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it; and I told him that Louis was making | bank, and were met or renewed as they ma'Schoen Bros.' on that kind of a note, and tured. The evidence on the part of defendI wanted to know from him whether he rec- ant need not be particularly stated. It conognized his responsibility on that class of tradicted that of plaintiff in many of its esnotes, and he said he did; and I said 'All sential particulars. right,' and the note was made. Q. You will The substantial question of the present aptell the jury whether, on the faith of what peal arises upon the rules of law which the Geo. Schoen told you at that time, Armour court laid down for the guidance of the jury. Bros. Banking Company, up to the time of The following instruction was given at the its sale to the Midland National Bank, con- instance of defendant, viz.; "The court intinued to discount paper for Louis Schoen, structs the jury: That one member of a with Schoen Bros. on it as makers and in- | partnership has no authority to execute a dorsers. A. They did. Q. Do you remember | promissory note in the name of the firm, when any notes came due, of this character, except for matters connected with the firm after the time of this conversation with business, and has no authority to sign the George Schoen relative to the payment of firm name to a promissory note as security any of these notes on which the names of for himself, and his individual benefit, un. the firm brothers appeared? A. I did. Q. less authorized so to do by the other partner; Tell the jury what the conversation was. and in that case the burden of proof rests A. I could not exactly repeat word for word, upon the plaintiff to show by a preponderbut when these different notes came due I ance of the evidence that the defendant, wanted to see about it. I would go over to George J. Schoen, authorized his partner, their store, and sometimes Louis would not Louis A. Schoen, to sign the firm name of be there, and I would talk to George. Q. Schoen Bros. to the note sued on in the first When you would go over to the store to count of plaintiff's petition; and, unless the see about these notes that were due and plaintiff has established that fact by the were unpaid, and you would find Louis there general weight of evidence, your verdict and find George there, state what conversa- must be for the defendant, George J. Schoen, tion passed between you about them. A. I on the first count of the petition. That the would tell them I wanted the notes fixed burden of proof rests upon the plaintiff to up and put in shape, and he would tell me show by a preponderance of the evidence that they would be fixed as soon as he could that the defendant, George J. Schoen, ausee Louis. Q. About how many times did thorized his partner, Louis A. Schoen, to you probably have a conversation of that na- sign the firm name of Schoen Bros. to the ture with George? A. I could not tell about note sued on in the second count of plainthat. Q. Several times ? A. When I went, I tiff's petition; and, unless the plaintiff has went expecting to see Louis, but a great established that fact by the greater weight many times he would be out. Q. Tell the of the evidence, your verdict must be for the jury whether George Schoen repudiated the defendant, George J. Schoen, on said count authority he had given Louis Schoen to sign of the petition." The court refused the folthe name of Schoen Bros. on his individual | lowing instruction asked by the plaintiff, paper. A. Not at all.” Armour Bros. Bank- viz.; "(3) If the jury believes from all the ing Company transferred its business and facts and circumstances detailed in evidence good will to the Midland National Bank Jan- that the defendant, George Schoen, authoruary 1, 1889. After that transfer the former ized his brother to sign the firm name of president of the Armour Banking Company Schoen Bros. to the notes sued on in this became vice president of the plaintiff. The case, or to the notes, prior to these sued on, paper which the Armour Banking Company given to plaintiff or to Armour Bros. Bankhad on band (made by Louis A. Schoen, with ing Company, or you believe from the evi. the name of Schoen Bros.) was transferred dence that the defendant, knowing of such to the Midland National Bank as a part of use of the firm name, acquiesced therein, the assets of the older banking company. then your verdict will be for the plaintiff; At the time this transfer was made to the and it makes no difference what was done Midland National Bank, and this paper was with the money realized from the notes, nor turned over, the president of the plaintiff whether the plaintiff knew what use was to bank was informed as to the authority given be made of such proceeds." We treat these by defendant to Louis in regard to the use two instructions (the former given, the latof the firm name for his individual purposes, ter refused) together, as they thus present and the notes were thereafter renewed from the gist of the controversy most plainly. time to time. The bank officers testified that, The action of the court on these instruc. but for the statements made by defendant, tions seems to us to have restricted the plainthe funds represented by the paper in suit tiff's basis of recovery within too narrow would not have been loaned to Louis. Other limits. On principle, the authority of one evidence was given, without objection, show- partner to charge his fellow by an act in ing that notes similar to those in suit, had the name of the firm is governed by the been negotiated by Louis A. Schoen in 1889 to law of agency. Within the range of the partother parties, to the number of at least 20, nership business, one may act for all, in all of which were payable at the plaintiff the absence of knowledge (or its equivalent)
application of the law of agency to the facts before the jury.
Considering the case broadly on its merits, we think those rulings on the instructions cannot be held harmless. They involve error, and the result reached did not, in our opinion, correct the error. The judgment is reversed, and cause remanded for a new trial.
BLACK, C. J., and BRACE and MACFARLANE, JJ., concur.
on the part of those who deal with the one of any actual bounds to his power to act for all. Beyond the scope of the firm's affairs, however, there is nothing to prevent one partner binding another where the latter would be bound by the former under the general law of principal and agent. Coming at once to the facts in judgment, if George Schoen invested Louis with general authority or power to bind him (George) by notes made to the bank in the name of Schoen Bros. for his (Louis') individual benefit, then George would be liable for the acts of Louis within the scope of that authority, while it lasted. If the jury gave credit to the evidence for plaintiff, above quoted, to the effect that in 1887, on being informed that Louis wished, for his own purposes, to renew a note executed in the name of Schoen Bros., George declared, in reply to questions by the bank manager, that he (George) "recognized his responsibility on that class of notes," then he surely would be liable for such notes put out thereafter by Louis to the bank, and taken for value by the latter on the faith of that authority. It was not essential to plaintiff's right of recovery that George should have authorized Louis to sign the firm name to the particular notes in suit, as implied by defendant's instruction. If he had previously given Louis general warrant to the bank to raise funds for his own purposes in that manner, he was bound to respond for Louis' acts in accordance with that authority. Viewing the defendant's instruction most favorably, it was at least likely to convey the impression that authority to sign the very notes sued on was required to fix liability on George. The refusal of plaintiff's third instruction indicates that the learned trial court probably intended to so rule. The third instruction asked would have required the jury to find for plaintiff if the earlier notes (which the evidence tended to show were renewed by those in suit) were authorized by George Schoen, or if he acquiesced in the general use of his name by Louis after knowledge of it. That instruction certainly was sound, and no equivalent for it is found in the series given by the court or for the defendant. None of those tendered by plaintiff was given. In Tilford v. Ramsey (1866) 37 Mo. 563, it was held that where a note was given by a firm for a debt of one partner, with the consent of all, it might be lawfully renewed by any one of the partners without altering the orig. inal liability of the firm. That was one idea contained in the plaintiff's refused instruction which the instructions given did not embody, yet plaintiff was entitled to have it put to the jury. The course of business of Schoen Bros. in respect of notes of similar form and purpose furnished evidence tending to prove the acquiescence of George in the use of papers so drawn for the benefit of Louis. Hayner v. Crow (1883) 79 Mo. 293. Plaintiff was entitled to the benefit of that
CASHMAN v. CASHMAN'S HEIRS. (Supreme Court of Missouri, Division No. 1,
July 9, 1894.) ADVERSE POSSESSION-PAYING TAXES QUIETING
TITLE. '1. The mere payment of taxes cannot create title by adverse possession.
2. One who has acquired title by adverse possession cannot maintain a suit to remove a cloud on the title; nothing having been recorded since her possession began, and it not being questioned but that the record shows title as it was before plaintiff acquired it by adverse possession.
3. One who claims title as the only heir of intestate cannot maintain a suit by publication against “the heirs” of intestate, to quiet title,
Appeal from St. Louis circuit court; Daniel Dillon, Judge.
Action by Julia Cashman against the heirs of Jeremiah Cashman, to quiet title. Action dismissed, and plaintiff appeals. Affirmed.
Carlisle & Ottofy, for appellant.
BRACE, J. This is an appeal from the judgment of the circuit court of the city of St. Louis, dismissing the plaintiff's bill, to the St. Louis court of appeals, and by that court certified here, as involving title to real estate. Before certifying the cause that court considered the case, and in an opinion written by Biggs, J., in which the other judges of that court concurred, the law of the case is fully and correctly stated and applied. That opinion is as follows:
“The plaintiff claims to be the owner of a certain lot in the city of St. Louis by reason of an adverse possession for more than the statutory period of limitation. Her counsel denominate this action as one in equity to remove a cloud upon her title. Conceding that a title acquired by prescription will authorize the institution of a suit to remove a cloud from the title thus acquired, yet the judgment of the circuit court, under the view thus taken of the case, must be affirmed, because the plaintiff's evidence failed to make out a case of adverse possession. According to her own testimony, the lot has always been vacant, and she admitted that she only paid the taxes thereon, without exercising any other acts of ownership. This was not sufficient to create title by adverse possession. Chapman v. Templeton, 53 Mo. 463.
Besides, if the action is to be treated as an Action of ejectment by Oliver C. McWilequitable one to remove a cloud upon the liams against George W. Samuel and others. plaintiff's alleged title, there is nothing, as From a judgment for plaintiff, defendants appears by the evidence, upon which the ju- appeal. Affirmed. risdiction of the court could have been made to operate. For the protection of the true
Hicklin & Yates, for appellants. Alexander owner of land, courts of equity only interfere
& Richardson, for respondent. to set aside instruments which have been or may be recorded, and which might injurious- BRACE, J. This is an action in ejectment ly affect the title of such owner. Now, in to recover a strip of land off the north end this case the evidence sbowed that Jeremiah of the E. 12 of the N. W. 14 of section 21, Cashman, the plaintiff's husband, died in township 58, range 9, 4234 links wide at the 1869, that at the time of his death the title west end, and 8794 links wide at the east to the lot in controversy was vested in him, end, and a strip off the north end of the N. and that he claimed to be the owner thereof, E. 14 of said section, 8734 links wide at the and nothing since has occurred, affecting the west end of said section 21, and 205 links record title. As the alleged adverse occu- wide at the east end, in Daviess county, parpancy by the plaintiff occurred subsequently ticularly described by metes and bounds in to the death of her husband, and as his title the petition. Plaintiff had judgment below, was in no way questioned, it is difficult to and defendants appeal. understand upon what the decree of the court The parties are adjoining proprietors, and could have operated, even though the plain the land in controversy is within the inclotiff had established an adverse possession for sure of the defendants. It was admitted that the requisite time.
the title is in the plaintiff's wife, unless the "But there is another view of this proceed- defendants have acquired title thereto by ading which we ought to notice. Cashman died verse possession. In the fall of 1871, J. M. intestate in 1869, and, so far as the records Bickell went into possession of defendants' of the probate court show, the plaintiff was land, and in the spring of 1872 set a hedge his only heir. She testified on the trial that, on what he supposed was the north line of so far as she was informed, the deceased, at defendants', and the south line of the plainthe time of his death, had no children or tiff's, land, inclosing the strip in controversy their descendants, father, mother, brothers, with defendants' land; and, until this suit or sisters. If so, then the plaintiff, under the was brought, in December, 1890, the same statute of descendants and distributions, in- | has been in the possession of the defendants herited the property in question as the sole and their grantors. Said Bickell was exam. heir of her husband. How, under such cir- ined as a witness, and testified, in substance, cumstances, was it possible for the court, by that he did not know where the true line any decree which it might have entered, to was; that, in setting out the bedge, he went relieve the plaintiff's title of this uncertain-by the fence already constructed, setting it ty? Assuredly not. It must be remembered so as to correspond with the line of the fences, that this proceeding was instituted by pub- east and west; that no survey was made lication only, and is against the heirs of Jere- to ascertain where the true line was, but the miah Cashman, without even naming them. fence was set upon what he and the neighHow the court, by its judgment, could have bors supposed was the true line, and he made affected the title of any one to the lot in con- his improvements with reference to that, with troversy, we cannot conceive. The decree no intention of claiming anything but the would have been worthless, which is conclu- right number of acres. George W. Samuels, sive against the jurisdiction of the court. one of the defendants, who acquired title We therefore conclude that under any view
in 1874, and succeeded to the possession of the judgment of the circuit court was right." Bickell, testified that the hedge is on the We adopt the opinion of Judge Biggs, and
same line now that it was then, and that the judgment of the circuit court is affirmed. he always believed that to be the true line. All concur.
This was the substance of all the evidence upon the question of adverse possession. The evidence simply tends to show that the de.
fendants have occupied their premises and McWILLIAMS V. SAMUEL et al. the strip in controversy, up to the hedge (Supreme Court of Missouri, Division No. 1. fence aforesaid, believing the same to be on July 9, 1891.)
the true boundary line between their laud ADVERSE Poss ESSION-WHAT CONSTITUTES. and that of the plaintiff, but fails to show
Mere occupancy of the land of another that they so occupied under a claim of own. up to a fence which incloses it with the land of the occupant, believing such fence to be on
ership to that fence, whether on the true the true boundary line between the latter and boundary line or not. Such occupancy of the land of such other, without any claim of the premises in controversy was not adverse, ownership up to the fence, does not constitute and the plaintiff is not precluded thereby adverse possession.
from claiming to the true line, under reAppeal from circuit court, Daviess county; peated rulings of this court. Jacobs v. MoseCharles H. S. Goodman, Judge.
ley, 91 Mo. 457, 4 S. W. 135; Schad r. Sharp,
95 Mo. 573, 8 S. W. 549; Krider v. Milner, heirs or devisees to succeed her in the own99 Mo. 145, 12 S. W. 461; Skinker v. Haags- ership of the property upon her death, but ma, 99 Mo. 208, 12 S. W. 659. The judgment the proceeds are with the same concurrence of the circuit court is affirmed. All concur. --that is, of the ostensible heirs or devisees
to be reinvested in the purchase of other realty in said city of St. Louis, or in the
county of St. Louis, of said state of Missouri, SIKEMEIER et al. V. GALVIN et al. or loaned out on good real-estate security (Supreme Court of Missouri, Division No. 1.
within the same territorial limits; but such July 9, 1894.)
reinvestment in realty or loans remains subPARTITION-Action by Life Tenant-PROHIBI- ject to the same trusts and conditions as the
TION BY WILL-CONSTRUCTION OF DEVISE. realty, of the sale of which it is the pro
1. A life tenant and a remainder-man may ceeds." maintain partition against the other remainder- This suit is brought by the said Margaret men, though there is a contingent estate in the land, which may afterwards be vested in per
Sikemeier and her sister Nellie Conway, sons not in esse.
plaintiffs, against her sister Mary Elizabeth 2. Testator devised to his daughter for life Galvin, and her brothers, John D. Galvin à certain lot, to pass on her death to her right heirs, as declared by the intestate laws, and
and Mathew J. Galvin, for partition of said provided that the devises for life to his daugh
lot. It is alleged in the amended petition ter might "be sold and conveyed in fee simple that the widow of the testator is dead; that absolute, by the concurrence in the deed as the said Margaret Sikemeier has no children; parties of the ostensible heirs and devisees to succeed her" on her death, “but the proceeds
that the only living ostensible heirs of the are with the same concurrence
to be said Margaret, in whom the fee to said lot reinvested in” other realty, or loaned un real- could be vested at her death, are the said estate security, subject to the same trusts as the real estate sold. Held, that a partition of
Nellie Conway, Mary Elizabeth Galvin, John such lot at the instance of such daughter and
D. Galvin, and Mathew J. Galvin, her brothone of the remainder-men was not in contraven- ers and sisters; that the improvements on tion of the will.
said lot consist of a brick dwelling house, Appeal from St. Louis circuit court.
which is in a dilapidated condition, the rent Action of partition by Margaret Sikemeier from which is very small, and insufficient to and others against Mary Elizabeth Galvin pay taxes, insurance, and other expenses; and others. From a judgment sustaining a and that partition thereof cannot be made demurrer to the petition, plaitiffs appeal. in kind; "wherefore plaintiffs pray that said Reversed.
premises may be by the court ordered to be
sold, and that the interest of the plaintiff Mills & Flitcraft, for appellants, cited Margaret Sikemeier may be ascertained and Reinders v. Koppelmann, 68 Mo. 482; Wills
set apart and paid over to her, and that the v. Slade, 6 Ves. 498; Mead v. Mitchell, 17 N.
court adjudicate the rights of the respective Y. 210; Jenkins v. Fahey, 73 N. Y. 355; Pres
parties, and apportion the remainder, acton v. Brant, 96 Mo. 552, 10 S. W. 78; Gas
cording to the respective rights of the parkell v. Gaskell, 6 Sim. 643; Baring v. Nash,
ties entitled thereto, or that such remainder 1 Ves. & B. 551.
be turned into court to stand for and repreJohn P. Leahy, for respondents.
sent the interest of the heirs of the life ten
ant in said property, and the same be placed BRACE, J. Dennis Galvin, by his last will in trust by the court, and kept for the heirs and testament, executed in January, 1886, of the said Margaret Sikemeier, to be paid to devised all his real estate to his wife, Marga-them as they may be entitled upon the deret, for life, and, subject to her life estate, cease of the said Margaret Sikemeier, and among other devises, made the following: for such other and further relief as to the "To my daughter Margaret Galvin, wife of court in equity and good conscience may Henry Sikemeier, for and during her natural seem meet and proper." The defendants life, I give, bequeath, and devise a lot in John D. Galvin and Mathew J. Galvin desame block No. 149, fronting twenty-two feet murred to the petition, and, the demurrer six inches on the east side of Seventh street, being sustained, the plaintiff's appeal from and running back eastwardly, like the two the judgment rendered thereon. preceding lots, eighty-two feet in depth, to In Reinders v. Koppelmann, 68 Mo. 482, an alley four feet in width, and on which is the petitioner was the owner of the life eserected the building No. 804, South Seventh tate in the whole tract proposed to be dividstreet, and upon her death is to pass to and ed, and also of an interest in the contingent to be vested in her right heirs, whether lineal remainder in favor of the persons who, upon or collateral, as the same would be declared the termination of the life estate, would take by the present laws of the said state of Mis- the fee, and it was held that no objection souri concerning descents and distribution;" could be made to the partition on account of and, by the tenth item thereof, provided that the property being subject to the life estate. "the different gifts, bequests, and devises for Here one of the petitioners owned the whole life to my daughter may be sold and con- life estate, and the other an interest in the veyed, in fee simple absolute, by the concur- contingent remainder; and, by analogy, a rence in the deed as parties of the ostensible like objection ought not to be sustained to the petition herein. In that case it was also 2. When a land contract expressly exempts held that "a partition will not be refused
the purchaser from interest on deferred pay.
ments,--these to be made within reasonable because there is a contingent estate in the
time,-no other demand (Rev. St. 1889, $ 5972) land, which may hereafter be vested in per- having been made, the vendor's answer and sons not in esse. The parties not in esse are counterclaim to the purchaser's bill for specific represented by those who take subject to
performance will start interest running on the
balance due. their rights, but the partition or sale is con- 3. A vendor having a lien for unpaid price clusive." On the authority of this case, and may pay the taxes, when allowed by the purthe cases therein and in appellants' brief
chaser in possession to become delinquent, and cited, it would seem that this action can be
recover them as a part of the lien debt. maintained, unless in contravention of the
Appeal from circuit court, Ralls county; testator's will, for it must be remembered
I. C. Dempsey, Special Judge. that all the interest that any of the parties
Suit for specific performance by Mary A. have in the real estate is held under and by
Brown against James B. Brown. Defendant virtue of the provisions of the will, and our appeals from the decree. Reversed. statute provides that no partition or sale of D. H. Eby and J. Thad Ray, for appellands devised by last will shall be made lant. Jas. P. Wood, for respondent. contrary to the intention of the testator, expressed in such will. Rev. St. 1889, $ 7142. MACFARLANE, J. This is a suit for
The effect of this proceeding will be to the specific performance of a contract for transfer the title in fee of the lot to the pur- the sale of a farm in Ralls county. Plaintiff chaser thereunder, in the lifetime of the life is a married woman, and charged in ber tenant. There is no express limitation in petition that she purchased the farm of the will upon the alienation of the premises defendant, by written contract, on the 12th during the life of Mrs: Sikemeier. She, of day of August, 1871, for which she agreed course, could dispose of her life estate at to pay $3,000, of which $1,500 was to be any time, and so could the remainder-men, paid during the year 1872, but no time was as a contingent remainder is alienable under fixed for the payment of the balance. That our law (Godman v. Simmons, 113 Mo. 122, defendant agreed, when the whole amount 20 S. W. 972); and the provisions, in the should be paid, to make her a deed of the tenth item of the will, by which the parties land, and that it was expressly agreed that to this action, who are the "ostensible heirs no interest should be exacted on these pay. or devisees" therein mentioned, are expressly ments. She charged further that she paid authorized, all concurring, to sell and convey on January 29, 1872, the sum of $1,500 as the premises in fee simple, for reinvestment, agreed, and further payments as follows: during the lifetime of the tenant for life, can March 2, 1873, $125; March 1, 1875, $200; hardly be construed as a prohibition of a re- August 5, 1875, $695.50; and July 3, 1891, sort to a mode of alienation authorized by $179.50,-making a total of $3,000. The conlaw, at the instance of one or more of such tract was alleged to have been lost. Deheirs or devisees, by which the same purpose fendant, by answer, admitted the execution may be accomplished (Rev. St. 1889, 88 7137– of the contract, that its terms and condi. 7163); for it goes without saying that, upon tions were substantially as charged, and a sale of the premises in this proceeding, the that the payments of $1,500 and $179.50 net proceeds thereof, after the value of the were made, but denied any other payments. interest of Mrs. Sikemeier has been ascer- Defendant thereupon, by way of cross petitained and commuted, would have to be rein- tion, charged the making of the same convested in accordance with the provisions of tract, admitted the two payments, and char. the will, under the order of the court, until ged that the balance, viz. $1,320.50, was the termination of the life estate. We are unpaid. He further charged that after makof the opinion that the demurrer should have ing the contract, and after plaintiff went been overruled. The judgment, therefore, into possession thereunder, in order to prowill be reversed, and the cause remanded. tect the property and preserve his lien, be All concur, except BARCLAY, J., not sitting paid taxes on the land aggregating the sum
of $246. He asked a foreclosure of his vendor's lien for the amount due and interest,
including the amount of taxes paid. Upon BROWN v. BROWN.
a trial the court found that there was due
defendant on the contract the sum of $625, (Supreme Court of Missouri, Division No. 1. July 9, 1894.)
without interest, and declared a lien upon
the land for the amount, but made no orMARRIED WOMEN APPLICATION OF PAYMENTSINTEREST.
der for a foreclosure and sale. The principal
question turned upon the finding of the 1. Since crops grown on a wife's land belong to her, free of her husband's debts (Rev.
court as to the amount that was due upon St. 1889, 88 6868, 6869), she has the right to di- the contract. The first payment, of $1,500, rect the payment of the proceeds on her debt
and the last one, of $179.50, were not disfor the price of the land; and neither her hus
puted. Plaintiff claimed three other pay. band, without written authority, nor the creditor, can apply them to a debt of the hus
ments, viz.: March 2, 1873, $425; Mareh 1, band's.
1873, $200; August 5, 1875, $695.50. The last