, that the equitable title to this land was in Major MeClanahan during these three years there can be no question. When he left the farm in January, 1875, he left there his wife and two boys. No change in title to this time. Shortly his wife followed him to Milan, but when she did, then the Major got a married daughter and her husband to come and live on the place with the two boys. Still the title, such as it was, remained in the Major. In two or there years the son John was taken from the farm to Milan, and became the father’s deputy in the office. This left the defendant Samuel W. and the'married daughter. No change in title as yet. In 1880 the son Samuel W. married, and shortly thereafter the daughter removed to their own farm. No change in title, therefore, from 1872 to 1880 or 188). During all these years the farm was being cleared and. improved. Both boys and the son-in-law helped do the work. We have, then, from 1880 to 1896 (the latter being the year in which the Major died) in which to look for a change of title. The land was being cleared and put into cultivation under the direction of Samuel W. and he himself doing some of the work. Several years of .this interim Samuel W. himself was in Milan in business and not on the farm, but he returned and was there at the father’s death. Either just before or just after the father’s death he acl^ded to the house at an expense estimated at about $1000, but the evidence shows that he had the use of the farm. Part of the time the taxes were paid by him and for a part by the Major. Many of the neighbors were put upon the stand, but they did not know whether the Major claimed the farm, or Samuel W. claimed it. All they could testify was that Samuel W. was there running it. There is evidence as to forty acres of another portion of the land being sold to one Henry, and that Samuel W. made the deed, but- the money was paid to the Major. The remainder of that tract is being claimed by Samuel W. just as is this tract, and we mention this as a strong circumstance. This sale was made in 1885, or five years after Samuel W. married, and was living on the farm. There can be no 'question that Major MeClanahan sold this forty acres and got the money for it, although he had put the title in Samuel W. and had Samuel W. make the deed. This matter we will discuss more fully when we reach the land in section 16, because this forty acres was a part of a tract which the Major claimed in section 16, a part of which is being claimed by Samuel W., just as he claims the eighty acres and the thirty acres in section T7. It is quite clear that Samuel W. was making no claim to any of this land in 1885.. Nor does the evidence of his neighbors show his claim of title later. Upon this phase of the case, the proof only goes to the extent of his living upon the place, paying taxes part of the time, cleaning it up and putting it into cultivation, and the building of the additions to the home about the time of the father’s death. That Samuel W. was in possession from the time the married sister and her husband left up to the making of this deed in 1885, without claiming title, is quite clear. He was there and it must have been by and with some arrangement with the father — a permissive possession. There is no claim in the answer that he ever bought this land of the father, nor does the answer aver that the father gave it to him. That the father once owned the equitable title to the land there can be no doubt. That tbe possession of Samuel W. was not at first adverse there can be no doubt. The question then is, when did it become adverse to the father, and what is the evidence of such fact? We have examined this record in detail, and when it stands conceded, as it must, that the defendant Samuel W. held the possession of this land for his father in the beginning and for some years, then there is no evidence of such overt acts and notorious claim of title as would defeat the rights of Major McClanahan. One witness testifies (his reputation is impeached, it is true) that Samuel said to him that his father was letting him have the farm for the improvements (clearing and reducing to cultivation) and the payment of taxes. Whether that was the arrangement or not it is clear that there must have been sorre arrangement, because the record shows that his first possession was under the father. His first work on the place was under the father. No act was done by him which could not be naturally referable to some amicable arrangement between the father and son about the possession of this farm, and that, too, without a surrender of the father’s title. The most that his neighbors know is that Samuel W. was in possession, making improvements and using the products of the farm. The strongest circumstance is the building of the addition to the house at a cost of about $1000, and this could be readily referred to some arrangement other than the transfer of the property. It is true that the daughter of Samuel W. who lived awhile with Major McClanahan, says that the Major spoke of the place as Sam’s place, but the defendant Samuel does not in his answer aver either a gift or a purchase, and it certainly required one of the two to make it Samuel’s place, unless Samuel W. acquired title by open and notorious claim of title, so made as to raise the presumption that the father knew thereof, and acquiesced therein. The evidence fails to show the latter condition. It being clear that the holding and possession of Samuel W. was under the father, the doctrine of adverse possession as applicable between landlord and tenant, is the doctrine applicable here. And the quantum of proof required in such case is the quantum required in this case. In 1 Cyc. 1058 the general rule and the reason therefor is thus announced:

“Statement of Rule. The general rule is well settled that a tenant cannot dispute the title of his landlord by setting up title either in himself or in a third person during the existence of the lease or tenancy. While the decisions are far from harmonious as to what acts will initiate an adverse possession by the tenant, it is at least well settled that there can be no adverse possession by the tenant until one of the following acts has occurred; surrender of the premises to the landlord, actual, open, and notorious disclaimer of the landlord’s title brought to his knowledge, or actual disseizin or ouster of the landlord. The disclaimer and notice thereof must be actual, or so open and notorious as to raise the presumption of notice, and the statute will run only from the time of such knowledge or notice.
“Reason for Rule. The principle of estoppel applies to the relation between landlord and tenant and operates with full force to prevent the tenant from violating that contract by which he claimed and held possession. He cannot change the tenure by his own act merely, so as to enable himself to hold against the landlord, who reposes under the security of the tenancy believing the possession of the tenant to be his own, held under his title, and ready to be surrendered by its termination by lapse of time or time of possession.”

This rule applies whether the landlord’s title be legal or equitable, perfect or imperfect. [1 Cyc. 1060.] The general rule has some modifications which are well put in 1 Cyc. 1060, thus:

“In a preceding section it has been shown that, as a general rule, the possession of the tenant is the possession of the landlord, and that in the absence of certain acts or declarations on the part of the tenant there can be no adverse holding by him. In this section an attempt will be made to show under what circumstances the possession becomes adverse. There are a number of decisions which hold, or seem to hold, without any qualification, that where a person enters into possession by virtue of a lease he cannot initiate an adverse possession without first surrendering the premises to the landlord. It is believed, however, that the weight of authority is against this position. According to a considerable number of decisions, when the tenant disclaims to hold under the lease, and the landlord has notice of it, the tenant’s possession is adverse, and the statute will run from the time when the landlord has notice; and this notice, it seems, need not be actual or express. It will probably be sufficient if the disclaimer of the tenant is so open and notorious as to raise the presumption of notice. Surrender of the premises is not necessary when the landlord has notice of disclaimer.”

This doctrine is not confined to strict cases of landlord and tenant, but it goes to a school of cases where the- possession in the first instance was a friendly possession. [Coberly v. Coberly, 189 Mo. l. c. 17.]

In the Coberly case this court said: “Another legal principle must be applied to the facts of this record in solving the question of adverse possession, viz., a possession which was in its inception friendly, as under a lease, or for some definite term, or subordinate to the true title, or originating in a fiduciary relation, may not be turned into an adverse possession by a mere change in mental attitude or by caprice. [Comstock v. Eastwood, 108 Mo. 41; Handlan v. McManus, 190 Mo. 124; Budd v. Collins, 69 Mo. 129; Lawson v. Cunningham, 21 Ga. 454; Ord v. De La Guerra, 18 Cal. 67.] The principle that a tenant may not deny his landlord’s title is, also, somewhat applicable.”

In the kindred case of cotenants, Allen v. Morris, 244 Mo. l. c. 364, we said: “Whilst the acts (whether verbal or otherwise) to show an adverse claim must be aits clearly repudiating and denying the rights of the cotenant, and must be such as will show a clear intenti >n to hold adversely as to the other cotenants, yet ‘it is not essential, however, that it be shown that such acts were brought to the notice of the cotenant.’ [Hendricks v. Musgrove, 183 Mo. l. c. 309, and cases cited therein.] If such acts are such as to demonstrate to the immediate and surrounding neighbors an adverse claim, the cotenant must take notice thereof. In other words, his knowledge must be the general knowledge of the neighborhood wherein the land is situated.”

But the evidence of adverse possession, prior to the death of Major McClanahan, in this case does not measure up to this rule. The neighbors heard no substantial claim of title from Samuel W. McClanahan. When pressed they said that they did not know who put the tenants on the place when there were tenants there, nor did they know who claimed the title. So we say, conceding as we must concede from this record, that the possession of Samuel W. McClanahan was at first friendly, there is no such strong proof of adverse claims, as would give him title' by adverse possession to this eighty acres of land in section 17. We may further add that, although there might have been evidence tending to show that the title of this eighty acres was placed in William McClanahan to hinder and delay creditors, yet with William McClanahan conceding that he held it in trust for his father, this defendant is in no position to claim any rights by reason of the alleged fact. The decree nisi was wrong in so far as this eighty acre tract is concerned.

II. What has been said as to the eighty-acre tract in section 17, applies with equal force as to the thirty-acre tract. The legal title to this thirty acres was in the plaintiff John McClanahan, but he concedes in his petition that he held it in trust for the father, and claims no further interest therein than as one of the heirs of his father, What we have said upon the Statute of Limitations as to the eighty acres applies with equal force here. The decree nisi was wrong in giving Samuel W. MeClanahan the title to this tract.

III. We reach now the land in section 16. This was originally school land. That Major MeClanahan was claiming this land when he was livin§; uPon the farm Prior to January 1, 1875, there is no question. The records 0£ ^ eoun^y eolltq s;howa sale 0f this land to Elijah Casteel in 1857, his assignment to William Calhoun, the payment of the purchase money by William Calhoun, and an order to the clerk to certify the same to the register of lands for a patent to William Calhoun. Calhoun was killed during the war, and what, if any, arrangements there were between him and Major MeClanahan does not appear. It does appear that when the Major moved to the farm from Linneus in 1872, he laid claim to this 160 acres of land. It does appear that he made out a deed for the heirs of William Calhoun to sign, and one of the heirs testifies that Major MeClanahan brought the deed to his house, and said he was payirLg the heirs $15 each for their release, and did pay him $15 and he and his • wife signed it. John MeClanahan testifies that after he became his father’s deputy he saw the deed in a desk in his father’s office, signed by all the Calhoun heirs and acknowledged before his father. That the name of the grantee was left blank. That in 1885, when the Major sold forty acres to R. L. Henry, at the suggestion of John, the Major having taken the acknowledgment to the deed, the name of Samuel W. McClanahan was put in as grantee, and Samuel W. ■made Henry the deed to the forty acres. Henry says he bought from Major McClanahan and paid Major McClanahan, and that the Major told him to tell Sam to come in and make the deed, which was done. It is clear to my mind that this is the reasonable and should be the accredited version of this transaction. It is clear, as indicated in our first paragraph, that Samuel W. was not asserting title at this time.

November 27, 1896, after the death of the father in April of the same year, Samuel W. McClanahan procured in his name the patent- to this land which had been ordered by the county court to Calhoun. He made no payment of the purchase price, for that had been paid. This act, being after the death of Major McClanahan, could not affect Ms equitable title, if he had such, and we think he did. What we have said above as to the Statute of Limitations, applies with equal force here. Vhen Major McClanahan died in 1896, he was, under the record, the equitable owner of the land in section 16, involved in tMs suit. The evidence is not sufficient to show adverse possession against Mm, nor against Ms heirs as cotenants, as the rule of law goes in tMs State and elsewhere. The decree nisi was wrong as to this land.

IV. Going now to the land in section 20. TMs land the Major bought from Robert Campbell, but received no deed. Whether the whole of the purchase money was paid is a question — we rather tMnk not. But it is clear that Major McClanahan had the possession of tMs land, with the other lands herein discussed, in 1874. It is also clear that the defendant Samuel W. McClanahan became possessed of tMs tract just as he did the others hereinabove discussed. He does not claim to have acquired Major MeClanahan’s right either by gift or purchase. When he brings suit under old section 650 to quiet title, as he did, he bases that action upon adverse possession solely, and not upon gift or purchase. The facts as to adverse possession we have fully covered above. They were not sufficient to show such claim during the life of Major McClanahan, nor as against his heirs since.

Upon the whole, the judgment upon the present record is wrong and should be reversed.

Let the judgment be reversed and the cause remanded to be further proceeded with in accordance with the views herein expressed.

All concur.


source: Caselaw Access Project

author: LAMM, J. —

license: Public Domain

text:
    HENRY LEE et al. v. MARY LEE et al.; NETTIE BEASLEY, Appellant.
    Division One,
    June 2, 1914.
    1. PLEADING: Defects Waived. The defects of a petition to set aside a deed which alleges in general terms that the grantor was feeble-minded, sick and while visiting his daughter and under her influence, executed the deed conveying the land to her without any valuable consideration, containing no specification of fraud and alleging no fact from which undue influence .presumably flows, will, notwithstanding its imperfections, if defendant did not challege its sufficiency in the trial court and does not on appeal, be passed by, and the case disposed of on the theory that it impliedly stated a cause of action.
    2. SUIT IN EQUITY: Action to Set Aside Deed: Instructions. An action to set aside a deed on the ground that the grantor was feeble-minded and it was the result of fraud and undue influence exercised upon him by the grantee, is a suit in equity; and being a suit of equitable cognizance, instructions, asked or given, are utterly out of place, and no exceptions to them will be considered on appeal, even though the ease was treated in the trial court as one at law.
    3. INCAPACITY: Age: Sickness. Old age and sickness do not in and of themselves constitute incapacity to transact the business of devising or conveying land.

      4. -; Opinion of Laymen. The opinion of lay witnesses that a grantor or testator was of unsound mind, to be of probative force, is inseparably connected with the facts and opportunities upon which the opinion is based. If those facts are connected, consistent, strong and bear upon the issue, the opinion of such a witness has persuasiveness, cogency and weight; otherwise, it has none of these.
    5. -: Burden. In a suit to set aside a deed on the ground that the grantor was incapacitated to make it, the grantee is entitled to the rebuttable presumption that the grantor was of sound mind, and the burden of proof is on those who assert his incapacity.
    6. FRAUD: No Facts. There must be some facts which constitute fraud before a decree setting aside a deed on the ground of fraud can be permitted to stand: There can be no fraud of a grantee against a grantor, in the mind of a court of equity, unless there are acts, omissions or concealments which involve a breach of some legal or equitable duty, trust or confidence justly reposed and injurious to the grantor, and by which an undue and unconscientious advantage is taken of him.
    7. -: -: Deed to Daughter. It is not of itself a fraud for a married "daughter to take a deed to eighty acres of land worth $1500, from her aged father, sorely afflicted with consumption and asthma, and homeless, upon an agreement, expressed in the deed, “to furnish him a home and give him personal attendance his lifetime.”
    8. UNDUE INFLUENCE: Deed from Father to Daughter: Fiduciary Relation. The fact that an aged and homeless father, afflicted with an incurable disease, left the neighborhood of his children and the wife who had separated from him, and went to the home of a married daughter and there made her a deed to eighty acres of land, expressing a consideration of love and affection and an agreement to furnish him a home and attendance for his lifetime, does not establish any such fiduciary relation as raises a presumption of undue influence and casts the burden upon the grantee to sustain the deed. And there being no fact tending to show either the exercise or existence of undue influence, the deed cannot be set aside on any such ground.
    a. CONTRACTS: Are to be Enforced. Courts sit to enforce fair and just contracts, not to abrogate them.
    10. -; — : Sought by Plaintiffs. The fact that plaintiffs shortly before their father conveyed the eighty acres of land to his daughter deliberately and separately planned to have him convey it to them, upon the same consideration, namely, care and support, is an implied admission on their part of both its propriety and validity — that he had capacity to convey and power of will to resist undue influence, that the consideration was sufficient, and that a deed so obtained was not fraudulent.
    11. DEED: Consideration. A deed expressing love and affection and an agreement by the grantee to furnish the grantor a home and give him personal attendance for his lifetime, fully performed, is supported by both a good and a valuable consideration.
    12. APPEAL: No Brief. It is not only unwise for respondent to file no brief in the appellate court, but he should not complain if the court surmises that his silence is a tacit admission that the judgment in his favor cannot be defended.
    Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge.
    Reversed and remanded (with directions).

      Barrett & Farrar for appellant.
    (1) The burden is on the party asserting the mental incapacity of the grantor at the time of making the deed. Cutler v. Zollinger, 117 Mo. 92. (2) If a person understands the nature of the business and the effect of what he is doing his acts are valid, and this is true though the mind of such person may be impaired by old age and disease. Cutler v. Zollinger, 117 Mo. 101; Cutts v. Young, 147 Mo. 587; Richardson v. Smart, 65 Mo. 14; Keithley v. Keithley, 85 Mo. 217; Boggess v. Boggess, 127 Mo. 305. (3) The exercise of undue influence must be such as will destroy the will power and overreach and destroy the free agency of the grantor. Thompson v. Ish, 99 Mo. 160; Rankin v. Rankin, 61 Mo. 295; Jackson v. Hardin, 83 Mo. 175; Norton v. Paxton, 110 Mo. 456; Pennington v. Stanton, 125 Mo. 658; Wood v. Broadley,. 76 Mo. 23. (4) A deed made by- an aged person in consideration of an agreement for the grantee to support him is valid and binding. Pennington v. Stanton, 125 Mo. 653; Keithley v. Keithley, 85 Mo. 217.

      G. Purd Hays and John T. Hays for respondents.
   LAMM, J. —

Henry and James, two sons of John Lee, deceased, sue his other heirs in equity in the Christian Circuit Court to set aside a certain conveyance made by him to his daughter, defendant Beasley, and to vest title in the heirs of Lee as tenants in common, joining a count in partition. Mrs. Beasley, on this record, alone answered. For some undisclosed reason, the count in partition fell out of the case. A decree in plaintiffs’ favor stops short with vesting title in the widow and heirs of said John Lee. Mrs. Beasley alone of the defendants appealed, and plaintiffs rested content without partition, taking no appeal.

The land in controversy is the west half of the northeast quarter of section 31, township 28, range 19, in Christian county.

The substance of the allegations of the bill is this: Long prior to the 6th of June, 1910, and on that day, John Lee was “weak and feeble-minded, sickly and diseased, and of unsound mind and incapable of transacting his ordinary business affairs;” that “while visiting with and under the influence of Nettie Beasley” he executed the assailed deed conveying said land to her'“ without any valuable consideration,” on the 6th of June, 1910'. The deed (copied into the bill) recites that said John Lee “in consideration of love and affection and the agreement on the part of party of the second part to furnish the party of the first part a home and give him personal attendance his lifetime, do by these presents grant,” etc. (The deed is in conventional warranty form.) The bill goes on to allege as follows: “There was no consideration, and that said deed was obtained by fraud and through undue influence exercised upon said John Lee, deceased, with a view to deprive the plaintiffs and defendants herein of their rights in said land. Wherefore plaintiffs pray,” etc.

The foregoing is a fair summary of a loose and impoverished bill — a bill making no specification of fraud, no allegation of intestacy and no charge of a fiduciary relation; alleging no fact from which undue influence sprang in fact or by presumption; giving no value to the land; making no averment of the import or effect of the conveyance, but contenting itself with merely copying the instrument; not even directly alleging ownership in John Lee or making any averment relating to the remaining estate of Lee, or the proportion conveyed, or directly charging Mrs. Beasley with the possession or the exercise of any undue influence over him.

However, as the bill is not now questioned, nor was it challenged below by appellant’s counsel, we earmark its imperfections and pass them by on the assumption that the cause was tried on the theory the bill impliedly stated a cause of action. If that was an erroneous assumption, then the maxim, communis error facit jus helps clear the situation a bit.

Mrs. Beasley answered admitting the alleged relationship of the parties to each other and to John Lee, admitting the execution of the deed, averring it “was made for a good and valuable consideration” (setting it forth as does the deed itself) and averring that defendant, faithfully performed her agreement “to care for and board decedent” until his death. The answer next alleged that John Lee was not of unsound mind and was not incapable of transacting his business affairs but “was a very shrewd dealer and fully understood his business affairs;” that the deed “was not made under undue influence of any one, but was made by said John Lee of his own free will and accord for the purposes set forth, wherefore,” etc.

Treating the suit as one at law instead of in eqqity, as it was, appellant, at the close of the evidence for plaintiffs and again at the close of the case, asked an instruction in the nature of a demurrer to the evidence, and on its final refusal her counsel asked a series of instructions declarative of those propositions of law they deemed pertinent to the facts. . The chancellor refused them, and the exceptions then saved to his ruling they bring here for review and make much of. However, one of the grounds of.their motion for a new trial was to the effect that the decree was not supported by the evidence, but was contrary to it, and error is assigned on the overruling of that motion.

The facts lie in small compass and will appear in connection with the disposition of the question whether plaintiffs made a ease for equitable relief under the bill and proofs. The appeal may be disposed of under two heads, to-wit:

(1) Of the instructions (and herein of the demurrer).

(2) Of the sufficiency of the proofs.

I. Of the instructions (and herein of the demurrer).

It was taken in ancient times, so a scholarly brother tells me, as within a limbo of unreason to do so useless a thing as to carry owls to Athens. To offer instructions in a cause in chancery is like carrying owls to Athens, coals to Newcastle, herring to Holland, gilding refined gold. The unbending rule of practice is that instructions fill no office at all in an equity case; hence, for appellate purposes, error cannot be predicated or assigned upon the giving or refusing of them. In ehancery the question is, not what the chancellor instructed himself to do, or how he talked the matter over with himself — the question is: Did he seek equity and do it? We have always so written the law, and doubtless always shall. Doubtless, too, iteration and reiteration are necessary even to so learned a profession as the law, for is it not written by a great authority on the way to promulgate good doctrine: “For precept must be upon precept, precept upon precept; line upon line, line upon line; here a little, and there a little?” [Vide, Isaiah, 28: 10.]

What is true of instructions in general in equity is true of demurrers to the evidence in equity. They amount to the same thing, to-wit, nothing. [Troll v. Spencer, 238 Mo. l. c. 93 et seq.]

It is in law, as in life, one should look about him and be careful to avoid negligence. Doth not the proverb say: If one lie down with a beggar, one gets up lousy? So, if-one rely on instructions in equity, he leans on a broken staff and gets the worst of it in a fall. We put the matter in the homely similitudes of the fireside because the learned discourse in the venerable language of case law in that regard (blazoned and embalmed in nearly every volume of our reports) seems, like the seeds in the parable, to fall by the wayside or on stony ground.

Fortunately for appellant in this case, she also challenged the sufficiency of the evidence to ‘support the decree; hence the fact that the instructions before us must be put behind us and that the exceptions saved to the instructions bring nothing up for review, is not fatal to her appeal.

TI. Of the sufficiency of the evidence.

The case on the facts is this:

Henry Lee, one of plaintiffs, testified that his father lived with him in Christian county for a month and a half until the 15th of March, 1910, when he left for Illinois. He describes him as “mighty poorly, and had been for some time” with the consumption and asthma. In the spring he would “get mighty low and in the warm weather he would pick up again.” He was not as well as usual when he left for Illinois and would be bedfast a little while at a time. “I could not say exactly about his mind,” witness said, “but I rather think, being in the condition he was in, he hadn’t a very good mind, being in the condition he was in, being so weak and all.” Witness got Mm to come over to his place and stay, because he was sick. While there 0 witness made a proposition to him that if he would make him a deed to his place he, witness, would keep him during his lifetime and do by him as well as he could. The father replied: “No, I won’t do that, I won’t deed it to anyone, and when I am done the court will give it to the one I am with.” His father then made an offer to give witness the use of the place by the year for keeping -him. The contract was written up, but another son wrote the father to come to his place, and on the strength of that letter the contract was not executed, but witness rented the place so that his father would have the rent to come back to, to live on during the winter. Decedent bought his own ticket and made the trip alone to Illinois. He knew what children he had and what land he owned. Witness never knew him when he was not able to name all his children, but considered him of unsound mind; did not know whether his mind was in such condition that he was not able to attend to his business. When he went to Illinois, witness helped him on the train. The land was worth $1500. Two sons and one daughter lived in Illinois. He died there on the 17th of June, 1910. Witness owed his father $50 for rent when he died. “About a month before he went to Illinois,” said the witness, “he was easily persuaded and I talked with him about keeping him and having him deed me the land. He refused to do this, but afterwards made the contract with me to rent the land. . '. . My father was tolerably easily influenced. I tried to get him to make me a deed, but he refused to do so.”

James, a plaintiff (another son), testified to the same effect as Henry. He said his father was in “poor condition” and was “about as weak as he could be to get around,” he had asthma and consumption and was “bothered a good deal with age.” “His mind wasn’t of much account. He had been that way for five or six years, of course not so bad.” “There were times,” said witness, “when a body could make most any kind of a deal with him, and times when you couldn’t.” It seems this witness also tried to get his father to make a deed to him, but his father refused, and told him he was going t'o Illinois and was going to rent the place out.

Plaintiffs, to make their case, also put on the stand the husband of defendant Beasley, and established by him the following facts: Decedent came to Illinois, to one of his sons there on the 17th of March. That son was afraid to keep him because he had the consumption. So on the 20th of March, he came to the house of witness. A physician was called who pronounced the disease consumption, and said he might live a year and might not. He was nursed and cared for at the Beasley house until he died. Decedent himself brought up the question of deeding the land. He said it was his desire to make the conveyance to the child with whom he died. Witness at first was opposed to his making the deed to his wife, and suggested that he make it to his other sons in Illinois, so that they could take the land and the Beasleys would be paid reasonable wages for taking care of him. The upshot of it all was that the two sons in Illinois were brought into the transaction, and they would not take the land in that way, and then* the father made the deed to his daughter, Mrs. Beasley, we take it with the knowledge of those sons. During the time he stayed in Illinois, decedent’s mind was sound, but his body was weak. He received nursing, care and attention from the Beasleys until his death and was buried by them. He was around until three days before his death when he became bedfast. Before that he thought he would get well. Witness could not tell from his looks that he was going to die, but admitted he “had no hopes for the man.” At the time he made the deed .he knew his children and knew what land was deeded. He brought his title papers with him to Illinois and got the land description for the deed in question from them. The deed was read over to him by the officer drawing it and he said it was just as he wanted it drawn. He made his mark to it and under the direction of decedent two witnesses were brought in to witness the mark. Decedent could not4 write and witness said he had frequently written letters for him when he was visiting him in Missouri. The land is rough and was not worth much if one had to pay money for it. The deed was delivered and was sent to Missouri for record.

A Mr. Roller testified for plaintiffs, that he knew decedent for twenty-five years. Sometime in February, 1910, witness heard him say to his son, Henry, who wanted a deed to the place: “ I won’t do that, I will make a contract for a year at a time and if I want to make a change I will do so, for I won’t make nobody a deed to take care of me.” Pie described his bodily condition when he left for Illinois to be about as the two plaintiffs had said, but having said he did not know what his. mental condition was, he also said he did not notice anything wrong with his mind the last time he saw him, that he was capable of attending to his business and his mind was in a fair condition. Witness said decedent’s .wife “had left him” about a year before, and that he lived in a cabin by himself and the neighbors had “to take in things,” and that Henry went back and forth and cared for him before he rented the place. Witness lived close and never saw him read or write.

Plaintiffs also introduced a woman named Mary Wilson (we take it she was defendant Mary Lee, now married to Wilson) who said she had formerly been the wife of decedent and was the step-mother of plaintiffs and the other Lee children. Her testimony was to the effect that Lee formerly could write but about six years before had got so nervous he could not. He had been sick five or six years with the consumption. She had separated from him and had not seen him for a year before he died. Before that “at times he had a good mind and at times he was ‘kindy’ like a child. He would even forget and he would even cry about anything that would fret him. ” It was when he was feeling badly with the asthma that he would cry when fretted, she said, and then went on to say that during those times he was pretty easily influenced and could be persuaded to do most anything. About five years before, decedent had an attack of the “lung fever” and for about a week was delirious. His delusions then are unimportant here. Her conclusion was that after that his mind was “not as good as it was before.” On cross-examination she admitted that since the week, some years ago, when he had the fever, she never saw him when he did not know enough to take care of his ordinary business, though sometimes he had trouble in counting his money. She thought from that time on he got weak-minded “but not so weak-minded that he did not know how to take care of his business.”

A Mr. Freeman, a neighbor, of decedent, testified he knew him for twenty-six years and that his mind was “a little weak on account of his sickness.” Witness did not know whether he could be influenced if anyone had so desired. He connected his weak mind with his bad health; saw him shortly before he left for Illinois; had a short conversation with him and “just asked him how he was; ” could not tell and did not know what condition his mind was in or whether he was able to attend to his business or not, but hazarded the suggestion that he “was a hard man to understand. His mind might have been weakened in proportion to his body, or something like that.”

Defendant introduced a witness to sustain the issues on her behalf, a Mrs. Tóllman (her husband’s aunt). She was a neighbor of decedent, and saw him a number of times before he left. She never heard of his being weak-minded and knew nothing of the kind. Her testimony was to the effect that he was “ too keen for a weak-minded man and was smart enough,” that when she saw him for the last time his mind appeared strong.

Appellant testified in her own behalf to the effect that her father had not been in good health for a number of years and had had the asthma ever since she knew him, but that he had “a good sound mind.” Her father came to her house in Illinois and stayed there until he died. Her testimony did not differ materially from her husband’s and we will not reproduce it. It appears that appellant was sick during her father’s stay and her husband did nearly all the nursing of him. The Beasleys were out over $100 for medicines, funeral expenses, etc., upon which they had been paid $25 since, said sum being a portion of the rent due on the place by plaintiff Henry Lee for the year 1910. It appears further that decedent had trouble with Henry’s wife and could not stay there and before making the deed had expressed his intention of deeding the land to the child that took care of him and had told the other children in Illinois to that effect.

John Lee died eleven days after executing the deed. His exact age is not disclosed, but he is referred to as “the old man.” The case, we think, may proceed on the theory he was full of years and carried the accumulated burden of misfortune, sorrow, sickness, lonesomeness and old age. In the simple but graphic language of one witness, “he was bothered a good deal with age.” It is not clear whether some defendants are children or grandchildren of John Lee, nor is it material on appeal. As we understand the record, three of his children resided close by the place in Central Illinois where he went and remained until his death. The rest of them, possibly, resided in the neighborhood of his former residence in Christian county. His wife, Mary, from whom he was separated, did not join in the deed to Mrs. Beasley.

On such record, the trial chancellor found “the issues for the plaintiffs” on the first count. Having made that general finding, he at once went on to find specifically, in the same connection, that the deed was “without consideration from the grantee” and was executed “by fraud and undue influence . . . which the grantee . . . exercised over” grantor. The decree entered on such findings set aside John Lee’s deed, divested title out of appellant and vested it into the heirs of John Lee, subject to his widow’s dower. The question is: Did the decree do equity. We are of opinion it did not. This, because:

(a) Insofar as it adjudged dower in the widow of John Lee no fault can be found with it. Her not being a party to Mrs. Beasley’s deed, left her dower outstanding and outstanding it is to this day. No one seems to dispute her dower right.

(b) It will be observed that the decree does not specifically find or adjudge John Lee lacking in mental capacity to make a’ conveyance. The court, however, did find all the issues for plaintiffs generally. Had the decree stopped with that general finding, it would have covered the issue of mental capacity to convey, but presently the chancellor made specific findings of undue influence, fraud and want of consideration. Something, therefore, might be said in favor of the theory that by including fraud, undue influence and want of consideration in his specific findings, and excluding a specific finding on mental incapacity, the trial chancellor should be taken as excluding that element of the case as a basis for his decree on title, this under the maxim, expressio unius est exclusio alterius. It would be unprofitable to let the issue of mental capacity to convey hinge on speculative theories of construction. We prefer to take the bull by the horns and let the point ride off on its merits. Appellant is entitled to the rebuttable presumption that Lee was of sound mind. The burden of proof was on plaintiffs to rebut the presumption. The rule is that sickness and old age do not in and of themselves constitute incapacity to transact the business of devising or conveying land. It is a mistake to suppose that old men and sick men are stripped by the#law of their property right, to-wit, the jus disponendi. Another rule is that the opinion of a lay witness that a grantor'or testator was of unsound mind is inseparably connected in probative force with the run of the facts and opportunities upon which the witness bases his opinion. The two go together. We do not mean to say that a non-expert witness must give all the minute details upon which he bases his opinion&emdash;that would be impossible and unnatural, but we do mean to say that his opinion is not worth while if separated from all facts of significance gleaned by personal observation. If those facts are connected, consistent, strong, and bear upon the issue, then the opinion of an intelligent lay witness has persuasiveness, cogency and weight&emdash; not otherwise. We'have set forth the substance of the evidence and dismiss the matter by ruling that it does not show John Lee did not have contractual capacity at the time of the conveyance. It points the other way with emphasis. That he refused to convey to plaintiffs does not show it. No more does the fact that he changed his mind and conveyed to his daughter show it. The opinions of lay witnesses, absent facts to justify the opinions, do not show it. In short, the record is barren of proofs showing it. Hence, if the general finding of the issues in favor of plaintiffs covered incapacity, the decree was without substantial support in that particular.

(c) Nor can the decree stand on the foot of fraud. In the first place the general allegation of fraud in strictness might be held insufficient to support a decree based on fraud. A charge of fraud without specification, as a general rule, has been held a mere conclusion and worthless as a pleading of substantive fact. But waiving that view, in this case what the pleading left a mere conclusion, the evidence left a mere delusion. There was no fraud, actual or constructive. Fraud being odious, the presumption is against it, hence, however difficult it is to be proved, it still must be proved before a court of conscience can set aside a deed on the theory of its existence. Fraud being infinite, chameleon-hued, protean-shaped, no court of equity has ever been so unwise as to give rope to fraud-doers by laying down a hard-and-fast definition of it, thereby enabling scamps to work at will outside the lines of the definition. To the contrary, fraud is left undefined except in the most flexible general way, so' that it may meet the mould and pressure of the facts of the concrete case. But there can be no fraud of a grantee against a grantor in the sense of a court of equity unless there are “acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed” and are injurious to the grantor or by which “an undue and uneonscientious advantage is taken of” grantor. [1 Story’s Eq. (13 Ed.), sec. 187; Howard v. Scott, 225 Mo. l, c. 712.] Measured by that standard who could put his finger on the fraud of grantee, or upon fraud besmirching the hand (if any hand there was) instrumental in bringing her title?

(d) Neither can the decree stand on the foot of undue influence. The case is bare of such fiduciary relation as would raise a presumption of undue influence and would throw the burden on the grantee in the deed to sustain it. Not only so, but the existence of undue influence is not shown, let alone the exercise of it. Certainly the mere fact that the deed was made has no tendency in that direction, nor the fact that grantee was grantor’s daughter, nor the fact that “love and affection” is set down as a causal factor. The case does not demand extended consideration in this particular. The facts are simple and few. An old father, sick, miserable, homeless (we use the word in its sentimental phase), owning a small tract of broken land in Missouri, finds his last resting place, this side the grave, with his daughter in Illinois. To all intents and purposes an outcast in the clutches of a dread and communicable disease, his idea had been that the law would give the land to the child with whom he died and who ministered to him at the close of his days. He concluded to make a conveyance to his daughter to anticipate what he thought the law itself should do. He contracts with the daughter for care and attendance during life. She promised it, the father conveyed and she performed. It is only by extreme grace that it might be inferred that this tract of land was the whole of his estate. But assume it was, its value was not disproportionate to the possible obligation, and we shall not write the law to be that he did not have the right to convey it to appellant under the sharp difficulties besetting him and the sharp cry of nature within him for human love and daughterly ministration. No respectable ease can be found contra and we know of no rule of law impairing the conveyance on the score of undue influence where (as here) there is no satisfactory proof by direct or circumstantial evidence that undue influence was exercised. On this record, the thing was not done in a corner, this father knew what he was doing and wherefore, did what he wanted to do, as he wanted to do it, and what the law permitted him to do. Up to that time, without let, hindrance or question he had transacted all his business and looked out for himself with good sense. All the evidence worth while indicated he was capable of doing that. We sit to enforce fair and just contracts, not to abrogate them.

(e) The finding of the chancellor that the conveyance was without consideration was also palpably erroneous. There was a good eonsidera^on ail(I a valuable consideration (hence a sufficient consideration) as those terms are defined in the books.

Speaking to the question of incapacity, undue influence, fraud and lack of consideration, we dismiss them one and all by stressing the singular fact that the two sons, plaintiffs here, shortly before deliberately planned to take the land by a grant from the father on the same consideration, care and support. That effort is an implied admission on their part of propriety and validity, i. e., capacity to convey, sufficient consideration, absence of fraud, power of will to resist undue influence. How comes it that a grant in their judgment valid then becomes invalid now with a mere change of name and sex in the grantee? Blowing hot and blowing cold out of the same, mouth does not commend itself in a court of conscience.

(f) We now come to a phase of the case not to be passed without observation. Respondents stand mute here and file no brief. Why so? The court was open. The rules invited them. We sit to hear and then decide, whereby due process of law is accorded agreeable to the law of the land. [Ex parte Nelson, 251 Mo. l. c. 103 et seq.] In DePaige v. Douglas, 234 Mo. l. c. 81 et seq. (q. v.), we had occasion to comment on the unwisdom of that course. On this record it is fair to surmise that the intentional- failure to follow up their judgment and defend it from assaults (invited on the very face of the record by the weakness of the evidence adduced below, as presented in appellant’s brief, duly served) was intended by respondents as a tacit admission that it could not be defended. We may be in error in that surmise, but, as the case has already broken on the merits, it will do to say that the very fact such surmise springs in the court’s mind points a moral that the observing may draw for themselves. Verbum sat sapienti.

The student curious to know the sources of our judgment in this, that or the other ruling may discern the harmonious doctrine of all the cases by consulting Howard v. Scott, supra; Baldwin v. State, 12 Mo. l. c. 235 et seq.; Southworth v. Southworth, 173 Mo. l. c. 72 et seq.; Studybaker v. Cofield, 159 Mo. 596; Pennington v. Stanton, 125 Mo. 658; Anderson v. Gaines, 156 Mo. 664; Keithley v. Keithley, 85 Mo. 217; Hughes v. Rader, 183 Mo. 630; Black’s Law Dict., tit. “Consideration;” Troll v. Spencer, 238 Mo. l. c. 101 et seq.

The judgment is reversed and the cause remanded with directions to dismiss plaintiffs’ bill. It is so ordered.

All concur.


author: BROWN, C. — PER CURIAM: —

text:
    J. C. SCONCE, Appellant, v. GEORGE SURMEYER LUMBER COMPANY et al.
    Division One,
    June 2, 1914.
    1. CONTRACTS: Interpretation. Courts ascertain the meaning of a contract from all of its provisions, and not from single words, phrases or sentences, and when the intention of the contracting parties is thus ascertained, that intention will be effectuated, unless it violates some inexorable rule of law.
    2. -:--: General Intention: Particular Provisions. Particular words and clauses in a contract take precedence of general ones which they restrict and limit, when that appears from the whole instrument to be the intention of the parties.
    3. -: -; -; -: This Case. Plaintiff gave a note and a deed of trust to defendant to secure the repayment of money advanced by defendant to further the performance of a contract between them. Plaintiff sued defendant for damages for breach of the contract and thereupon the parties entered into a néw contract which, although it was agreed therein that all prior contracts between the parties were annulled, provided expressly for a mode of payment and discharge of the note and deed of trust mentioned above. Beld, that the last mentioned provision of the contract prevails, and the note and deed of trust were not annulled by the general provision.
    Appeal from Shannon Circuit Court. — Hon. W. N. Evans, Judge.
    Affirmed.

      G. 8. Sizemore and Orchard & Cunningham for appellant.
    The contract made and entered into between plaintiff and defendant on January 8, 1909, fully and completely abrogated the first contract and canceled all and singular each and every liability of either party whether based on oral or written contracts or obligations, and the note and deed of trust being a part of the first contract and having been entered into prior to January 8, 1909, was also settled, abrogated, annulled, canceled and set aside. It is the province of the court to construe the contract and give force and effect to the intention of the parties, as in said contract contained. This proposition is fully discussed by this court and decided in the case of Buxton v. Kroeger, 219 Mo. 245, and cases therein cited. And when the court does this in this ease it must necessarily find that the note and deed of trust was canceled.

      Ed. J. Shuck and Jeffries & Corum for respondents.
    (1) Courts construe contracts and ascertain the intention of the parties by an examination of all of the provisions of the contract; and not by interpreting the meaning of single phrases or sentences. Meyer v. Christopher, 176 Mo. 594; Donovan v. Boeck, 217 Mo. 87; Buxton v. Kroeger, 219 Mo. 245. (2) In the construction of contracts words which are not technical must be given their ordinary and usual meaning. Liggett v. Bank, 233 Mo. 601; Goode v. St. Louis, 113 Mo. 271; Johnson v. D liymple, 140 Mo. App. 241. (3) If a contract is am iguous or obscure the practical construction placed on it by the parties themselves will be considered by the courts. St. Louis v. Railroad, 228 Mo. 712; Welch v. Mischke, 154 Mo. App. 728; Comstock v. Flour, 109 Mo. App. 275.
   BROWN, C. —

Suit begun September 14, 1909, by petition stating that on March 8, 1907, plaintiff entered into a contract with defendant corporation to cut and saw the timber on section 35, township 30, range 2, west, in Shannon county, and to let the defendant have the entire output at prices stated in a letter referred to; and that defendant advanced plaintiff on said contract eleven hundred dollars, to secure the payment of which plaintiff made his note to defendant for said sum, with J. W. Sconce and George P. Davis as sureties, and further secured by deed of trust of said date on the west half of said section. It proceeds as follows:

“That in pursuance of the contract with said corporation the plaintiff entered upon the performance thereof on his part, and did cut and manufacture many thousands of feet of lumber under said contract as per instructions from said corporation: that said corporation failed, refused and neglected to carry out said contract on its part and that this plaintiff instituted two suits in the circuit court of Shannon County, Missouri, against said corporation for the breaches of said contract on its part.
“And while said causes were pending and on the 8th day of January, 1909, this plaintiff and George Surmeyer Lumber Company made and entered into another and different contract which changed all the terms and conditions of the first contract and by its terms abrogated and annulled the former contract, whether written or verbal.
“Wherefore, plaintiff avers that all contracts and agreements either oral or written, heretofore entered into between the said parties were by this contract abrogated, annulled and set aside so that neither party to the last contract can have or claim any right or demand of any kind whatsoever against the other under any contract entered into between them prior to the date of the contract of January 8,1909, and that all differences were then and there settled and merged in said last above-described contract.
“Plaintiff avers that the note and deed of trust above described were by said last above-described contract annulled and for naught held and are of no binding force or. effect against the plaintiff or his securities or the land described in the deed of trust.”

It further states that- notwithstanding the note and deed of trust had been so cancelled, the defendant Galbraith, as trustee, had advertised and was proceeding to sell the land under the deed of trust and asks for temporary and permanent injunctions restraining him from doing so.

The answer substantially admits all the facts stated in the petition but denies that the contract of January 8, 1909, abrogated, set aside or annulled the notes and deed of trust. An injunction was granted pendente lite which was dissolved upon final hearing and petition dismissed. As, under the pleadings, the case turns solely upon the question as to whether or not the contract of January 8, 1909, annulled the note made March 8, 1907, we set it out, omitting only formal parts, as follows:

“This contract, witnesseth that whereas, John O. Sconce has filed suit in the Circuit Court of Shannon County, Missouri, against the George Surmeyer Lumber Company, upon a certain contract dated at St. Louis, Missouri, March 7, 1907, which contract was executed by the said J. C. Sconce and brother on one part, and by the said Lumber Company on the other part, and
“Whereas, the said J. C. Sconce has also filed suit against said Lumber Company in said Shannon County, upon an alleged contract entered into between the said J. C. Sconce and said Lumber Company, and
“Whereas, the said J. C. Sconce alleges in the first of said suits that he has sustained damages in the sum of five thousand dollars, and in the second suit that he has been damaged in the sum of two thousand dollars, and
“Whereas, it is the desire of the said J. C. Sconce, and his brother, and the said Lumber Company, to amicably settle and adjust said suits, and to adjust and settle all questions, rights and liabilities growing out of the contracts aforesaid.
“It is therefore agreed, that the said Lumber Company is to purchase from the said J. C. Sconce, and brother, one hundred thousand feet of oak and pine lumber of standard widths and standard lengths, culls to be excluded, for the price of ten dollars-per M ft. f. o. b. ears at Dagonia, Missouri, and the said Lumber Company is to purchase from the said J. C. Sconce, and brother, seventy-five thousand feet of oak and pine lumber, of standard widths and 10 to 20 feet long, culls to be excluded, for the price of twelve dollars per M ft. f. o. b. cars at Chicopee, Missouri.
“It is further agreed in consideration of the fact that the said Lumber Company now holds and owns the note of the said J. C. Sconce, George P. Davis and J. W. Sconce for eleven hundred dollars, dated March 6,1907, on which there has been paid the sum of two hundred eighty-six and fifty-seven one-hundredths dollars and in consideration of the further fact that the said Lumber Company has this day paid the said J. C. Sconce and Bro. one hundred and eighty-six and fifty-seven one-hundredths dollars the receipt of which is hereby acknowledged, that the said J. C. Sconce and Bro. shall deliver to the said Lumber Company f. o. b. ears Dagonia, Missouri, the said one hundred thousand feet of lumber, and that when the same is received by said Lumber Company, it shall deliver the note above described to the said J. C. Sconce & Bro., together with the deed of trust securing the same, which, together with the said sum of one hundred eighty-six and fifty-seven one-hundredths dollars are to be received and accepted by the said J. C. Sconce & Bro. in full payment of the purchase price of the said one hundred thousand feet of lumber.
“It is understood that the said J. C. Sconce & Bro. shall use their earnest endeavor to load and ship all of the described lumber -within a reasonable time from this date, and that in any event he will have all of sa d lumber loaded and shipped not later than July 1, 19U9.
“Now, therefore, in consideration of this agreement, and in consideration of the further sum of five hundred dollars, this day in hand paid by the said Lumber Company to the said J. C. Sconce & Brother, the receipt whereof is hereby acknowledged, it is hereby understood and agreed that all contracts and agreements, either oral or written, heretofore entered into between the parties hereto, and whether declared on in the above-mentioned suits or not, are hereby abrogated, annulled, and set aside, so that neither party to this agreement can have or claim any right or demand of any kind whatsoever against the other, under any contract entered into between them prior to this date.
“It being the intention of the parties hereto to settle all difference and questions which have arisen, or might arise, by virtue of any pre-existing contiact or contracts heretofore made between them.”

The only question presented for determination is the construction of the following clause in the contract set out in the foregoing statement: “In . , ,. » . , , . consideration oi this agreement, and m consideration of the further sum of five hundred dollars, this day in hand paid by the said Lumber Company to the said J. C. Sconce & Bro., the receipt whereof is hereby acknowledged, it is hereby understood and agreed that all contracts and agreements, either oral or written, heretofore entered into between the parties hereto, and whether declared .on in the above-mentioned suits or not, are hereby abrogated, annulled, and set aside, so that neither party to this agreement can have or claim any right or demand of any kind whatsoever against the other, under any contract entered into between them prior to this date. It being the intention of the parties hereto to settle all difference and questions which have arisen, or might arise, by virtue of any pre-existing contract or contracts heretofore made between them.”

In this construction we must be guided by a maxim as old. as the law of contracts itself and which was expressed by Judge Lamm for this court in Buxton v. Kroeger, 219 Mo. l. c. 246, as follows: “Courts construe contracts and ascertain their meaning from all of the provisions of the contract and not from single words or phrases or sentences, and when the intention of the contracting parties is thus ascertained, that intention will be effectuated, unless it violates some inexorable rule of law.” And in the same case, commenting on Utter v. Sidman, 170 Mo. 284, he said that “the doctrine of that ease is, in a nutshell, that the old east-iron general rule, that, if there be repugnancy, the first words in a deed and the last words in a will shall prevail, no longer obtains in Missouri.” The latter rule is applicable to all contracts as well as to deeds and wills. The same idea is tersely and forcibly expressed by the Supreme Court of Nebraska in People ex rel. v. Gosper, 3 Neb. 285, as follows: “The whole contract should be considered in determining the meaning of any of its parts.” With this rule in view we find that this contract provides particularly for the very note here in question, by specifying that “J. C. Sconce & Bro. shall deliver to the said Lumber Company f. o. b. cars Dagonia, Missouri, the said one hundred thousand feet of lumber, and that when the same is received by said Lumber Company, it shall deliver the note above described to the said J. C. Sconce & Bro., together with the deed of trust securing the same, which, together with the said sum of one hundred eighty-six and fifty-seven .one hundredths dollars are to be received and accepted by the said J. C. Sconce & Bro. in full payment of the purchase price of the said one hundred thousand feet of lumber.” In considering this we apply the further rule, equally well established, that particular words and clauses in a contract take precedence of general ones which they restrict and limit when that appears from the whole instrument to be the intention of the parties. In this case the parties have plainly expressed the intention that the note and deed of trust remain alive, to be paid and satisfied in the particular manner provided in the clause last quoted, thereby indicating that these instruments, although technically included in the general definition of the word contracts, were intended to be excluded from that definition in this particular instance. That there is no inexorable rule of law violated by this construction stands not only upon reason but the very point has been settled by authorities, among which we cite the following: Jones v. Hawkins, 17 Ind. 550, 552; Allison v. Hubbell, Id. 559, 564-6; Smith v. Brown, 28 Miss. 810. While these eases arose upon the construction of statutes, the reason 'which supports them is even more obviously applicable to private contracts, which do not usually involve the skill and care in their preparation incidental to legislative action.

It follows that the judgment of the circuit court of Shannon county must be, and it is, affirmed.

Blair, C., concurs.

PER CURIAM: —

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

All of the judges concur


author: BOND, J.

text:
    ISIDOR KWILECKI v. Y. ALLEN HOLMAN, Appellant.
    Division One,
    June 2, 1914.
    1. APPELLATE JURISDICTION: Constitutional Question. The Supreme Court has appellate jurisdiction of a case which involves a construction of the Constitution of the United States, however small may be the amount of money involved.
    2. STATUTE OF ANOTHER STATE: Validity. The Supreme Court has power to decide, in a suit properly before it, the validity of a statute of another State whose conformity to the Constitution of the United States is drawn in question. But it will not undertake to determine that such statute is out of harmony with the constitution of the State enacting it where the Supreme Court of that State had adjudged it to be valid.
    3. -: -: Attachment: No Service. A statute of another State, authorizing the seizure of the property of a debtor, whether resident or non-resident, without either personal service of the writ upon such debtor or notice to him by publication, is not violative of the Constitution of the United States. Constructive service is had upon the non-resident defendant in the attachrhent suit by the legal seizure of his property, and he is more likely to be informed of its seizure ,by those in its actual possession than he would be by publication; and, hence, he is not deprived of his property without due process of law.
    Appeal from St. Louis City Circuit Court — Hon. Leo. S. Bassieur, Judge.
    Affirmed.

      Lloyd L. Adams for appellant.
    (1) Where one claims through a judicial sale, the jurisdiction of the court under whose decree the sale is made can always be attacked. Windsor v. McVeigh, 93 U. S. 282; Caffery v. Mining Co., 95 Mo. App. 174; McCrory v. Hall, 104 Ga.- 668. (2) The Constitution of the United States requires that all courts proceed to their final authoritative adjudications upon due notice, either actual or constructive, and after some opportunity to be heard is given. Otherwise their most solemn decrees and judgments are everywhere held to be without any binding or conclusive effect. U. S. Constitutional Amendments V and XIV; St. Louis v. Richeson, 76 Mo. 484; Windsor v. McVeigh, 93 U. S. 274; Brown v. Denver, 7 Colo. 305; Munn v. Corbin, 8 Colo. App. 113. (3) The question as to whether notice would be useless or useful does not affect the rule requiring that notice be given; as, for instance, in the cases of insane people and infants. Chase v. Hathaway, 14 Mass. 222; Eddy v. People, 15 111. 386. (4) It is not enough that the owners by chance have notice, or that they may as a matter of favor have a hearing. The notice required to be given must be an official act. Kuntz v. Sumption, 117 Ind. 1; Garvin v. Dausman, 114 Ind. 429; Baker v. Aultman & Co., 107 Ga. 341. (5) For due process of law the notice given must be some notice provided by law. The agency giving it must be some agency empowered by law to give an official notice. The law must provide for notice, otherwise proceedings thereunder are void. Brown v. Denver, 7 Colo. 311; Stewart v. Palmer, 74 N. Y. 183. (6) The seizure of property, in proceedings in rem, does not complete the jurisdiction of the Court, but such seizure must be supplemented by some form of notice. Windsor v. McVeigh, 93 IT. S. 274; Woodruff v. Taylor, 20 Vt. 76. (7) The- faith and credit given a judgment of another State depends upon whether it appears that the defendant was either personally within the jurisdiction of the State or was in some way subject to its laws and had legal notice of the suit. It is not enough to show that the judgment is valid in the State where it was rendered. Lafayette Ins. Co. v. French, 59 U. S. 406.

      McPheeters & Wood for respondent.
    Under the law of Georgia in an attachment of personal chattels in an action against a non-resident, the levy of the attachment takes the place of publication and no further publication is required. AlbrightPryor Co. v. Pacific Selling Co., 126 Ga. 498; Earle v. Sayre, 99 Ga. 617; Craig v. Fraser, 73 Ga. 250; Steers & Co. v. Morgan, 66 Ga. 557; Sees. 4510-4575, Ga. Code (1895).
    STATEMENT.
    Plaintiff, who is a non-resident of the State, brought a suit before a justice of the peace against the defendant, who is also a non-resident, by attachment and garnishment issued thereon, which was served upon the Thomas E. Powe Lumber Company. The garnishee answered admitting it had possession of $309.65 belonging to defendant. An interplea Was filed in the justice’s court by an Alabama bank, but nothing further seems to have been done in that proceeding. On the trial of the attachment suit the justice of the peace gave judgment for defendant, from which plaintiff appealed to the circuit court. On the trial there, the plaintiff adduced testimony tending to show that he acquired title to the lumber at Climax, Georgia, on December 3d, at a sale under execution; that the execution was issued in an attachment suit filed against defendant at Bainbridge, Georgia, by A- A. Powell; 'that an affidavit was filed in that case by Powell, to the effect that defendant was indebted to him and was a non-resident of the State of Georgia; that a bond was filed, attachment writ issued, defendant’s lumber at Climax, Georgia, was levied upon, a judgment rendered and the lumber sold under the execution to plaintiff for the sum of $75; that no notice of the suit was ever given to the defendant in the case, either by summons or by publication, and that under the statute of Georgia governing attachment suits, a non-resident defendant is not entitled to notice of a suit against him other than the legal seizure of his property before judgment and sale of his property.
    Plaintiff introduced the deposition of one J. W. Brinson to the effect that as constable he had levied upon two piles of lumber near the railway at Climax, Georgia, under a writ of attachment in favor of one A. A. Powell against the defendant herein, issued by a justice of the peace of Decatur county, Georgia; that he afterwards sold the lumber at public sale under a writ of fieri facias, issued in the same court, to the plaintiff for the sum of $75, and delivered possession to him; that defendant had no actual notice of the sale. The .writ introduced in evidence, commanded the constable to attach and seize property of appellant, and a return thereon says, “I have this day levied upon 2 piles of lumber,” etc. Plaintiff introduced the deposition of justice of peace at Bainbridge, Georgia, that on July 16, 1909, he issued a writ of attachment in a suit filed by A. A. Powell against appellant herein; that appellant never appeared to the suit, judgment was rendered therein and an order of sale made; that the attachment writ, affidavit, bond, return of levy, judgment entry and order of sale are all the records, and contain all the proceedings in the case. Plaintiff introduced the deposition of Will H. Krause that he was a lawyer and that the code of Georgia contains no requirement to give a non-resident defendant any notice or that he be served with a writ of attachment, either personally, by publication or in any other manner, in order to get judgment against his personal property within the limits of the State. The circuit court overruled the demurrer to the evidence upon which defendant stood, and rendered judgment in favor of plaintiff for damages in the sum of $250 with interest thereon from the date of the alleged conversion, making a total of $268.45, from which this appeal is taken to this court for that defendant alleges that he was deprived of his property without due process of law and in violation of the United States Constitution.
   OPINION.

BOND, J.

(After stating the facts as above.)— Although the amount in dispute in this case is far below the pecuniary limit of the jurisdiction of' the St. Louis Court of Appeals within whose territorial jurisdiction the cause of action arose, the appeal was properly taken to this court since its consideration “involves the construction of the Constitution of the United States.” The power of this court to decide, in a suit properly before it, the validity of an act of the Legislature of a sister State from the standpoint of its conformity to a provision of the Constitution of the United States, is well settled in reason and by authority. [Stoddart v. Smith, 5 Binn. (Pa.) l. c. 363.]

In the case cited a transitory action was brought in Pennsylvania, and the question involved was the constitutionality of the statute of the State of Maryland, upon which the title of the plaintiff to certain lots depended. The court said: “His title depends on the act of assembly; the act of assembly depends on the Constitution of the United States, which we are sworn to support. So that it is impossible to get at the merits of the case, without deciding on the act of assembly. Nor can our decision have the least effect on the independence of the State of Maryland, or on the validity of the act of assembly within the jurisdiction of Maryland. It only affects the cause before us; and if the courts of Maryland should differ with us in opinion, they will pay no regard to our judgment, except so far as it affects this cause. ”

But a different rule would apply if the question presented here related only to the validity of an act pf a sister State as judged by its own Constitution, and did not involve the construction of the Constitution of the United States. For the decision of that question by the Supreme Court of the sister State would be controlling both in other states and in the Federal courts. [Fowler v. Lamson, 146 Ill. l. c. 478; Fairfield v. County of Gallatin, 100 U. S. l. c. 50.] In the latter case it is said: “It is the peculiar province of the Supreme Court of a State to interpret its organic laws, as well as its statutes, and it is the duty as well as the «pleasure of this court to follow and adopt that court’s interpretation.”

There is nothing in the ruling of Chief Justice Holmes of Massachusetts (now associate justice of the Supreme Court of the United States), to the contrary in Woodward v. Central Vt. Ry., 180 Mass. 599; for in that case it appeared that the statute of Vermont had not been passed upon by the Supreme Court of that State on the point of its disharmony with the Constitution of Vermont. The learned judge expressed regret that the question of the validity of its statute under its own Constitution had not been before the Supreme Court of Vermont and added: “But as it arises in a suit properly before us we must deal with it to the best of our ability, as our predecessors and the courts of other States have done in similar cases.” [Citing cases.]

The Supreme Court of Georgia has affirmed the validity of the statutes of that State governing the maintenance of attachment suits tested by its own Constitution and by the Federal Constitution. [Pyrolusite Manganese Co. v. Ward, 73 Ga. 491; Smith v. Brown, 96 Ga. 274; McCrory v. Hlal, 104 Ga. 666.] The theory upon which that ruling was made is, that the fact of legal seizure of his property under the attachment writ is constructive notice to the owner, in that he will surely learn of the official execution of that writ and thus be informed of the attachment suit against himself. And that this knowledge will come to him whether he be a resident or a non-resident— in the one case by his personal cognizance, and in the other by information from his representative in charge of the property from whose custody it was taken when seized under the writ. In order to have this effect, the service of the writ, whether upon lands or chattels, must be real and actual and by such a caption as they are susceptible of. It is not sufficient for the officer to make an entry of levy without more. [Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. l. c. 501; Tuells v. Torras, 113 Ga. 691; Baker v. Aultman & Co., 107 Ga. 339.]

II.

In this case the title of respondent to the goods for conversion of which this suit was instituted, rests solely upon the validity of the judgment in rem rendered in the attachment proceeding brought in a justice’s court in the State of Georgia; hence, the burden of establishing the jurisdiction of that tribunal to order the sale of the property is cast upon him.

The documentary evidence and the testimony of the levying officer tends to prove the regularity and validity of the issuance, the levy and legal seizure, and return thereof upon the writ, as well as the subsequent sale of the property and its purchase by respondent, and the delivery of possession to him.

Appellant adduced no evidence to the contrary, but predicates his entire defense upon the notion that the statutes of Georgia were violative of the Federal Constitution. We are unable to assent to that view. We concur in the reason to the contrary so well stated in the ruling of the Supreme Court of Georgia when that question was before it. We think, as that court thought, that constructive service was had upon the non-resident defendant in the attachment suit in Georgia by the legal seizure of his property; that such a physical taking of it would be sooner ascertained by him than the information which might come from the chance of his seeing a foreign local publication.

The judgment is herein affirmed.

All concur.