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words than are ordinarily used in such in- | the publication had been put upon the marstruments may assist in the solution of this ket, the expenses paid, and a certain amount question. Plaintiff and the N. D. Thompson of profits made thereon, upon a failure of Publishing Company entered into the contract the publishing company to adjust same, he to publish and sell a publication entitled brought suit against it, and recovered judg"Our Island Possessions." Plaintiff was to ment in the amount of his proportion of the write the matter, attend to its illustration profits proved to have been earned up to and proof reading, and see it through the June, 1903. As a further evidence that he press. During this time he was to be paid so construed the contract, when the publisha salary by the publishing company, and ing company became bankrupt in 1905, he when the publication was sold he was to made proof before the referee of his claim receive one-third of the net profits arising in the amount of his profits to that date, and from the sale. The publishing company was the same was allowed, and he asserted no to perform all the necessary mechanical claim to the property, although it is evident work, and, although it is not so expressly from all the other facts that he knew it had stated, it follows as a necessary inference been surrendered by the bankrupt as a part that it was to bear all the expenses incident of its assets. We refer to this matter, not to preparing the work for sale. When the as showing that plaintiff would not, on acpublication had been sold, all the expenses count of such a course, be entitled in a propincident thereto were to be deducted from er manner to assert ownership in the properthe funds arising from the sale before any ty in question, if authorized by the contract, profits were declared. but, not being so authorized, it is at least persuasive evidence that no other construetion was placed thereon by either party until the institution of this suit. Prior thereto there was certainly no claim of ownership in the property on the part of plaintiff, and the fact that the publishing company be came insolvent did not change the terms of the contract or in any way affect the relations of the parties thereto. The mere ailegation in the petition that the plaintiff is a joint owner of the property is nothing more than a mere conclusion and must, as is contended by the respondent, be measured by the other allegations in the petition. Thus measured we find that it is simply an unsupported declaration of ownership which is attempted to be based upon a contract which only authorizes a sharing in the profits.

Plaintiff's relation to the agreement, so far as its legal aspect is concerned, is best defined in the language of the contract itself, to wit:

"That the cash profits shall be divided between us in the proportion of one-third to you and two-thirds to me, or the N. D. Thompson Publishing Company. It is understood that the profits shall be reckoned on the basis of cash, and not that of stock, and that the stock until such profits are made and declared shall be the property of the N. D. Thompson Publishing Company. Your connection and interest therewith is to be one of profit-sharing simply, on the conditions above named."

The meaning of the foregoing words is to our mind unmistakable, and a prolix discussion of cases presenting similar facts in support of the conclusion we have reached herein would serve no useful purpose in that they would not make more clear that which is already as clear as words may be used to convey thought.

Plaintiff's interest, therefore, in the contract is no greater than that defined by its terms, namely, that of a profit-sharer. This is evident from the fact that the publishing company assumed all the expense incident to the publication of the work for sale, which it was enabled to do by reason of its being a going concern equipped with type, type machines, compositors, presses, book stock, and other requisites of the publishing business, while plaintiff was only equipped with his ability and experience and did not even contribute his time to the uncertainties of the venture, but was paid a salary by the publishing company during the performance of the work upon the publication, and was accorded the privilege of hiring assistants; his additional compensation being dependent upon whether or not the publication was a profitable investment. If it did not so prove, then his compensation was limited to the salary agreed upon. That he construed the contract as only giving him a share in the

The allegation that the individual purchaser of the property in question at the bankrupt sale of the assets of the N. D. Thompson Publishing Company and the defendant corporation, which afterwards acquired ownership of same, were familiar with the terms of the agreement between the plaintiff and said company avails plaintiff nothing, because said contract discloses no ownership of the plaintiff in said property, nor contains any terms upon which a well-founded claim of ownership can be based which would af fect the title acquired by defendant.

Partition is asked. It cannot be decreed in the absence of ownership: this we hold, under the allegation of the petition, does not exist in the plaintiff.

Absent ownership, with the added fact that plaintiff made a claim to his share of the profits up to the date of the adjudication in bankruptcy, and same was allowed, there is no ground for an accounting.

As we construe the pleading, the copyright was taken out by the N. D. Thompson Publishing Company, and, the ownership of same being now in the defendant, the question as to whether or not it may be partitioned is

was no joint ownership, a discussion as to the rights arising therefrom is unnecessary. We are therefore of the opinion that the trial court ruled properly in holding that the petition did not state a cause of action. The judgment of the trial court is therefore affirmed.

It is so ordered.

BROWN and FARIS, JJ., concur,

LOWE v. FREDE. (No. 16378.)

On said May 29, 1909, the plaintiff filed a motion for new trial, which motion for new trial was continued to the next regular term of the circuit court. On the 2d day of October, 1909, said court having again convened in regular session, the following orders were entered of record:

"Now comes both parties herein, and by their respective attorneys, and by agreement of parties, plaintiff's motion for a new trial coming on to be heard, and the court being now fully advised in the premises, overrules said motion. To the action of the court in overruling plaintiff's motion for a new trial, plaintiff then and there and at the time excepted and still excepts."

"Comes now plaintiff, by his attorneys, and

(Supreme Court of Missouri, Division No. 2. files his affidavit in appeal, and prays an ap

May 26, 1914.)

1. APPEAL AND ERROR (8 78*)-ORDERS APPEALABLE-STATUTES.

Under Rev. St. 1909, § 2038, authorizing appeals from orders granting a new trial, an appeal does not lie from an order overruling a motion for new trial, but the party against whom a verdict is returned must wait until a final judgment is entered thereon before taking his appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 426, 434, 464-477, 480, 481; Dec. Dig. § 78.*]

2. APPEAL AND ERROR (§ 129*)-ORDERS AP

PEALABLE-STATUTORY PROVISIONS.

In the absence of an express statute authorizing it, no appeal lies from rulings on mo

tions.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. § 893: Dec. Dig. § 129.*1 3. APPEAL AND ERROR (§ 837*)-RECORD-RE

VIEW.

The court, on appeal from an order overruling a motion for new trial, will not examine the record to ascertain if a judgment was entered from which an appeal lies.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. § 837.*]

Appeal from Circuit Court, Atchison County; Wm. C. Ellison, Judge.

peal hereof from the ruling of the court on said motion for a new trial to the Kansas City Court of Appeals, at Kansas City, Mo., which appeal is allowed by the court.' (The italics are ours.)

H. B. Williams, of Craig, L. J. Miles, of Rockport, and John W. Stokes, of Craig, for appellant. Lee Mullins and L. D. Ramsay, both of Rockport, for respondent.

BROWN, J. I. The respondent concedes that the appellant's printed abstract is correct, but calls attention to the fact that no appeal lies from an order of the circuit court overruling a motion for new trial.

does authorize an appeal from an order of a [1] Our Code (section 2038, R. S. 1909) circuit court granting a new trial, or an order arresting a judgment, but there seems to be no warrant in law for granting an appeal from an order overruling a motion for new trial. The law certainly contemplates that the party against whom a verdict is returned shall wait until a final judgment is entered on such verdict before taking his appeal.

[2] In the absence of an express statute, no appeal lies from the ruling of courts on motions. State ex rel. Shackelford v. Mc

Action by Lincoln A. Lowe against John W. Frede. From an order overruling a motion for new trial after a verdict for defend- Elhinney, 241 Mo. 592, loc. cit. 608, 145 S. ant, plaintiff appealed to the Kansas City Court of Appeals, and it transferred the cause to the Supreme Court. Dismissed.

Suit for personal injuries resulting from assault and battery. This action was transferred to this court by the Kansas City Court of Appeals because the amount in issue exceeds $7,500. The appeal is somewhat unusual. In his printed abstract of the record appellant describes it as follows:

"This is an appeal from the ruling from the circuit court overruling a motion for a new trial. In the court below the defendant obtained a verdict."

A careful inspection of the abstract of the record shows that the cause was tried by a jury in the circuit court of Atchison county, which jury on May 29, 1909, returned into court the following verdict:

"We, the jury, find for defendant.

"W. H. Wright, Foreman."

W. 1139.

[3] There is on file what purports to be a complete transcript of the record proper and bill of exceptions in this case, but it would be useless for us to examine that document to ascertain if a judgment was in fact entered from which an appeal would lie.

Without reciting that a final judgment was entered, and without abstracting a judgment of any kind, appellant has assured us that his appeal is from the order of the court overruling his motion for new trial. This fact is also recited in the order of the court granting the appeal, as copied into appellant's printed abstract (and hereinbefore set out), the accuracy of which abstract respondent admits, and its verity is attested by the signatures and professional integrity of the attorneys for plaintiff.

We are not cited to, nor have we been able to find, any law authorizing the granting of

such an appeal. Dale v. Copple et al., 53
Mo. 321; State ex rel. v. Turner, 113 Mo.
App. 53, 87 S. W. 464; Herrmann v. Daily,
74 Mo. App. 505; Freeman v. McCrite, 165
Mo. App. 1, 147 S. W. 1102; Voorhis v.
Western Union Building & Loan Ass'n, 59
Mo. App. 55; and Rock Island Implement
Co. v. Marr, 168 Mo. 253, 67 S. W. 586.

Being fully convinced that this appeal was improvidently granted, the same will be dismissed. It is so ordered.

WALKER, P. J., and FARIS, J., concur.

SCHOOLER et al. v. SCHOOLER et al. (No. 16151.)

(Supreme Court of Missouri. May 20, 1914.) 1. Deeds (§§ 54, 64*)—Delivery anD ACCEPT

ANCE NECESSITY.

The delivery of a deed by the grantor and its acceptance by the grantee is essential to its validity.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 116, 142, 143; Dec. Dig. §§ 54, 64.*] 2. DEEDS (§ 208*)-DELIVERY-ACTS CONSTI

duct and his inability to dispute it may be
drawn.

Cent. Dig. § 96; Dec. Dig. § 76.*]
[Ed. Note.-For other cases, see Evidence,

Lamm, C. J., and Woodson and Walker, JJ., dissent.

In Banc. Appeal from Circuit Court, Ray County; Francis H. Trimble, Judge.

Action by Luther S. Schooler and others against William Nathaniel Schooler and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

The following is the opinion of BOND, J., in division:

Statement by the Court.

The two daughters and son and only heirs of Nathaniel A. Schooler, deceased, sued two of his grandchildren, being the children of the plaintiff, Martha Cowsert, to quiet title

to about 85 acres of land. The petition contained a second count (dismissed on the trial) which sought to set aside and annul a deed conveying the land in question to another daughter of Nathaniel A. Schooler, plaintiff Altie Yoakum, for life, with remainder in fee to two of the children of the other daughter, on the ground that it had not been delivered by the grantor, Nathaniel A. Schooler, Sr., in his lifetime. Mrs. Yoakum, the [Ed. Note.-For other cases, see Deeds, Cent. life tenant in this deed, though married, was Dig. §§ 625-632; Dec. Dig. § 208.*]

TUTING.

The delivery of a deed and its acceptance may be established by indirect or inferential

evidence.

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[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 574-583, 623, 634; Dec. Dig. § 194.*] 4. DEEDS (§ 208*) - DELIVERY - EVIDENCESUFFICIENCY.

Evidence held to sustain a finding of a delivery of a deed to a third person for delivery to the grantee.

[Ed. Note. For other cases, see Deeds, Cent. Dig. 88 625-632; Dec. Dig. § 208.*]

5. DEEDS (§ 58*)-DELIVERY-EVIDENCE-SUF

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childless. Her sister, Mrs. Cowsert, the life tenant in the other deed, was married, and the two defendants to this suit were born of her first marriage, and were remaindermen in the deed to Mrs. Yoakum.

The defendants pleaded title under said deed in their answer and prayed that the interest and estate of the parties be adjudged according to the terms of the deed. A jury was waived, and the case submitted to the courts upon the evidence which disclosed that Nathaniel A. Schooler, Sr., was the father of the three plaintiffs; that in the fall of 1905, in company with the husband of one of his daughters, he called upon a firm of lawyers in Richmond, Mo., and instructed them to prepare a deed and abstract of title to the land in dispute in this case to his daughter Mrs. Yoakum for life, with remainder in fee to the two children of his daughter Mrs. Cowsert, who were born of her first marriage, and a similar deed, to other land of about the same quantity, to his daughter Mrs. Cowsert, with remainder in fee to her children, three in number, born of both marriages; that as to the land embraced in the last deed these plaintiffs have brought against the remaindermen a similar

[Ed. Note.-For other cases, see Deeds, Cent. action to the present; that in accordance to Dig. 88 625-632; Dec. Dig. § 208.*]

7. EVIDENCE (8 76*)-PRESUMPTIONS-FAILURE OF PARTY TO TESTIFY.

Where a party in a civil case can give testimony exonerating himself from a rational inference of inequitable conduct, but refuses to do so, the conclusion of his guilt of inequitable con

such instructions the two deeds were prepar ed; that on the 23d of October, 1905, the said Schooler returned to the office of his attorneys and signed and acknowledged both deeds; that they were then inclosed in a large envelope, which was sealed up and de

livered to him, with a superscription on was done, and which Nathaniel A. Schooler each, to wit, "Deed and abstract from Nathaniel A. Schooler to (naming the grantee)"; that he remarked on leaving the office that he was "not going to turn over the deeds to his daughters at once," whereupon his attorney advised him that in order to make the deeds effective they must be delivered to the grantees, or, if they were placed in the hands of a third party for the grantees, such party should be notified that he, Schooler, had no further control of them, and that they were the deeds of his daughters; thereupon Nathaniel A. Schooler took the deeds and handed them to the cashier of the banking house, who placed them in a safety box belonging to the bank, and which was generally used for keeping papers left there; it was not the private box of Mr. Schooler.

At the time the deeds were put in the hands of the cashier a statement in regard to them was made by Mr. Schooler, but the cashier testified that he could not recollect either the words or the substance of it. On that point the following questions were put to him by the court to which he answered as follows:

"By the Court (continuing): Q. And you don't recollect a solitary thing he said? A. No, sir, he handed me the papers, but I don't recollect what he said. Q. He made some statement to you, but you don't know what it was? A. No, sir; we get so many of these papers that I did not impress my mind what he said. Q. You were not the agent for Mr. Schooler for any purpose, were you? A. No."

Mr. Schooler then went to his home about 12 miles from the town, and thereafter the two tracts of land described in the two deeds made by him to his daughters, were taken possession of by them or by their husbands on their behalf, and were fenced off from each other, and also fenced off from the remainder of their father's land, which consisted of about 113 acres. For the years following each of the said daughters caused the property described in their respective deeds to be assessed in their own names, and the taxes were paid, and the crops grown thereon were sold by the daughters and the money received by them or their husbands. Their father died in December, 1908, whereupon, his two daughters together called upon the cashier of the bank where their deeds had been left, and, he being absent, they requested his assistant to deliver the deeds to them, which was done. During the afternoon of the same day the cashier of the bank, being advised of what was done, secured the return of the deeds to himself.

said was correct. There was other testimony that during his lifetime he had stated that he had made the gift of land to his daughters in order to make them equal to their brother, for whom he had been compelled to pay fines, and that he made the gifts of the remainder under the present deed to two of his grandchildren, because he wanted to do something for them in consideration for what they had done for him, by remaining at his house until they reached their majority, after their mother had left her first husband, who was their father; that he spoke to certain persons about these gifts of land to his two daughters, and gave his reasons; that he caused a house to be built on one of the tracts, and said that he intended to give it to the daughter to whom the land had been conveyed; that he said the deeds "ought to be handed over, but did not say when they would be handed over"; that plaintiff Mrs. Cowsert stated that he knew the deed to her sister had been "fixed" by her father, so that her sister's husband could not spend it.

Shortly after the two daughters returned the deeds to the cashier of the bank, they and their brother joined in the present action. After taking the case under advisement, the learned judge made a finding in favor of the grandchildren, which sustained the life estate to plaintiff Mrs. Yoakum, with a remainder in fee to defendants. From a judgment in accordance, the mother of the defendants, and her sister and brother, have prosecuted this appeal.

Opinion.

I. In this case both parties have a common source of title, the father of the plaintiffs and the grandfather of the defendants. Unless, therefore, the defendants are able to show a valid grant of the remainder in the particular portions of their grandfather's land, described in the deed involved in this case, they must fail in their defense, and that property, as well as the remaining estate of their grandfather, will be inherited by the plaintiffs, share and share alike. The only assault made by the plaintiffs upon the deed in this case is that it was not delivered to plaintiff Mrs. Yoakum in the lifetime of her father, the grantor. The motive of the grantor to make some provision by this deed for the services of his two grandchildren (the two children of Mrs. Cowsert by her first marriage), who remained with the grandfather after her separation from her first husband, is not questioned; neither is it doubted that the provisions of the deed were in exact accordance with the instructions given

The evidence goes to show that when the assessor came out to the farm of Nathaniel A. Schooler, he returned for assessment only that portion of his land which he had not by the grantor to his attorneys who prepared conveyed to his daughters, and asked the assessor if he had gotten the statement from "the girls of their property," and suggested that he, the assessor, recite the calls of the

it. The only contention of the plaintiffs is the technical one of nondelivery.

[1, 2] The necessity of the delivery of a deed and its acceptance as such by the gran

land is familiar law. Miller v. McCaleb, 208 were delivered to him containing on each a Mo. loc. cit. 578, 106 S. W. 655. But it is written statement, disclosing by whom they not essential to the delivery of a deed or its were made and to whom they belonged. The acceptance that either of these facts should cashier did testify, however, that he was not be shown by express terms or by direct evi- the agent of the grantor for any purpose. dence. Either or both of them may be estab- But the grantor went home and apportioned lished by indirect or inferential evidence. to each of his daughters 'the specific tracts Rumsey v. Otis, 133 Mo. loc. cit. 95, 34 S. W.│of land wherein he had conveyed to them a 551; Sneathen v. Sneathen, 104 Mo. 201, 16 S. W. 497, 24 Am. St. Rep. 326; Standiford v. Standiford, 97 Mo. 233, 10 S. W. 836, 3 L. R. A. 299; Miller v. Lullman, 81 Mo. loc. cit. 316; Tobin v. Bass, 85 Mo. 654, 55 Am. Rep. 392; McNear v. Williamson, 166 Mo. loc. cit. 367, 66 S. W. 160.

[3] It is also the law that the presumption of the delivery of a deed, or its acceptance in case of voluntary settlement, is stronger than a case of bargain and sale. Rumsey v. Otis, 133 Mo. loc. cit. 95, 34 S. W. 551; Hamilton v. Armstrong, 120 Mo. 597, 25 S. W. 545; Crowder v. Searcy, 103 Mo. 97, 15 S. W. 346; Cannon v. Cannon, 26 N. J. Eq. 316; Williams v. Williams, 148 Ill. loc. cit. 430, 36 N. E. 104.

life estate, and they and their husbands took possession and inclosed the tracts by fencing them off from each other and from the remaining lands of their father. For three years thereafter, each of the daughters asserted ownership of the particular tract which had been put in their possession by listing it for taxation, and, with the aid of their husbands, by cultivating it and by selling the crops and receiving the money.

[5] Their father is shown to have admitted to the assessor that the property conveyed to his daughters was correctly listed by them, and to have completely refrained from any claim of interest thereto in himself. That he notified his daughters where his deeds had been left is shown by the fact that both

It is well stated in Cannon v. Cannon, su- of them at his death applied to, and received pra:

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[4] Tested by these principles of law, do the facts in this case show that this deed, made by Nathaniel A. Schooler to his daughter Mrs. Yoakum, conveying a life estate to her with the remainder to the adult children of her sister, Mrs. Cowsert, was delivered to and accepted by the life tenant actually or by relation when the deed was turned over to the cashier of the bank? We think there is no escape from an affirmative answer to this question. The undisputed facts show that when the grantor in the deed decided to make the conveyance, as therein expressed, he went to the office of his attorney for that purpose, and took the husband of one of his daughters with him then, or on a subsequent visit, to receive the deeds after they had been prepared. It is certain that the grantor and his attorney, and inferably the accompanying husband, knew what the deeds contained, and that they were signed and acknowledged and securely sealed in separate envelopes, upon each of which was a written statement or description showing the fact of the conveyance and the party to whom it was made. With these in his hands the grantor went to the cashier of a bank, where he kept a current account, and placed the deeds in the hands of the cashier, stating at the time, what should be done with them. Unfortunately the cashier, when called to testify, was unable to recall the directions then given to him; hence, as far as regards the matters between him and Mr. Schooler, all that

them from, the bank where they had been left. It would have been impossible, without some previous communication from their father, for the daughters to have divined that the deeds to the land, into the actual possession of which they had been placed, had been left for them with the cashier of the bank. The inference, therefore, is not only natural, but irresistible, that the two daughters had been told by their father that the deeds made to them had been put in the bank for safekeeping and delivery. That he made no secret of his purpose to turn over the deeds, as well as the property itself, to his daughters is also shown by his statements to other persons of the reasons that actuated his conveyance-his desire to equalize his daughters with their brother, and his intention to repay his two grandchildren (born of the first marriage of one of his daughters) for their care, attention, and services to himself, and his further statement that the deeds "ought to have been turned over to them." It is also impossible to draw the conclusions that the two daughters were unaware of the nature of the estate given to them. For on that subject the grantor was equally open, having taken one of their husbands with him at the time the deeds were prepared, or at the time they were directed to be prepared, and one of his daughters having admitted her knowledge of the nature of the conveyance to her sister, as was shown by the testimony of the persons to whom she made the statement. The facts and circumstances surrounding the transaction exclude any other view than that the matter was fully understood by the grantor and the two grantees of the life estate, and point unerringly to the conclusion that the statement which the cashier does not recollect, made by the grantor,

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