Hotel." When asked how he concealed it from the girl's mother, he said he told Ada how it would serve her when she took the medicine, and how she would feel, and that she would get rid of the child when she went out. He then told the witness Ada was awful sick at the time, but felt better afterwards. This was some two or three weeks before her death. The evidence also shows that the girl followed his instructions, and attempted to hide the miscarriage from her mother, and 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, and came home sick; that she was pregnant; that defendant gave her some greenish medicine, that made her very sick, and produced a copious flooding, and the passage of a clot, which from her experience she had no hesitancy in pronouncing an abortion; that the bowels were very sore, and the girl wasted a great deal; that the girl never recovered from the shock, but died in about two weeks. She detailed the conversation of the physician as to the secrecy to be observed, and testified to defendant's conversation with her daughter just prior to her death, in which Ada told the defendant he was the cause of her ruin, and he promised to care for her. Witness Brown testified defendant wanted him to help dig Ada's grave, and said "he wanted her buried quick"; "that the family wanted a shallow grave." The coroner exhumed the body, but found it too much decomposed to make any satisfactory autopsy. Dr. Perry, who was employed by defendant to attend the girl, did not see her until after the abortion, and he testified her symptoms were those of typhomalarial fever. Another physician testified the symptoms were usual in miscarriage or abortion.

1. The principal point made is that there was no sufficient proof of the corpus delicti. Without again detailing the evidence tending to show the girl died from the effects of the abortion, and that defendant was the guilty procurer, we have only to say that it was established beyond a reasonable doubt by entirely satisfactory evidence.

2. Defendant complains of the refusal of an instruction as to the essentials of the crime, but the court fully covered it by the following instruction: "The court instructs the jury that in this case the defendant is charged with administering to one Ada Hawk certain medicine or drug for the purpose of procuring an abortion, and unless the state has proven by the facts and circumstances, to your satisfaction beyond a reasonable doubt, that the said Ada Hawk was pregnant with child, and that the defendant administered to or caused to be administered to her certain medicine or drugs, for the purpose of procuring an abortion, and did thereby procure an abortion, and that the abortion or miscarriage was the cause of the death of the said Ada Hawk, as charged in the indictment, then you should find the

defendant not guilty." However correct any other instruction might have been, this instruction required the jury to find every necessary fact constituting the crime beyond a reasonable doubt, and it was no error to refuse any other. The court instructed upon every proposition of law that could aid the jury in arriving at a correct verdict. The judgment is affirmed.

BURGESS and SHERWOOD, JJ., concur.

BURNS v. MAYOR, ETC., OF CITY OF LIBERTY.

(Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.)

DEDICATION-WHAT CONSTITUTES-APPEAL

REVIEW.

1. Where the east line of a recorded plat, which is also the west line of a street, is in the actual location placed too far to the east, a subsequently recorded plat of a portion of a tract, which calls for the line as actually located for its eastern boundary, will constitute a dedication of the strip of land included between the lines of actual and proper location.

2. Rev. St. 1889, § 2303, prohibiting a reversal except for error materially affecting the merits, precludes the consideration of error in refusing requested declarations of law where the verdict is manifestly for the proper party.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Action of ejectment by Peter B. Burns against the mayor, councilmen, and citizens of the city of Liberty. From a judgment for defendant, plaintiff appeals. Affirmed.

D. C. Allen, for appellant. C. L. Dougherty, Simrall & Trimble, and Sandusky & Sandusky, for respondent.

BURGESS, J. This is an action of ejectment for a strip of land in Clay county, described as follows: "A part of lot number eight, in block six, as marked and numbered on the plat of Allen and Burns' addition to the city of Liberty, bounded as follows: Beginning at the southeast corner of said lot; thence running north on the east line of said lot a distance of sixty-nine feet and nine and three-fourths inches, to the northeast corner of said lot; thence running west on the north line of said lot a distance of two feet, to a point thereon; thence running south a distance of sixty-nine feet and nine and three-fourths inches, to a point on the south line of said lot; thence east two feet, to the place of beginning." The answer is, first, a general denial, with the exception that it admits that defendant is a municipal corporation. It then avers: "That about the year 1857 the Liberty and Meeks' Ferry road, sometimes called the 'Owens' Ferry Road,' and in 1857 designated by the city council as 'Lightburne Street,' was established, located, and opened, and has been in use as a public street continuously since said date; that the property in controversy is a

part of said street; that Alvan Lightburne, who owned the land on the west, when said highway was opened, continued the owner thereof until May 14, 1887, when he conveyed the same to Burns and Allen; that said street during all said time was used and repaired and maintained as a public highway; that when Lightburne conveyed his land to Allen and Burns he surveyed and deeded the same to the west line of said street as actually located and opened as aforesaid; that when Allen and Burns platted and filed their addition to the city of Liberty they surveyed and platted said land up to the west side of Lightburne street as previously located and opened as aforesaid; that Lightburne street, as so located and opened, was one of the streets marked on said plat, and that said plat in express terms dedicated all streets and alleys, as shown on said plat, to public use; that lots were sold, and improvements erected, along both sides of said street, with reference to the lines thereof as so located, opened, and used, prior to said deed from Lightburne to Allen and Burns, and with the knowledge and acquiescence of of said Lightburne." Plaintiff, by replication, denied all new matter in the answer.

The land sued for formerly belonged to Alvan Lightburne under whom plaintiff whom plaintiff claims title. Prior to November 26, 1883, Lightburne owned a tract of land in the city of Liberty, bounded by Water street on the west, and by Lightburne street, originally known as the "Liberty and Meeks' Ferry Road," or "Owens' Ferry Road" on the east. The street was named Lightburne by the city of Liberty in 1857. Lightburne street ran north and south, between the tract of Lightburne on the west, and a tract owned by Robert H. Miller on the east. The tracts were fenced along and parallel with said street. The Lightburne tract was plattea in two additions to the city of Liberty; the first by Lightburne, and called "Lightburne Addition to the City of Liberty," was platted and the plat filed in the recorder's office of said county November 26, 1883. The addition abuts the west line of Lightburne street, as actually located and opened. It marks Lightburne street the east boundary of the addition, and extends the west line of Lightburne street along the addition and north to the north boundary of his land. Lightburne, by his plat, extends a line entirely around his tract of land, designating Water street on the west, Lightburne street on the east, an alley on the south, and the boundary line of his land on the north. By this plat all streets and alleys in express terms are dedicated to public use. On December 6, 1883, Lightburne conveyed this whole addition to Thomas F. Messick. On May 14, 1887, Lightburne conveyed the residue of his tract of land to John M. Allen and Peter B. Burns. The deed describes the north boundary as running "thence east 720 feet to the

west line of the aforesaid Liberty and Meeks' Ferry road" (Lightburne street). This residue of the Lightburne tract, so bought by Allen and Burns, was platted and filed as an addition to the city of Liberty by them on the 5th day of July, 1887, and named "Allen and Burns' Addition to the City of Liberty." This plat describes the north line of the addition as running "thence east 720 feet to the west side of Lightburne street." Lightburne street is designated on the plat as forming the east boundary of the addition, and in express terms the plat says: "The streets and alleys of this addition as represented on this plat are hereby dedicated by the parties hereto to public use." All of Lightburne's addition was built up, and parts of Allen and Burns' addition, and part of the tract owned by Miller on the east side of Lightburne street, before this controversy arose. Lightburne street was originally located by R. J. Stepp, who was then county surveyor for said county, and by that survey the deed from Lightburne to Allen and Burns was made, and Allen and Burns' addition to the city of Liberty was platted. When this controversy arose, plaintiff procured a new survey to be made of Lightburne street, and of the Lightburne tract, by Mr. Pike, of Kansas City, who placed the northeast corner of section 7 (by which Lightburne street was originally located) 10 feet further east than Stepp's survey placed it. The claim was thereupon made by plaintiff that Lightburne street should be moved 10 feet further east; that the north line of Allen and Burns' addition should have been 730 feet, instead of 720 feet, as actually staked off; that there was, consequently, an unplatted strip, 10 feet wide at the north end, and at the point in controversy about 5 feet wide, lying between the east line of Allen and Burns' addition and the west line of Lightburne street; and accordingly plaintiff and Allen, on the 20th day of December, 1889, took from Alvan Lightburne a quitclaim deed for this alleged strip. Allen, on December 28, 1892, conveyed by quitclaim deed his interest in the land to plaintiff, who claims that the two feet in controversy is a part of this strip, which is claimed to extend also further south between Lightburne street and Lightburne's addition, and to cut off the residents on Lightburne's addition from the street in front of them. At the conclusion of the evidence plaintiff asked 21 declarations of law, 11 of which were given and 10 refused. No declarations of law were asked or given in behalf of defendant. The finding of the court was as follows: "The court now here being sufficiently advised in the premises, finds the issues herein for the defendant, and makes the following finding of fact, to wit: The court finds the facts to be that at the time Burns and Allen platted, acknowledged, and filed their plat to the city of Liberty, they adopted thereby as the eastern boundary line of

The judgment of the court being manifestly for the proper party, it becomes unnecessary to pass upon the declarations of law which were asked by plaintiff and refused by the court. Section 2303, Rev. St. 1889, provides that "the supreme court, or courts of appeals shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action." See, also, Cartwright v. Culver, 74 Mo. 179; State v. Edwards, 78 Mo. 473; MacLeod v. Skiles, 81 Mo. 603; Fitzgerald 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. Plaintiff's counsel, while conceding in his brief that the case is one of fact, bases the right of his client to recover upon the theory that the northeast corner of section 7 was correctly established by Dale, Rogers, Leitch, and Pike, surveyors, before the commencement of this action, 737 feet east from the point of intersection of the east line of Water street with the north line of section 7, instead of 727 feet, as contended for by defendant; thus placing Lightburne street 10 feet further east than it was understood to be according to the survey of Stepp, which would leave a strip of land not platted by Allen and Burns, lying along and parallel with the west line of that street and the east line of their addition its entire length, which plaintiff is entitled to the possession of. But the court found, as before stated (and there was ample evidence to support its finding), that at the time Burns and Allen platted, acknowledged, and filed their plat of their addition to the city of Liberty they adopted thereby as the eastern boundary line of their said addition the western line of Lightburne street as then actually located, and that by so doing they dedicated the strip in controversy to public use. The plat of Allen and Burns' addition to the city of Liberty was acknowledged by them on the 5th day of July, 1887, and deposited in the recorder's office of said county for record on the 19th day of July next thereafter. By it the west side of Lightburne street is called for as its eastern boundary, and it must be conclusively presumed therefrom that they intended to dedicate the strip in controversy, if not already a part of the public street, to the public, and plaintiff should not now be heard to say that the eastern line of said street as it was at that time was not in truth and in fact the true and correct line. To hold that the streets and alleys of cities, towns, and villages can be changed every time some surveyor can be found who

mer survey, or the lines as originally platted, would result in unsettling the titles to property in very many places, in the utter ruin of the holders, and prove disastrous to the growth and prosperity of such municipalities. It should never be done. The facts upon which the court predicated its finding sufficiently appear from the plat of the addition by Allen and Burns; and while the purchasers of lots abutting on the west side of Lightburne street improved them, built their houses and fences, according to the plat, which calls for said street as its eastern boundary, they are not parties to this action, it is clear that, if plaintiff's contention be sustained, they will be entirely cut off from and deprived of all connection with that street. The judgment is affirmed.

GANTT, P. J., and SHERWOOD, J., concur.

MOSS et al. v. KAUFFMAN et al. (Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.)

COUNTY-SUBSCRIPTION TO RAILROAD STOCKHARMLESS ERROR-DEED BY COUNTYVALIDITY-TAX DEED.

1. Under Gen. St. 1865, c. 63, § 20, providing that a county may mortgage or sell its swamp lands to pay its subscription for railroad stock, a county had no right to deed its swamp lands in payment of such subscription.

2. The admission of immaterial evidence, not prejudicial, is not cause for reversal.

3. Where a county, by a void deed, conveyed lands in payment for a subscription to railroad stock, but said stock was subsequently repurchased from the county for a money consideration, a deed to the same lands executed in good faith by the county, for which part of the consideration was the money so paid to it, was valid.

4. A deed on a sale for taxes assessed against one to whom the county had made a void conveyance conveys no title.

Appeal from circuit court, Bollinger county. Ejectment by Elva Moss and others against Isaac B. Kauffman and another. Plaintiffs had judgment, and defendants appeal. Affirmed.

J. D. Potter, for appellants. Phillips, Stewart, Cunningham & Elliot and M. R. Smith, for respondents.

BURGESS, J. Action of ejectment for a tract of swamp land. The land was patented to Bollinger county by the state, as swamp and overflowed land, August 4, 1869. Both parties claim under this title. Defendants also relied upon the statute of limitations as a defense. Plaintiffs claim title under a deed from Bollinger county to William Brown and Louis Houck dated May 13, 1887, and by deed from Brown and Houck to T. J. Moss, deceased, ancestor of the plaintiffs Moss, dated April 14, 1888. Defendant Kauffman claims under deed from Bollinger county, 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. 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. 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 swamp land by his deed from the county, no consideration passed from the county for its railroad stock; and as he paid a valuable consideration for the stock, which proved to be of no value, he was in equity entitled to have refunded to him the purchase money. To this right Brown and Houck succeeded, and we can see no reason why the title thus acquired by them should not be upheld. Certainly this deed is not void.

As to the tax deed by the sheriff to Ross and Whybark to the land in suit, as Allen had no title at the time of the levy of the taxes, rendition of the judgment and sale of the land thereunder, it necessarily follows that no title passed by said deed to the purchasers, and it was correctly so ruled. The deed was at most only color of title, and for that purpose the court allowed it to be read to the jury.

The question of adverse possession seems to have been fairly submitted to the jury, under appropriate instructions. Indeed, the action of the court in giving or refusing instructions upon that question has not been criticised. The judgment is clearly for the right party, and should be affirmed. It is so ordered.

GANTT, P. J., and SHERWOOD, J., con

cur.

STATE ex rel. GIBSON, Collector, v. DAVIS et al.

(Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.)

ACTION AGAINST RAILROAD COMPANY FOR BACK TAXES-EVIDENCE.

Rev. St. 1889, c. 138, art. 6, § 7682, concerning the collection of back taxes on land, provides that all taxes sued for shall be set forth in a tax bill of said taxes authenticated by the certificate of the collector, and filed with the petition, and such tax bill or bills so certified are prima facie evidence that the amount claimed in the suit is correct. Chapter 138, art. 8, 7728 et seq., provide a different mode for the assessment and collection of taxes against the property of railroad companies from that of other corporations and individuals, and are silent as to the issuing of tax bills as provided in section 7682. Held that, in an action against a railroad company for back taxes on land, tax bills certified from the general tax books of the county are not admissible in evidence.

Appeal from circuit court, Newton county; J. C. Lamson, Judge.

Action by the state of Missouri, at the relation and to the use of W. F. Gibson, collector, against John B. Davis, the Atlantic & Pacific Railroad Company, and the St. Louis & San Francisco Railroad Company, to collect delinquent taxes on certain real estate. From

a judgment for plaintiff, defendant railroad companies appeal. Reversed.

L. F. Parker, for appellants. John B. Murray, for respondent.

BURGESS, J. This is an action for taxes, delinquent for the year 1890, against the N. E. 4 of the S. W. 4 of section 12, township 25, range 31, Newton county, Mo. Defendant companies, by answer, admit their incorporation as alleged in the petition, and deny all other allegations therein contained. There was judgment rendered against all of the defendants for the amount claimed, to wit, $420. The railroad companies appealed.

Upon the trial, the defendant companies objected to the introduction of any evidence, because the petition stated no cause of action, and because it appeared affirmatively from the petition that the suit is based upon a certain tax bill certified from the general tax books of the county, and not from a "Railroad Tax Book," as required by law, and because it nowhere appears from the petition that the taxes sued for are included in any railroad tax book, which objection was overruled, and defendants excepted. The same objection was interposed by defendants to the introduction in evidence of the "Back Tax Bill," with like result, as well also as by an instruction in the nature of a demurrer to the evidence, which was refused by the court.

sessors

*

*

in the several counties wherein such property is located, under the general revenue laws of the state, ** but the taxes on the property so assessed shall be levied and collected according to the provisions of this article." By the following section (7729), it is provided that, "for the purpose of carrying out the provisions of the next preceding section, the president or other chief officer of every such railroad company shall * * * furnish to each county clerk in this state, wherever any lands or other property belonging to or controlled by such company may be located, a separate statement, under oath, for the benefit of county and other local assessors, specifically describing all lands by sections, lots or subdivisions thereof, with township and range or the number of the entry, location or survey *** owned or controlled by said company, on the first day of June in each year, and the cash value thereof." Section 7731 then provides that the county court, on receipt from the state auditor of his certificate of the action of the state board of assessment and equalization, and of their proceedings in accordance with preceding sections of said article, and of the returns of the county assessor, shall, at the regular term of said court, if in session at the time, if not, at an adjourned term or at a special term of said court called for that purpose, ascertain and levy the taxes for state, county, and other purposes. By section 7733, the county clerk is required, within 10 days after the county court shall have levied the taxes