substituted for it. Bush, 528.

Goheen v. Myers, 18 B. Mon. 426; Clark v. McKenzie, 7

The county court was not required to defer the exercise of its judgment, as to the right of the appellee to maintain the proceeding, until a jury had passed upon the issues raised by the exceptions. Indeed, it was proper that he should not do so. If this were required, it would often result in useless trouble and expense to the parties. Take the case of the condemnation of land for a road. The viewers file their report; and we will suppose that it is excepted to because they were not sworn, or were not qualified, or because the report does not describe the route. Certainly a writ of ad quod damnum should not issue until all such preliminary questions are settled. Again, a party has a right to demand a jury in certain cases; and as well might it be held that they must pass upon the issues of fact presented, although there may be many reasons, such as capacity to sue, etc., why the court must dismiss the action. It results that the demurrer to the petition should have been sustained for the reason above indicated.

There is another one, however, why mandamus will not lie in this instance. The appellee had a right to appeal. The sixth section of the act of April 11, 1882, (cited supra,) provides: "Either party may appeal to the circuit court, or other court of similar jurisdiction of the county, within thirty days, and the appeal shall be tried de novo.” This right existed, whether a jury determined the issues of fact, or whether the court dismissed the proceeding upon a legal issue. An appeal is from the judgment of the court, and not the verdict of a jury. If an inferior court dismisses a warrant or an action without a trial upon the merits, or the intervention of a jury in a case where one is allowable, yet the party may appeal, and have the action tried de novo. Here the commissioners had filed their report as to the value of the land and the damages, and the record was complete for such a purpose.

Mr. High, in his work above cited, (section 177,) says: “In all cases where full and ample relief may be had, either by appeal, writ of error, or otherwise, from the judgment, decree, or order of the subordinate court, mandamus will not lie, since the courts will not permit the functions of an appeal or writ of error to be usurped by the writ of mandamus. Indeed, the interference in such cases would, if tolerated, speedily absorb the entire time of the appellate tribunals in revising and superintending the proceedings of inferior courts; and the embarrassment and delay of litigation would soon become insupportable were the jurisdiction by mandamus sustained in cases properly falling within its appellate powers of the higher courts. It may therefore be laid down as the universal rule prevailing in both England and America that the existence of another remedy adequate to correct the action of the inferior court will prevent the relief by mandamus." See, also, the case of Goheen v. Myers, supra.

It is too well settled to need the citation of further authority that mandamus will not lie where the party has any other adequate remedy, such as the right of appeal, to correct the supposed grievance.

The judgment is reversed, with directions to sustain the demurrer to the petition, and dismiss the action, with a judgment for the appellant's costs.

HARBISON and others v. SANFORD.

(Supreme Court of Missouri. January 31, 1887.)

EXECUTORS AND ADMINISTRATORS -
PARTIES-PROVING DEBTS.

SALE OF LAND AND DISTRIBUTION OF PROCEEDS

In an action for the sale of real estate of a decedent, and the distribution of the proceeds among his heirs, it appearing that one of the heirs had mortgaged his interest, and the mortgagee was dead, held, his administrator was a necessary party; and a creditor who was a party, and not objecting to the failure to make the ad

ministrator a party, or excepting to the decree directing the land to be sold, could not set up his debt for the first time by objecting to the order distributing the proceeds of sale among the heirs.

Appeal from circuit court, Cape Girardeau county.

This action was brought to partition the real estate of John C. Harbison, deceased, among his heirs. One of the heirs had conveyed his undivided interest to appellant, Linus Sanford, in trust to secure a debt due Nathan Van Horn. Van Horn was dead, but his administrator was not made a party to the action, though his heirs and Sanford, as trustee, were made parties. The court adjudged the land to be sold, and upon the filing of the report of sale ordered the interest of Van Horn to be paid over to his heirs. To the order of payment Sanford objected and excepted, claiming that by contract with Van Horn he was to have for his fee as attorney in securing and collecting the debt one-fourth of the amount, and that the entire interest of Van Horn should have been ordered paid over to him as trustee, as there was no administrator of Van Horn's estate. But the court overruled his exceptions, and

Sanford appeals.

Marshall Arnold, for respondent. Linus Sanford, for appellant.

BLACK, J. This was a suit for the partition of real estate among the heirs of J. C. Harbison, and Linus Sanford, who had acquired the interest of Darwin Harbison. The interest of J. H. R. Harbison was incumbered by a deed of trust which he had made to Sanford as trustee to secure a debt to Nathan Van Horn. The heirs of Van Horn were made parties, and the proceeds of this deed of trust were ordered to be paid to them and their assignees, and of this order Sanford, who is the only appellant, complains on the ground that he was a creditor of the Van Horn estate.

The petition sets out the deed of trust, and alleges that Van Horn died leaving three heirs, two of whom had assigned their interests in the debt to one of the plaintiffs, and that all of the debts of that estate had been paid. Appellant, in his answer, refers to this deed of trust, and states that by contract with Van Horn he was to have for fees as attorney in securing and collecting the debt the one-fourth of the amount realized. The decree, in stating the interests of the parties, finds that John H. Harbison, one of the plaintiffs, is entitled to two-thirds of the debt, and that Mrs. Dickerson is entitled to the other one-third. There is a judgment that partition be made according to the interests of the parties as found, and to that end a sale of the premises is ordered. No exceptions whatever were made to the decree; but at a subsequent term, when the sheriff's report of sale came on for approval, appellant suggested that the estate of Van Horn was indebted to him, and objected to the disbursement of the avails of the deed of trust, which objections were overruled, and from that ruling he appealed.

The beneficiary in a deed of trust to secure the payment of a debt is a proper party to a suit for partition of the land. This conclusion was not stated in Yates v. Johnson, 87 Mo. 213, because not necessary to a disposition of that case, but it results from what is there said. As Van Horn was dead, his administrator, in a regular course of proceedings, should have been made a party to the suit. An administrator could have been appointed at the instance of the heirs, or the appellant, if he was a creditor; and, when appointed, could have been made a party to the suit at any time before final judgment. Parkinson v. Caplinger, 65 Mo. 292. The final judgment is the approval of the sale or report of the commissioner, as the case may be. Murray v. Yates, 73 Mo. 14. Had that been done, the court could and doubtless would have ordered the money paid to him. Langham v. Darby, 13 Mo. 556. But, instead of pursuing this course, or making any such suggestion to the court, the appellant made the specific issue that he was entitled by contract to the one-fourth of the proceeds realized. That issue was fairly adjudged against him, and of

that finding he does not complain. He chose the method in which he would test his right, and he ought to be held to abide the consequences. Again, when he changed the form of his demand from a claim to a specific interest in the fund to a general indebtedness of the Van Horn estate to him, the court heard the evidence. The services were rendered some 12 or 13 years before the commencement of this suit, and the court evidently found that he had no subsisting demand against the estate, and with that finding we are satisfied. There is no claim that the estate is otherwise indebted, and substantial justice requires that this judgment should be affirmed; and it is so ordered.

(All concur.)

HUBBELL and others v. ALLEN and others.

(Supreme Court of Missouri. January 31, 1887.)

FRAUDULENT CONVEYANCE-MORTGAGOR RETAINING POSSESSION.

A stipulation in a chattel mortgage that the mortgagor shall remain in possession, with power to sell and apply the proceeds, not for his own benefit, but to pay off the mortgage debt, does not render the mortgage fraudulent or void.1

Appeal from circuit court, Barry county.

A. H. Wear and W. C. Price, for respondents. N. Gibbs, Thos. N. Allen, and Alfred Gensel, for appellants.

BLACK, J. This was an action of replevin. The record discloses the following facts: John T. Horner owned two small drug-stores, one at Cassville, and the other at Exter, villages some four miles apart. He made two mortgages on the Cassville stock, fixtures, and furniture,- -one to secure a debt due to the plaintiffs, Hubbell & Co., and the other to secure a debt to the defendant Amos Horner. The mortgage to Amos Horner was acknowledged and recorded on the sixteenth, and that to the plaintiffs on the twentieth January, 1882. About the same time he made two mortgages on the Exter store,‚—one in favor of defendant Pilant, and the other to defendant Rebstock. The mortgagor then removed the Cassville store to Exter, and there combined the two stocks. Shortly after this, the defendants, acting together, and with the consent of the mortgagor, took possession of the combined stocks, and were proceeding to make their debts, which are conceded to be just and unpaid, when the plaintiffs commenced this suit, and under the order of delivery got possession of all of the property, and for which they recovered judgment on a trial by the court without a jury.

It is clear the judgment must be reversed, for the plaintiffs do not claim the property save by virtue of their mortgage, and that covered no part of the Exter stock, furniture, or fixtures, and as to that property the defendants should have prevailed.

Amos Horner's mortgage upon the Cassville store was prior to the plaintiff's mortgage on the same property. Unless the Amos Horner mortgage was for some reason invalid in whole or part, the plaintiffs were not entitled to recover any part of that stock, furniture, or fixtures. We cannot see from the record before us that the validity of that mortgage was questioned in the trial court, and no such question is urged here. Indeed, the respondents make no appearance in this court. The defendants insist that the plaintiffs' mortgage is fraudulent on its face, and an instruction to that effect was refused. The mortgage contains this provision: "I, the said J. T. Horner, hereby bind myself, in consideration that I am to keep the possession of said drugs and medicines, fixtures and furniture, for the purpose of seiling and paying said in

1 As to the validity of chattel mortgages providing that the mortgagor may remain in possession of the mortgaged property, see Hisey v. Goodwin, (Mo.) 2 S. W. Rep. 566, and note; Fisher v. Syfers, (Ind.) 10 N. E. Rep.

debtednesss, to keep strict account of sales," etc. "If the two payments provided for are not made at the times stated, then the mortgagee has the right to take possession."

If it appears upon the face of a chattel mortgage that the mortgagor is to retain possession, and have the power to sell and dispose of the property in the course of his business for his own benefit, then it is fraudulent as to creditors and purchasers, because made to the use of the mortgagor, and the courts will so declare as a matter of law, without regard to the intention of the parties. Bullene v. Barrett, 87 Mo. 186; White v. Graves, 68 Mo. 218; Weber v. Armstrong, 70 Mo. 217; Lodge v. Samuels, 50 Mo. 204. But it was held in Metzner v. Graham, 57 Mo. 404, that a stipulation whereby the mortgagor was to remain in possession, with authority to sell, by applying the proceeds of sales to the payment of the secured debt, did not render the mortgage fraudulent on its face, for the power to sell was not for the use of the mortgagor. So here the authority to sell is expressed to be given for the purpose of paying the secured debt, and to that end a strict account of sales is to be kept. The present case does not come within the rule first stated, but is in all material respects like that last cited. The instruction was therefore properly refused.

The judgment is reversed, and the cause remanded for trial anew. (All concur.)

ELLIS and another v. KYGER.

(Supreme Court of Missouri. January 31, 1887.)

1. DEED-CONDITION-CONSTRUCTION OF RAILROAD.

A conveyance of a tract of land to a railroad upon condition that if the railroad should not be constructed through the tract, and a station established thereon, the deed should be void, is a condition subsequent. As no time was fixed for the performance of the condition, a reasonable time will be allowed; and, the deed having been made in 1865, a reasonable time is held to have long since elapsed. 2. SAME-RE-entry-Dower-Estoppel,

Where land is conveyed upon condition subsequent, mere non-performance of the condition does not divest the grantee's estate, or revest grantor with title, withont re-entry or demand of possession. So where, in such case, the grantor dies after non-performance, but before re-entry, the widow is not entitled to dower. The right of entry descends to the heirs, and a subsequent grantee claiming under deeds from them is not estopped thereby to deny the widow's right of dower. Appeal from circuit court, Johnson county.

W. W. Wood, for appellants. A. Comingo and Sparks & Campbell, for respondent.

BLACK, J. This is a suit for the assignment of dower. One of the plaintiffs, Polly Ellis, and her former husband, Isaac Jacobs, on the thirteenth November, 1859, conveyed to Frederick Billum, in trust for the Pacific Railroad, a parcel of land 1,267 feet in length, by an average width of 500 feet. The deed recites that it is made "upon the condition that if the Pacific Railroad Company shall not construct the said railroad through said tract, or if, when constructed, they shall not establish a freight and passenger station upon said tract, then the conveyance shall be null and void, but otherwise to remain in full force and effect." Isaac Jacobs died in 1863. The railroad was completed to a point beyond the tract of land in question in 1865. There was evidence, the bill of exceptions recites, tending to show that the company failed to perform the conditions in the deed, and evidence to the contrary effect. In 1869, Asa Whitehead procured deeds from some of the heirs of Jacobs, and in that year built a house upon the lots in question, which was destroyed by fire. Neither Jacobs in his life-time, nor his heirs, ever entered or made any effort to recover the property for condition broken. In 1878, Coventry, Cockrell, and Zoll, who had acquired the title of Whitehead and the

other heirs of Jacobs, quitclaimed a part of the premises described in the deed to the trustee, to the railroad company, and the company at the same time quitclaimed the residue to them, from whom defendant acquired his title. The trial court gave an instruction that upon the evidence the plaintiff could

not recover.

That the conditions in the deed for the construction of the railroad through the land therein described, and the establishment of a freight and passenger depot thereon, were conditions subsequent, is too clear to call for the citation of authorities. The trustee became seized of the premises, though the estate in him continued defeasible until the conditions were performed, waived, released, or barred by the statute of limitations or by estoppel. As no time was fixed within which the conditions were to be performed, the law would allow the company a reasonable time. 2 Washb. Real Prop. (4th Ed.) 11. Since the railroad was completed to a point beyond the land in question in 1865, a reasonable time has long since elapsed; and we must assume, under the instructions given, that the company has failed to perform the stipulations in the deed to the trustee.

It is well settled that an action of ejectment may be maintained by the grantor or his heirs for condition broken, without any entry or demand of possession. Austin v. Cambridgeport Parish, 21 Pick. 215; Plumb v. Tubbs, 41 N. Y. 442; Cowell v. Springs Co., 100 U. S. 55. Our statute with respect to actions of ejectment leads to the same conclusion. Sections 2240, 2247, Rev. St. 1879. But it is equally well settled that non-performance of the condition alone does not divest the estate. Performance of the condition may be waived; and the estate continues in the grantee after the breach, until he who has a right to insist upon performance elects to declare å forfeiture. The estate continues, with its original incidents, until entry, or some act equivalent to it. 4 Kent, Comm. 127; 2 Washb. Real Prop. (4th Ed.) 12; 1 Smith, Lead. Cas. (8th Ed.) 130; Memphis, etc., R. Co. v. Neighbors, 51 Miss. 412; Kenner v. American, etc., Co., 9 Bush, 202; Knight v. Railroad Co., 70 Mo. 231.

The grantee in the deed of trust, therefore, continued to be the owner of the premises at and after the death of Jacobs, who was not seized at any time after the delivery of the deed. A widow is entitled to be endowed in all the lands of which her husband, or any person to his use, was seized of an estate of inheritance at any time during the marriage, to which she shall not have relinquished her dower. Section 2186, Rev. St. 1879. As the plaintiff here relinquished her dower by deed duly acknowledged, and her husband did not enter for condition broken, and was therefore not seized of the premises in dispute at any time after the delivery of the deed, it would seem to follow that the plaintiff is not entitled to dower. Washburn says: "It is enough that the husband had a seizin in law, with the right to an immediate corporal seizin. If it was not so, it might often be in the husband's power, by neglecting to take such seizin, to deprive his wife of her right to dower." 2 Washb. Real Prop. (4th Ed.) 215. But here the husband made no entry, nor was he seized in law. The same author, in the same connection, says: "If, at common law, the husband had not, during coverture, anything more than a mere right of entry, or of action to obtain seizin, it would not be sufficient to entitle his widow to dower." The mere right of entry upon lands was not sufficient to give dower. 1 Scrib. Dower, 243. If the husband dies before entry in a case of forfeiture for condition broken, his wife is not dowable, because he had no seizin, either in fact or law. 4 Kent, Comm. (13th Ed.) 38. In Thompson v. Thompson, 1 Jones, (N. C.) 431, the court said, by way of illustration: "So where one makes a feoffment upon condition, and dies after condition broken, but without revesting his estate by entry, and afterwards the heir enters and revests the estate, the widow is not entitled to dower."

It results from what has been said, both upon principle and authority, that