author: DONNELLY, Judge.

text:
    R. ROWLAND & COMPANY, INC., Appellant, v. David J. LEAHY et al., Respondents.
    No. 60138.
    Supreme Court of Missouri, en banc.
    Feb. 8, 1978.

      Frederick H. Mayer, Daniel J. Murphy, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for appellant.
    R. J. Slater, Padberg, McSweeney & Slater, St. Louis, for respondents.
   DONNELLY, Judge.

This cause was tried by the trial court without a jury. Judgment was for defendants David J. Leahy and his wife. Plaintiff appealed to the St. Louis District of the Court of Appeals. The cause was transferred here on the certification of a dissenting judge and will be decided here “the same as on original appeal.” Mo.Const. Art. V, § 10.

On July 19, 1972, Leonard P. Betz, a registered representative for plaintiff R. Rowland & Company, Inc., took an order from Leahy to purchase for him 1,000 shares of the common stock of Occidental Petroleum.

According to Leahy, his instructions to Betz were as follows:

“Q. Would you advise the Court under what terms and circumstances you advised the purchase?
“A. I told him the next morning I wanted him to buy me a thousand shares of Occidental Petroleum when the market opened, after the market opened and resumed trading. At that time I wanted him to buy me my stock and call me immediately and let me know, to confirm it.
⅜ sfc ⅜ ⅜ ⅜ *
“Q. Did you specify that the purchase was not to be made until after trading resumed in the stock?
“A. That’s what I told him that I wanted him to do for me.
“Q. That was a requirement of your purchase?
“A. Yes, sir.”

Betz’s testimony was not materially different. He stated that Leahy told him to purchase when the market opened.

After receiving Leahy’s instructions, Betz placed a day order for 1,000 shares of Occidental Petroleum. At that time, trading in Occidental Petroleum was suspended. On July 20, at 9:18 a. m., Betz placed another day order for 1,000 shares of Occidental Petroleum. At approximately 10:30 a. m., on July 20, trading resumed in Occidental Petroleum. Shortly after 10:30 a. m., Le-ahy was advised by phone by one of plaintiff’s secretaries that the stock had been purchased and that he was due a price of I8V4. The stock was then selling for 16. Leahy instructed the secretary not to put his name on the stock and refused to pay for the stock. Plaintiff sold it on August 7, 1972, for 13¼, and instituted this suit to recover the loss. Plaintiff concedes it made no case against Mrs. Leahy.

The controversy in this case results from the instructions given by Leahy to Betz.

According to the evidence, Leahy’s instructions could have resulted in two courses of action by Betz:

(1) Betz could have placed the order while trading in Occidental Petroleum was suspended. When trading in a stock is suspended, a specialist matches orders and a buyer pays a “pool” price when the stock resumes trading. In this case, the “pool” price was 18¼.
(2) Betz could have placed the order after trading in Occidental Petroleum resumed on July 20. A buyer would then pay a “competitive bid” price, a result of the stock being actively traded.

Betz followed the former course of action. Leahy contends Betz should have followed the latter course of action.

“The ordinary relationship of a stockbroker to his customer is that of principal and agent.” 12 Am.Jur.2d, Brokers § 113. When the instructions of a principal to his agent are not ambiguous, they must be followed. 3 Am.Jur.2d, Agency § 206. “If an authorization is ambiguous because of facts of which the agent has no notice, he has authority to act in accordance with what he reasonably believes to be the intent of the principal although this is contrary to the principal’s intent; * * Restatement of Agency 2d, § 44. However, if “at the time of acting, the agent should realize the possibility of conflicting interpretations, ordinarily he is not authorized to act, since it would be his duty to communicate with the principal and obtain more definite instructions.” Restatement of Agency 2d, § 44, Comment c.

In our opinion, Leahy’s instructions to Betz were such that Betz should have realized the possibility of conflicting interpretations. When Betz acted in the face of this ambiguity, without communicating with Leahy and obtaining more definite instructions, he took the risk and plaintiff must bear the loss.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. CITY OF MACON, Missouri, a Municipal Corp. and City of the Third Class, Relator, v. Honorable Ronald M. BELT, Judge, Circuit Court of Macon County, Respondent.
    No. 60199.
    Supreme Court of Missouri, en banc.
    Feb. 8, 1978.
    Charles A. Powell, Jr., Macon, for relator.
    Robert G. Smith, Brookfield, for respondent.
   DONNELLY, Judge.

This is an original action in prohibition. In 1974, relator, the City of Macon, awarded an exclusive contract for all waste collection services in the city to Wilson Refuse Hauling, Inc. The City of Macon also declared by ordinance that it shall be unlawful for any person to collect solid waste within the city “without a contract with, or permit from, the City.”

On March 21, 1977, Mike Teeter, d/b/a Teeter Land Fill, filed a Separate Amended Petition in the Circuit Court of Macon County, alleging that he is in the business of collecting solid waste, that a permit had been refused him, and asking the Circuit Court to enjoin the city from enforcing the ordinance.

On May 11, 1977, respondent entered an order temporarily enjoining the city from enforcing the ordinance and scheduled a hearing on a permanent injunction for May 31, 1977.

On May 27, 1977, relator filed its Petition for Writ of Prohibition in this Court. On June 14,1977, our preliminary rule in prohibition was ordered to issue.

The only assertion made by Teeter in this Court is that the exclusion of his business from relator city is unconstitutional as an unreasonable exercise of the police power.

In Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 981, 13 S.W.2d 628, 634 (1929), Division No. 1 of this Court said:

“It has been definitely and clearly established and settled, by the decisions of this court and of the federal Supreme Court, that a statute, or a municipal ordinance, which is fairly referable to the police power of the State or municipality, and which discloses upon its face, or which may be shown aliunde, to have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality, and general welfare of the inhabitants of the State or municipality, does not contravene or infringe the several sections of the state and federal Constitutions invoked by the appellants herein, and cannot be held invalid as wrongfully depriving the appellants of any right or privilege guaranteed by the Constitution, state or federal; the reason and basis underlying such decisions being that the personal and property rights of the individual are subservient and subordinate to the general welfare of society, and of the community at large, and that a statute or ordinance which is fairly referable to the police power has for its object the ‘greatest good of the greatest number.’ ”

In Valley Spring Hog Ranch Company v. Piagmann, 282 Mo. 1, 11, 18, 220 S.W. 1, 4, 6 (1920), this Court en Banc upheld an ordinance empowering the City of Joplin to make an exclusive contract for the hauling and disposal of the city garbage and household refuse, found the ordinance to be a “fair exercise of the police power,” and said:

“Of course every ordinance in the exercise of the police power must be reasonable, but * * * there is nothing in this Joplin ordinance which is unreasonable. The city had the right to contract with either one or more than one person to collect and dispose of its garbage. * *.”

We believe Valley Spring controls our disposition of this case. We hold that the ordinance which gives Wilson Refuse Hauling, Inc., the exclusive privilege to collect and dispose of solid waste in the City of Macon is “fairly referable” to the comfort, health and general welfare of the inhabitants of the City of Macon and is a valid exercise of the police power.

The preliminary rule in prohibition is made absolute.

All concur.


author: GUNN, Presiding Judge.

text:
    Lawrence V. TESON, David Behle, Nancy Behle, Joseph Harry Keeven, Mary Catherine Keeven, Matthew Klaus, Florence Klaus, Charles Sommers and Margaret Sommers, Plaintiffs-Respondents, v. Velma VASQUEZ, Executrix of the Estate of Leo Vasquez and Velma Vasquez, Defendants-Appellants.
    Nos. 37003, 37004, 37506, 37608 and 37609.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1977.

      Edward D. Weakley, Lashly, Caruthers, Thies, Rava & Hamel, St. Louis, for defendants-appellants.
    Marvin M. Klamen, Klamen, Summers & Compton, Clayton, for plaintiffs-respondents.
   GUNN, Presiding Judge.

This is a consolidated cross appeal from judgments of the circuit court, sitting without a jury, quieting title to certain tracts of land located in St. Louis County in claimants, Tesón, Sommers, Keeven and Behle, by adverse possession and quieting title to other tracts in defendants Vasquez under their quitclaim deed. Defendants argue on appeal that the elements of adverse possession were not established by the claimants in whom title was quieted. Claimants, Klaus and Tesón, who were found not to have established title by adverse possession, appeal from the court’s finding, arguing that they proved their title under that theory-

We affirm in part and reverse in part.

Claimant, Lawrence Tesón, commenced this suit on August 25, 1969, by filing a petition in the circuit court seeking to have title to certain lands near his home quieted in favor of himself and his wife. Defendants, Leo and Velma Vasquez, then filed a motion to make more definite and certain. No further action was taken until December 8, 1972, when Tesón, with leave of court, filed a first amended petition seeking to quiet title to the same tract of land by adverse possession. Claimants, Keeven, Behle, Klaus and Sommers, who claimed title to nearby and adjoining lands by adverse possession, were added as parties plaintiff. Defendant’s answer, filed March 30, 1973, was a general denial. In their counterclaim, defendants alleged that they were conveyed good title to the entire property in question by a quitclaim deed from Hugo and Alvina Essen on October 2, 1950 and prayed that title be quieted in them on the basis of this recorded deed. Prior to trial defendants’ motion to separate was sustained, and each claimant’s suit was ordered to be tried separately but seriatim. The Tesón and Sommers cases were so tried. Because of the confusion and repetition of evidence encountered in those cases, the Keeven-Behle and Klaus cases were tried together.

The property in controversy consists of approximately 208 acres of rich river bottom land in northeast St. Louis County. It is bounded on the north by the Missouri River and on the south by Aubuchon Road. The eastern and western boundaries are not marked by any distinct landmarks but are merely prolongations of United States survey lines from their endpoint at Aubuchon Road extending to the Missouri River. The four parcels claimed by adverse possession are shaped roughly as rectangles, and each is bounded by Aubuchon Road, the river and the prolongations of the United States survey lines. Title to a 92 acre parcel situated between the Tesón and Klaus tracts was quieted in defendants in Baxter v. Vasquez, 501 S.W.2d 201 (Mo.App.1973). This suit concerns the title to the remaining 208 acres purportedly conveyed to defendants by the Essens under the 1950 quitclaim deed. The following generally depicts the location of the property involved:

[See following illustration.]

The land in controversy, though it is rich farmland today, was not always so. In the mid 1800’s when the area was first surveyed and platted this land was an island in the middle of the Missouri River. The St. Louis County bank of the river was located at what is now called Cowmire Creek near Aubuchon Road. Over the last century and one half, the river channel slowly shifted northward until the former island became attached to the St. Louis County riverbank. Even after it became part of the mainland early in this century, almost none of the land was suitable for farming because of the low-lying swampy character of the land, the dense growth of timber, brush and vines and the frequent flooding. In 1950 when the Essens conveyed this property to defendants, it remained largely a vast wasteland of little value. Since that time many improvements have taken place increasing the worth of the land. One or more levees have been constructed which have lessened, though not eliminated, the flooding problems, and which have decreased the acreage covered by swamps. Additionally, the land was cleared of floodplain vegetation. This clearing occurred slowly and sporadically in the 1950’s, but its pace quickened appreciably in the early 1960’s and has continued until the present. Today the vast majority of the land is suitable for farming. There remain, however, a number of low-lying sloughs crisscrossing the property as well as the free-flowing Cowmire Creek.

Before detailing and examining claimant’s acts of possession which allegedly vested title in them to the land in controversy, we indite the well settled precepts of the law of adverse possession. The claimant has the burden of proving by the preponderance of the evidence the existence for the entire statutory period of each and every element of adverse possession. He must show actual, hostile, i. e., under a claim of right, open and notorious, exclusive and continuous possession of the property for ten years. Failure to prove any one element prevents the ripening of title by adverse possession. § 516.010 RSMo 1969. Conran v. Girvin, 341 S.W.2d 75 (Mo. banc 1960); Walker v. Walker, 509 S.W.2d 102 (Mo.1974); Wilton Boat Club v. Hazell, 502 S.W.2d 273 (Mo.1973); Moran v. Roaring River Dev. Co., 461 S.W.2d 822 (Mo.1970); Wykle v. Colombo, 457 S.W.2d 695 (Mo.1970); Miller v. Warner, 433 S.W.2d 259 (Mo.1968); Carlisle v. Keeling, 347 S.W.2d 191 (Mo.1961); Hamburg Realty Co. v. Walker, 327 S.W.2d 155 (Mo.1959); Feinstein v. McGuire, 297 S.W.2d 513 (Mo.1957); Horton v. Gentry, 357 Mo. 694, 210 S.W.2d 72 (1948).

In dealing with a case of adverse possession, it must be remembered that we are presented with mixed questions of law and fact in which the application of the facts to the law presents the major issues of controversy. See Moss v. James, 411 S.W.2d 104 (Mo.1967). Moreover, our task is further complicated by the fact that every piece of property is unique. Thus, in determining whether the facts in evidence authorize a finding that the elements of adverse possession have been satisfied, each case must be decided in light of its own unique circumstances. Much depends on the location, the character and the use to which the land in question may reasonably be put. Lossing v. Shull, 351 Mo. 342, 173 S.W.2d 1 (1943). Those specific manifestations of possession and ownership exhibited by a claimant which would support a finding of title by adverse possession in a populous and highly developed area are not the same as those which would support such a finding where, as here, the property is sparsely populated farm and waste land. Feinstein v. McGuire, supra.

The essential requirement of adverse possession is that the possessor’s occupancy be truly adverse and in opposition to the title of the record owner. Russell v. Russell, 540 S.W.2d 626 (Mo.App.1976). The claimant must occupy the particular piece of property intending to possess it as his own. His occupancy must be in defiance of, not in subordination to, the rights of others. Benson v. Fekete, 424 S.W.2d 729 (Mo. banc 1968); Mooney v. Canter, 311 S.W.2d 1 (Mo.1958). An adverse possessor does not recognize the authority of the record titleholder to permit or to prevent his continued use of the property claimed. Benson v. Fekete, supra. Such adversity is shown by satisfaction of the five elements of adverse possession.

The first element is actual possession. Two concepts are relevant in determining whether a claimant has established his actual possession of the land claimed. They are his present ability to control the land and his intent to exclude others from such control. Miller v. Warner, supra; Hamburg Realty Co. v. Walker, supra. Where the claimant occupies land without color of title, in order to prevail, he must show physical possession of the entire area claimed. Pharis v. Jones, 122 Mo. 125, 26 S.W. 1032 (1894); Wykle v. Colombo, supra. A mere mental enclosure of land does not constitute the requisite actual possession. Wilson v. Purl, 148 Mo. 449, 50 S.W. 90 (1899). Rather, there must be continual acts of occupying, clearing, cultivating, pasturing, erecting fences or other improvements and paying taxes on the land. The performance of all or any combination of these acts of occupancy serves as evidence of actual possession but is not conclusive. See Dunlop v. Hartman, 338 S.W.2d 10 (Mo.1960); Brown v. Evans, 182 S.W.2d 580 (Mo.1944); Jamison v. Wells, 7 S.W.2d 347 (Mo.1928); McVey v. Carr, 159 Mo. 648, 60 S.W. 1034 (1901); Franklin v. House, 533 5.W.2d 243 (Mo.App.1976); Moise v. Robinson, 533 S.W.2d 234 (Mo.App.1975). Each case must be decided on its own peculiar facts.

Where the claimant occupies land under color of title the requirement of actual possession of the entire area claimed is relaxed. By statute, one who occupies land under color of title is required only to physically possess a part of the tract claimed in the name of the whole, if during the period of possession he exercises the usual acts of ownership over the whole. § 516.040 RSMo. 1969. Thus, color of title is not an element of adverse possession, but it serves to extend actual possession of some portion of the land claimed to constructive possession of the whole tract described in the instrument providing the basis for color of title. Moran v. Roaring River Dev. Co., supra; Cullen v. Johnson, 325 Mo. 253, 29 S.W.2d 39 (1930). The instrument relied upon as color of title must be bona fide and must purport on its face to convey title to the land. Crispen v. Hannavan, 50 Mo. 536 (1872); Moise v. Robinson, supra. It need not actually convey legal title so long as it pretends to make the claimant the apparent owner. Even a void deed is sufficient to constitute color of title if it includes within its description the land claimed. Moran v. Roaring River Dev. Co., supra; Jamison v. Wells, supra; Moise v. Robinson, supra.

In addition to describing the land claimed, it is also required that the true owner have actual or constructive notice of the instrument and its contents. Thus, he must be advised not only of the claimant’s actual possession, which must be open and notorious to satisfy the requirements of adverse possession, but also the constructive extent and boundary of the land claimed. Hughes v. Israel, 73 Mo. 538 (1881); Crispen v. Hannavan, supra. This can only be known by being actually apprised of the contents or having the opportunity to be so apprised by the fact of recordation of the instrument bestowing color of title. Once color of title is established, less weight of evidence is required to support an adverse entry under its apparent authority than for a bare entry by one without a claim of right. Moran v. Roaring River Dev. Co., supra; Feinstein v. McGuire, supra.

The second element which must be proved to establish adverse possession is that the possession be hostile or under a claim of right. Naked possession asserted for any period of time, no matter now lengthy, is insufficient to ripen into adverse possession. Fiorella v. Jones, 259 S.W. 782 (Mo.1924). For possession to be hostile it is neither required that the true owner have knowledge of the hostile claim of right or that the claimant intend to deprive him of title. Glenville v. Strahl, 516 S.W.2d 781 (Mo.App.1974). The possession must be opposed and antagonistic to the claims of all others, i. e., the claimant must occupy the land with the intent to possess it as his own and not in subservience to a recognized, superior claim of another. Walker v. Walker, supra; Gates v. Roberts, 350 S.W.2d 729 (Mo.1961). Furthermore, the claim of right or ownership must be unequivocal. Reinheimer v. Rhedans, 327 S.W.2d 823 (Mo.1959).

The third element of adverse possession is that the possession be open and notorious. To satisfy this element it is necessary to prove that the claimant’s occupancy was conspicuous, widely recognized and commonly known. Long v. Lackawanna Coal & Iron Co., 233 Mo. 713, 136 S.W. 673 (1911). One may not acquire title by adverse possession if his occupancy has been so covert that it is unknown to the persons who deal regularly with and around the land claimed. The reason the law requires open and notorious possession for title to ripen by adverse possession is to give the owner cause to know of the adverse claim of ownership by another. Thus, if the true owner has actual knowledge that another claims in defiance of and in opposition to his title, the openness and notoriety requirement is satisfied. It is not the mere knowledge of occupation of his land by another which will prejudice the true owner’s rights under his title. Rather, it is the adverse and hostile character of the occupation which must be known. Sellers v. Swehla, 253 S.W.2d 847 (Mo.App.1952). If actual knowledge is not proved then the claimant must show an occupancy so obvious and well recognized as to be inconsistent with and injurious to the real owner’s rights that the law will authorize a presumption from the facts that he had such knowledge. Miller v. Warner, supra; Burnside v. Doolittle, 324 Mo. 722, 24 S.W.2d 1011 (1930).

The fourth element of adverse possession, that of exclusivity of possession, only requires that the claimant occupy the land for his own use and not for that of another. Walker v. Walker, supra; Gates v. Roberts, supra. Generally, one may not be vicariously vested with title by adverse possession as a result of possession by another, though where there is the requisite relationship between the parties, tacking of possession is allowed. See Lurvey v. Burrell, 317 S.W.2d 458 (Mo.1958); Crispen v. Hannavan, supra. Two or more persons may acquire title to the same property by adverse possession as cotenants if they had exclusive joint possession for the statutory period. Wilton Boat Club v. Hazell, supra.

The final element of adverse possession is that the occupancy be continuous, i. e., without lapse, for the entire statutory period. Temporary absence from the land without an intention to abandon possession will not break the continuity of possession; intermittent and sporadic occupancy will. Feinstein v. McGuire, supra. In judging the continuity of possession, the character and use to which the land is adaptable must be taken into account. For instance, under the facts of this case, the periodic flooding which made access to and use of the property impossible for entire growing seasons would not interrupt the continuity of possession unless there was an intent to abandon possession after the waters receded.

One overriding requirement to establish adverse possession to a particular piece of property is that the precise location of the land claimed be identified in such a way that the boundaries may be ascertained and recognized. Wilson v. Purl, supra. Absent proof by claimant of the exact location of lands claimed, any judgment would be void, because it would rest entirely on speculation and conjecture. Hughes v. Israel, supra.

We will now review the proof as adduced at trial to determine whether claimants have met their burden of establishing title by adverse possession. Because this is a court tried case, we must follow the dictates of Rule 73.01 V.A.M.R. Thus, we review both the law and the evidence giving due recognition to the superior position of the trial court to judge the credibility of the witnesses. Albert v. DeClue, 526 S.W.2d 39 (Mo.App.1975). The judgment must be sustained unless it is without substantial evidentiary support, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); State ex rel. Shepherd v. St. Louis County, 542 S.W.2d 55 (Mo.App.1976).

The land claimed by Lawrence Tesón is a fertile 75 acre strip contained within the prolongation of the United States survey 146 extending north of Aubuchon Road to the Missouri River. It lies within the river’s floodplain with the result that the low-lying areas are often covered by back water from the several sloughs which traverse the land. In 1950 when the Essens conveyed this land to defendants, it was almost totally overgrown with timber, brush and vines. Only a negligible portion was suitable for farming. The only commercial activity on the land at that time was intermittent timber and pulp wood removal by various persons.

In 1925, Tesón was conveyed title by quitclaim deed to 23n/ioo acres lying within United States survey 146 immediately adjacent to Aubuchon Road. There was no mention in this deed of land lying north of Aubuchon Road or of any right.to accretions. Nevertheless, Tesón testified that it was his understanding that the deed conveyed not only the land lying south of Au-buchon Road but also accretions on the north to the river. It is uncontested that Tesón did in fact farm a parcel of the land claimed immediately north of Aubuchon Road continuously since 1941 when the elements permitted. So much of this parcel as lies between Aubuchon Road and Cowmire Creek is not in controversy, because defendant has disclaimed any rights of ownership to land south of Cowmire Creek. Whether the parcel farmed by Tesón near Aubuchon Road included land north of Cowmire Creek was in dispute.

In addition to farming the southern parcel Tesón claims that he and his sons began clearing and farming small “spots” (4-5 acres each) on the north near the river sometime in the late 1950’s. Exactly where these “spots” were located and whether they were kept continuously cleared in the wake of the periodic floods which inundated the land is not clear from the evidence. These early instances of clearing were accomplished by man and horse power alone, without the aid of modern equipment. In the early 1960’s the pace of clearing was accelerated and larger sections of land within the strip claimed by Tesón were made tillable and were farmed. By 1962 twelve acres, 1500-2000 feet south of the river’s bank, were suitable for farming. In 1964, Tesón hired a heavy equipment operator for a few days to help clear more land. This clearing activity has continued so that at the time of trial approximately 50 acres were cleared and used as farmland. Though Tesón, who was 81 years of age at the time of trial, testified that he continuously farmed lands on the northern end of the property near the river prior to 1960, he admitted in his deposition that he only began farming this tract a few years prior to trial, because before that time it was all timber.

Tesón testified that the boundary of the land he claimed was marked by cedar and iron posts from Aubuchon Road back to the river. He admitted that the iron posts were implanted after a survey he had conducted five to seven years prior to the trial. Tesón claimed that at one time fences existed in places along his claimed boundary but that they were washed out by floods. At the time of trial no fences existed marking any boundaries on this property.

In addition to cutting timber, clearing brush and farming the reclaimed areas, Te-són claimed to have paid taxes on the property from 1925 to 1965. He introduced receipts for those years showing that he paid taxes on 75 acres of accretions, but the receipts did not specify where those 75 acres were located. Further, in 1968, Tesón paid over $1400 for repair to a levee crossing the parcel claimed. He also claims to have ejected various hunters and other intruders from the land over the years. He contends that at one time in the 1950⅛, he personally warned defendant not to intrude on the property he claimed.

Defendant relies solely on the 1950 quitclaim deed from the Essens as the basis for his claim of title. Defendant rarely visited this property. He averaged only ten visits per year over the entire 300 acre tract, and these were primarily for recreational purposes. 1953 was the only year defendant farmed any part of the land claimed, and he planted only a few acres near the river. Defendant, who owned an excavating business, directed his employees to enter the property with heavy equipment in 1964 to clear approximately ten acres to be used for farming by his relatives. Also, defendant paid real estate taxes on the property from 1948 to the time of trial. He carried liability insurance on the property from 1959.

Defendant testified that he never saw Tesón on the contested property prior to 1964. Several witnesses, adjoining landowners and former farm laborers, testified that they observed no farm activity on the tract claimed by Tesón prior to the early 1960’s when small patches of land near the river were cleared of underbrush.

The trial court held that Teson’s 1925 deed did not constitute color of title. Nevertheless, it held that Tesón had established the elements of adverse possession to a tract of approximately twenty acres adjacent to Aubuchon Road extending north of Cowmire Creek to a small tarn known as “Round Pond.” Title to a second parcel of almost forty acres near the river was also vested in Tesón. Title to the land between these two parcels was quieted in defendant.

Under the foregoing facts we affirm the trial court’s judgment as to the parcel near Aubuchon Road and reverse as to the parcel near the river. The trial court correctly concluded that Tesón could claim no color of title to the property north of Aubuchon Road under his 1925 deed. As such, he could acquire title by adverse possession only to the lands he had actually physically possessed for the statutory period. Teson’s proof failed to establish that he had continuously and actually possessed any specific portion of the property near the river. There was testimony of sporadic clearing and cultivation of land somewhere near the river over the years by various persons, including defendant and his relatives. There was little credible evidence of any sustained and permanent clearing until the mid 1960’s. Tesón admitted in his deposition that he had not farmed the northern portion of the land claimed until the last few years before the trial, because it was covered with timber. Though there is sufficient proof that Tesón and his sons did engage in some farming activities on the land near the river, the evidence completely failed to establish the precise boundaries of any tract Tesón used for the statutory period. As such, the trial court had no basis to conclude that Tesón actually and continuously possessed the 40 acre tract it awarded him.

Furthermore, title by adverse possession to land near the river could not vest in Tesón, because his possession was not open and notorious for the entire statutory period. There is no evidence that defendant had actual knowledge of Teson’s possession. Nor does the record reveal sufficient facts from which we could presume constructive knowledge on the part of defendant. Te-son’s presence on the land was only sporadic and until the mid 1960’s was confined to small areas which he could clear with hand equipment. The land was densely thicketed with trees, brush and vines which served to obscure any progress made. Moreover, there were no fences or other readily observable boundaries. Thus, the trial court’s finding of title by adverse possession to the northern 40 acres in Tesón was in error, because actual, open and notorious possession was not proved. Nor were exact boundaries established to any smaller parcel for which the elements of adverse possession may have been satisfied. Therefore, the trial court’s designation of title to the northern 40 acres in Tesón was speculative and conjectural and cannot stand.

As to the southern portion near Aubu-chon Road, it cannot be said that the trial court erred in finding title by adverse possession in Tesón. It is clear that Tesón had acquired title to the tract between Aubu-chon Road and Cowmire Creek by adverse possession. Defendant disclaimed any interest in this property, and its ownership was not in controversy. The land in question is only that which lies between Cow-mire Creek and Round Pond.

The testimony was conflicting, but there was competent evidence that Tesón had farmed the 20 acres between Aubuchon Road and Round Pond continuously for a time well beyond the statutory period. This parcel, unlike that near the river, was in plain sight from Aubuchon Road.' The cultivation must have been clearly visible from the public thoroughfare and open and notorious.

The trial court’s finding of title in defendant to the center portion of the tract claimed by Tesón was correct. Defendant introduced a recorded quitclaim deed clearly encompassing this area. For the purpose of conveying title, a quitclaim is as effective as any other deed. Grimes v. Rush, 355 Mo. 573, 197 S.W.2d 310 (1946). Tesón, on the other hand, relied entirely on an adverse possession theory which he failed to prove. He had no basis on which to claim this center portion as the trial court correctly concluded.

The land claimed by Sommers is that included within the prolongation of United States survey 154 lying north of Old Char-bonnier Road to the Missouri River. Som-mers contends that the land was conveyed to him and his wife on October 3,1952, by a warranty deed from John Little and wife. The deed described the land as consisting of 3½ acres in the western portion of survey 154 but further recited that the land was bounded by the Missouri River with all accretions.

Defendant Vasquez claims title to the property in question north of Cowmire Creek under the 1950 quitclaim deed from the Essens. He disclaims any title to land within the prolongation of survey 154 lying south of Cowmire Creek.

Shortly after Mr. Sommers took possession of the property in 1952, he erected fences along the entire prolongation of survey 154 to the Missouri River. He maintained those fences until the early 1960’s. During this period he also constructed a barn just north of Cowmire Creek. His agricultural activities included raising a small number of Brahman cattle and up to 80 horses on the property. Although about 80% of the property was already cleared in 1952, Sommers continued the clearing operations so that almost the entire area was cleared by the time of the trial.

Sometime between 1960 and 1967 Som-mers traded the use of land claimed by him north of Cowmire Creek to St. Stanislaus Seminary, an adjacent landowner, for the use of other seminary property. The seminary then removed the fences north of the creek and farmed the land as its own until 1971 when another party purchased the seminary property. Sommers testified, however, that he continued to use the barn north of Cowmire Creek until 1965. Both Vasquez and Sommers claimed to have paid real estate taxes on the property.

Defendant testified that at the time he was conveyed the property in 1950 it was used for crop and pasture land and that fences were on the eastern and western boundaries. He acknowledged that he never made use of the property but stated that it was he who gave permission to St. Stanis-laus Seminary to use the land in 1960 or 1961. Defendant admitted that as early as 1954 he was aware that a barn had been constructed and that livestock was being raised on the property.

The trial court correctly concluded that the recorded deed from the previous owners, the Littles, to the Sommers gave the latter color of title to the land claimed. Though ambiguous because of the reference to the 3½ acre plot, the deed clearly purports on its face to convey title in Sommers to land bounded on the north by the Missouri River with all accretions. The only real challenge to the court’s finding that Som-mers established title by adverse possession relates to whether his possession was continuous for the requisite period. The evidence shows that Sommers entered into possession of the property in 1952 and exercised sufficient dominion over it until the trade so that title could be vested in him by adverse possession. The evidence does not clearly and unambiguously establish the date of the trade with the seminary. Som-mers, an elderly gentleman who had suffered a stroke just prior to trial, testified as to various dates between 1960 and 1964. Other witnesses, who lived or worked nearby stated that the trade occurred in 1967. No one from the seminary testified as to the date of the trade.

No question of law is presented under these facts. We are faced squarely with a question of the credibility and accuracy of the various witnesses. We defer to the superior opportunity of the trial court to judge the credibility of the witnesses and to resolve the inconsistencies in testimony. The judgment quieting title in claimant Sommers must be affirmed.

The property claimed by Keeven and Behle consists of 76 acres lying within the prolongations of United States surveys 149 and 150 between Cowmire Creek and the Missouri River. They rest their claim of ownership on adverse possession but argue they have at least color of title by virtue a 1963 warranty deed from Mary Hagen. The Hagens were purportedly conveyed title to this property in 1954. At that time, little of the property had been cleared for farming. But Hagen initiated clearing operations so that by 1962, 20 acres near the river and 15-20 acres near Cowmire Creek were cleared and farmed. Hagen used the uncleared middle section to raise hogs. Ha-gen’s farming operations continued until the fall of 1961 when he failed to harvest his soybean crop. He died in early 1962.

After Mrs. Hagen gave Keeven and Behle the deed in April of 1963, they immediately began to fence the eastern and western boundaries of the land from Cow-mire Creek to the river. Once the fencing project was completed in October, 1963, cattle were placed on the property. Simultaneously with the fencing, claimants began clearing the land of its dense overgrowth of floodplain vegetation. By 1965 they had cleared over 30 acres for farming. They planted this acreage in bluegrass for use in their commercial sod business and installed a portable irrigation system. After a few years the cattle were removed and about 500 head of hogs were placed on the property. From 1963 until the time of trial claimants paid taxes on this property.

Defendant claims the property under the 1950 Essen deed. He rarely visited this property, though he admitted seeing some small areas farmed and noticed a few stray hogs on the property in the mid 1950’s. Defendant first learned that Keeven and Behle claimed the land in the prolongation of surveys 149 and 150 at a wedding the parties attended in 1963. At that time defendant told them that he had prior deed to the same property and that Keeven and Behle had better check their title. Defendant maintains that he told them that they could go ahead and use the property until “the deeds were straightened out.” Obviously, the disputed claims of ownership were not reconciled though defendant, and Keeven had several telephone conversations on the subject subsequent to their meeting at the wedding. In addition to Keeven and Behle, defendant maintained that he had given permission to Donald Tesón, Louis Tebeau and the priests at St. Stanislaus Seminary to farm his bottom land including the surveys 149 and 150 parcels. He neither charged nor received rent from any of the parties. The trial court held that Keeven and Behle had established their title by adverse possession to the entire parcel claimed.

The property claimed by the Klaus’ consists of 40 acres. It is situated within the prolongation of United States survey 148 between Cowmire Creek and the Missouri River. They claimed color of title by a 1960 warranty deed from Laura Aubuchon. The deed specified 15 acres but stated that the western boundary was the Missouri River. The Klaus’ visited the property even less than did defendant. Mr. Klaus admitted in his 1973 deposition that he had not stepped foot on the property for over 10 years. The only use made of the land was to rent it to various persons including Keeven and Behle. Before the property was rented only a small portion of the land was farma-ble (less than 20 percent). But Keeven and Behle cleared the land so that at the time of the trial 90 percent was farmable.

Defendant made no use of the property himself but claimed to have given permission to others to farm it. He continued to pay real estate taxes and maintained insurance on the property. At the conclusion of the trial the court ruled in defendant’s favor finding that Klaus had failed to establish a title by adverse possession.

Defendant’s challenge to Keeven and Behle’s claim of title by adverse possession goes solely to the continuity of possession. In order to prevail, claimants must be able to tack their possession to that of their grantors, the Hagens. When the Hagens took possession of this property in 1954, they were presented with a deed from the prior owner which set the northern boundary of their property at the Missouri River. Therefore, they occupied the land under color of title. As such, the Hagens needed only to have actual possession of a part of the property with the intent to possess the whole. This they did. Mr. Hagen cleared and farmed sections near the river and Cowmire Creek in addition to raising hogs on the property. It is true that Mr. Hagen failed to harvest his soybean crop in the fall of 1961, but in light of the fact that he died in early 1962 the trial court could reasonably conclude that he had not abandoned the property. The finding of continuous possession for the statutory period by tacking the possessions of the Hagens and Keeven and Behle has support in the record. The trial court’s judgment quieting title by adverse possession in them is supported by substantial evidence and is affirmed.

As to the Klaus property there was no evidence that any element of adverse possession was satisfied by the claimants. The only evidence of possession of the property was the fact that the Klaus’ had rented the property to various persons. Rental alone is insufficient to prove adverse possession. The trial court’s judgment quieting title in defendant as against the Klaus challenge is affirmed.

Finally, claimants Klaus and Tesón contend that the trial court erred, in quieting title in defendant to lands claimed by them, because defendant’s title was based on a “mere quitclaim deed” without proof of chain of title. Defendant relied solely on the recorded quitclaim deed from the Essens as the basis for his title. Tesón did not even establish color of title, as his deed could not be interpreted to include the property claimed. When he failed to prove adverse possession he had no claim to the property. Likewise, the Klaus’ relied on the theory of adverse possession for their title, which they also failed to prove. The deed they possess was only introduced into evidence to prove color of title and not ownership. They cannot now assert title on the basis of their deed. We will not review a case on a theory different from that on which it was tried. Russell v. Russell, supra. In a quiet title action each party has the burden, to prove superior title to the other, not superior to the whole world. Baxter v. Vasquez, supra. They must prevail on the strength of their own title, not the weaknesses of their opponents. Hall v. Hudgins, 277 S.W.2d 637 (Mo.1955). Claimants have failed to prove title by adverse possession and have not attempted to prove title under any other theory. Defendant has shown title by his recorded 1950 deed. The fact that it is a quitclaim deed does not deprive it of validity, as a quitclaim deed is as effective as any other to transfer title. The judgment of the trial court quieting title in defendant to the tract claimed by Klaus and the tract claimed by Tesón north of Round Pond must be affirmed.

KELLY and WEIER, JJ., concur.

      . Subsequent to trial but prior to this appeal Leo Vasquez died. Velma Vasquez, as the executrix of his estate, was substituted as a party.

      . In addition to their prayer to quiet title each claimant sought money damages from defendants for slander of title. These claims for money damages were abandoned at trial.

      . In their counterclaim, defendants disclaimed ownership to certain property lying between Aubuchon Road and Cowmire Creek, even though it was within the tract described by the deed from the Essens because it was found to have been erroneously included.

      .The Keeven-Behle tract is separated from the Sommers tract by a large parcel of farmland which at the time of trial belonged to St. Stan-islaus Seminary. Defendants do not claim any title to this land.

      . Defendants forgave a $3,000 debt owed by the Essens in exchange for the property. The purchase price, therefore, was only $10 per acre, an insubstantial sum even at 1950 prices.

      . There has been some confusion over the distinction between color of title and claim of right. The former relates to the existence of a deed or proceeding which apparently vests the title to the land in question in the claimant. The latter is part of the element of hostile possession and requires that claimant enter and remain on the land with a belief that his right to do so is superior to that of the alleged owner. George v. Dickinson, 504 S.W.2d 658 (Mo.App.1974).

      . Defendant contends that the trial court, in reaching its decision in the Tesón case, improperly relied on certain aerial photographs not admitted into evidence in that case. Such reliance was error. Nevertheless, on appeal from a court tried case the reviewing court is required to disregard any incompetent evidence improperly considered and base its judgment on the competent evidence admitted at trial. Giraldin Bros. Real Estate Co. v. Stiansen, 315 S.W.2d 636 (Mo.App.1958). We do not consider any photographs not admitted into evidence in the Tesón case in reaching our decision.

      . The trial court admitted on its Findings of Fact and Conclusions of Law that “We find no way to describe the (southern) boundary of the river-side land we might want to set off to him.”


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William WILBON, Defendant-Appellant.
    No. 38042.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Jan. 3, 1978.
    Robert C. Babione, Public Defender, Henry Rieke, Asst. Public Defender, St. Louis, for defendant-appellant.
    George A. Peach, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, John D. Ashcroft, Paul R. Otto, Jeffrey Schae-perkoetter, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his jury conviction of second degree murder and resultant 20 year sentence imposed under the Second Offender Act. We affirm.

Defendant’s sole point on appeal deals with the state’s closing argument, so only a brief statement of the facts is necessary. The evidence warranted a finding that defendant and three companions entered Sumner High School in St. Louis during school hours, started a fight with several young men in the school, and then while leaving began firing pistols, without provocation, resulting in the death of Stephen Goods. The defense evidence indicated that defendant and his companions withdrew from the fight and shot at the other group of young men only after that group had initiated the shooting.

On appeal defendant seeks reversal on the basis that the court erred in failing to strike the prosecution argument which allegedly improperly defined “reasonable doubt” and to instruct the jury to disregard such statement. Objection to the argument was sustained by the trial court and no other relief was sought. Defendant contends that it was plain error for the court not to give further relief even though not requested.

•The claimed improper argument is set forth in the margin. In State v. Belleville, 530 S.W.2d 392 (Mo.App.1975) [4] we held it was improper for a prosecutor to define “reasonable doubt” in argument. This was based upon the Notes on Use under MAI-CR 2.20, which precludes the trial court from further defining that term. See also State v. Sanders, 539 S.W.2d 458 (Mo.App.1976) [6]; State v. Sanders, 541 S.W.2d 782 (Mo.App.1976) [1, 2], But, see State v. Henderson, 547 S.W.2d 141 (Mo.App.1976) which states that prohibition of such definition by the prosecution arises from general rules pertaining to arguments, not from MAI-CR.

It must, however, be recognized that none of the cases cited preclude a prosecutor from discussing “reasonable doubt” during his argument. Belleville, supra, involved an attempt by the prosecutor to specifically define for the jury the term under Missouri law. It is the judge’s function to instruct on law, not counsel’s. The comment in this case is not an attempted definition. It is simply an argument by counsel that every doubt is not a reasonable doubt. The law does not foreclose the prosecution from arguing the facts as they pertain to the court’s instructions nor prevent pointing out to a jury that some slight doubt about some issue or fact is not necessarily a reasonable doubt. We find no error in the argument.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.

      . “Now, Ladies and Gentlemen, look at that physical evidence and you decide. Now, Mr. Rieke tell (sic) you reasonable doubt, Ladies and Gentlemen, is any doubt about anything, and it’s not. It’s a serious question about one of the legal issues.

      MR. RIEKE:
      I’m going to object to any explanation about reasonable doubt. The Court instructs them on that.
      THE COURT:
      Sustained.
      MR. BRANDT:
      I suggest to you, Ladies and Gentlemen, that it’s a serious question about one of the issues
      MR.. RIEKE:
      Same objection, Your Honor, he’s going back over it and saying the same thing.
      THE COURT:
      Sustained.
      MR. BRANDT:
      It’s not a question about who was wearing that color shoes, who had on a blue or green jacket, that’s not the question, Ladies and Gentlemen . . (Emphasis supplied).


author: REINHARD, Judge.

text:
    VONDER HAAR CONCRETE COMPANY, Plaintiff, v. EDWARDS-PARKER, INC., et al., Defendants, AAA Excavating, Inc., et al., Appellants, Carondelet Savings & Loan Association et al., Respondents.
    No. 37830.
    Missouri Court of Appeals, St. Louis District, Division 2.
    Jan. 3, 1978.

      Lowell C. MeGowen, Frederick W. Shultz, Clayton, for appellants.
    Klamen, Summers & Compton, Marvin Klamen, Maureen Swihart, Clayton, for respondents.
   REINHARD, Judge.

This is an appeal from an order of the circuit court dismissing an equitable mechanic’s lien suit for failure of appellants and other claimants to prosecute their claims. The case has a protracted history and involves numerous litigants (113 parties and 22 lawyers or law firms). The principal parties to this appeal are appellants AAA Excavating, Inc., Affton Tile Co., and United Lumber Co., each a cross-claimant below, and respondent Carondelet Savings and Loan Association, cestui que trust and a defendant below, as well as various other landowners and lenders.

The suit, asserting separate mechanics’ liens on twenty-eight (28) lots in Tam O’Shanter Subdivision, was instituted on November 2, 1964 by plaintiff Vonder Haar Concrete Co. Shortly thereafter, on December 9, 1964, appellant United Lumber Co. filed its cross-claim. On January 11, 1965 appellant Affton Tile Co. filed its answer to plaintiff’s petition and a cross-claim, as did appellant AAA Excavating Inc. on January 14, 1965. The cross-bills asserted mechanics’ liens on some or all of the lots which were the subject of the original petition.

On February 5, 1965, respondent Caron-delet Savings and Loan Association, and others, requested and were granted until February 26,1965 to plead to the petition of plaintiff and the cross-bills of appellants Affton Tile Co. and AAA Excavating, Inc., and others. These pleadings were not forthcoming; rather, on April 2, 1965 respondents Carondelet Savings and Loan Association and W. Dwight Schubel, as trustee, filed separate Motions to Dismiss the cross-bills of appellants United Lumber Co., Affton Tile Co., and AAA Excavating Inc. Their Motions to Dismiss plaintiff’s petition was filed later, on June 11, 1965.

For reasons not fully explained in either the briefs or the record, no action was taken on these Motions, or in the case generally, until February 13, 1967. On that date, respondents Carondelet Savings and Loan Association and W. Dwight Schubel filed notice to call up the Motions to Dismiss for hearing on February 17, 1967. On February 17, 1967, the Motions were passed to March 10,1967, and again continued on two subsequent occasions. The final disposition of these Motions, if any, is not reflected in the record.

After approximately twelve months, during which the proceedings came to another inexplicable standstill, a pre-trial conference was set and held on June 5, 1968.

On June 25, 1968 respondents Carondelet Savings and Loan Association and W. Dwight Schubel, and other defendants, filed their Answer to the cross-bill of appellant AAA Excavating Inc., which cross-bill had been filed more than four years previously. That same date, respondent Carondelet, et al., requested and were granted thirty (30) days additional time to plead to certain cross-bills.

The next entry in the court’s file was dated September 2, 1970, at which time respondent Carondelet, et al., by leave of court, filed their Answer to plaintiff’s Petition.

A two and one-half year period of unexplained inactivity elapsed, and on April 30, 1973, the court’s minute entry shows that the case was set for trial on June 11, 1973. However, on June 8, 1973 a law firm entered its appearance as attorneys for certain defendants, who, on June 11, 1973 requested and were granted thirty (30) days additional time to plead. Thereafter, on December 17, 1973 these defendants filed a Motion to Dismiss the action for failure of the lien claimants to prosecute their claims without unnecessary delay, together with a memorandum in support thereof. The motion was formally adopted by several other defendants, including respondent Caronde-let, and following a hearing, it was overruled on February 8, 1974, by Judge Riek-hoff.

The case then was set for trial for March 12, 1974, but that setting was precluded by the filing of a Petition for Writ of Prohibition with this court by respondent Caronde-let and others. The petition was denied April 12, 1974.

It is important to note that prior to the filing of the Petition for Writ of Prohibition, appellant Affton Tile Co., on January 17, 1974 was granted a default judgment against various defendants, including respondent Carondelet. At this point, a law firm which represented other parties in the case entered its appearance for respondent Carondelet and on behalf of respondent, successfully moved the court on January 22, 1974, for an order vacating and setting aside the default judgment. On behalf of respondent the firm filed an Answer to the cross-bill of appellant Affton Tile Co. on January 23, 1974, and an amended answer to the cross-bill of appellant United Lumber Co. on January 24, 1974.

On January 23, 1974 another lawyer also entered an appearance for respondent Car-ondelet, and that same date was granted thirty (30) days additional time to file a separate Answer to the cross-bill of appellant Affton Tile Co. This Answer was filed February 8, 1974.

On January 22, 1974 attorneys for appellants AAA Excavating, Inc. and United Lumber Co. notified all parties and attorneys that a pre-trial conference was set for February 1, 1974. The conference was twice continued by the court. On February 25, 1974, the court set the case for trial. After the March 12, 1974 trial date was rendered ineffective by respondent Caron-delet’s Petition for Writ of Prohibition, appellants AAA Excavating, Inc. and Affton Tile Co. requested a new trial setting. The case again was set for trial June 3, 1974.

Respondent Carondelet initiated discovery on May 20 and May 21, 1974, with the submission of interrogatories to be answered by, among others, appellants AAA Excavating, Inc., Affton Tile Co., and United Lumber Co. Answers to interrogatories were filed by appellants on May 31 and June 3, 1974.

The case proceeded to trial on June 3, before Judge Rickhoff, and evidence was presented. On the following day, the attorney for respondent Carondelet requested a continuance, and an opportunity to force discovery, because he had not received answers from all parties to whom interrogatories had been submitted. The case was continued over appellants’ objection, was reset for October 7,1974. On June 28,1974 appellants filed a Petition for Writ of Mandamus with the Missouri Court of Appeals, St. Louis District, requesting that the Court of Appeals order the Circuit Court to hear the case on that date. Petition was denied.

The case did not go to trial October 7, 1974, and was transferred to another division of the St. Louis County Circuit Court. Between June, 1974 and March, 1975 various motions were filed and argued by several parties, and other proceedings occurred.

On March 18, 1975, the case was assigned to Division 8 and on March 19, 1975, the attorney for appellants notified all parties and attorneys that the case was set for trial on April 21,1975, the pre-trial conference to be held on April 17, 1975. A Motion to Withdraw as attorney for all parties but Carondelet was filed by one of the attorneys on April 17, 1975. The procedure surrounding this motion disturbed the April 21 trial setting.

On May 30, 1975 respondent Carondelet filed an Amended Answer to plaintiff’s petition and to, inter alia, the cross-claims of appellants. The case apparently was set for trial on June 30, 1975, although the record does not reflect this setting. On June 10, 24 and 27, 1975 respondent Caron-delet initiated further discovery, including supplemental interrogatories. Once again, on June 30, 1975, the case was indefinitely continued.

Sometime thereafter, the case was set for trial on December 18, 1975. On December 16, 1975 respondent Carondelet filed a memorandum incorporating and reasserting the Motion to Dismiss filed by certain defendants on December 17, 1973, which motion, as noted above, had been overruled. Taking judicial notice of its own file, the court, on December 18, 1975, sustained the motion on the basis of claimants’ failure to prosecute their claims without unnecessary delay. The court cited four periods since 1964 during which no minute entries appear in the court’s file, stating “that from July 13, 1965 until February 13, 1967 there was no action at all in the case . . That between the period September 7, 1967 and April 19, 1969, a second period of nineteen months that the minute entries reflect no action in the case, . . from June 25, 1968 to May 22, 1970, a period of twenty-three months, . . . there was no action, . . . and from September 1,1970 to March 9, 1973, a period of thirty months, . no action was taken . . From this order of dismissal, appellants take their appeal.

The general rule is that courts have inherent power, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute. Euge v. Lemay Bank & Trust Co., 386 S.W.2d 398, 399 (Mo.1965). In an equitable mechanic’s lien suit, however, the trial court need not resort to its inherent power to dismiss for failure to prosecute because the duty to prosecute such action without unnecessary delay is expressly cast upon the plaintiff, and defendants-claimants, by statute. §§ 429.170, 429.310, RSMo.1969. Despite the omission from § 429.310 of the language “and prosecuted without unnecessary delay,” which language is set forth in § 429.-170, we find no reason, in law or logic, to require a different standard regarding the duty to prosecute as between a legal and equitable mechanic’s lien action. See Peerless Supply Co. v. Industrial Plumbing & Heating Co., 460 S.W.2d 651, 662[8] (Mo.1970).

In an equitable mechanic’s lien action, one of many claimants may bring the action and designate all other claimants, as well as the contractor and owners, defendants. The claimants, although designated as defendants by virtue of the statute, § 429.280, stand in the position of the plaintiff, and it is as much their duty as that of the plaintiff to prosecute the action without unnecessary delay. Wiles-Chipman Lumber Co. v. Pieper, 176 S.W.2d 50, 53 (Mo.App.1943).

The statutory limitation applicable to mechanic’s lien actions is not absolute and reserves some discretion in the trial court. Thus the court’s action dismissing the case for failure to prosecute without unnecessary delay will not be disturbed on appeal unless the discretion of the trial court has been abused. Peerless Supply Co. v. Industrial Plumbing & Heating Co., supra. On appeal from a trial court’s discretionary ruling it is presumed that the ruling is correct, and the burden of showing abuse of discretion is on the appellant. If the ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration, the trial court abused its discretion. Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448 (Mo.banc 1976). Guided by this standard of review, we find the court below abused its discretion in sustaining the Motion to Dismiss.

The motion sustained by the trial court in this case was merely a reaffirmation of the motion presented and overruled two years previously. A hearing on the first motion was conducted, but presentation of evidence was not permitted on the second motion. The only evidence considered by the court before ruling on the motion was the recorded minute entries in its own file.

While the minute entries indicate that a period of twelve years transpired between the time of filing of the Petition and the time of the Order of Dismissal, and reflect rather extended lapses in the litigation throughout that period, they fail to delineate the reasons for the protracted nature of this case, and the specific causes of the interim delays. Mere delay, however lengthy, is not sufficient grounds for dismissal. It is only unnecessary delay that is prohibited. Peerless Supply Co. v. Industrial Plumbing & Heating Co., supra; Fuhler v. Gohman & Levine Const. Co., 142 S.W.2d 482 (Mo.1940). The record before the trial court provided no evidence whatsoever as to what caused the delays, or that the delays were unnecessary. Nor was any such evidence offered in support of the second motion. Certainly, the bare allegations of fact in the second motion, a mere incorporation and reaffirmation of the earlier motion, did not and would not prove themselves. Wiles-Chipman Lumber Co. v. Pieper, supra; Julius Seidel Lumber Co. v. Hydraulic Press Brick Co., 288 S.W. 979, 981 (Mo.App.1926).

The court’s ruling was predicated on a history of inactivity occurring more than two years prior to the ruling. The periods of delay cited by the judge in his order had occurred prior to the time Judge Rickhoff issued his order overruling the first motion to dismiss. Thus the circumstances which led the court below to dismiss the case were the same circumstances before Judge Rick-hoff when he ruled on the first motion to dismiss. Judge Rickhoff should have possessed a more intimate knowledge of the case and been in better position to judge the issue of unnecessary delay based on occurrences in the case prior to his ruling. See Peerless Supply Co. v. Industrial Plumbing & Heating Co., supra at 663.

Moreover, the judge did not consider developments in the case subsequent to Judge Rickhoff s ruling. The case went to trial in June, 1974; trial was recessed and the case was continued over the objection of appellants. Thereafter, the trial was reset several times at the instance of appellants, and there is no indication that trial was delayed at their request. December 18, 1975 was the last trial setting. Several respondents filed a motion to dismiss two days before trial, and others adopted the motion the morning of trial. The parties were in court prepared to try the case at the time of the court’s ruling, and the final order was filed the next day.

This timing of the order dismissing the action is significant, and in this regard, the reasoning of the court in State ex rel. State Highway Commission v. Graeler, 495 S.W.2d 741, 743 (Mo.App.1973), although applied in a different context is apropos:

“[W]e must determine the status of a dismissal upon motion of the defendant for failure to prosecute as of the time the motion to dismiss was made and not on occurrences which happened prior thereto.”

We are not suggesting that such a rule be applied absolutely in equitable mechanic’s lien cases where the issue is unnecessary delay, but certainly the timing of a motion and order to dismiss is a factor to be considered in determining whether there has been an abuse of discretion.

Nothing in this opinion should be interpreted in a way as to diminish our support of the role and responsibility of trial judges in moving cases expeditiously. We cannot, however, subscribe to the action of the trial court in this case in dismissing it for failure to prosecute on the day of trial, based on remote, albeit extended, periods of inactivity.

To the extent delays in the case are attributable to the sheer multiplicity of parties, they cannot be deemed unnecessary. In this equitable mechanic’s lien action involving dozens of parties with an interest in the subject property, delay in the final determination of the cause has been occasioned by several factors, including consolidation with other cases, numerous cross-bills, motions, settings for hearings, continuances, extensions of time to plead, as well as discovery procedures and new appearances and withdrawals of attorneys. Indeed, on several occasions, movant Caronde-let requested extensions of time to plead and failed to plead with the period of the extension, and as late as 1974 and 1975, more than ten years after the petition was filed, Carondelet filed Amended Answers. At one point, in January, 1974, a default judgment was taken against various defendants, including Carondelet, and was subsequently set aside. These are additional considerations which bear on the question of whether the lien claimants should be charged with unnecessary delay.

Based on the aforegoing, we reverse and remand the case for trial.

STEWART, P. J., and DOWD, J., concur.

      . The Statement of Facts, detailing the history of this case, comprised 14 pages of appellants’ brief and was accepted by respondent, with a few additions.

      . On June 19, 1966, Leo Shakofsky filed two additional mechanic’s lien suits involving some of the property affected by this case. These cases were ordered consolidated with the instant case on May 17, 1968 which further complicated and frustrated its progress.

      . Respondent Carondelet, et al., did not file Answers to the cross-bills of appellants Affton Tile Co. and United Lumber Co. until January, 1974.


author: BROCK, Justice.

text:
    The STATE BOARD OF REGENTS OF the UNIVERSITY and Community College System of Tennessee et al., Appellants, v. Yvonne GRAY, Cheryl Howard and Constance Shelton, Appellees.
    Supreme Court of Tennessee.
    Jan. 23, 1978.

      Richard Lodge, Robert B. Littleton, Asst. Atty. Gens., Nashville, for appellants; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Robert L. Delaney, G. Gordon Bonnyman, Jr., Nashville, for appellees.
   OPINION

BROCK, Justice.

This is a disciplinary action against the appellees, Yvonne Gray, Cheryl Howard and Constance Shelton, students at Tennessee State University. The appellees were found guilty of assault and battery by the Student-Faculty Advisory Committee of the University and suspended from classes for the remainder of the 1975-1976 academic year. Upon review by the president of the University, the suspension was reduced to permit completion of the first semester but was otherwise affirmed. Appellees then appealed to the chancery court as provided by the Administrative Rules and Procedure Act, T.C.A., § 4-523. The Chancellor reversed the administrative determination and the school officials have appealed to this Court.

The facts out of which this dispute arose are undisputed. The appellees were students at Tennessee State University and were members of a sorority known as Delta Sigma Theta. During the evening hours of November 5,1975, the appellees went to the fourth floor of Wilson Hall on the campus of the University to the room of Miss Renee Vinson, a fellow student. Miss Vinson, a Delta Sigma Theta “pledge”, and three other “pledges” were called together in the room and were asked to answer questions regarding sorority history. When they were unable to give satisfactory answers, the “pledges” were severely beaten by the appellees. The injuries thus inflicted required that three of the “pledges” obtain hospital treatment and that one be confined to an infirmary for five days.

Pursuant to established procedure, the appellees were notified in writing that they were charged with assault and battery and were entitled to a hearing. At the hearing each of the appellees filed a plea of not guilty but offered no evidence themselves and did not cross examine any of the witnesses who testified against them. The hearing was conducted before the Student-Faculty Advisory Committee which found them guilty as charged and voted to suspend them from school for the remainder of the 1975-1976 academic year. The basis of the charges is demonstrated in the transcript of the testimony heard by the Student-Faculty Advisory Committee. We quote from that transcript as follows:

“Ms. Sayles stated that Yvonne Gray paddled them on their buttocks with a paddle that had been concealed in Cheryl Howard’s sock. She described the paddle as being red with white ducks. She stated that Ms. Byrd paddled her feet; Ms. Shelton hit their hands with a comb and Ms. Howard held their hands down on their ankles while they were being pad-died on the buttocks by Ms. Gray. She stated that she was confined to the health center for five days with bruised feet and blood clots on her buttocks. Ms. Vinson stated that Ms. Howard held her while her feet were being paddled. She stated that she couldn’t see who was hitting her because a towel was put in front of her face and mouth to keep her from screaming.
“Ms. Joe stated that Ms. Howard pulled a red paddle from her sock and Misses Gray and Shelton paddled her buttocks when she refused to hit her Pyramid Sisters. She stated that Miss Gray also paddled her bare feet and Ms. Shelton hit her on the hands with a blue comb. Her hand began to swell and her Big Sisters told her to soak it in the sink. She stated that they were told not to go to the infirmary and that they had better not tell anyone what had happened. She stated that she was referred to Meharry Hospital by Dr. Carr A. Treherne, Director of the University Health Center, to have x-ray pictures made of her hand. It was swollen and very painful and thought to be fractured.
Ms. Clark stated that Ms. Howard pulled a paddle from her sock and she, Misses Sayles and Joe were hit very hard with it on their buttocks. She stated that Ms. Shelton beat them extremely hard on their hands with a comb and Ms. Gray beat her feet with a paddle. She stated that they decided to tell their advisor about 5:30 p. m. the next day (November 6) because Ms. Sayles and Joe were in so much pain.”

Although the appellees did not testify before the committee, they did testify by deposition before the chancery court. In her deposition Yvonne Gray stated that the version of the facts above given was substantially true.

The Chancellor affirmed the findings made by the Student-Faculty Advisory Committee but reversed the suspension of the appellees because of his conclusion that the disciplinary rule under which appellees had been found guilty was not a valid rule because it did not comply with the requirements of the Uniform Administrative Procedures Act. It is our opinion that in this conclusion the Chancellor erred.

The conduct of which the appellees were found guilty had been previously proscribed by Tennessee State University by written rule which it published in at least two forms, (1) a student handbook a copy of which had been furnished to each of the appellees and (2) “Rules of Discipline— 1975-1976” which had been duly approved by the Attorney General and filed with the Secretary of State in compliance with the Uniform Administrative Procedures Act.

The student handbook had not been approved by the Attorney General or filed with the Secretary of State. The student handbook contained the following provisions among others:

“Severe discipline penalties imposed: Severe discipline involves (1) suspension for a definite period — the student is suspended with the privilege of returning to the university at the end of a given period; (2) expulsion_is the severance of a student from university participation permanently.
* * * * * *
“Offenses requiring severe discipline :
* * * * * *
“Aggravated assault . .”

Appellee Howard admitted having read the student handbook but the other appel-lees denied that they had read the handbook prior to the misconduct here involved.

The “Rules of Discipline — 1975-1976” which had been duly approved by the Attorney General and filed with the Secretary of State provided in pertinent part:

“Physical combat with or without lethal weapons is prohibited on the university campus as is . . . aggravated assault . . ”

These rules did not, however, specify the sanctions which might be imposed for their violation.

I

The Chancellor held that the university was an “agency” within the meaning of the Uniform Administrative Procedures Act, T.C.A., § 4-508, whose rules must conform to the requirements of that act in order to be valid, T.C.A., § 4-509. With this conclusion of the Chancellor, we agree. The Uniform Administrative Procedures Act applies to any “board, commission, committee, department, officer, or any other unit of state government authorized or required by any statute or constitutional provision to make rules or to determine contested cases.” T.C.A., § 4-508(a). The State Board of Regents, which governs the university, is such an agency. The statute of its creation provides that it shall have power to “establish policy and regulations regarding the campus life of the institutions . . . delegating to the chief executive officer of the institution such powers and duties as are appropriate for the efficient administration of the institution and its program.” T.C.A., § 49-3239. Moreover, in our opinion, the language of T.C.A., § 4-508(g)(5)b. contemplates that statements of policy of state supported institutions of post secondary education which deal with the discipline or housing of students are “rules” within the meaning of the act and must meet the act’s requirements in order to be valid.

II

The appellees insist and the Chancellor held that the rule proscribing aggravated assault, as contained in the student handbook, did not furnish any basis for the suspension of the appellees because the handbook had not been approved by the Attorney General and filed with the Secretary of State, as required by the Uniform Administrative Procedures Act, T.C.A., § 4-510. Hence, they argue that it was invalid as applied to the appellees, notwithstanding the provision of the act that: “This [invalidating] provision is not applicable in favor of any person or party who has actual knowledge of the rule, order or decision.” T.C.A., § 4 — 509(b).

The Chancellor found that the ap-pellees did not have actual knowledge of the rules contained in the student handbook although he expressly found “each of the plaintiffs was given a copy of the student handbook.” We disagree. Since each of the appellees was given a copy of the student handbook, we hold that they are charged with “actual knowledge” of its contents. This Court has stated the principle that:

“The rule upon the question of notice is that whatever is sufficient to put a person upon inquiry is notice of all the facts to which that inquiry will lead when prosecuted with reasonable diligence and in good faith. . . . Means of knowledge with the duty of using them are deemed equivalent to knowledge itself, and passive good faith will not serve to excuse willful ignorance.” Covington v. Anderson, 84 Tenn. 310 (1886). See also Reusche v. Berling, 87 Cal.App. 559, 262 P. 392 (1927).

Although “notice” rather than “actual knowledge” was the issue in that case, other courts have applied the same principle when “actual knowledge” was the issue. O’Ferral v. Coolidge, Tex.Civ.App., 225 S.W.2d 582, 584 (1949); Portman v. Earnhart, Tex.Civ.App., 343 S.W.2d 294, 297 (1960). We reaffirm this principle and hold that it applies in cases in which the issue of actual knowledge arises under the Uniform Administrative Procedures Act. We hold that “actual knowledge” of the rules in the handbook was shown by proof that a copy thereof was handed to the appellees. It is our opinion that placing a handbook into the hands of a student is much more likely to result in a consciousness of its contents by the student than the filing of such a handbook with the Secretary of State.

Since the appellees had actual knowledge of the rules contained in the student handbook, it was not necessary that those rules be approved by the Attorney General and filed with the Secretary of State in order for them to be valid and binding upon the appellees. T.C.A., § 4-509.

Moreover, in our opinion, the “Rules of Discipline — 1975-1976,” which were duly filed by the University with the Secretary of State after approval by the Attorney General, likewise furnished an adequate basis for the administrative action taken against the appellees. We do not agree with the conclusion of the Chancellor that these rules were inadequate because they did not contain sanctions for their violation. We find no express provision in the Uniform Administrative Procedures Act to the effect that a rule of discipline which clearly defines the prohibited act and otherwise complies with the Uniform Administrative Procedures Act is invalid because the sanctions for its violation are not specified therein. Neither do we conclude that the purposes of the statute require that such a provision be implied. See 73 C.J.S. Public Administrative Bodies and Procedure, § 100, 418. Although the failure to provide a penalty for the commission of a criminal offense defined by statute renders such a statute unenforceable, U. S. v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948); Mossew v. U. S., 2 Cir., 266 F. 18, 11 A.L.R. 1261 (1920); State v. Fair Lawn Service Center, 20 N.J. 468, 120 A.2d 233 (1956), the same, in our opinion, is not true of a disciplinary rule for students of a public institution. See Norton v. Discipline Committee of East Tennessee State University, 6 Cir., 419 F.2d 195 (1969).

Finally, we conclude that the rules both in the student handbook and in the registered “Rules of Discipline — 1975— 1976,” prohibiting the assaults committed by the appellees are expressly excluded from the requirements of the Uniform Administrative Procedures Act by T.C.A., § 4-508(g)(4) which excludes “general policy statements which are substantially repetitious of existing law . . . The regulations in question in proscribing “aggravated assault” merely repeated existing laws that prohibit such conduct. Saunders v. State, 208 Tenn. 347, 345 S.W.2d 899 (1961); Rushing v. State, 196 Tenn. 515, 268 S.W.2d 563 (1954). Therefore, they are excluded from the statute and may be validly applied without compliance with the Uniform Administrative Procedures Act.

Ill

The Chancellor, in part, based his decision upon his finding that the Student-Faculty Advisory Committee did not file proper findings of fact, conclusions of law, and reasons for its decision as required by T.C.A., § 4-519. We think that there was substantial compliance with this requirement. The committee found in writing that the appellees were each guilty as charged, the charge having been previously specified in writing as: “ misconduct— severe in that on Wednesday, November 5, 1975, at approximately 11:30 p. m., you are charged with assault and battery on Misses Kim Clark, Renee Vincent, Candías Joe and Cynthia Sayles, in room 416, Wilson Hall.” In the circumstances of this case, this was sufficient. Moreover, the statute forbids reversal by the Court of the agency determination “unless for errors which affect the merits of the decision complained of.” T.C.A., § 4-523(i). Since the record clearly discloses the basis for the committee’s decision, we find no error affecting the merits.

The decree of the Chancery Court is reversed and the complaint is dismissed, with costs taxed against the plaintiffs-appellees.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.


author: COOPER, Justice. HENRY, Chief Justice,

text:
    Edward H. DAVIS, Petitioner, v. BANK OF ILLINOIS, Respondent.
    Supreme Court of Tennessee.
    Jan. 23, 1978.

      Roy C. Nelson, Lodge Evans, Elizabeth-ton, for petitioner.
    Dan M. Laws, Jr., Elizabethton, for respondent.
   OPINION

COOPER, Justice.

This is an action in guaranty wherein the trial judge and the Court of Appeals found the guarantor to be liable. The petition for certiorari was granted to determine whether the guarantor, an admitted alcoholic, was mentally competent to execute the guaranty agreement.

The Bank of Illinois filed suit in the Circuit Court of Carter County on a guaranty executed by Edward Davis to secure payment of a $10,000.00 loan made by the bank to Landcare Corporation. Davis was one of the principal owners of Landcare. Davis sought to escape liability on the basis, primarily, of mental incompetence brought on by alcoholism. On this issue, the trial judge found “from the testimony of Mr. Lewis that Davis was sober at the time he signed his name to this guaranty agreement.” From its review of the evidence, the Court of Appeals concluded:

The evidence, when viewed in light of the above authorities, does not preponderate against the trial judge’s finding that intoxication is not available to the appellant as a defense voiding his liability under the guaranty contract.

Where an action is tried by a circuit judge without the intervention of a jury, the findings of, the trial judge and the Court of Appeals are binding on this court to the extent that they concur, if there is any evidence to support the findings. T.C.A. §§ 27-303, 27-301, 27-113. As noted by the trial judge in his findings, Mr. Lewis, the president of Landcare, testified that Mr. Davis was sober at the time he signed the guaranty agreement. In the face of Mr. Lewis’ testimony, we have no alternative but to affirm the judgment of the trial court as approved by the Court of Appeals.

Judgment affirmed. Costs incident to the appeal are adjudged against Mr. Davis and his surety.

FONES, BROCK and HARBISON, JJ., concur.

HENRY, C. J., dissents.

HENRY, Chief Justice,

dissenting.

I respectfully dissent.

This is an action in guaranty, wherein the trial judge and the Court of Appeals found the guarantor to be liable. The only issue with which we are concerned is whether the guarantor, an admitted alcoholic, was mentally competent to execute the contract of guarantee.

I.

Landcare Corporation was formed as a diversified holding company in 1973 principally by the petitioner, Davis, who became executive vice president, and his friend and business associate, James A. Lewis, who became president. On November 7, 1973, its board of directors authorized the procurement of a loan from the Bank of Illinois, for the purpose of purchasing and developing a Travelodge Motel. Pursuant to arrangements made by Lewis, the Bank agreed to lend the sum of $10,000.00. A note in that amount, dated November 26, 1977, was signed by the president and surety of the corporation.

To further secure this indebtedness, various contracts of guaranty were executed and filed with the bank. Among them was one dated November 26, 1973, signed by Lewis and Davis as co-guarantors, in which they “jointly and severally guarantee the full and prompt payment” of the underlying note. On December 17, 1973, the loan proceeds were deposited to Landcare’s account.

After the execution of the guaranty agreement but before the due date of the note, as extended, but during the life of the guaranty, as extended, the various corporations and individuals, including Landcare and Lewis, fell upon hard times, and bankruptcy ensued. In this state of affairs the Bank brought suit against Davis.

Davis interposed various defenses including that of mental incompetence brought on by alcoholism.

The relevant findings by the trial judge were as follows:

The Court finds from Mr. Lewis’s testimony that Mr. Davis was constantly drunk during this period, and for this reason Mr. Lewis dealt with Mr. Davis early of a morning before be became intoxicated to the point where he didn’t know what he was doing.
The Court finds from the testimony of Mr. Lewis that Davis was sober at the time he signed his name to this guaranty agreement.
⅜ * * * * *
It is the law in Tennessee that intoxication on the part of an automobile driver is no defense in a tort action against the driver. This Court is of the opinion that intoxication is no defense against the guarantor (sic) in an action against the guarantor of a note. This Court would observe that it does not behoove a man who owns property valued at a half a million dollars to assert his own intoxication as a defense against to (sic) a valid legal obligation by him. (Emphasis supplied.)

The Court of Appeals, after briefly discussing the facts and law surrounding the intoxication issue, reached the following conclusion:

The evidence, when viewed in light of the above authorities, does not preponderate against the trial judge’s finding that intoxication is not available to the appellant as a defense voiding his liability under the guaranty contract. (Emphasis supplied).

I will not attempt to construe the meaning of the trial judge’s holding that “intoxication is no defense against the guarantor (sic) in an action against the guarantor of the note.” The law is to the contrary. See infra.

Nor will I attempt to construe the meaning and significance of the trial judge’s phraseology that “it does not behoove a man who owns property valued at a half a million dollars to assert his own intoxication as a defense against to (sic) a valid legal obligation by him.” I presume this is a form of moral value judgment on the evils of strong drink.

It is obvious that we are not confronted with a concurrent finding of fact with respect to the competency issue. The only concurrent finding is that “intoxication is not available to appellant as a defense,” a legal proposition, and an incorrect one at that. Our review of the evidence is accompanied by a presumption that the decree of the trial judge was correct “unless the preponderance of the evidence is otherwise.” Sec. 27-303, T.C.A.

II.

It is an established fact that the petitioner, at all times pertinent to this issue, was a practicing alcoholic, with a background of numerous hospitalizations for treatment, rehabilitation, and detoxification. On November 17, 1973, he married and he and his wife went to Florida on their honeymoon. During their stay there he drank heavily and they returned to Tennessee on November 23, 1973. He was admitted to the Carter County Memorial Hospital on November 25, 1973, with an admitting diagnosis of cirrhosis and a final diagnosis of impending liver failure, liver cirrhosis, and post porta-caval shunt. Prior to his admission, according to his wife, he was drinking over a pint each day and, according to him, a fifth,

Upon being discharged from Carter County Memorial Hospital on November 27, 1973, he was admitted to Mountain Home Veterans’ Hospital for further treatment for his excessive drinking. His confused mental instability was noted by the nurses upon admission. Dr. Lyman A. Fulton testified unequivocally that as of November 27, 1973, Davis did not have the mental capacity to enter into a binding contract.

While I agree with the Court of Appeals that the date of execution is inconsequential to the legal effect of the guaranty agreement where the evidence established that the loan was not made until after the agreement had been signed, the signature date is of critical significance to the determination of mental capacity. That date must be determined in order to validate the trial judge’s finding that “Davis was sober at the time he signed his name to this guaranty agreement,” a finding in which the Court of Appeals did not concur.

I find no proof in the record to establish the date upon which the agreement was signed. There is proof from which it might be conjectured that Davis was sober, but the massive weight of the evidence is to the contrary.

This conjectural proof comes from petitioner’s former associate, Lewis. When asked if he would have let petitioner sign the guaranty agreement had he been drunk, he responded:

If he’d a been drunk, I wouldn’t, but he was drinking the whole — at all times for about six or eight months. In fact, I put him in the hospital myself seven or eight times, but I always tried to conduct business early in the mornings when Mr. Davis — before he got out of his capacity.

Subsequently Lewis was asked what time of day he signed it and responded: “I would have an idea it was in the morning.” “I usually tried to conduct all business with him because of his problem.” (Emphasis supplied).

Lewis could not remember the date of execution. At one time he said, “It may have been signed on the 19th.” Davis was on his honeymoon in Florida at that time.

This is the only testimony by Lewis relating to the date of execution.

The testimony of Davis sheds no light upon the matter. He has no recollection of signing the guaranty.

The fair import of the undisputed testimony of Mrs. Davis was that, at all times after their return from Florida and for a week following his release from the VA hospital, petitioner was irrational and incapable of transacting business. Her undisputed testimony is that Lewis came to see him every day and brought him whiskey. They drank together and Lewis was indifferent to Mrs. Davis’ protest.

I think the evidence preponderates against the trial judge’s finding that petitioner was sober at the time of the execution of the contract. Indeed, there is no proof of such sobriety in the absence of some indication of the date of execution. From the record before us I cannot conceive of any period from November 17, 1973, through the end of that month when petitioner was mentally capable of transacting business. In reaching this conclusion I accept the rule quoted by the Court of Appeals from II Williston on Contracts, § 258 (3d ed. 1959):

In order to make out incapacity, it is necessary to prove that a man was so far intoxicated as to be incapable in fact of understanding the nature of the transaction in which he engaged.

The signature of the petitioner on the guaranty agreement should have been sufficient to have put any prudent lender on inquiry:

[See following illustration]

This is the signature that locked in the bank’s loan and launched this suit.

It will be noted that the guaranty bears date “this 26th day of November 1973.” There is no proof that it was executed on any other date. There is a presumption, rebuttable in character, that any written instrument was executed on the day it bears date. Jackson City Bank & Trust Co. v. Sternburg, 281 Mich. 313, 274 N.W. 806 (1937) (guaranty agreement); Keller v. New Jersey Fidelity & Plate Glass Ins. Co., 306 Pa. 124, 159 A. 40 (1932) (guaranty); Bullock v. Power-Heafey Coal Co., 98 Neb. 221, 152 N.W. 392 (1915) (partnership contract); McFarlane v. Louden, 99 Wis. 620, 75 N.W. 394 (1898) (deed).

The rationale of S. M. Williamson & Co. v. Ragsdale, 170 Tenn. 439, 95 S.W.2d 922 (1936) is relevant. There twenty-three members of a church congregation executed an undated guaranty agreement. The Court by obiter dictum noted that the presumption was that an undated contract of guaranty was executed on the same date as the note it secured.

Applying this presumption, in the total absence of proof, I would hold that the guaranty agreement was executed on November 26, 1973. On that date petitioner was hospitalized suffering in the throes of a prolonged alcoholic bout and was incapable of transacting business.

I would reverse.

      . Actually the proof shows a gross worth of $500,000.00, with no evidence as to the value of the equity. Nor does it show the source of this property, how it was accumulated, or to what extent he participated in its accumulation or management.

      . His associates forced him out of Landcare because of his alcoholic conduct.