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this case disturbed his idea of justice.

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He upon another hearing, enter up a judgment set it aside, and it should so remain. It mat- sustaining the trial court in granting a new trial, nisi, and to the further end that, upon such new trial below, a right verdict in the case may be obtained, and not one bearing upon its face the evidence of poison and prejudice in the minds of the jury.

ters not that he may have assigned a wrong reason for his action, if there be a good reason covered by the motion for a new trial. We insist that the exceedingly high verdict in this case is not sustained by the evidence for the plaintiff. Under the statute (section 5427, R. S. 1909), the damages assessed by the jury must be "with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect, or default."

WOODSON and FERRISS, JJ., concur in these views.

SPRINGFIELD S. W. RY. CO. v.
SCHWEITZER et al.

Nov. 30, 1912.)

1. APPEAL AND ERROR (§ 23*)-JURISDICTION OF SUBJECT-MATTER-OBJECTION UNNECESSARY.

The Supreme Court will determine its jurisdiction of the subject-matter in condemnation proceedings, though no question thereon is raised by counsel.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 99; Dec. Dig. § 23.*] 2. COURTS (§§ 24, 37*)—JURISDICTION OF THE SUBJECT-MATTER-WAIVER.

Jurisdiction of the subject-matter can neither be waived nor conferred by consent of the parties.

[Ed. Note.-For other cases, see Courts, Cent. Dig. $$ 76-78, 147-149, 151, 156; Dec. Dig. §§ 24, 37.*1

3.

COURTS (§ 231*)-SUPREME Court-Juris

No aggravating circumstances were shown by the plaintiff, and hence the damages can- (Supreme Court of Missouri. Division No. 1. not be enhanced for that reason. The only thing upon which she can have damages is the earning capacity of the deceased and probable length of his life. He was earning $1.25 per day, and yet on this proof she has recovered the highest amount which can be recovered in a case under these statutes. Had her husband been earning $10 a day, she could not have recovered one whit more than she did in this case. I do not indorse the idea seemingly announced by our learned Brother that the widow of a man with an earning capacity of $1.25 per day can or should recover, under these statutes, a sum equal to that which can or should be recovered by the widow of a man whose earning capacity was $10 per day. The statute does not mean that. It has a sliding scale of damages, and was properly intended to cover all cases, but to cover them rightfully and justly under the facts of each case. The greatest recovery allowable is $10,000. This includes the aggravating cases. When the Legislature fix ed this sliding scale, and when it provided for aggravating circumstances as an element to enhance the damages, and when it further fixed the highest recoverable sum at $10,000, it was never intended that the widow of a man with the limited earning capacity of $1.25 per day should recover the full limit of the statute in a case without a single aggravating circumstance. The verdict in this case outrages the very statutes under which it was recovered. To permit it to stand would be to make mockery of the law, and enter upon the records one more travesty upon justice.

As stated before, the excessiveness of this verdict was properly urged in the motion for a new trial. It is vehemently urged here. The trial court has granted a new trial, and excessiveness of this verdict is a good ground for that action of the trial court. What reason the learned trial judge assigned for his ruling is immaterial here, so long as there is one good ground in the motion for a new trial.

The motion for rehearing in this court should be sustained to the end that we may,

DICTION.

A judgment appealed from must involve title to real estate directly, and not as a mere incident in order to confer jurisdiction on the Supreme Court under the constitutional provision giving such court appellate jurisdiction in cases involving title to real estate.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 487, 491, 644, 646, 647, 648, 650, 652659, 661; Dec. Dig. § 231.*]

4. COURTS (§ 231*)-SUPREME COURT-JURISDICTION-CONDEMNATION PROCEEDINGS.

Under the constitutional provision giving the Supreme Court appellate jurisdiction in cases involving title to real estate such court may review judgments in condemnation proceedings which involve such title, but cannot review judgments in such proceedings where the amount involved does not confer jurisdiction, or the title to real estate is not involved.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 487, 491, 644, 646, 647, 648, 650, 652659, 661; Dec. Dig. § 231.*]

5. COURTS (§ 231*)-SUPREME COURT-JURISDICTION-REAL ESTATE "PERSONAL PROPERTY"-"REAL ESTATE."

An unexpired three-year lease on premis"real estate," within the constitutional provies condemned was "personal property," and not sion conferring appellate jurisdiction on the Supreme Court in cases involving title to real

estate.

Dig. 88 487, 491, 644, 646-648, 650, 652[Ed. Note.-For other cases, see Courts, Cent. 659, 661; Dec. Dig. § 231.*

For other definitions, see Words and Phrases, vol. 6, pp. 5346-5358; vol. 8, p. 7753.]

6. LANDLORD AND TENANT (§ 70*)-LEASE-I had notified all the parties concerned, on the "CHATTEL REAL."

At common law a term for years created day this new lease was signed, that it pur

by lease was a "chattel real."

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 215, 216; Dec. Dig. $ 70.*

For other definitions, see Words and Phrases, vol. 2, p. 1107.]

7. LANDLORD AND TENANT (§ 20*)-LEASE"REAL ESTATE."

At common law the term "real estate" did not include a lease.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 50, 51, 53, 54; Dec. Dig. § 20.*

For other definitions, see Words and Phrases, vol. 8, pp. 7778, 7779.]

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Action by the Springfield Southwestern Railway Company against Jacob C. Schweitzer and the New Phoenix Foundry & Machine Company. From a judgment for the Machine Company, plaintiff appeals. Cause ordered transferred to the Springfield Court of Appeals.

Robert T. Railey, of St. Louis, and Barbour & McDavid, of Springfield, for appellant. John Schmook and T. J. Murray, both of Springfield, for respondents.

LAMM, J. Defendant Schweitzer was the some time owner of four parcels of real estate in the city of Springfield, for convenience numbered tracts 1, 2, 3, and 4, severally. Tract 3 alone concerns us. Defendant Machine Company was in possession of tract 3 as a tenant of Schweitzer. In the exercise of its delegated right of exercising the power of eminent domain, plaintiff Railway Company brought a condemnation proceeding in the Greene circuit court against Schweitzer, as owner, to condemn all four tracts for railway purposes, and made the Machine Company a party defendant. Such steps were ultimately taken in that case that, from a judgment in favor of Machine Company, plaintiff Railway Company appeals.

Schweitzer does not appeal from the final judgment; nor does the Machine Company appeal therefrom; nor does the Railway Company appeal from that part of the judgment relating to Schweitzer. The controversy therefore narrows itself, on appeal, to one between the Railway Company and the Machine Company.

On December 31, 1904, Schweitzer let tract 3 to the Machine Company for a one-year term. This lease was in writing, duly recorded, and gave an option to lessee for an extended term of three years, to begin, at the end of that reserved. On the day before the term ended, the Machine Company exercised its option to extend the term for the three additional years. A writing to that effect was signed up and put of record. There was testimony to the effect (and the court so found) that the Railway Company

posed taking all four tracts by condemnation proceedings. There was testimony from which the fact might be inferred that the extending of the lease was taking time by the forelock by putting Machine Company on a better footing to claim damages; but none of that testimony seems material to the question we have in mind.

The Machine Company was put in possession under its original lease, and was running a foundry and machine shop in some ramshackle buildings on tract 3. This possession was continued into the new term, and, while so in possession, on January 22, 1906, plaintiff sued to condemn all four tracts. The petition is of no consequence on the question we have in mind. It appears the Machine Company lays no claim to any other tract, except No. 3; and as to that its only claim was as tenant for the unexpired part of the additional three-year term. Both defendants, on service of process, filed separate answers. Schweitzer admitted he owned all four tracts in fee simple, and went on to point out that his codefendant, the Machine Company, was in possession of tract 3 (describing it) as his tenant for a term of three years, beginning January 1, 1906. The case rode off below on that theory. To that end the Machine Company filed its answer, setting up its possession of tract 3 under the same lease, and, among other things, claiming damages in the sum of $5,000, on the theory that "the breaking up, interference with, and interruption of, the business" it was conducting on the leased premises, including the injury to its business and loss of profits, amounted to that sum. On the day these answers were filed, the court made the conventional finding of facts, spreading of record conditions precedent to the right to condemn property for railway purposes, etc., and then went on to appoint and instruct three commissioners to assess damages. Presently they reported, assessing damages to the four tracts separately. came to tract 3, they reported an award of compensation in the sum of $4,200 (quoting) "to Jacob C. Schweitzer, the owner of said tract, and the New Phoenix Foundry & Machine Company, lessee thereof, as set forth in said petition, and as their interests may appear. Presently, on notice given

When they

of this award and report, Schweitzer and the Machine Company excepted thereto, severally, through separate counsel. Following these exceptions, Schweitzer took down the whole award of $18,200. Subsequently, on the Machine Company's motion, the court ordered him to return to the clerk the $4,200 allowed as compensation and damages for tract 3. It appears he obeyed this order, in part, by returning $2,000. Taken by a change of venue to the Polk circuit court, the cause was reached for trial in 1909. At

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Schweitzer take down the $2,000 theretofore deposited with the clerk; and that the Machine Company recover said $720.31 from plaintiff.

In the foregoing we have culled from the record the facts deemed necessary to an intelligent and self-explanatory disposition of a question we have in mind, namely, our jurisdiction. We think jurisdiction is challenged on the face of this record. In that view of it, the situation seeks its determination at the outset. Thereon we make these

that time, on the motion of the Railway the special value of the leasehold"; that Company, the Machine Company was ordered to make its claim for damages more specific. This it did in the form of written amendments to its exceptions to the commissioners' report. Thereby it claimed damages, summarized as follows: For removing its business, foundry, and machine shops, comprising sand, iron, patterns, machinery, tools, stock and material, engines and implements, etc., $634.31; damages consequent to said removal in breakage and destruction of articles and machinery so moved, $850; in breaking up, interference with, and injury observations: to, its business, loss of patronage and custom by change of location, $1,000; loss of earnings during the time of removal, $1,000; deprivation of the use and benefits of its leasehold interest during the unexpired term of its lease, $900; loss of its established trade, patronage, and good will at its old stand, $500.

On the filing of these amended exceptions by the Machine Company, Schweitzer formally withdrew his own exceptions by a pleading filed, and thereby he inferentially submitted to judgment in favor of plaintiff and directly asked the court to determine the respective interests of himself and the Machine Company in the award on tract 3, and to make an order distributing the same in accordance therewith. Thereupon the cause came on for trial on said motion of Schweitzer and the remaining live exceptions of the Machine Company.

The trial was to the court, without the aid of a jury, and exceptions were taken by appellant to the refusal to strike out the exceptions, to the introduction of certain testimony by the Machine Company, to the scope of the inquiry, to the giving and refusing of instructions, and to the findings and judgment; but none of them are material until such time as the question in mind is at rest. Attending to the finding and judgment anent tract 3, among other things, the court found that the lease was of no more value than the monthly rent reserved. Further, that the Machine Company, to continue its business during the unexpired term of its lease and preserve its machinery and material from loss and destruction, was obliged to remove said machinery and material to another building, thereby necessarily incur ring expense in the sum of $634.31, and suffered loss of fire brick to the amount of $86, "and that" (quoting) "by reason of the fact that said lessee had its machinery so installed and in operation, as aforesaid, the leasehold was of special value to defendant company, in excess of the ordinary rental value of the premises, to the amount of $720.31." Further, that Schweitzer had withdrawn his exceptions to the report of the commissioners, etc. It was adjudged, inter alia, that he take nothing; that the Machine Company take nothing from Schweitzer, “or” (quoting)

[1, 2] (a) The question of jurisdiction is not sprung by counsel. One of the ancient prerogatives of counsel is, within the boundaries of the record, to make or not make points for the decision of judges. They are at liberty, within the confines of good sense, to have play of free will and do as they choose in that regard. On the other hand, some of the ancient prerogatives of the courts of all enlightened peoples are to decide only such points sprung by counsel as are deemed vital and necessary, and, in turn, a court may, ex mero motu, spring points of its own, at least on the subject of jurisdiction; for jurisdiction of the subject-matter can neither be waived nor conferred by consent of parties. Whether it exists or not in a concrete case springs spontaneously for inquiry at any step or stage of a suit at any time, in any case, and will be considered sua sponte. City of Tarkio v. Clark, 186 Mo. loc. cit. 294, 85 S. W. 329.

[3] (b) We are of opinion we have no jurisdiction of this appeal. This because: (1) The Constitution gives the Supreme Court appellate jurisdiction in cases involving title to real estate. By construction we have arrived at the conclusion, announced many times, that it is not sufficient to confer jurisdiction on this court that the title to real estate should be a subject of inquiry collaterally or by way of an incident in the suit. To confer jurisdiction, in a constitutional sense, the judgment appealed from must involve title to real estate, and such title must be directly affected thereby. Jones v. Hogan, 211 Mo. loc. cit. 47, 109 S. W. 641, and cases cited; Turner v. Morris, 222 Mo. 21, 121 S. W. 9; Loewenstein v. Insurance Co., 227 Mo. loc. cit. 134 et seq., 127 S. W. 72; Kennedy v. Duncan, 224 Mo. loc. cit. 664, 123 S. W. 856; Porter v. Railroad, 175 Mo. 96, 74 S. W. 992.

[4] (2) Under the constitutional grant of power to hear and determine appeals in cases involving title to real estate, we have held that this court has jurisdiction in appeals from judgments in condemnation proceedings under the exercise of the right of eminent domain. The leading case on that head is State ex rel. v. Rombauer, 124 Mo. 598, 28 S. W. 75. In Railroad v. Wyatt, 223 Mo. loc. cit. 351, 352, 122 S. W. 688, a line

Case. And that general doctrine may be ac-[that case is of the order that leaves no stone cepted as settled. unturned, no source of information unex(3) It would be loose and illogical construc-plored, no pains omitted. It must be held, tion, however, to hold we had jurisdiction in then, that further exposition of those statsuch cases, unless our jurisdiction be refer- utes in that regard is set at rest, and should able to the constitutional grant of power to not be put on foot and on its legs as a going hear causes involving title to real estate. It concern again. We stand by that case. It follows that when a judgment in a conden was there held, as the sum of the matter, nation proceeding comes by appeal to the Su- that the foregoing statutes have not changed preme Court, and is of such sort that the a chattel real from personal property into amount involved does not confer jurisdiction, real estate for the general purposes of the and the title to real estate is not involved, law. In given particulars, and for certain our jurisdiction fails. The question up for defined purposes, as, for instance, in the determination, therefore, is not merely chapter on conveyances, the term "real eswhether this is a condemnation suit. It goes tate" is made to include a chattel real, but deeper, and is: Is the title to real estate in- not for the general purposes of the adminisvolved as between the Railway Company and tration of the law. Following the reasoning the Machine Company? of the Orchard Case, and on its authority, we hold that chattels real are left, for the purposes of this case, as at common law, to wit, as personal property. Indeed, even a superficial reading of the exceptions of Machine Company, of the finding of the court, and of the judgment below points to the fact that the damages Machine Company suffered, if any, related to personal property. The title to real estate not being involved in that part of the omnibus judgment appealed from, we have no jurisdiction.

[5-7] (4) The Machine Company had a leasehold for that part of a term of three years that was unexpired when the Railway Company appropriated the premises, and no more. The question, then, can be put in a neater and more speaking form by stating it this way: Is a leasehold for a term of years real estate? If so, the title to real estate is involved; for unquestionably the term or leasehold of the Machine Company was sequestrated. If not, the title to real estate is not involved in a constitutional sense.

Attending to the question thus put, it must be conceded that if a term for years is real estate it becomes such, either by force of common law, or by virtue of some statute. Now, at common law a term for years created by a lease was a chattel-a chattel real to be sure, but still a chattel. At the tenant's death such leasehold became an asset

in the hands of his administrator, and did not go to his heirs. At common law the term "real estate" did not include a lease. Lenow v. Fones, 48 Ark. 557, 4 S. W. 56; Grover v. Fox, 36 Mich. loc. cit. 459; Despard v. Churchill, 53 N. Y. loc. cit. 199; Buhl v. Kenyon, 11 Mich. 249, 83 Am. Dec. 738, 2 Kent, Com. *342; Gunn v. Sinclair, 52 Mo. 331; Orchard v. Store Co., 225 Mo. loc. cit. 433 et seq., 125 S. W. 486, 20 Ann. Cas. 1072.

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Where a verified petition states that a judgment quieting title has been entered against the petitioners without summons or appearance, and upon a petition which was untrue in some material matter, and to which the petitioners have, and then had, a good defense, setting out such defense, and closes be set aside, it is a petition for review, under with a prayer that the judgment quieting title Rev. St. 1899, §§ 777, 780, authorizing a petition for review to set aside a judgment enterTurning now to our statutes, we have a ed without summons or appearance, and pregroup of them defining the term "real estate" scribing the facts which must be shown by such petition, though an additional party necin connection with some particular subject-essary to a complete defense was brought in, matter, and for some particular purpose, as, and one party was transferred to a different for example: Judgments (R. S. 1909, § side from that which he occupied in the suit to quiet title. 2161); Executions (Id. §§ 2193, 2194); Con[Ed. Note. For other cases, see Judgment, veyances (Id. § 2822); Crimes and Punish-Cent. Dig. 88 647-663; Dec. Dig. § 335.*] ments (Id. § 4928); Dower (Id. § 345); Con- 2. JUDGMENT (§ 335*)—“PETITION FOR REstruction of Statutes (Id. § 8057); and Taxation and Revenue (Id. § 11519).

A reproduction here of those statutes, with an analysis and interpretation thereof, would be waste of time and mere idle and ostentatious show of labor subserving no useful purpose. It is enough to say that in Orchard v. Store Co., 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072, supra, ruled in Division Two, they are exhaustively reviewed, expounded, and applied. The learning of

VIEW."

The proceeding which is named a "petition for review" by the Legislature is highly remedial, and must necessarily accommodate itself to the needs and practices of every proceeding that comes within its scope.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 647-663; Dec. Dig. § 335.*] 3. TRUSTS (§ 94*)-DEFECTIVE PATENT-CORRECTION BY SUBSEQUENT PATENT-TITLE TO LAND.

Where the holder of a patent erroneously describing the land transferred his interests

ER OF LAND-TITLE ATTACKED BY PETITION FOR REVIEW.

by a warranty dees perpetuating the erroneous | 10. JUDGMENT (§ 335*)-INNOCENT PURCHASdescription, a subsequent patent, secured in lieu of the former ane, merely conferred upon him the legal title in trust for his grantee or representatives, in whom rested the equitable

title.

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[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 24-42; Dec. Dig. § 7.*]

5. EQUITY (§ 71*)-LACHES.

Where a patentee of public land, under a patent erroneously describing it, in 1874 transferred his interest by a warranty deed perpetuating the erroneous description, and thereafter the land remained vacant until 1889, when lead was discovered, and thereupon the patentee took possession and paid the back taxes, for which he was amply reimbursed for timber sold from the land, and where in 1894 he instituted proceedings to secure a corrected patent, and did not disclose the transfer to the land office until he could no longer conceal it, and then for the first time claimed that the deed had been procured by fraud, and where, after having obtained the correct patent, he challenged the representatives of his grantee to contest his title, such representatives are not guilty of laches in the bringing of a proceeding in 1905 to establish their title to the land.

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 204-211; Dec. Dig. § 71.*] 6. PUBLIC LANDS (§ 127*)-CORRECTED PATENT-PARTY ENTITLED.

Where public land was patented under an erroneous description, and the patentee transferred same by a warranty deed perpetuating such description, and a controversy arose between the patentee and his grantee as to which was entitled to the land, the land department properly issued a corrected patent to the patentee; the matter in controversy between them being for the courts, and not for the depart

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Under Rev. St. 1899, § 784, providing that no sale or conveyance of property for the satisfaction of any judgment regularly made shall be affected by the setting aside of the judgment on petition for review, if the property be in the hands of innocent purchasers, the title of innocent purchasers for a valuable consideration from the holder of a legal title cannot be set aside in proceedings for review by the holders of the equitable title.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 647-663; Dec. Dig. § 335.*] 11. VENDOR AND PURCHASER (§ 231*)-BONA FIDE PURCHASERS - - CONSTRUCTIVE NOTICE.

While a purchaser of land has constructive notice of all matters of public record in his own chain of title, including matters colis not chargeable with notice of proceedings lateral thereto pointed out by the record, he to obtain a corrected patent to the land, nor of any chain of title adverse to that of the patentee, from the mere fact that the patent stated that it was made in lieu of a prior patent "in which the description of the land was erroneous, the record of which has been can

celed."

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §8 487, 513-539; Dec. Dig. § 231.*]

12. VENDOR AND PURCHASER (§ 228*)-BONA FIDE PURCHASERS - ACTUAL NOTICE - EFFECT.

Where one has actual notice of an equitable claim affecting the legal title he is about to purchase, he completes the transaction at his own risk.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495-501; Dec. Dig. § 228.*]

13. VENDOR AND PURCHASER (§ 227*)—BONA FIDE PURCHASERS-ACTUAL NOTICE.

A purchaser has actual notice, when he knows of the existence of an adverse claim of title, or is conscious of having the means of knowledge, though he may not use them.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 474; Dec. Dig. § 227.*] 14. VENDOR AND PURCHASER (§ 228*)—PURCHASER IN GOOD FAITH-NOTICE.

Where the purchaser from the holder of the legal title before paying the purchase money had formal notice of the claim of the holders of the equitable title, he was not a purchaser in good faith for a valuable consideration without notice.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495-501; Dec. Dig. § 228.*]

15. QUIETING TITLE (§ 49*)-DECREE

LIEF TO PURCHASER OF TITLE.

RE

Where a mining company purchased land from the holder of the legal title with notice of an outstanding equitable title, and thereafter made valuable improvements on the land, and, on being made a party to an action to quiet title between the owners of the equitable and the legal title, asserted its rights under the contract, the court, on finding in favor of of sale, on payment to such equitable owners the equitable owner, will enforce the contract of the contract price.

[Ed. Note.-For other cases, see Quieting Title, Cent. Dig. §§ 98, 99; Dec. Dig. § 49.]

In Banc. Appeal from Circuit Court, St. Francois County; C. A. Killian, Judge. Petition by Leander J. Marshall and others

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