derates in favor of the defendant Anna O. Stroub, and that to allow it to stand would do injustice to her. While the evidence was conflicting, there was sufficient of it to justify the finding of the court, and, under such circumstances, it has been so often ruled by the supreme court that it will not interfere that it is unnecessary to cite authorities upon the question. Moreover, while the record shows that the plan of the building in question was introduced in evidence, it is not set forth in the bill of exceptions, and it is well settled that, where all the evidence is not included in the bill of exceptions, the question of the sufficiency of the evidence to support a verdict will not be reviewed. Epstein v. Clothing Co., 67 Mo. App. 221; Ogelbay v. College of Dental Surgery, 71 Mo. App. 339; Davis v. Vories, 141 Mo. 234, 42 S. W. 707; Reed v. Peck (Mo.) 63 S. W. 734.

It is claimed that the court erred in not finding and determining the rights of Anna O. Stroub on her counterclaim. The question as to what she was entitled to recover under her counterclaim, if sustained by the evidence, was clearly set forth in the declarations of law given at her instance; and it must be presumed, in the absence of anything to the contrary, that the counterclaim was considered by the court in passing upon the rights of the parties, and that the judgment was in accordance with the declarations. That this was done is borne out by the fact that Williams sued for $2,664.13, while judgment was rendered in his favor for $1.294.13, only being $1,350 less than he sued for, which cannot, we think, be accounted for, under the evidence, upon any other theory than that the counterclaim was considered by the court, and the difference between Williams' claim as sued for and the amount for which he recovered judgment was allowed Anna O. Stroub, by way of damages upon her counterclaim.

Finding no error in the record which would justify a reversal, the judgment is affirmed. All concur.

but the release was not recorded, and neither the second mortgagee nor the purchaser had any knowledge of such fact; and the land was advertised as being subject to a first mortgage, which fact prevented other bids. The mortgagee was unable to get personal service on the mortgagor in the foreclosure suit. Held sufficient to authorize the setting aside of the foreclosure sale.

4. The fact that the mortgagor failed to record the release of the first mortgage did not estop him from maintaining an action to set aside the sale, as he was under no duty to record the release.

Appeal from circuit court, Polk county; Argus Cox, Judge.

Suit by Henry Hoffman and others against H. C. McCracken and others to set aside a mortgage foreclosure sale. From a decree for plaintiffs, and an order denying a new trial, defendants appeal. Affirmed.

Rechow & Pufahl, for appellants. J. B. Upton, John W. Ross, and F. S. Sea, for respondents.

BURGESS, J. This is a suit in equity to set aside a trustee's sale under deed of trust of the following described land situate in Polk county, Missouri, to wit: The S. 1⁄2 of the N. 1⁄2 and the N. W. 4 of the N. E. 1⁄4 of section 20, and the S. 1⁄2 of lot 1 of the S. E. 4 of section 31, township 35, of range 22. The trial resulted in a judgment and decree in favor of plaintiffs, setting aside the sale, from which defendants, after unavailing motions for new trial and in arrest, appeal.

The petition alleges: That on the 7th day of July, 1896, the plaintiff Henry Hoffman was the owner of said land. That defendants Adams, McKinney & Leavitt were loan agents for the Missouri Trust Company, and, as such, made to the plaintiff a loan on said land for $900, at 7 per cent. interest, payable semiannually on the 1st of January and July. That plaintiffs executed their note for the $900, with 6 per cent. interest, payable as above stated, and that he and his wife executed a deed of trust on said land to secure the payment of said note and interest. That on the same day they executed 10 notes, for $4.50 each, payable to defendant Adams. That this represented the other 1 per cent. interest. That they executed a deed of trust on the above land to T. G. Rechow, as trustee, to secure the payment of these notes, which recited that it was subject to the deed of trust for $900. That it was agreed and understood that plaintiffs should have the privilege of paying off said loan at any time, and, in case of doing so, all interest coupons maturing after such payment should be void. That, in order to express such agreement, the following clause was inserted: "It is understood and agreed, however, that in case Henry Hoffman shall fully pay off the aforesaid nine hundred dollars to the Missouri Trust Company on or after July 1st, 1898, all of the said notes falling due after said payment be canceled and

returned to Henry Hoffman." That they understood from that clause that, if they at any time before maturity paid the principal bond, all the small notes would be considered paid and canceled. That plaintiff promptly paid the notes, including the one that fell due January 1, 1898, and on the 31st day of March paid off the bond and interest, amounting to $918. That the trust company returned his bond, duly canceled, and also a deed of release, releasing the land from the lien of said deed of trust. That plaintiff thought that the payment of the $900 bonds fully discharged the unpaid small notes. That the land is worth $5,000. That it was sold in bulk on the 15th day of December, 1898, and was bought by H. C. McCracken for $40. That it was the belief that the $900 mortgage was outstanding. That the trustee made the deed it is now sought to set aside to H. C. McCracken. That there were but few persons at the sale, and only two bidders. That the notice of sale failed to describe the notes the mortgage was given to secure, and failed to show why said sale was being made. It fails to show any authority in the trustee to make the sale. It says the land will be sold subject to a prior mortgage, without reciting the amount of such mortgage, or giving information of what mortgage was intended, or any means by which such information could be obtained. That the inadequacy of the consideration is gross, and the land was sold in bulk. That by reason of the failure of plaintiffs to file their deed of release of the $900 mortgage, it was supposed the same was still outstanding. There is no fraud or misconduct charged, unless it is contained in the allegation that there were only two bidders, and the trustee for that reason ought to have adjourned the sale. Defendants interposed a demurrer to the petition, which was overruled. They then filed answer to the petition, in which it is denied that the land was not offered for sale in the smallest legal subdivision. It admits that McCracken, the purchaser, believed the $900 deed of trust was outstanding, and alleges that the deed of release had not been filed for record at the time of sale, and, if there was any suppression of bidding at the sale on that account, that it was caused by the wrongful and fraudulent act of plaintiff in failing to record the deed of release; that the sale was in all respects fairly and openly conducted. It further alleges that on the 16th day of January, 1899, defendant McCracken entered into a written agreement with Burdett Thayer, as agent and attorney for plaintiffs, by which he agreed to reconvey the premises, except 80 acres, and that plaintiffs were to make him a conveyance of that 80 within 12 days, and that plaintiffs violated that agreement. The answer also charges that plaintiffs were not the owners of all the land. It appears from the record that, soon after

the execution of the deed of trust, plaintiff moved to the state of Minnesota, then to different places, and never notified Adams, McKinney & Leavitt when he changed his place of residence; that, soon after moving to that state, he transferred the land in question to his sister, who in turn transferred it to his wife; that plaintiff and his wife thereafter transferred it to one Murrell, in whom the title was at the time of the sale under the deed of trust; that on the 31st day of March, 1898, the Missouri Trust Company executed to plaintiff a deed of release, by which the deed of trust securing the payment of the bond for $900 was released, but which deed of release was not filed for record until the 27th day of January, 1899. Diligent effort was made by the agents of the trust company to get personal notice on the owner of the land that the note was due, for which it was subsequently sold, but the effort was unavailing. It was recited in the deed of trust under which the land was sold that it was subject to a prior mortgage to the Missouri Trust Company of $900. It appeared from the evidence that the trustee offered the land for sale in 40-acre tracts, but could get no bid, and that he did all he could to make the land bring the highest price possible. There were from 25 to 30 persons present at the sale. The title to the land at the time of the sale, in so far as the records disclose, was in one Murrell; and, as it did not show that the $900 secured by the prior mortgage had been paid, it was understood that the purchaser at the sale would have to pay about $1,000, at least, for the land. The trustee had no knowledge that the prior mortgage had been paid off. So that the sale seems to have been made under a mistake of fact, without any intention of wronging any person whomsoever.

It is said that the petition fails to state a cause of action, but plaintiff claims that, even if this be true, defendants waived the point by answering over after the demurrer to the petition upon that ground was overruled. This position is not, however, well taken; for, if there is anything well settled by this court, it is that, where a demurrer to a petition has been overruled, the defendant, if he answers over, does not thereby waive the objection that the petition fails to state a cause of action. Paddock v. Somes, 102 Mo. 226, 14 S. W. 746, 10 L. R. A. 254, and authorities cited. And this question may be raised for the first time in this court.

The two controlling questions presented by the petition are with respect to the notice of sale and the inadequate price for which the land was sold; and, if either of these grounds is sufficient to authorize the setting aside the sale, the judgment must be affirmed, but, if not sufficient in law to authorize the judgment, it must be reversed.

There was no fraud alleged or proven. The notice of sale recited that the land

would be sold "subject to a prior mortgage," when in fact there was no mortgage on it. It is true, there had been a prior mortgage on the land, which was executed by plaintiff to secure the payment of a bond for $900, but it had been paid off, though the record did not show that fact; nor did defendants have any knowledge of its payment at the time of the sale. Under these circumstances, unless some one was prevented from bidding on the land by said recital, there would be no ground for setting aside the sale because of it. But there was at least one witness who testified that he attended the sale to bid on the land, and that he did not bid for the reason that he learned that there was a prior mortgage on the land for $900. Defendants were not prejudiced by reason of the failure of Hoffman to have placed upon record his deed of release, but, if the sale is permitted to stand, they are greatly benefited thereby, and get the title to 240 acres of land for $40, for which they thought they were paying $940. He owed them no duty to record his deed of release, and upon what principle they can claim it was his duty, as to them, to record the deed of release, or that they were misled to their prejudice because of his failure to do so, we are unable to perceive; and it is only upon some such principle that plaintiff could be held to be estopped by his failure to record the deed. The evidence shows the land to have been worth at the time of the sale $4,500. There were 240 acres of it, 200 of which was prairie, and 40 acres of timber. It was all sold in a body for the paltry sum of $40,-less than 17 cents an acre,-to pay a debt of $4.50. Under these circumstances, should the judgment of the court below be reversed, and the sale permitted to stand? We think not. To do so would, in effect, be taking the property of one man, and giving it to another. As a general proposition, inadequacy of consideration is not of itself a distinct principle of relief in equity; but where there is such a great disparity between the actual value of land and the price which it brings at a forced sale as in this case, and the land is sold under the mistaken idea that it is incumbered for quite a large sum,-in this case, $900,when it is not, and bidders are deterred from bidding by reason thereof, a court of equity will not hesitate to set the sale aside. In Vail v. Jacobs, 62 Mo. 130, it was held that when property is sacrificed under a deed of trust by sale of a little over a tithe of its value, as where property worth from $5,000 to $8,000 was sold for $1,000, the sale will, on timely application, be set aside. The sale under consideration comes, we think, within the rule announced in that case, and, under the circumstances, was properly set aside.

For these intimations, the judgment is affirmed. All concur.

STATE ex rel. MURPHY ▼. JACKSON, Judge, et al.

(Court of Appeals of St. Louis, Mo. April 1, 1902.)

LUNACY-NOTICE OR APPEARANCE-NECESSITY-DISCRETION OF COURT-CERTIORARI.

1. A judgment entry in an inquisition of lunacy, reciting, "And, the cause coming on to be heard, the court finds from the evidence adduced that the said M. is in such a state of mind and health that service of notice on her and her attendance at court is unnecessary," was insufficient to dispense with notice and attendance, because not specifying what the state of the alleged lunatic's mind and health was, but merely that in the judge's opinion it was such as to render notice unnecessary; Rev. St. 1899, § 3652, which provides that the alleged insane person must be notified, unless the probate court orders such person to be brought into court, or spreads on its records the reason why such notice or attendance was not required, not giving the court any discre tion as to the giving of notice.

2. Certiorari was the proper remedy to review the proceedings in such case.

Appeal from circuit court, Lincoln county; Elliott M. Hughes, Judge.

Certiorari by the state, on the relation of Elizabeth Murphy, against George J. Jackson, probate judge, and others, to review proceedings declaring relator to be of unsound mind. Judgment quashing the proceedings referred to, and informant appeals. Affirmed.

Geo. T. Dunn and Martin & Woolfolk, for appellant. Norton, Avery & Young, for respondent.

GOODE, J. Elizabeth Murphy was adjudged to be of unsound mind in an ex parte proceeding by the probate court of Lincoln county instituted on an information filed by her four children, and one of them was appointed guardian of her person and curator of her estate. Afterwards she applied to the circuit court of said county for a writ of certiorari to the judge of the probate court to compel him to certify the full record in said proceeding, which writ was granted and obeyed. Afterwards the findings and judgment of the probate court were set aside or quashed for want of jurisdiction of that court over the person of the relator, and an appeal was taken by one of the informants. Two questions arise: Was the probate court without jurisdiction? Was certiorari the appropriate remedy?

1. The question as to jurisdiction is to be answered by consulting the statutes, which contain the following provision in regard to notice to the alleged lunatic: "In proceedings under this chapter, the alleged insane person must be notified of the proceeding, unless the probate court order such person to be brought before the court, or spread upon its records of its proceedings, the reason why such notice or attendance was not required." Rev. St. 1899, § 3652. Mrs. Murphy was not ordered to be brought before the court, nor was she notified of the proceeding; that much is

issues which grow out of such litigation. In suits for "the enforcement of liens upon land," jurisdiction is given of the debt which the lien secures, without regard to the amount, as well as to foreclose the lien, and is not affected by the following provision of that section: "Of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to $500, exclusive of interest." The construction placed upon the constitution by which the jurisdiction of the court over the amount involved in the suit to foreclose a lien upon land, upon failure of the lien, is made to depend upon the provision last quoted, is without support in the language or in the evident intention of the framers of the constitution. Power is given over "suits to enforce liens" on land, and a failure of the lien makes it no less a "suit to enforce a lien." The decisions cited are antagonistic to the general principle that "the jurisdiction of the court cannot be defeated when the case stated in the petition is within its jurisdiction, unless it is made to appear that the allegations upon which the jurisdiction depends were fraudulently inserted in the petition for the purpose of conferring the jurisdiction." Hoffman v. Association, 85 Tex. 410, 22 S. W. 155. When a suit has been filed in the district court for a sum exceeding $500, but upon the trial it is reduced to a sum below the jurisdiction of the court, it has been uniformly held that the jurisdiction of the court is determined by the amount which was claimed in the petition, and will not be lost by the fact that the amount is reduced upon the trial. Hoffman v. Association, cited above. In Seymour v. Hill, 67 Tex. 385, 3 S. W. 313, a judgment of the justice of the peace had been enjoined by a writ issued out of a district court, and it was held that the court thereby obtained jurisdiction of the whole subject-matter, including the debt originally sued upon in the justice court, and the district court gave judgment for the debt upon the principle that, having obtained authority over the suit, the court will retain it for the purpose of administering such relief as the pleadings and the evidence show the parties entitled to, although it would not have entertained jurisdiction of the debt as an original action in that court. Willis v. Gordon, 22 Tex. 241; Stein v. Frieberg, 64 Tex. 273; Hale v. McComas, 59 Tex. 486; Seymour v. Hill, 67 Tex. 385, 3 S. W. 313. We can see no difference in principle between this case and the cases in which the amount in controversy was reduced by proof below the jurisdiction of the court, but jurisdiction was retained, nor the other class of cases in which the court, having acquired jurisdiction by the issuance of the writ of injunction, entered judgment for a sum less than $500. The practice which was inaugurated by the former decisions involves litigants in much

COUNTY COURTS-JURISDICTION-INJUNCTION -AMOUNT IN CONTROVERSY-PLEA IN RECONVENTION-AIDING PETITION.

1. Under Const. art. 5, § 16, giving the county courts jurisdiction in civil cases when the amount in controversy exceeds $200, and does not exceed $1,000, and giving them authority to issue writs of injunction, etc., a county court had no jurisdiction to grant an injunction restraining the opening of a county road through petitioner's land, where the petition contained no allegation as to the value of the subject of the controversy.

2. Where a petition for an injunction filed in a county court failed to state the value of the subject of the controversy, a plea in reconvention by defendant claiming $500 damages from plaintiff could not aid the petition so as to give the court jurisdiction to grant the writ.

Certified questions from court of civil appeals of First supreme judicial district.

Suit by Henry Wischkemper against A. Dlugosch, county road overseer, De Witt county intervening as defendant. From a judgment of the county court in favor of plaintiff, intervener appealed, and the court of civil appeals certifies questions to the supreme court. Questions answered.

Geo. J. Schleicher, for appellant. Kleberg, Grimes & Baker, for appellee.

BROWN, J. The court of civil appeals for the First supreme judicial district has certified to this court the following statement and question: "The record in the above-entitled cause now pending on appeal to this court shows that: On April 30, 1901, Henry Wischkemper, the appellee, brought suit in the county court of De Witt county against A. Dlugosch as road overseer of the Yorktown and Helena road to enjoin him from opening up a road for the use of the public over the land of the said Wischkemper. Plaintiff alleged that the said Dlugosch, as road overseer, threatened to and was about to open a road over and across his land and premises upon a certain defined line, claiming that the De Witt county public road, extending from the town of Yorktown, in De Witt county, to the town of Helena, in Karnes county, of which the said Dlugosch was road overseer, was unlawfully obstructed by the plaintiff; and alleged that said road did not extend over the land and premises of plaintiff, as claimed by said Dlugosch. The plaintiff further averred, ‘If the said Dlugosch is not restrained from so entering upon his (petitioner's) said land, that great and irrep