payment was credited by the court upon the contract. The other two the court permitted defendant to apply as a credit upon an account due from the husband of plaintiff to defendant. Plaintiff does not appeal, and cannot complain of the action of the court in this particular.

1. It is not disputed that the item of $695.50 was the proceeds of wheat grown upon the farm. There can be no doubt that the money realized from the sale of the wheat belonged to the wife, and she therefore had the right to direct its application to the payment of her debt. Rev. St. 1889, §§ 6868, 6869. That she did direct her husband to apply it to the debt due for the purchase of the farm is without doubt, under the evidence. The husband, if he had desired to do so, had no right to divert the money from the purposes to which the wife directed that it should be applied. The rule is also well settled that the debtor has the right to direct the application of payments to any one of several debts, and it is only when no direction is given by him that the creditor can make the application. Beck v. Haas, 111 Mo. 264, 20 S. W. 19, and cases cited. This payment was made after the married woman's act of 1875 went into effect. Section 6869. That the husband had no right to appropriate the money of his wife, without her written consent as required by said act, is beyond question. But the husband also testified that when he paid the money to defendant he directed him to apply it as a credit upon the debt owing by his wife for the purchase price of the farm. The finding of the chancellor as to this payment is sustained by the law and evidence.

2. The contract expressly exempted plaintiff from the payment of interest on deferred payments, and only required that these should be made in a reasonable time. Plaintiff's husband and defendant are brothers, and it is manifest that defendant had for years given great assistance to his brother and family. The easy terms of this contract were in perfect keeping with his previous acts of kindness and brotherly affection. It was clearly not intended that interest should be charged. Plaintiff and family had occupied the farm previous to the sale without the payment of rent. In such a case as this, interest is not payable until demand of payment is made. After a reasonable time, within the meaning of the contract, had passed, defendant had the right to make demand of payment, and he would thereafter be entitled to interest. There was no evidence of a demand of payment after a reasonable time had elapsed. There were some disputes as to the amount remaining unpaid, and of offers of compromise. These disputes grew out of differences of opinion as to whether the payments should be applied upon this debt, or upon an account due defendant from the husband, but no such demand of payment was made as would

start the running of interest until the answer was filed. Rev. St. 1889, § 5972; Mott v. Purcell, 98 Mo. 247, 11 S. W. 564. In the answer a specific sum was claimed as due, and a demand for interest thereon Was made. It was held in the case of Mott v. Purcell, supra, that personal service of process is a demand, for the purpose of starting the running of interest. Filing a counterclaim on account, or making claim by offset for an amount due on contract, would have the same effect. We think defendant should have been allowed interest, from the date of filing his answer, on the amount found to be due him.

3. It appeared from the evidence that on the 25th day of February, 1877, defendant paid the taxes on the land for the year 1876, amounting to $15.20. He asked that this amount should be charged to plaintiff as a lien on the land in addition to the purchase price. There is no doubt that plaintiff, as vendee of the land, being in possession and enjoying the profits, was liable for the taxes. Farber v. Purdy, 69 Mo. 602. It has been held by this court that the payment of taxes. of one man by another, without some request, express or implied, would be such a voluntary payment as would not support an action, unless the relation of mortgagor and mortgagee existed. Horrigan v. Wellmuth, 77 Mo. 545. And in that case it was also held that in case the mortgagee pay the taxes, in order to preserve the benefit of the lien of his mortgagor, "the claim must be enforced as a part of the mortgage debt, and cannot be made the basis of an independent action against the mortgagor, as formoney paid to his use." We are unable to see that a distinction should be made between a mortgagee and one holding a vendor's lien on land for the purchase money, in respect to his right to protect his interest in the land and preserve his lien. The lien of a vendor exists independent of any agreement between the parties, and has ever been recognized and enforced by the courts. It is often as valuable to the vendor as a mortgage is to the mortgagee, and he should have the same right to protect and preserve it. The lien of the state for taxes is paramount to the liens of individuals, whether created by contract, deed, or operation of law. Williams v. Hudson, 93 Mo. 524, 6 S. W. 261; Allen v. McCabe, Id. 138, 6 S. W. 62. This tax was delinquent when paid by defendant, was a paramount lien on the land, and was bearing a high rate of interest, and defendant had the right to pay it in order to preserve his lien. Defendant does not attempt to recover the amount of this tax by an independent action, but by his answer he asks for the enforcement of his vendor's lien, including this tax as a part of the debt. We think he was in equity entitled to this relief.

Judgment reversed and cause remanded.. with directions to the circuit court to allow

interest on $625, the amount found to be due on the contract, at 6 per cent. from the date of filing the answer; also, to allow the item of $15.20, with like interest,-and enter judgment for the amount in favor of defendant, with a vendor's lien therefor, and an order of foreclosure and sale. The court should also direct that, in case the judgment be paid, without execution sale, defendant execute a sufficient deed to plaintiff, Mrs. Brown, for the land in question, within such time as the court may think reasonable, and providing that, in case defendant fails to make and deliver the deed as required, all the right, title, and interest of defendant in the land be vested in said plaintiff. All concur.

FIRST NAT. BANK OF BRUNSWICK et al. V. WOOD.

(Supreme Court of Missouri, Division No. 1. July 9, 1894.)

REVIEW ON APPEAL-ORDER GRANTING NEW TRIAL-CONFLICTING EVIDENCE-REPLEVIN - BURDEN OF PROOF.

1. Where there is a conflict in the evidence, an order granting a new trial will not be reversed.

2. In replevin for cattle, where plaintiff and defendant claim under different mortgages, instructions placing on defendant the burden of proving that the cattle described in the mortgage under which he claims were the same as those in controversy are proper when plaintiff offered evidence prima facie sufficient to show title in himself.

Appeal from circuit court, Linn county; G. D. Burgess, Judge.

Replevin by the First National Bank and A. Dumay, cashier, against J. L. Wood. There was a verdict for plaintiffs, and from an order granting defendant a new trial, plaintiffs appeal. Affirmed.

This is an action under the statutes to recover possession of 100 head of two year old steers, branded with the letter H, mostly on the right hip. Under a writ of delivery, the cattle were taken from defendant, and delivered to plaintiffs, and the issue in the case is as to which of the parties are entitled to the possession. Each party claims under a chattel mortgage from J. W. Hogsett, the original owner. Plaintiffs claim under a mortgage dated September 30, 1891, which describes the cattle as "three hundred head of two year old steers, branded with the letter H on the right hip, the said three hundred steers being all the two year old steers now owned by said Hogsett, and now in his possession." Defendant claims as purchaser under a mortgage of the said Hogsett to the Farmers' Bank of Laclede, dated the 21st day of March, 1891. This mortgage described the cattle as "one hundred head of two year old steers, of various colors, branded with the letter H on the right hip." Defendant also claims title under an alleged compromise of the conflicting claims of the

parties. The evidence shows that during the year 1891 the said Hogsett, who was a large dealer in cattle, failed, owing the plaintiff bank about $14,500, the Farmers' Bank of Laclede about $8,000, and two other banks smaller sums. He was at the same time the owner of 600 or 700 head of cattle, between 200 and 300 of which were two years old, and branded on the right hip with the letter H. The remaining cattle were one and three years old. By agreement of the creditors, the cattle were placed in the hands of a committee composed of three men, who were authorized to feed and care for them, and, when authorized by a majority of said four creditors, to sell them. In the spring of 1892, some member of the committee turned over to the first mortgagee, the Farmers' Bank of Laclede, 214 head of the two year old cattle; and said bank, claiming authority under its mortgage, and without consulting the other creditors, but with the consent of Hogsett, sold 100 of them to defendant Wood. These are the cattle in dispute. Soon thereafter, plaintiff bank demanded the other 114 head, and, upon paying the feed bill, they were turned over to it. Defendant claims that these 114 head were delivered to plaintiff bank under an agreement that no claim would be made by it for the 100 head sold to defendant. Plaintiff denied any such agreement.

On the trial, plaintiff read its mortgage, and proved without conflict that the cattle in dispute were a part of the cattle included in the mortgage. Defendant read in evidence the mortgage to the Farmers' Bank of Laclede, proved his purchase from the mortgagee, the consent of Hogsett to the sale, and offered evidence tending to prove the identity of the cattle in question with those described in the mortgage to the said Farmers' Bank, and evidence tending to prove the alleged compromise. Plaintiff offered evidence in rebuttal. The issues were submitted to the jury, on instructions, and a verdict was returned for plaintiff. A motion for a new trial was filed by defendant, assigning a number of grounds therefor, the first of which was that the verdict was against the weight of the evidence, and, second, that the verdict was against the law as declared by the court and the evidence in the case. The other grounds were for alleged errors in giving and refusing instructions, and in admitting evidence. This motion was sustained by the court, no reasons being given therefor. From the order granting the new trial, plaintiff appealed.

Chas. Hammond and A. W. Mullins, for appellants. O. F. Libby, C. C. Bigger, and H. Lander, for respondent.

MACFARLANE, J. (after stating the facts). 1. In Hewitt v. Steele (Mo. Sup.) 24 S. W. 440, it was held that, "if the action of the court in granting a new trial can be sustain

ed upon any ground set forth in a motion for that purpose, it is our duty to do so." Circuit courts have large discretion in the matter of granting new trials, particularly upon the ground that the verdict is against the weight of evidence. This court has often ruled that in law cases, where there is a conflict in the evidence, it would not review it and determine its weight; and it has as often declared it to be not only the right, but the duty, of circuit courts to supervise the verdicts of juries, and grant new trials if the verdict is, in their opinion, against the weight of evidence. When there is a substantial conflict in the evidence, we should no more interfere with the action of the circuit court in granting a new trial than we should, in such case, interfere with the verdict which has been approved by that court. It is settled law in this state "that the granting or refusing new trials, on the ground that the verdict is against the weight of evidence, rests peculiarly with judge presiding at the trial, and that his discretion in this particular will rarely be interfered with, unless it plainly appears that injustice has been done, or that it has been unsoundly or arbitrarily exercised." Bank v. Armstrong, 92 Mo. 280, 4 S. W. 720, and cases cited. There was some conflict in the evidence in this case, particularly on the question of the alleged compromise, and the court may well have thought that the ends of justice required another trial. This is particularly so as there appeared to be a variance between the pleadings and the proof on that question. The answer eharged, in effect, that the sale of the cattle to defendant was made after the compromise, while the evidence showed that it was made before. The third instruction given for defendant gave effect to the compromise, if proved, only in case defendant "claimed said steers under said Farmers' Bank of Laclede by right acquired since such division." Defendant was thus properly held to the allegation of his answer. Of this, defendant could not complain, but the court may have been of the opinion that defendant should have an opportunity to amend his answer, and retry the case upon the theory that plaintiff agreed, in consideration of receiving 114 head of cattle, not to make claim to those in question, which had been sold and delivered to defendant. We are unable to see that the trial judge abused his discretion in granting a new trial in this case.

2. It is said that the new trial was properly granted on account of errors in instructions given for plaintiff which placed the burden on defendant of proving that the cattle described in the mortgage to the Farmers' Bank of Laclede, under which he claimed title, were the same as those in controversy. There can be no doubt that, in suits for the claim and delivery of personal property, in which the title to the

property is in issue, the burden rests primarily upon the plaintiff to prove his title. This principle was declared by the court in an instruction given on behalf of defendant. In order to prove title, plaintiff read its mortgage of September 30, 1891, and offered evidence prima facie sufficient to identify the cattle assigned under the mortgage with the cattle taken under the writ of delivery. Plaintiff thus showed title in itself. Defendant then undertook to defeat plaintiff's title by showing that he was a purchaser, under a prior mortgage of the same property to the said Farmers' Bank. This title defendant affirmatively asserted in his answer, and plaintiff denied in its reply. The proposition seems too plain to require argument or citation of authorities that one claiming title to personal property under a mortgage must prove that the property mortgaged is identical with that claimed. The rule would be the same whether the party claiming was a plaintiff or a defendant in the suit. "In cases where the title is put in issue, and the right to the possession is to be determined by the title to the property, the burden of proof is on the plaintiff to show the property in himself. If the plaintiff show a prima facie right to the possession of the property, he should obtain a verdict, unless defendant proves a better title." 20 Am. & Eng. Enc. Law, 1055, and cases cited. The instruction we think proper, in view of the proof first made by plaintiff. We find no error in giving or refusing instructions or in the admission of evidence which required a retrial. The order of the court granting a new trial affirmed. All concur.

BARCLAY, J., bases his concurrence on what has been said in the first paragraph.

FULKERSON v. MURDOCK.1 (Supreme Court of Missouri, Division No. 1. June 19, 1894.)

BILL OF EXCEPTIONS TIME OF FILING EXTENSION-REVIEW BY SUPREME COURT-FRIVOLOUS APPEAL-DAMAGES.

1. On May 4th, 90 days' time was allowed to file a bill of exceptions. The bill was signed and filed, in vacation, August 3d. Held too late, though the parties then supposed it was in time.

2. It is, at least, doubtful whether affidavits can be considered to eke out a record on appeal.

3. The trial judge has power in vacation to extend the time for a bill of exceptions while the original period allowed to file it is current; but the facts that he signed it after the time expired, and that counsel for the other side marked it "O. K.," do not amount to an extension of the prescribed time.

4. After the expiration of time to file a bill of exceptions in vacation, the express consent of counsel cannot give validity to such a bill. under former Missouri decisions.

5. When a cause comes to the supreme

'Rehearing overruled.

court from a court of appeals, under the constitution of Missouri, it is to be heard as in case of jurisdiction obtained by ordinary appellate process; and parties in the supreme court are not restricted to the points that may have been raised in the court of appeals.

6. The court has power to award damages in case of a frivolous or vexatious appeal, but will not necessarily exercise that power in every instance where the judgment is affirmed for want of a proper bill of exceptions. Its action in that particular will depend on the facts exhibited in each case.

(Syllabus by the Judge.)

Appeal from circuit court, St. Charles county; W. W. Edwards, Judge.

Action by R. E. Fulkerson against George Murdock. From a judgment for plaintiff, defendant appealed to the St. Louis court of appeals, whence the case was transferred to the supreme court. Affirmed.

T. F. McDear

D. P. Dyer, for appellant. mon, Nat. C. Dryden, R. F. Walker, and Morton Jourdan, for respondent.

BARCLAY, J. This is an action for damages for slander, in which, upon a trial, plaintiff recovered judgment for $1,350. Defendant promptly moved for a new trial, but his motion was overruled, May 4, 1892. On that day the court made an order giving him leave "to file his bill of exceptions herein ninety days from this date." He appealed at once, on the same day, to the St. Louis court of appeals, and the March term of the trial court afterwards closed, July 20, 1892. The bill of exceptions was signed by the judge in vacation, August 3, 1892, and it was filed that day. After the case was submitted to the court of appeals, it was transferred to the supreme court, for reasons indicated in the report. 53 Mo. App. 151. The plaintiff (respondent) now contends that the alleged errors charged to exist in the proceedings at the trial are not properly reviewable, because the bill of exceptions was neither signed nor filed within the time prescribed by the order permitting the filing thereof in vacation. We find this point well taken. Ninety days' time from May 4th was granted to file the bill. That time expired with Wednesday, the 2d day of August, 1892. Rev. St. 1889, § 6570; State v. Harris (Mo. Sup.; 1894) 26 S. W. 558. The bill was out of time when presented to the judge the next day. Rev. St. 1889, § 2168. No extension of time for the bill was made by the judge, nor is there in the record any written consent of counsel to such an extension. Under repeated rulings of the supreme court, and of each division, the statute on this subject must be regarded as an imperative demand that exceptions be filed within the time the law prescribes. State v. Mayors (1890) 99 Mo. 602, 13 S. W. 88; Burdoin v. Town of Trenton (1893) 116 Mo. 358, 22 S. W. 728; Dorman v. Coon (Mo. Sup.; 1893) 24 S. W. 731. It is our duty to enforce this law. The case at bar affords no room for any other construction of the statute than that the bill was unauthorized (so far as the record shows) when the judge

signed it in vacation, after the lapse of the time allowed for that purpose. No assignment of any error is submitted by the defendant referring to any part of the proceedings in the circuit court, other than those at the trial. On the record now before us, the conclusion is inevitable that the judgment should be affirmed.

2. But defendant seeks to avoid the legal consequences flowing from the state of facts above described by insisting on certain other facts, brought before the court by affidavits filed here since this cause was submitted. It is very doubtful, to say the least, whether, under the decision of the first division in Wilson v. Taylor (Mo. Sup.; 1894) 25 S. W. 199, and earlier cases, such affidavits can be considered to eke out the record on which defendant has brought the case up. But, laying that question aside, we think the showing in the affidavits is insufficient to change the result to which the record, as it stands, leads. The substance of that showing is that the bill of exceptions was submitted to counsel for plaintiff long before the date for filing the same; that it was retained by him until the day the bill was signed; and that it was marked "O. K." by the counsel for plaintiff before being submitted to the trial judge. It further appears that plaintiff's counsel held the bill, in order to have time to communicate with other counsel on the same side, and that the former declared that the time might be extended (should it become necessary) to save the bill. When the bill was signed, August 3, 1892, all the parties supposed it was in time. That did not make it so, however. There is nothing tending to show that defendant's counsel refused to give up the bill at any time, upon request. The trial judge had the undoubted power, under section 2168, Rev. St. 1889, to extend the time for the bill while the original period was current. He, no doubt, would have done so on such a showing as is now made. But we think he was the proper authority to act in that matter on these facts. He did not do so, and was not asked to do so. That plaintiff's counsel marked the bill "O. K." (which we take to be the equivalent for "correct") did not amount to an extension of time beyond that first granted by the court. It is a customary manner of approving the contents of a bill; but, standing alone, it has no relevancy to the subject of fixing or extending the time prescribed for filing the ex ceptions. Express written consent, after the time had expired, would amount to nothing. Dorman v. Coon (Mo. Sup.; 1893) 24 S. W. 731. It is not shown that any actual agreement, verbal or written, to extend the time, was concluded between counsel before the required period elapsed. We see nothing in the facts to prevent the enforcement of the rule prescribed by section 2168, and we do not feel at liberty to depart from a rule so plainly laid down, even to relieve against any supposed hardship in its application.

3. It is next insisted by defendant that, as the case reached this court by transfer from the St. Louis court of appeals on a division of opinion, and no objection was made in that court to a consideration of the merits of the case, the point now raised, as to the bill of exceptions, should be held thereby waived. When a cause comes to the supreme court from one of the courts of appeals (in compliance with the law on that subject). the constitution declares that "thereupon the supreme court must rehear and determine said cause and proceeding, as in case of jurisdiction obtained by ordinary appellate process." Const. Amend. 1884, § 6. In view of that language, we are of opinion that the plaintiff respondent may, upon the hearing of the appeal in this court, avail himself of any point that the record properly presents at that time. The court of appeals is not necessarily on trial in cases that come to the supreme court by that route. Our jurisdiction is merely substituted for that of the former court in certain exceptional cases; but the final hearing may properly embrace all the subjects comprehended in the record. Under the constitution, the appeal in this court cannot lawfully be limited to a mere reconsideration of the points discussed in the court of appeals. We consider, therefore, that plaintiff has not waived his right to insist on the point of practice mentioned, though he may never have raised it in the court of appeals. From these rulings it results that the judgment of the circuit court should be affirmed.

4. Plaintiff has asked that 10 per cent. damages be awarded to him upon the affirmance. The court has power to make such an award, if it be deemed just. Rev. St. 1889, § 2305. But that power should be exercised with a due regard to the facts exhibited in the particular case. To warrant an award of such damages, it is not always enough that the judgment be affirmed for want of a bill of -exceptions. In the appeal now at bar, the failure of defendant to present the merits of the controversy to this court seems due rather to a mistake in calculating the time given to file his bill than from any desire to avoid a review of the substance of the case. The course of the proceedings in the court of appeals, as reported, indicates very plainly that, upon the substantial merits; could they properly be reached, defendant's appeal involves some very interesting and debatable propositions, to say the least. That he now finds himself confronted by a fatal objection to his record, precluding an investigation of those propositions, we think, does not furnish a sufficient reason for charging further damages against him as for a frivolous or vexatious appeal. In affirming the judgment, therefore, we deny plaintiff's request for an enlargement of it here.

BLACK, C. J., and BRACE and MACFARLANE, JJ., concur.

1. Service of process by publication, addressed to "Etta R. Fisher and Fisher, her husband," is valid, as against a collateral attack.

2. Notice by publication in a tax suit is sufficient, under Missouri statutes, where it names the defendants so as to clearly indicate their identity.

3. Under a law authorizing notice by publication on a return of "Not found," "the court being first satisfied that process cannot be served," an order of publication, granted upon the unsworn statement of an attorney, is not for that reason void in a collateral proceeding. 4. Under such a law, the fact that the conrt acted by making the order is enough to indicate that it was "satisfied" of the required fact, and verbal testimony that the court acted upon an insufficient showing is incompetent.

5. In tax suits in Missouri, notices and process are required to be served as in ordinary civil actions affecting real estate.

6. Surplusage in an order of publication does not vitiate it, if it be otherwise valid.

7. The decision in Haywood v. Russell, 44 Mo. 252, as to time of publication of notices, followed, as a rule of property.

8. A tax judgment is not void collaterally because each tract of land is not especially charged with the items of tax applicable to it only.

9. The sheriff's deed under a tax judgment conveying all the estate which the grantor might sell under the judgment, held valid, in respect of form, under the Missouri statute. (Syllabus by the Judge.)

Appeal from circuit court, Daviess county; Charles H. S. Goodman, Judge.

Action by Nathaniel G. Cruzen against J. W. Stephens and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. E. Wait, for appellants. Alexander & Richardson, for respondent.

BARCLAY, J. This is an action of ejectment for a tract of land in Daviess county. The petition is in ordinary statutory form. Rev. St. 1889, § 4631.

The original defendant, Mr. Stephens (who was sued alone), answered, admitting his possession as tenant of the Lyle heirs. The latter also appeared and became parties defendant on their motion, viz. Messrs. W. H. Lyle and George W. Lyle, and Mrs. Etta R. Fisher and Mr. John Fisher, her husband. They filed a separate answer, alleging possession of the land by their tenant Mr. Stephens, and denying the other allegations of the petition. They then charged that plaintiff's claim of title was under a judgment and sale in a certain tax suit, entitled State ex rel., and to the use of, N. B. Brown against "defendants in this answer," which suit terminated in the same court at the February term. 1889, and that plaintiff had no other interest in the property. The answer then continues thus: "That defendants herein are and have ever been, since 1880, residents of Illinois,