lot one in block five in Hall's addition to the city of St. Joseph, Missouri, hereby devising the remainder over to him upon the remarrying or death of his mother, Jennie Wall. Seventh. Should my son, William Wall, die before maturity, and should my said wife remarry before the death of my said son, it is my will that my brother, John Wall, and our mother, Margaret Wall, shall take and have possession of said lot one in block five, above mentioned; and I hereby devise the same to them in equal parts, upon the happening of the two last events, together with the full and complete title thereto forever." William Wall, the only child of the testator and of Jennie Wall, aged three years, died before suit brought, and Jennie Wall has not remarried. The testator's estate has been duly administered and finally settled. Plaintiff is the assignee of the tax bill. In their pleadings, the appealing defendants, Margaret Wall and John Wall, claimed that Jennie Wall was only the owner of a life estate in the lot, and they of the remainder in fee, while Jennie Wall claimed that she herself was the owner in fee of the lot in question. Aft er hearing the evidence in the case, the lower court found and decreed that Jennie Wall was entitled to but a life estate in the premises, and Margaret Wall and John Wall to the remainder therein in fee.

Motions for new trials were filed by the appealing defendants, Margaret and John Wall, and by Jennie Wall as well, which motions went over to the next term, at which time, all parties being present, the lower court, on the motion of Jennie Wall, and against the objection of the appealing defendants, entered the following nading and decree, to wit: "Eliza McGurry, Plaintiff, v. Margaret Wall et al., Defendants. Now, at this time, come the parties to this suit, and the motion of the defendant Jennie Wall in this case to set aside the finding, verdict, judgment, and decree rendered in the above-entitled cause, in so far as it in any way or in any degree adjudged or de creed that her title, estate, and interest in and to the lot described in the petition is any other or less than an absolute ownership thereof in fee simple, heretofore taken up by the court, is now further considered and sustained, and the decree rendered in this case is now hereby changed and modified so as to be as follows, to wit: First. The court finds that the plaintiff is the owner and holder by assignment of the special tax bill sued on, amounting to one hundred and eighty-eight dollars and twenty cents ($188.20), and that the same is a lien on lot one in block five in Hall's second addition to the city of St. Joseph, Buchanan county, Missouri. Second. That Robert Wall, deceased. died seised of an estate in fee simple in and to said lot; and that, under and by his last will and testament, he devised to Jennie Wall, said defendant, who is now his wid

ow, a life estate, or an estate to be held and enjoyed by her during her widowhood, and the remainder in fee to his infant son. That his said infant son, the only child of Robert Wall and Jennie Wall, his wife, died when about the age of three years, and before this suit was instituted; and that, upon his death, the remainder in fee of said lot passed to and vested in said Jennie Wall by inheritance (Jennie Wall is still unmarried), so that, when this suit was instituted, the said Jennie Wall was, and now is, the owner absolute in fee simple of the aforesaid lot described in said petition and herein above described. That the defendants herein, other than Jennie Wall, have no right, title, or interest in or to said lot, or any part thereof, but that they claim an interest therein. It is therefore ordered, adjudged, and decreed that the absolute title in fee simple to said lot be, and the same is hereby, vested in said Jennie Wall, to the exclusion of the other defendants in this case. It is further ordered, adjudged, and decreed that plaintiff recover, in accordance with the judgment and decree heretofore rendered in this case, the sum of one hundred and eighty-eight dollars and twenty cents ($188.20) the amount of said special tax bill sued on, to be levied upon said lot; and that the same is a lien upon said lot; and that the said lot be sold, together with all the right, claim, and interest of all the defendants therein, to satisfy said sum, together with interest on said sum of one hundred and eighty-eight dollars and twenty cents ($188.20) from the date that the decree was rendered in this case, at the rate of 15 per cent. per annum; and that the plaintiff have special execution in accordance with this decree; and it is further ordered that plaintiff recover her costs in this behalf expended." From this finding and decree, Margaret Wall and John Wall have appealed to this court.

H. S. Kelley, for appellants. Shull, for respondent Wall. Boyd, for respondent McGurry.

Samuel S. James W.

SHERWOOD, J. (after stating the facts). 1. The validity of the special tax bill will not be discussed, because the appealing defendants, in one of their declarations of law, to wit, "that said Jennie is justly and legally bound to pay said tax bill sued on, and her interest or estate in said lot should be first subjected to the payment of the same," admit thereby the legal validity of said bill, and, after having tried the case on that theory, will not be permitted now to change front, and contest the validity of that which they had theretofore admitted. If the tax bill was such that Jennie was justly and legally bound to pay it, then, of course, its mere validity could not be questioned as to any interest in remainder in said lot; but, in speaking in this general way, it is not intended to make any ruling as to what effect

such a bill would have as to a remainder in fee in said lot.

2. The lower court, in consequence of the motions for a new trial filed and continued to the subsequent term, had a perfect right to modify the former finding and decree, as it did do, as all parties were present, and the whole matter was still in the breast of the court. It is not pretended that there was any new evidence in the case which would have changed the result, and, this being true, the proper course in this regard was pursued.

3. The main feature of this litigation, however, is the proper construction of the will. Indeed, it may be said that this was and is the only litigated point in the controversy. There are two grounds on which the decree entered by the lower court may well rest: First. It will readily be seen that Margaret Wall and John Wall were, by the seventh clause of the will, precluded from ever obtaining any title to the premises, except upon the happening of two events, to wit, the death of William Wall before maturity (an event which has already occurred), and the remarriage of Jennie Wall before the death of the son (an event which did not happen, and which therefore can never happen). As the taking of the estate in remainder by Margaret and John Wall absolutely depended on the occurrence of both these events, and as they both have never taken place, and never can do so, it is needless to say they took nothing by the will. Second. But as William Wall died in infancy, and as he had no brothers or sisters, his father being dead, his mother inherited his estate (Rev. St. 1889, § 4465; Mourning v. Mining Co., 99 Mo. 320, 12 S. W. 884), which would have been, had he survived his mother or had she remarried, he living, an estate in remainder, according to the express terms of the will. Therefore, decree affirmed. All concur.

STATE ex rel. BARRICELLI et al. v. NOONAN, Mayor.

(Supreme Court of Missouri, Division No. 2. June 12, 1894.)

SUPREME COURT-APPELLATE JURISDICTION.

The supreme court has no jurisdiction of an appeal from the circuit court in proceedings for mandamus to a mayor to annul permits to fruit sellers to occupy space in the streets, in violation of an ordinance, the amount in controversy being less than $2,500, and no constitutional, federai, nor political question nor state officer being involved. Const. art. 6, § 12.

Appeal from St. Louis circuit court. Mandamus, on relation of Gerardo Barricelli and Henry Collett, to Edward A. Noonan mayor, etc. Writ granted. Respondent appeals. Certified to St. Louis court of appeals.

W. C. Marshall, for appellant. R. B Haughton, for respondents.

GANTT, P. J. On the 12th day of September, 1892, an alternative writ of mandamus was issued by Judge Daniel Dillon, one of the judges of the circuit court of St. Louis, to Hon. Edward A. Noonan, the mayor of the city of St. Louis, upon the petition of Henry Collett and Gerardo Barricelli, requiring said Noonan to revoke, cancel, and annul certain written permits issued by him to Lorenzo Palmisano et al., purporting to allow them to occupy places in the public streetsof St. Louis with their fruit wagons within the district and within the hours prohibited by Ordinance No. 14,084, and to stop and offer for sale and to make sales of their fruits, wares, and merchandise therein, within said prohibited hours. Thereafter, on October 4, 1892, the respondent Noonan filed his return, in the nature of a demurrer, which was heard on November 15, 1892, and his return adjudged insufficient, and a peremptory writ of mandamus was awarded on November 22, 1892, the respondent having declined to plead further. On November 29, 1892, the mayor filed his affidavit for appeal to this court, and it was allowed, but no superse deas bond was given and no stay granted. Afterwards, on January 7, 1893, a transcript of the proceedings was filed in this court, and a bond for appeal tendered on January 12, 1893, which was approved and directed to be filed with the clerk of the circuit court; but it appears that, by an oversight, the bond was lodged with the clerk of this court. Afterwards the relators filed affidavits in this court showing that, in obedience to the peremptory writ, the mayor, on December 29, 1892, canceled the said permits issued by him to said parties. On April 10, 1894, the relators moved this court to dismiss the appeal herein, because this court had no juris diction over said appeal, under the constitution of this state. Counsel have also filed briefs covering various other questions in the cause.

Upon consideration, we are of the opinion that the motion to dismiss the appeal must be sustained. This court has no jurisdiction of this appeal. It does not fall within any of the classes in which an appeal is granted to this court, either as to the amount of the controversy, the character of the litigation, or the parties litigant. Const. art. 6, § 12; Amend. 1884, § 5. It follows, also, that the order of supersedeas allowed in this court was improvidently granted; and said order and the order approving said appeal bond on January 12, 1893, must be, and they are hereby, set aside, and the appeal is ordered certified to the St. Louis court of appeals. All concur.

SALE UNDER TRUST DEED — INADEQUACY OF CONSIDERATION-DUTIES OF TRUSTEE.

1. The price of $100 for property worth $500, sold under a trust deed, is not so grossly inadequate as to raise the presumption of fraud.

2. A trustee in a trust deed is under no duty to make efforts to procure bidders for the property, when a sale is contemplated, other than to advertise the property for sale, nor to give the grantor personal notice of the sale.

as

3. Though a trustee should inform himself to the property, to determine whether it should be sold in a lump or in parcels, and to determine whether the sale should be adjourned or not, failure of a trustee to so inform himself is no ground to set aside the sale where the property consisted of one lot, and could not have been sold otherwise than as one parcel.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by William Harlin against David Nation and another to set aside a sale made under a trust. From a judgment for plaintiff, defendants appeal. Reversed.

Christian & Wind, for appellants. P. J. Taaffe and Jas. P. Maginn, for respondent.

BLACK, J. On the 19th November, 1883, William Harlin conveyed a lot in the city of St. Louis to George W. Nation, in trust to secure three notes of that date, made by Harlin, and payable to David Nation; one for $100, due in one year, and the others being semiannual interest notes of $4 each. Harlin paid these interest notes. The principal note was renewed by giving interest notes annually up to the fall of 1890. Harlin then made default in the payment of interest, and continued in default up to the 26th December, 1891, at which date the trustee sold the property, and David Nation became the purchaser at the price of $100. In February, 1892, Harlin brought this suit to set aside the trustee's sale and to redeem. The trial court gave a decree according to the prayer of the petition. The petition is broad enough to admit the evidence hereinafter mentioned. The witnesses placed the value of the lot at the date of the trustee's sale from $380 to $800. The reliable evidence, based on sales made in the same vicinity, shows that the lot had a value of $500, and we think this was its full cash value. Daniel B. Brennan negotiated the loan for Harlin and for Nation. He collected the interest notes up to the fall of 1890. At that time Harlin had made default in paying the interest, and asked for further time. Brennan says he then told Harlin he could not give him further time; to go and see Nation, and make his arrangements with Nation; and that Harlin came back the next day, and said he had made it all right with Nation. Brennan says he refused to have anything more to do with the matter; that he thereafter saw Harlin and Nation, but not in relation to these notes.

Harlin, the plaintiff, agrees with Brennan in this: that at the conversation had in the fali of 1890 Brennan said he would have nothing more to do with the notes, but he says he did not ask Brennan for further time. He says he then saw Nation, and asked him for his interest note, and Nation said Brennan had the notes. It seems Brennan did not always have the interest notes when he received the interest, but on such occasion gave Harlin a receipt, and subsequently gave him the interest note or notes. According to Harlin's evidence, he asked for one of these paid interest notes at the conversation had with Nation in 1890. He says he did not then ask Nation for further time; that he did not see Nation again until after the property had been soid; that he quit paying interest because it took all of his money to support his family; and that he did not offer to pay interest to Nation or to Brennan from 1890 to 1892. With respect to the conversation held in 1890, David Nation says Harlin came to him at a shop where he was working, and asked for an extension of time. He says he then told Harlin the note had been running long enough; that he must have his money, and, if not paid, he would sell the property. George Nation, the brother of David, and trustee in the deed of trust, says he heard the conversation. His evidence is to the same effect as that of David. David testified further that he did not see Harlin from that time until after the date of the trustee's sale. The evidence as to the subsequent transactions is to the following effect: The property was advertised for sale in a newspaper, according to the requirements of the law and terms of the deed of trust, and was sold, as before stated, on the 26th December, 1891. George Nation, the trustee, testified that he did not give Harlin personal notice of the sale; that he did not know Harlin; that he made no effort to secure bidders other than to advertise the property and offer the same at public sale at the proper time and place; that David was the only bidder, though persons were going in and out of the courthouse while he was selling the property; that he had never seen the property, and did not know what it was worth; and that he did not know he had been made trustee until his brother requested him to sell. David Nation testified that he did not know what the property was worth at the date of the sale; that up to that time he had never seen it; that he mailed a postal card to Harlin, notifying him of the intended sale; that he supposed Harlin lived on the lot, and the card was addressed to him at that place, and that he did not inquire of Brennan where Harlin lived. Harlin did not live on the lot, but Brennan knew where he resided. Brennan testified that he did not know the property had been sold until a month or six weeks after the date of the trustee's sale; that, as soon as he heard of it, he caused two cards to be sent to Harlin, one dated the 26th January, 1892,

asking Harlin to call; and the other dated the 29th of the same month, notifying Harlin that the property had been sold under the deed of trust. It seems he then had an offer for the property, and this was one reason for sending the request to Harlin to call at his office. Harlin's further testimony is difficult to understand, but seems to be to the following effect: He saw Brennan in 1892, which was after the date of the trustee's sale. Brennan told him to clear up the debt, and asked him if he had seen Nation, to which Harlin replied that he had not. Brennan then, and in the presence of Harlin, wrote a note to Nation, requesting the latter to call at his (Brennan's) office. Harlin did not know at the time that the property had been sold, and it would seem Brennan had not yet heard of it. Harlin then borrowed some money, and offered to pay the debt, interest, and costs, but Nation declined the offer.

The rule is well settled in this state that mere inadequacy of price is not sufficient to set aside a sale of the character here in question, unless so gross as to raise the inference of fraud or imposition. Phillips v. Stewart, 59 Mo. 491; Railroad Co. v. Brown, 43 Mo. 294; Judge v. Booge, 47 Mo. 544; Maloney v. Webb, 112 Mo. 575, 20 S. W. 683. While this property sold for only $100, when it was worth $500 cash, still we cannot say the price was so grossly inadequate as to raise the inference of fraud. No case which we have examined justifies any such conclusion. It is evident the decree of the trial court cannot stand on any such ground, though the inadequacy of the price is a matter for consideration in connection with the other evidence. The evidence is clear to the effect that the plaintiff was in default in the payment of interest in the fall of 1890. It shows to our entire satisfaction that Nation then told the plaintiff the interest and debt must be paid, and, if not paid, the property would be sold. With this admonition, the plaintiff for more than a year paid no attention whatever to the matter, neither paying nor offering to pay the accrued interest. The property was not sold for over a year after the date of the conversation last mentioned, and it cannot be said Nation acted oppressively. Indeed, there is nothing in the case which shows or tends to show collusion, unfair dealing, or oppression on the part of David Nation. If the sale should be set aside it is because the trustee failed to perform some duty which he should have performed. "A trustee, in exercising his duties and powers under a trust deed, is a trustee for the debtor, and he is bound to act in good faith, and adopt all reasonable modes of proceeding, in order to render the sale most beneficial to the debtor." Chelsey v. Chelsey, 49 Mo. 540. A literal compliance with the terms of the deed of trust will not support a sale under a deed of trust where there is unfairness on the part of the trustee in making it. Cassady v. Wallace,

102 Mo. 581, 15 S. W. 138. To bring the case within these general principles, it is argued that the trustee made no effort to procure bidders, otherwise than to advertise the property for sale; that he made no effort to give the plaintiff personal notice of the intended sale, and that he did not inform himself as to the value of the property. The trustee advertised the property for sale according to the terms of the deed of trust, and it cannot be said he was bound to go out and hunt up bidders, nor was he bound to look up the plaintiff, and give him personal notice of the sale. Trustees in these deeds of trust have never been held to the performance of such duties, and to hold that they must look up bidders, as if acting in the capacity of realestate agents, and must give the debtor personal notice of the intended sale, would play havoc with such sales from one end of the state to the other. We think the trustee should inform himself as to the value and situation of the property, so as to be able to determine whether it should be sold in a lump or in parcels, and so as to enable him to determine the question whether the sale should be adjourned or not. But the property in this case consisted of one lot only, and could not have been sold otherwise than as one parcel. All this appeared upon the face of the deed of trust itself. Nor can we say it was the duty of the trustee to adjourn this sale, and give a new notice at the cost of $24 or $25. On the contrary, we can say it was not his duty to do so. We can not, therefore, see that the failure of the trustee to inform himself as to the value of the lot cuts any figure in the case. Parties have the right, under the law of this state, to agree that the equity of redemption may be foreclosed by sale under these deeds of trust, and, while the courts will watch such sales with a jealous eye, they must stand until some substantial reason is shown for setting them aside. It would be a pleasure to be able to sustain the decree rendered by the trial court, but, after a careful perusal of the entire record, we are unable to do so. To affirm the judgment in this case would set a precedent which, if followed, would unsettle many titles, and at the same time discredit such sales, to the great detriment of creditors, debtors, and purchasers. The judgment is reversed, and the petition dismissed. All concur.

WALCOTT et al. v. HAND. (Supreme Court of Missouri, Division No. 2. June 12, 1894.)

TAX SALES-NOTICE TO HEIRS.

1. Where land is sold by the sheriff under execution on the judgment for taxes, the fact that the collector purchases the land does not render the sale void as against public policy.

2. Where a descendent's land is sold for taxes, without making one of the heirs a party to the action, such heir may, in an action to recover the whole tract, recover her aliquot share.

Ejectment by Phoebe A. Walcott against William Hand. There was a judgment for defendant, and plaintiff appeals. Reversed.

On the 20th day of October, 1891, the plaintiffs, Mrs. Walcott and her husband, began an action of ejectment in the circuit court of Clark county for 13.33 acres of land in said county. Ouster was laid as December 26, 1888. Defendant admitted possession, and denies all other averments of the petition. A jury was waived, and the trial resulted in a judgment for the defendant.

The record presents the following case: Henry Church, late of Clark county, Mo., died seised of an estate in fee simple in the lands in controversy, leaving surviving him his children and heirs at law, the following named persons: Ann, who intermarried with Abram Clark (otherwise referred to in the record as Abraham Clark); Belle, who intermarried with Moses Weaver; Elisha and Elijah Church; Mary, since deceased without issue; Sarah, who intermarried with Washington Archer, and who died leaving one child, named Henry, who has been absent from this state continuously for more than 7 years, and has not been heard from for more than 30 years; also, this plaintiff, Phoebe A. Walcott, née Church, and his widow, Margaret Church, since deceased. On the 8th day of October, 1872, Elijah Church conveyed his, interest in said land to Moses Weaver, by deed of general warranty, which deed is in the possession of the plaintiff Phoebe A. On the 23d day of June, 1870, Ann Clark and her husband, Abram Clark, conveyed all their interest in the land to said Moses Weaver by deed of general warranty. That in the latter part of the year 1872, or the first part of the year 1873, the said Moses Weaver contracted and sold all his right, title, and interest in said land to Elijah Church for the consideration of $125; that, in pursuance of said contract of purchase, the said Weaver delivered to and the said Elijah Church took possession of said land, on or about the day of

-, 1872, or in the early part of 1873, in good faith, believing that a good and sufficient deed thereto would be made to him by said Weaver on the payment of the purchase money aforesaid; that said Elijah Church paid to said Weaver the whole of the purchase money agreed to be paid. That, upon taking possession of said land, the said Elisha Church, in good faith, believing that said Weaver would convey to him all his right, title, and interest in said land, on the payment of the purchase money, made lasting and valuable improvements on said land; that is to say, he built a barn 24 feet wide by 36 feet in length, set out fruit trees, built and repaired fences; that said improvements were of the reasonable value of $250. That said Elisha, on taking possession of said

claiming the same as owner against all the world and against all the heirs of Henry Church, except Phoebe A., the plaintiff (whose interest he recognized), and especially against Moses Weaver; that from his taking possession in 1872 or 1873 his possession was open, continuous, adverse, and hostile to all the heirs of Henry Church, except the plaintiff Phoebe A., and particularly against Moses Weaver, and from that time so continued. In the year 1880, Elisha Church, in consequence of ill health, left this estate, and on leaving delivered the possession of said land to plaintiff Phoebe A. Walcott, then Phoebe A. Church, who held possession of said land, for herself and her brother Elisha, from her taking possession in 1880, adversely to all the heirs of Henry Church, deceased, and particularly against Moses Weaver, renting said land, and receiving the rents and profits thereof, until the year 1888, at which time, to wit, about the 14th day of December, 1888, she was ousted by the entry of defendant, who has ever since withheld from her the possession of said land. On the 24th day of March, 1890, the said Elisha Church conveyed all his interest in said land to Phoebe A. Walcott. Defendant claims title to said land through a sheriff's deed executed to Joseph H. Million, of date October 26, 1888, and a quitclaim deed executed and delivered to defendant by said Million on the 14th day of December following (1888). The following are the facts surrounding the execution of the sheriff's deed: The said Joseph H. Million was collector of revenue of Clark county, Mo., and as such collector commenced an action against the parties named in said sheriff's deed for the recovery of the taxes due upon said land for the year 1885, amounting to the sum of $4.12, and as collector recovered the statutory judgment against said parties on the 22d day of October, 1887, the said parties being Peter H. Weaver, George F. Weaver, F. Weaver, Ora M. and William Gill, Cora B., Anne, Martha E., and Edith J. Clark, Elisha and Elijah Church, and Abraham J. Church. The plaintiff Phoebe A. Walcott was not made a party to this suit, nor did she appear to the action. The said Joseph H. Million, while still collector as aforesaid, caused an execution to be issued on said judgment so rendered in his favor, which was levied on the land in controversy, and on the 26th day of October, 1888, the same was sold, and the said Joseph H. Million, still being the collector of the revenues of said Clark county, purchased the same for the sum of $97. On the 14th day of December, 1888, while still collector as aforesaid, he sold and conveyed the same to defendant for the sum of $200. Defendant Hand, during all these proceedings, was a citizen of Clark county, and had notice thereof. Plaintiff's contention is that the said Joseph H. Million, being collector