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Hotel." When asked how he concealed it defendant not guilty." However correct any from the girl's mother, he said he told Ada other instruction might have been, this inhow it would serve her when she took the struction required the jury to find every necesmedicine, and how she would feel, and that sary fact constituting the crime beyond a reashe would get rid of the child when she went sonable doubt, and it was no error to refuse out. He then told the witness Ada was awful any other. The court instructed upon every sick at the time, but felt better afterwards. proposition of law that could aid the jury in This was some two or three weeks before her arriving at a correct verdict. The judgment is death. The evidence also shows that the girl affirmed. followed his instructions, and attempted to hide the miscarriage from her mother, and BURGESS and SHERWOOD, JJ., concur. only confessed it on her deathbed, in the presence of defendant, whom she charged with her ruin. The girl's mother testified that the girl went to Springfield, and stayed a while, BURNS v. MAYOR, ETC., OF CITY OF and came home sick; that she was pregnant;
LIBERTY. that defendant gave her some greenish medi (Supreme Court of Missouri, Division No. 2. cine, that made her very sick, and produced
Dec. 3, 1895.) a copious flooding, and the passage of a clot, DEDICATION-WHAT CONSTITUTES-APPEALwhich from her experience she had no hesi
REVIEW. tancy in pronouncing an abortion; that the 1. Where the east line of a recorded plat, bowels were very sore, and the girl wasted a
which is also the west line of a street, is in the
actual location placed too far to the east, a subgreat deal; that the girl never recovered from
sequently recorded plat of a portion of a tract, the shock, but died in about two weeks. She which calls for the line as actually located for detailed the conversation of the physician as
its eastern boundary, will constitute a dedicato the secrecy to be observed, and testified
tion of the strip of land included between the
lines of actual and proper location. to defendant's conversation with her daugh
2. Rev. St. 1889, § 2303, prohibiting a reter just prior to her death, in which Ada told versal except for error materially affecting the the defendant he was the cause of her ruin, and
merits, precludes the consideration of error in
refusing requested declarations of law where he promised to care for her. Witness Brown
the verdict is manifestly for the proper party. testified defendant wanted him to help dig Ada's grave, and said "he wanted her buried
Appeal from circuit court, Clay county; quick”; “that the family wanted a shallow
E. J. Broaddus, Judge. grave." The coroner exhumed the body, but
Action of ejectment by Peter B. Burns found it too much decomposed to make any
against the mayor, councilmen, and citizens
of the city of Liberty. From a judgment satisfactory autopsy. Dr. Perry, who was employed by defendant to attend the girl, did
for defendant, plaintiff appeals. Affirmed. not see her until after the abortion, and he D. O. Allen, for appellant. C. L. Doughtestified her symptoms were those of typho- erty, Simrall & Trimble, and Sandusky & malarial fever. Another physician testified Sandusky, for respondent. the symptoms were usual in miscarriage or abortion.
BURGESS, J. This is an action of eject1. The principal point made is that there ment for a strip of land in Clay county, dewas no sufficient proof of the corpus delicti. scribed as follows: "A part of lot number Without again detailing the evidence tend eight, in block six, as marked and numbered ing to show the girl died from the effects of on the plat of Allen and Burns' addition to the abortion, and that defendant was the guilty the city of Liberty, bounded as follows: procurer, we have only to say that it was Beginning at the southeast corner of said established beyond a reasonable doubt by en lot; thence running north on the east line tirely satisfactory evidence.
of said lot a distance of sixty-nine feet and 2. Defendant complains of the refusal of an nine and three-fourths inches, to the northinstruction as to the essentials of the crime, east corner of said lot; thence running west but the court fully covered it by the following on the north line of said lot a distance of instruction: "The court instructs the jury two feet, to a point thereon; thence running that in this case the defendant is charged with south a distance of sixty-nine feet and nine administering to one Ada Hawk certain medi and three-fourths inches, to a point on the cine or drug for the purpose of procuring an south line of said lot; thence east two feet, abortion, and unless the state has proven by to the place of beginning." The answer is, the facts and circumstances, to your satisfac first, a general denial, with the exception tion beyond a reasonable doubt, that the said that it admits that defendant is a municipal Ada Hawk was pregnant with child, and tha corporation. It then avers: “That about the defendant administered to or caused to be the year 1857 the Liberty and Meeks' Ferry administered to her certain medicine or drugs, road, sometimes called the 'Owens' Ferry for the purpose of procuring an abortion, and Road,' and in 1857 designated by the city did thereby procure an abortion, and that council as 'Lightburne Street,' was establishthe abortion or miscarriage was the cause of ed, located, and opened, and has been in use the death of the said Ada Hawk, as charged as a public street continuously since said in the indictment, then you should find the date; that the property in controversy is a
part of said street; that Alvan Lightburne, west line of the aforesaid Liberty and Meeks' who owned the land on the west, when said Ferry road” (Lightburne street). This resihighway was opened, continued the owner due of the Lightburne tract, so bought by thereof until May 14, 1887, when he con Allen and Burns, was platted and filed as an veyed the same to Burns and Allen; that addition to the city of Liberty by them on said street during all said time was used the 5th day of July, 1887, and named “Allen and repaired and maintained as a public and Burns' Addition to the City of Liberty." highway; that when Lightburne conveyed This plat describes the north line of the adhis land to Allen and Burns he surveyed and dition as running “thence east 720 feet to deeded the same to the west line of said the west side of Lightburne street." Lightstreet as actually located and opened as burne street is designated on the plat as aforesaid; that when Allen and Burns plat- | forming the east boundary of the addition, ted and filed their addition to the city of and in express terms the plat says: “The Liberty they surveyed and platted said land streets and alleys of this addition as repreup to the west side of Lightburne street as sented on this plat are hereby dedicated by previously located and opened as aforesaid; | the parties hereto to public use." All of that Lightburne street, as so located and Lightburne's addition was built up, and opened, was one of the streets marked on parts of Allen and Burns' addition, and part said plat, and that said plat in express of the tract owned by Miller on the east terms dedicated all streets and alleys, as side of Lightburne street, before this conshown on said plat, to public use; that lots troversy arose. Lightburne street was origwere sold, and improvements erected, along inally located by R. J. Stepp, who was then both sides of said street, with reference to county surveyor for said county, and by that the lines thereof as so located, opened, and survey the deed from Lightburne to Allen used, prior to said deed from Lightburne to and Burns was made, and Allen and Burns' Allen and Burns, and with the knowledge addition to the city of Liberty was platted. and acquiescence of said Lightburne.” When this controversy arose, plaintiff proPlaintiff, by replication, denied all new mat cured a new survey to be made of Lightter in the answer.
burne street, and of the Lightburne tract, The land sued for formerly belonged to by Mr. Pike, of Kansas City, who placed Alvan Lightburne under whom plaintiff the northeast corner of section 7 (by which claims title. Prior to November 26, 1883, Lightburne street was originally located) 10 Lightburne owned a tract of land in the city feet further east than Stepp's survey placed of Liberty, bounded by Water street on the it. The claim was thereupon made by plainwest, and by Lightburne street, originally | tiff that Lightburne street should be moved known as the "Liberty and Meeks' Ferry 10 feet further east; that the north line of Road," or "Owens' Ferry Road" on the east. Allen and Burns' addition should have been The street was named Lightburne by the
730 feet, instead of 720 feet, as actually city of Liberty in 1857. Lightburne street staked off; that there was, consequently, an ran north and south, between the tract of unplatted strip, 10 feet wide at the north Lightburne on the west, and a tract owned end, and at the point in controversy about by Robert H. Miller on the east. The tracts 5 feet wide, lying between the east line of were fenced along and parallel with said | Allen and Burns' addition and the west line street. The Lightburne tract was plattea in
of Lightburne street; and accordingly plaintwo additions to the city of Liberty; the tiff and Allen, on the 20th day of December, first by Lightburne, and called "Lightburne 1889, took from Alvan Lightburne a quitAddition to the City of Liberty," was platted | claim deed for this alleged strip. Allen, on and the plat filed in the recorder's office of December 28, 1892, conveyed by quitclaim said county November 26, 1883. The addi- deed his interest in the land to plaintiff, tion abuts the west line of Lightburne street, who claims that the two feet in controversy as actually located and opened. It marks is a part of this strip, which is claimed to Lightburne street the east boundary of the extend also further south between Lightaddition, and extends the west line of Light-burne street and Lightburne's addition, and burne street along the addition and north to cut off the residents on Lightburne's addito the north boundary of his land. Light tion from the street in front of them. At burne, by his plat, extends a line entirely the conclusion of the evidence plaintiff askaround his tract of land, designating Water ed 21 declarations of law, 11 of which were street on the west, Lightburne street on the given and 10 refused. No declarations of east, an alley on the south, and the bound law were asked or given in behalf of defendary line of his land on the north. By this ant. The finding of the court was as fol. plat all streets and alleys in express terms lows: "The court now here being sufficientare dedicated to public use. On December ly advised in the premises, finds the issues 6, 1883, Lightburne conveyed this whole ad- herein for the defendant, and makes the foldition to Thomas F. Messick. On May 14, lowing finding of fact, to wit: The court 1887, Lightburne conveyed the residue of his finds the facts to be that at the time Burns tract of land to John M. Allen and Peter B. and Allen platted, acknowledged, and filed Burns. The deed describes the north bound their plat to the city of Liberty, they adoptary as running "thence east 720 feet to the ed thereby as the eastern boundary line of
their said addition the western line of Light- will run their lines differently from some forburne street, as then actually located, and mer survey, or the lines as originally platted, not as said street or highway may have been would result in unsettling the titles to proporiginally laid out, and that by so doing they erty in very many places, in the utter ruin of dedicated the strip in controversy to public the holders, and prove disastrous to the use; wherefore the court finds for the de- growth and prosperity of such municipalities. fendant.” After unsuccessful motions for It should never be done. The facts upon new trial and in arrest, plaintiff appealed. which the court predicated its finding suffi
The judgment of the court being manifestly ciently appear from the plat of the addition by for the proper party, it becomes unnecessary Allen and Burns; and while the purchasers of to pass upon the declarations of law which lots abutting on the west side of Lightburne were asked by plaintiff and refused by the street improved them, built their houses and court. Section 2303, Rev. St. 1889, provides fences, according to the plat, which calls for that “the supreme court, or courts of appeals said street as its eastern boundary, they are not shall not reverse the judgment of any court, parties to this action, it is clear that, if plainunless it shall believe that error was commit- tiff's contention be sustained, they will be ented by such court against the appellant or tirely cut off from and deprived of all connecplaintiff in error, and materially affecting the tion with that street. The judgment is afmerits of the action." See, also, Cartwright v. firmed. Culver, 74 Mo. 179; State v. Edwards, 78 Mo. 473; MacLeod v. Skiles, 81 Mo. 603; Fitzger- GANTT, P. J., and SHERWOOD, J., concur, ald v. Barker, 96 Mo. 661, 10 S. W. 45. No instructions that could have been given would have entitled plaintiff to a recovery in this case under the facts disclosed by the record.
MOSS et al. v. KAUFFMAN et al.
. . Plaintiff's counsel, while conceding in his brief
(Supreme Court of Missouri, Division No. 2. that the case is one of fact, bases the right of
Dec. 3, 1895.) his client to recover upon the theory that the northeast corner of section 7 was correctly es
COUNTY-SUBSCRIPTION TO RAILROAD STOCK
HARMLES3 ERROR-DEED BY COUNTYtablished by Dale, Rogers, Leitch, and Pike,
VALIDITY_Tax DEED. surveyors, before the commencement of this 1. Under Gen. St. 1865, c. 63, § 20, providaction, 737 feet east from the point of inter
ing that a county may mortgage or sell its
swamp lands to pay its subscription for railroad section of the east line of Water street with
stock, a county had no right to deed its swamp the north line of section 7, instead of 727 feet, lands in payment of such subscription. as contended for by defendant; thus placing 2. The admission of immaterial evidence, Lightburne street 10 feet further east than it
not prejudicial, is not cause for reversal.
3. Where a county, by a void deed, conveywas understood to be according to the survey
ed lands in payment for a subscription to railof Stepp, which would leave a strip of land not road stock, but said stock was subsequently platted by Allen and Burns, lying along and
repurchased from the county for a money conparallel with the west line of that street and
sideration, a deed to the same lands executed
in good faith by the county, for which part of the east line of their addition its entire length, the consideration was the money so paid to it, which plaintiff is entitled to the possession of. was valid. But the court found, as before stated (and
4. A deed on a sale for taxes assessed
against one to whom the county had made a there was ample evidence to support its find
void conveyance conveys no title. ing), that at the time Burns and Allen plat
Appeal from circuit court, Bollinger county. ted, acknowledged, and filed their plat of their
Ejectment by Elva Moss and others against addition to the city of Liberty they adopted
Isaac B. Kauffman and another. Plaintiffs thereby as the eastern boundary line of their said addition the western line of Lightburne
had judgment, and defendants appeal. Af
firmed. street as then actually located, and that by so doing they dedicated the strip in controversy J. D. Potter, for appellants. Phillips, Stewto public use. The plat of Allen and Burns' art, Cunningham & Elliot and M. R. Smith, addition to the city of Liberty was acknowl- for respondents. edged by them on the 5th day of July, 1887, and deposited in the recorder's office of said BURGESS, J. Action of ejectment for a county for record on the 19th day of July tract of swamp land. The land was patentnext thereafter. By it the west side of Light-ed to Bollinger county by the state, as burne street is called for as its eastern bound- swamp and overflowed land, August 4, 1869. ary, and it must be conclusively presumed | Both parties claim under this title. Defendtherefrom that they intended to dedicate the ants also relied upon the statute of limitastrip in controversy, if not already a part of tions as a defense. Plaintiffs claim title unthe public street, to the public, and plaintiff der a deed from Bollinger county to William should not now be heard to say that the east- Brown and Louis Houck dated May 13, 1887, ern line of said street as it was at that time and by deed from Brown and Houck to T. J. was not in truth and in fact the true and cor- Moss, deceased, ancestor of the plaintiffs rect line. To hold that the streets and alleys | Moss, dated April 14, 1888. Defendant Kauffof cities, towns, and villages can be changed man claims under deed from Bollinger counevery time some surveyor can be found who ty, by Philip Sutherlin, swamp-land commis
sioner, to Thomas Allen, dated April 6, 1870, and by subsequent mesne conveyances to defendant Kauffman, all of which were quitclaims, except a deed from the sheriff of said county to A. T. Rose and Moses Whybark, made under a judgment for taxes against Thomas Allen and said land, which was rendered in the circuit court of said county on the 13th day of September, 1879. The suit was begun in the name of Thomas J. Moss, who has since deceased, when it was revived in the name of the plaintiffs, who are his heirs and legal representatives. Defendant McMillan was the tenant of his codefendant, Kauffman. The case was tried before a jury, who found for plaintiffs. Defendants in due time thereafter filed their motion for a new trial, which being overruled, they appealed.
When defendants, in support of their defense, offered in evidence the deed from Bollinger county to Thomas Allen, as legal title to the land in question, upon objection being made by plaintiffs, it was not permitted to be read for that purpose, but was permitted to go to the jury as color of title only; and in this, it is argued, there was error. That deed was made, in pursuance of an order of the county court of Bollinger county, to Allen, as the legal representative of the St. Louis & Iron Mountain Railroad Company, in payment of stock subscribed by said county to said company, which stock of said company was accepted by it in payment for said land. It was therefore void and of no effect, and all persons purchasing under it were bound to take notice of its infirmities. No extrinsic evidence was necessary to show its invalidity, which appeared from its recitals. By section 20, c. 63, Gen. St. 1865, it is provided that "any county subscribing for railroad stock, which shall have internal improvement funds, or overflowed or swamp land funds, granted to it by the state, may apply such funds or mortgage or sell such overflowed or swamp lands to pay such subscription, or any part thereof, and provide for the remainder, if any, by the tax as aforesaid; and any county, city or town subscribing as aforesaid, may if so required by the railroad company, to raise funds to pay the installments in anticipation of the collection and payment of its railroad tax) issue the bonds of such city, county or town, of denominations not exceeding one thousand dollars, and bearing interest at a rate not exceeding seven per cent. per annum.”
The only power conferred on any county, by this section, subscribing for railroad stock, is to apply its internal improvement funds, or mortgage or sell its overflowed or swamp lands, if it have any, to pay such subscription, or any part thereof, and provide for the remainder, if any, by taxation. No power was given to subscribe its swamp lands, or to receive the stock of any railroad company in payment therefor. Power to mortgage does not confer the power to sell. Counties to
which swamp and overflowed lands have been granted by the state hold them in trust for the public-school fund, and can only dispose of them as pointed out by statute. "These powers are limited and defined by law. These statutes constitute their warrant of attorney. Whenever they step aside of and beyond this statutory authority, their acts are void. Saline Co. v. Wilson, 61 Mo. 237; Wolcott v. Lawrence Co., 26 Mo. 275; Steines v. Franklin Co., 48 Mo. 167. Persons dealing with such agents are bound to take notice of their powers and authority.” Sturgeon v. Hampton, 88 Mo. 203; Railway Co. v. Hatton, 102 Mo. 45, 14 S. W. 763; St. Louis, C. G. & Ft. S. Ry. Co. v. Wayne Co., 125 Mo. 351, 28 S. W. 494. From what has been said, it logically follows that the court erred in permitting plaintiffs to read in rebuttal to the evidence introduced by defendants the records of the suits of Ann R. Allen et al. v. Brown et al., of State ex rel. Board of Education v. Ann R. Allen et al., and of State ex rel. W. K. Chander, Prosecuting Attorney of Bollinger County, v. County Court of That County, and the County Clerk, J. W. Snider, and Louis Houck, and William Brown. The defendants herein were not parties to either of them, and the first one did not embrace the land in suit. Besides, whatever title Kauffman had, if any, he acquired before the institution of said suits. But, while this evidence was wholly immaterial, it is not perceived how it could have prejudiced the rights of defendants, and the judgment should not be reversed upon that ground.
After the certificates of stock of the county in the railroad company had been delivered to the county, Thomas Allen, by an arrangement with its county court, took up or purchased from said county its stock in the railroad company, paying therefor in cash the sum of 70 cents on the dollar, amounting in the aggregate to the sum of $10,850. Subsequently the heirs of Allen (he being deceased) transferred to Brown and Houck all of their interest in said money thus paid. After this Brown and Houck purchased from the county the swamp land formerly deeded by it to Thomas Allen, which included the land in question, paying for the same $1.25 per acre, including the sum paid by Allen, to which they had become entitled. This arrangement was made with the county court upon the theory that the deed by the county to Allen for the land was absolutely void and passed no title, and that he was in equity and good conscience entitled to have refunded to him the price paid the county for the railroad stock, for which the county had paid no consideration. The arrangement between the county court and Allen with respect to the purchase of the railroad stock by him is admitted by counsel of defendants, in his briefs, to have been free from fraud, and made in the utmost good faith by all parties, but the authority of the county court to adjust the matter as it did is seriously
questioned. As Allen acquired no title to the BURGESS, J. This is an action for taxes, swamp land by his deed from the county, no delinquent for the year 1890, against the N. consideration passed from the county for its E. 14 of the S. W. 14 of section 12, township railroad stock; and as he paid a valuable 25, range 31, Newton county, Mo. Defendant consideration for the stock, which proved to companies, by answer, admit their incorporabe of no value, he was in equity entitled to tion as alleged in the petition, and deny all have refunded to him the purchase money. other allegations therein contained. There To this right Brown and Houck succeeded, was judgment rendered against all of the deand we can see no reason why the title thus fendants for the amount claimed, to wit, acquired by them should not be upheld. $420. The railroad companies appealed. Certainly this deed is not void.
Upon the trial, the defendant companies As to the tax deed by the sheriff to Ross objected to the introduction of any evidence, and Whybark to the land in suit, as Allen because the petition stated no cause of achad no title at the time of the levy of the tion, and because it appeared affirmatively taxes, rendition of the judgment and sale of from the petition that the suit is based upon a the land thereunder, it necessarily follows certain tax bill certified from the general tax that no title passed by said deed to the pur books of the county, and not from a "Railroad chasers, and it was correctly so ruled. The Tax Book," as required by law, and because deed was at most only color of title, and for it nowhere appears from the petition that the that purpose the court allowed it to be read taxes sued for are included in any railroad to the jury.
tax book, which objection was overruled, and The question of adverse possession seems
defendants excepted. The same objection to have been fairly submitted to the jury, was interposed by defendants to the introducunder appropriate instructions. Indeed, the tion in evidence of the "Back Tax Bill," with action of the court in giving or refusing in like result, as well also as by an instruction in structions upon that question has not been the nature of a demurrer to the evidence, criticised. The judgment is clearly for the
which was refused by the court. right party, and should be affirmed. It is By section 7728, art. 8, c. 138, Rev. St. 1889, so ordered.
it is provided that “all property, real, per
sonal or mixed, including lands GANTT, P. J., and SHERWOOD, J., con
owned or controlled by any railroad company cur.
or corporation in this state not hereinbefore specified, shall be assessed by the proper assessors in the several counties
wherein such property is located, under the STATE ex rel. GIBSON, Collector, v. DAVIS general revenue laws of the state, * * * et al.
but the taxes on the property so assessed
shall be levied and collected according to the (Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.)
provisions of this article.” By the following
section (7729), it is provided that, "for the ACTION AGAINST RAILROAD COMPANY FOR BACK
purpose of carrying out the provisions of the TAXES—EVIDENCE.
next preceding section, the president or other Rev. St. 1889, c. 138, art. 6, 8 7682, concerning the collection of back taxes on land,
chief officer of every such railroad company provides that all taxes sued for shall be set shall * * * furnish to each county clerk in forth in a tax bill of said taxes authenticated this state, wherever any lands or other propby the certificate of the collector, and filed with
erty belonging to or controlled by such comthe petition, and such tax bill or bills so certified are prima facie evidence that the amount
pany may be located, a separate statement, claimed in the suit is correct. Chapter 138, art. under oath, for the benefit of county and oth8, § 7728 et seq., provide a different mode for er local assessors, specifically describing all the assessment and collection of taxes against
lands by sections, lots or subdivisions thereof, the property of railroad companies from that of other corporations and individuals, and are with township and range or the number of silent as to the issuing of tax bills as provided the entry, location or survey * * * ownin section 7682. Held that, in an action against
ed or controlled by said company, on the first a railroad company for back taxes on land, tax bills certified from the general tax books of the
day of June in each year, and the cash value county are not admissible in evidence.
thereof." Section 7731 then provides that the Appeal from circuit court, Newton county;
county court, on receipt from the state auditor
of his certificate of the action of the state J. C. Lamson, Judge.
board of assessment and equalization, and of Action by the state of Missouri, at the rela
their proceedings in accordance with precedtion and to the use of W. F. Gibson, collector,
ing sections of said article, and of the returns against John B. Davis, the Atlantic & Pa
of the county assessor, shall, at the regular cific Railroad Company, and the St. Louis &
term of said court, if in session at the time, San Francisco Railroad Company, to collect
if not, at an adjourned term or at a special delinquent taxes on certain real estate. From
term of said court called for that purpose, asa judgment for plaintiff, defendant railroad
certain and levy the taxes for state, county, companies appeal. Reversed.
and other purposes. By section 7733, the L. F. Parker, for appellants. John B. Mur county clerk is required, within 10 days after ray, for respondent.
the county court shall have levied the taxes