The relators cite no cases to support this contention of a conflict. The Supreme Court has by construction ruled in Aldridge v. Spears, 14 S. W. 118, 101 Mo. 400, in a petition for opening and changing a road, that the terms "change" and "changing" are equivalent to "vacate" and "vacating." The section may, therefore, be so applied, and the Court of Appeals' opinion is in harmony therewith. We have, with some degree of care, reviewed all of the cases relied upon by relators, and do not find that the opinion of the Court of Appeals conflicts, even remotely, with anything said in either of them. The Court of Appeals' opinion bears evidence of a painstaking examination of the statutes and the rulings of the courts upon the question of the vacating of roads; and, aside from the absence of contravention, it presents a lucid discussion of the various statutes in regard thereto. Barney Reed, of Linn Creek, and Roy D. Williams, of Booneville, for respondent. RAGLAND, P. J. This is a statutory ac tion to determine title. The land involved, 160.23 acres, is situated in Camden county. One William A. Bradshaw is the admitted source of title. On September 29, 1892, Brad shaw and his wife executed and delivered to their daughter, Martha J. Windes, a deed, of which the following is a copy: "This indenture, made on the 29th day of September, A. D. one thousand eight hundred and ninety-two, by and between William A. Bradshaw and Jane Bradshaw, his wife, of Miller county, Missouri, parties of the first part, and Martha J. Windes, our daughter and the heirs to her body, of the county of Miller, in the state of -, parties of the second part, witnesseth: "That the said parties of the first part, in consideration of the sum of love and affection This writ should not have been issued, and and one dollar, to them paid by the said party it is therefore quashed. All concur. BANK OF BRUMLEY v. WINDES. (Supreme Court of Missouri, Division No. 1. April 12, 1926.) of the second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain and sell, convey and confirm, unto the said parties of the second part, her heirs, the following described lots, tracts or parcels of land, lying being and situate in the county of Camden, and state of Missouri, to wit: [Here follows a description of the land similar to that found in the petition filed herein.] "To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances, and immunities thereto belonging 1. Deeds 127 (2)-Deed conveying estate to or in any wise appertaining unto the said party grantee and heirs of her body held to create of the second part and unto her heirs forever, estate in grantee for life and contingent re- the said William A. Bradshaw hereby covemainder to her children in fee, notwithstand-nanting that he is lawfully seized of an indeing operating clauses made no use of words de corpore suo (Rev. St. 1919, § 2237). Deed, which in designating parties named daughter and heirs of her body as grantees, held to create fee tail, under which daughter took estate for life, and children contingent remainders in fee, in view of Rev. St. 1919, § 2267, notwithstanding the operating clauses of deed made no use of words "de corpore suo" or their equiv alent. 2. Estoppel 92 (3)-Children, exchanging expectant interests in mother's estate for share of other children in father's, would be estopped from claiming mother's land as contingent remaindermen. feasible estate in fee in the premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear of any incumbrance done or suffered by them or those under whom they claim, and that they will warrant and defend the title to the said premises unto the said party of the second part, and unto her heirs and assigns forever, against the lawful claims and demands of all persons whom soever. "In witness whereof," etc. (Italics ours.) At the time of the execution of the deed Martha J. Windes was married, but whether she had any children at that time the eviChildren, exchanging their expectant inter-dence does not with any certainty disclose. ests in mother's land with other children for On the their share of father's estate, would be estopped from claiming share in what was thought to be mother's estate, as contingent remainder men. day of July, 1916, the husband of said Martha J. Windes was dead, and had left surviving him. his widow and four sons, Elza, John, Harry, and Fred, his heirs at law. These four sons had inherited from Appeal from Circuit Court, Camden Coun-him 270 acres of land, which they still held ty; C. H. Skinker, Judge. Statutory action to determine title by the Bank of Brumley against John Windes. Judgment for plaintiff, and defendant peals. Reversed and remanded. as tenants in common, but subject to the interest of their mother, presumably that of unassigned dower. There was evidence tending to show that on the date just mentioned an ap-arrangement was entered into whereby Harry Windes was to convey to his cotenants all of his interest in the 270 acres of land in consideration of their relinquishing to him all of Charles O. Calkin, of Linn Creek, and Phil. M. Donnelly, of Lebanon, for appellant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (282 S.W.) tee and the heirs of her body. Otherwise it was in fee simple. their interest in the 160 acres held by the constructions which would discover such an mother under the Bradshaw deed. One ob- intent, the question resolves itself into whethstacle to the carrying out of the arrange-ér the estate granted was limited to the granment presented itself, and that was the minority of Fred Windes. However, the notary whom they called in consultation for the purpose of having the proper conveyances prepared told them that it would not be necessary to have a deed from Fred; that the mother, Martha, had the title in fee to the 160 acres; and that she could convey direct to Harry. Thereupon Harry deeded his interest in the 270 acres to his brothers, and his mother executed a general warranty deed, whereby she purported to convey the 160 acres to him, reserving to herself a life estate therein. On July 24, 1919, Harry Windes, Lula, his wife, and the said Martha J. Windes, executed and delivered to the plaintiff a deed of trust on the 160 acres in question to secure the payment of a note for $2,500. This deed of trust was subsequently foreclosed; the plaintiff was the purchaser at the foreclosure sale, and received a trustee's deed conveying to it all the right, title, and interest of both Harry Windes. and his mother, Martha. On October 3, 1921, Elza Windes conveyed to John, the defendant herein, his interest, whatever it might be, in and to the land in controversy. At the time of the institution of this suit, and at the time of the trial, in 1922, Martha J. Windes and two of her children, Elza and John, were living. Harry and Fred were dead. Harry had left surviving him four children, all of whom were living. The petition is conventional. In his answer defendant claims the interests of himself and Elza Windes as contingent remaindermen. The reply avers that, by reason of the agreement and understanding through which Harry Windes conveyed to his brothers his interest in his father's estate for their interests in their mother's land, the defendant is now estopped to make any claim to the land in controversy. It is insisted by respondent that, as the operating clauses of the deed do not make use of the words "de corpore suo" or equivalent words designating or pointing out the body from whom the heirs inheritable are to issue or descend, an estate in fee simple was created. It is true that in the granting, habendum, and warranty clauses the word "heirs" is not followed by words of limitation, but the first time it occurs in the instrument it is restrained by the words "to her body." In the very beginning the parties to whom the grant is to be made are designated: "Martha J. Windes, our daughter and the heirs to her body." And there is nothing in the context to indicate that the grantor in his subsequent use of the word "heirs" intended it to have any broader significance. It must be presumed, therefore, that wherever he used the words "her heirs" he meant the heirs of her body. Generi per speciem derogatur. In the preceding paragraph we have applied to the deed an ancient rule of construction, but the same result will, we think, be reached if the modern method of searching the instrument from the four corners for the grantor's intent be employed. On a casual inspection it is manifest: First, that the deed was prepared by filling in the blanks of a printed form, and that it was written by an unlearned scrivener; second, that the grantor's dominant thought was to make a gift of the land in such form that his daughter could not sell or dispose of it, and that this could be accomplished by deeding it to her and her bodily heirs. With this thought duly impressed upon his mind the scrivener gave it expression in the very first blank space that could with any degree of appropriateness be made available for the purpose. That space called for the party or parties of the second part, the person or persons who were to take under the deed, and there he wrote: "Martha J. Windes and the heirs to her body." Then, as he proceeded in filling out the blanks, he struck out the word "assigns" wherever it occurred, overlooking only the last one. The inconsistent and undiscrimi The circuit court found and adjudged that William A. Bradshaw and his wife by their deed conveyed to Martha J. Windes the feesimple title in and to the land therein described, and that plaintiff by mesne conveyances has acquired, and is now the owner of that title. From such decree defendant ap-nating use of singular and plural nouns and pealed. [1] I. The principal question presented for determination is, What estate was conveyed by the Bradshaw deed? There is no contention by either side that the grantors intended to convey to their daughter Martha and her children then living, if any, as tenants in common (Tygard v. Hartwell, 102 S. W. 989, 204 Mo. 200, 206), or to convey to their daughter an estate for life, with remainder to her children, including those that might thereafter be born (Kinney v. Mathews, 69 Mo. 520, 524). Laying aside, therefore, the possible pronouns in designating or referring to the party of the second part is indicative merely of the carelessness or unskillfulness of the scrivener. It should be accorded no other significance. Garrett v. Wiltse, 252 Mo. 699, 701, 161 S. W. 694. For the reasons herein appearing we are of the opinion that the Bradshaw deed passed an estate in fee tail. Martha J. Windes therefore took an estate for life and her children contingent remainders in fee. This because of the statute. Section 2267, R. S. 1919. As Harry Windes predeceased his mother, the plaintiff now has nothing more than the life | people for over 50 years, will not be held unestate of Martha. constitutional as not germane to subject of act of which it is part (Const. 1865, art. 4, § 32). 4. Abstracts of title 3-Abstracter must know what constitute mechanics' liens, and use sufficient diligence to discover and note on abstract all such liens so recorded as to affect all interested parties with notice, but need not pass on constitutionality of statute fixing place for filing liens. [2] II. If Elza and John Windes acquired directly or indirectly the share of Harry in their father's estate through an agreement or understanding that their expectant interests in their mother's land should go to Harry, and that their mother's deed would convey such interest, there can be no doubt but that on equitable principles they are barred from making claim to those interests now. Abstracter of title must have sufficient Lawson v. Cunningham, 204 S. W. 1100, 275 knowledge of law to know what constitute Mo. 128, 150; Hector v. Mann, 124 S. W. 1109, mechanics' liens, and use sufficient diligence to 225 Mo. 228. However, the trial court made discover and note on abstract all such liens no finding as to that issue, and the evidence properly recorded so as to affect all parties is too uncertain and hazy to warrant us insider and pass on constitutionality of statute interested with notice, but is not bound to conattempting to do so. The judgment is re- describing place for filing liens. versed and the cause remanded. All concur. Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge. Action by E. Olive Goodner against the Mosher-Roe Abstract & Guaranty Company. GOODNER v. MOSHER-ROE ABSTRACT & Judgment for defendant, and plaintiff appeals. Affirmed. GUARANTY CO. (No. 25509.) (Supreme Court of Missouri, Division No. 1. April 12, 1926.) 1. Mechanics' liens 5-Lien is purely statutory and not tangible incumbrance until set forth in document, verified, and filed in conformity with statute. Mechanic's lien is purely statutory and does not become tangible incumbrance against realty until set forth in document, verified and filed in conformity with statute. The petition alleged that defendant was 2. Abstracts of title 3-As respects ab-engaged at Kansas City, Mo.. in the business stracter's liability, abstracter's certificate that there were no mechanics' liens on realty in Kaw township of record in office of clerk of circuit court of Jackson county held not false, because of purported lien paper on file in office at Independence; such claim being nullity (Laws 1871, p. 30, § 18). of examining titles to real estate as disclosed by the public records and of making and furnishing written abstracts showing the state of such titles; that on the 9th day of April, 1921, defendant made and delivered to plaintiff, for a consideration paid by her, an abstract of the title to certain real estate situMechanic's lien claim against realty in Kaw ated in Kansas City (in Kaw township) to township, Jackson county, filed in office of clerk of circuit court at Independence, instead which defendant attached a certificate by of Kansas City, as required by Laws 1871, which it certified that there were no mep. 30, § 18, is nullity, and certificate of ab-chanics' liens filed remaining unsatisfied of stracter of title to realty in such township that there were no mechanics' liens of record in office of clerk. of circuit court of such county was not false, because of purported lien paper on file in office at Independence. 3. Statutes 117(3)—Law, acquiesced in by Legislature and people for over 50 years, describing place for filing and bringing suits for enforcement of mechanics' liens, will not be held unconstitutional as not germane to subject of act (Laws 1871, p. 30, § 18; Const. 1865, art. 4, § 32). Laws 1871, p. 30, § 18, requiring that mechanics' liens on realty in Kaw township, Jackson county, be filed in office of clerk of circuit court at Kansas City, and suit for enforcement thereof be brought in such court, having been acquiesced in by Legislature and record in the office of clerk of the circuit "By reason of the fact that defendant did furnish her a certificate that was false she was induced to buy the real estate above against which said mechanic's lien and suit was a charge, and thereafter in order to prevent foreclosure of said lien and sale of above property thereunder she was obliged to and did employ For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (282 S. W.) a lawyer to defend said suit in her behalf, and [cate to the effect that "there were no methat by means of his efforts said foreclosure chanics' liens filed remaining unsatisfied of was prevented and the real estate above was record in the office of the clerk of the circuit freed from said lien and suit, but that in and court of Jackson county, Mo.," was not renabout the defense of said suit, and in the trial dered false by the existence of a purported of the same in the circuit court of Jackson lien paper on file in the office at Independcounty, Mo., at Independence, she was compelled to incur an indebtedness to said lawyer for fees in the sum of $300." ence. [3] But appellant contends that said section 18 is void, because not germane to the It was further alleged that plaintiff, in subject of the act of which it is a part. Secorder to complete the improvements on the tion 32, art. 4, Const. 1865. She made the real estate she had purchased, found it nec- point at the time of the trial court's ruling essary to obtain a loan thereon, and because and has never ceased to press it. The secof the pendency of the lien claim she was tion has been on the statute books for more compelled to first take a temporary loan un- than a half century. During all of that time til it was disposed of, and thereafter to re- it has been acted upon and regarded as in finance the transaction, whereby she was all respects a valid law. Does the time never caused to expend in the way of extra com- come in the history of a statute when it can missions and interest the sum of $750. Judg- no longer be haunted by the ghosts of unment for $1,050 was prayed. The answer constitutionality? Is it never to have rewas a general denial. pose? Should not age render it immune at When the cause came on for trial defend-least to attack on grounds going merely to ant objected to the introduction of any evi- the manner of its enactment? The object of dence on the ground that the petition did not state a cause of action. The objection was sustained. The facts being such that the petition could not be amended to meet the objection, plaintiff suffered judgment to go against her. From such judgment she prose cutes this appeal. The circuit court's ruling was based on section 18 of an act passed in 1871, entitled: "An act to establish the Twenty-Fourth judicial circuit, and to provide for the election of a judge and circuit attorney therefor." The section in question, which has been continuously in force since the passage of the act, is as follows: "All mechanics' liens upon real estate situate in Kaw and Westport townships in said Jackson county, shall be filed in the office of the clerk of the circuit court at Kansas City, and suits for the enforcement thereof shall the constitutional provision referred to was to make the title of an act indicate, as a guide board, its general contents, and thereby prevent fraud from being practiced upon the Legislature itself and upon the general public. St. Louis v. Wortman, 112 S. W. 520, 213 Mo. 131. If the provisions of section 18 were ignorantly or unintentionally enacted because tucked away in the body of a bill of which the title gave no notice, there has since been ample opportunity to eliminate them from the statute. But, on the contrary, both the Legislature and the peoin the statute as passed. So that, if this secple have, for more than 50 years, acquiesced tion were vulnerable to the assault made upon it, as to which we express no opinion, we would serve no constitutional purpose in striking it down at this late date. [4] But, if it were held that said section be brought in the circuit court at Kansas City. 18 was void on constitutional grounds, apLaws 1871, p. 30. pellant would be afforded no comfort thereby. The defendant's undertaking called for [1, 2] A mechanic's lien is purely a crea- both skill and diligence. It was bound to ture of statute. It does not take tangible have a sufficient knowledge of the law to form as an incumbrance against real estate know, among other things, what constituted until set forth in a document, verified and a mechanic's lien upon the real estate, the filed in conformity with statutory provisions. title to which it was abstracting, and it was In view of the statute just quoted, a lien bound to use sufficient diligence to discover claim filed in the office of the clerk of the and note on its abstract all such liens when circuit court at Independence, purporting to properly made a matter of record, so as to be a charge against real estate in Kaw town- affect all parties interested with a notice. ship, is a nullity-a mere scrap of paper. It Schade v. Gehner, 34 S. W. 576, 133 Mo. 252, gives no more notice of the existence of a 257; Dodd v. Williams, 3 Mo. App. 278, 281. mechanic's lien on real estate in Kaw town-But it was not bound to consider and pass ship than if it had been filed in an adjoining upon the constitutionality of the statutes county. Defendant, in making an abstract that prescribed the place where such liens of the title to real estate in Kaw township, should be filed. In the instant case, if at was under no duty as an abstracter to the time the abstract was being prepared search the records of the circuit clerk's office the constitutionality of section 18 was being at Independence for evidence of mechanics' questioned, and there was grave doubt as to liens affecting such real estate, for the sim- whether a valid mechanic's lien might not be ple reason that under the statute none could filed in the clerk's office at Independence, as be there. It follows that defendant's certifi-well as at Kansas City, the proper degree of diligence might have required defendant to| Appeal from Circuit Court, Jasper County; examine the files of the office at both places. S. W. Bates, Judge. But the petition contains no such averments. The judgment of the circuit court is affirmed. All concur. GRAVES, J., in separate opinion. Action by C. E. Hasting against Jasper County. Judgment for defendant, and plaintiff appeals.. Reversed, with directions. C. E. Hasting, of Joplin, pro se. Roy Coyne, of Joplin, and Frank L. For low, of Webb City, for respondent. OTTO, J. This is an appeal from a judgment for Jasper county in an action appellant brought for a balance of salary he alleges is due him as probation officer of Jasper county, Mo. GRAVES, J. I concur in the result of this opinion only. An unconstitutional act never gets too hoary or gray-haired that its invalidity cannot be questioned in the courts. Lapse of time does not make an unconstitutional act constitutional. Nor does the failure of the Legislature to act do more than There is no dispute about the facts. give a legislative construction of the valid- the 23d day of November, 1922, the appellant ity of the law, which, while persuasive, is was appointed probation officer of Jasper not binding upon the courts. The last par-county by the judge of the circuit court, sitagraph of the opinion suffices for my limited concurrence. HASTING v. JASPER COUNTY. On ting as a juvenile court of that county, and his salary fixed at $100 per month. In January, 1923, the county court of Jasper county refused to pay the appellant the sum of $100 per month, as ordered by the said court, but paid appellant the sum of $83 per month. Appellant did not accept the salary as fixed by the county court, and instituted this suit (Supreme Court of Missouri, Division No. 1. to collect the difference between his salary 1. Infants April 12, 1926.) 17-Probation officer, exercising powers created by statute, held a "public officer" (Rev. St. 1919, §§ 2591-2613). Probation officer, appointed by circuit judge sitting as a juvenile court, is invested with some portion of sovereign functions of government under Rev. St. 1919, §§ 2591-2613, to be exercised for benefit of public, and is a "public officer." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Officer.] 2. Officers 1. Officer receiving authority from the law, and discharging some functions of government, is a "public officer." as allowed and fixed by the juvenile court and the amount fixed by the county court. The amount thereof is $66.68. The briefs present the single question whether or not section 11016, R. S. Mo. 1919, controls for the purpose of determining the population of Jasper county as a basis for ascertaining the salary of appellant. The law fixing the salaries of probation officers is the act of 1921 (Laws of 1921, p. 255): "Salaries of Probation Officers.-The probation officer shall receive such salary as the circuit court, or the criminal court when constituted as a juvenile court under this act, may prescribe not exceeding $3,000 per annum in counties of 500,000 inhabitants and over; not exceeding $2,000 in counties of 110,000 and less than 500,000 inhabitants; and not exceeding Probation officer, provided for under Rev. $1,500 per annum in counties of 90,000 and St. 1919, §§ 2591-2613, is not a state officer, as less than 110,000 inhabitants; and not exceedstate officers' duties are coextensive with gov-ing $1,000 in counties of 50,000 and less than ernment of state. 3. States 44. 4. Infants 17-Probation officer is a county officer within statute as to determination of population as salary basis (Rev. St. 1919, §§ 2591-2613, 11016; Laws 1921, p. 255). Probation officer, provided for by Rev. St. 1919, §§ 2591-2613, whose duties are to be wholly performed within limits of county for benefit of people of county, and whose salary is paid by county court from county funds under Laws 1921, p. 255, is a "county officer," within Rev. St. 1919, § 11016, defining method of determining population of county as basis for compensating county officer. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, County Officer.] * 90,000 inhabitants. This law classifies probation officers according to the population of their respective counties, and fixes the maximum amount that might be paid. It will be observed that the act does not provide a method by which the population of the respective counties might For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |