tion subject to the objection defendant has lodged against it. The facts embraced within its hypotheses were constitutive of the plaintiffs' case, and within the limits of the issues made by the pleadings, and hence it was not an improper expression of the law.

The defendant further insists that the court erred in refusing its instruction "A," but as the rule there declared in respect to special damages as distinguished from those which were general in the locality was fully and clearly embraced in the enunciation of other instructions (2, 3, and 4) given for it, there was no impropriety in refusing it.

In view of all the evidence before us, we cannot think the amount of damages found by the jury was excessive, or that there is any just ground of complaint on that account.

Several other exceptions taken to the action of the court during the progress of the trial have been called to our attention in the brief of defendant's counsel, but it is sufficient to say that an examination of them has not led us to the conclusion that the action of the court in respect thereto was erroneous. The judgment will accordingly be affirmed. All concur.

EGAN v. MARTIN et al. (Court of Appeals at Kansas City, Mo. Jan. 5, 1903.)

DEEDS BREACH OF COVENANT-HOLDING ON FORMER APPEAL-RES JUDICATA-RESTRICTION OF POWER OF ALIENATION-DAMAGES -EVIDENCE.

1. A holding on an appeal in an action for breach of covenant of title that it was error to refuse to instruct that, if the deed conveyed only the title to an undivided one-half of the ground described, then the plaintiff was entitled to recover the reasonable value, not exceeding the purchase price of the undivided half not conveyed, did not limit the inquiry on a subsequent trial as to the value of the ground itself, without reference to its value as affected by a condition in the deed restricting the power of alienation.

2. In an action for breach of covenant of title in a deed containing a condition restrict ing the power of alienation, evidence as to the value of the land subject to such restriction was admissible on the question of damage.

Appeal from circuit court, Chariton county; W. S. Stockwell, Special Judge.

Action by Eva C. Egan, administratrix of James A. Egan, deceased, against Thomas J. Martin and another. From a judgment for plaintiff, defendants appeal. Reversed.

W. W. Rucker and Kinley & Kinley, for appellants. H. K. West and O. F. Smith, for respondent.

BROADDUS, J. This case has been before this court on two former occasions, and will be found reported in 71 Mo. App. 60, and 81 Mo. App. 676. The action is for breach of warranty contained in a deed from defendants to James C. Egan. Since the case was aast reported, said Egan has died; the cause being revived in the name of the plaintiff

herein as his administratrix. A statement of the principal facts of the case is set out in the opinion of Judge Smith in 71 Mo. App., supra. On the first appeal the cause was reversed for the reason that the court refused to give the following instruction in behalf of the plaintiff, viz.: "If the deed from the defendants to the plaintiff conveyed only the title to an undivided one-half of the ground described in said deed, then the plaintiff is entitled to recover in this case the reasonable value, not exceeding the purchase price, of the said undivided half of said ground owned by said Warren Lodge, with interest thereon at the rate of six per centum per annum from February 8, 1893." On the second appeal the cause was reversed because the trial court found for the defendants on the ground that they had good title by adverse possession; this court holding that, upon the facts as shown by the record, certain admissions made by the defendants since the commencement of the suit precluded them from such defense. On the last trial, now being reviewed, certain other questions were injected into the case, that were not gone into on the two former trials. It is to the action of the court on these additional matters that the defendants claim that the court committed prejudicial error. The plaintiff, however, insists that all such questions were res adjudicata. But as they all relate to the measure of plaintiff's damage, it will be seen hercafter that plaintiff is in error in that respect.

For a complete understanding of the questions involved, it is indispensable that a copy of the material parts of the deed from John Cunningham and wife to the Masonic lodge be inserted in this opinion, which is as follows: "Witnesseth, that the said parties of the first part, for and in consideration of the sum of seven hundred dollars to them in hand paid by the said parties of the second part, receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell, and convey unto the said parties of the second part and their regular successors, forever, subject to the conditions and covenants hereinafter mentioned, the following described real estate, to wit: The undivided one-half part of twenty feet fronting on Bridge street, and running back the full depth of the lot, on the east side of lot No. (1) one in block No. (1) one, in Reddings addition to the town of Keytesville, Chariton county, state of Missouri, to have and to hold said real estate, subject to the covenants and conditions hereinafter mentioned, together with the improvements thereunto belonging, unto the said parties of the second part, and to their regular successors and assigns, forever. And the said parties of the first part, their heirs, executors, administrators, and assigns, and the said parties of the second part, and their regular successors and assigns, covenant and agree to and with each other that the said parties of the second part, and their regular

successors and assigns, shall have the exclusive right to use, possess, occupy, enjoy, rent, lease, convey, or otherwise dispose of in any manner whatever, all of the second story of the building now situated upon said lot hereinbefore described, free from the claim, right, trouble, molestation, suit, hindrance, or interruption of the said parties of the first part, their heirs, executors, administrators, and assigns, or any other person or persons claiming or to claim by, from, or through them, or any of them, and that the said parties of the second part, and their regular successors or assigns, shall, at their own cost and expense, make such additions, alterations, and repairs as they may deem necessary to said second story, including the roof of said building, and that the said John F. Cunningham, his heirs, executors, administrators, and assigns, shall not be chargeable, either in law or in equity, with any portion of the expense incurred by reason of any additions or alterations or repairs that may hereafter be made to said second story or to the roof of said building. And that said parties further covenant and agree to and with the other that the said John F. Cunningham, his heirs, executors, administrators, and assigns, shall have the exclusive right to use, possess, enjoy, occupy, rent, lease, convey, or otherwise dispose of in any manner whatever, all of the first story of said building, free from the claim, right, trouble, molestation, suit, hindrance, or interruption of the said parties of the second part, their regular successors and assigns, and that all additions, alterations, improvements, and repairs done by said Cunningham, or by any person or persons claiming under him, shall be at his or their cost and expense, and that said Warren Lodge. No. 74, or any person or persons claiming under said lodge, shall not be held liable for any expense incurred by reason of any such addition, alteration, improvements, or repairs made to said first story of said building; and it is further covenanted and agreed by and between said parties of the first part, their heirs, executors, administrators, and assigns, and the said parties of the second part and their regular successors and assigns, that partition of said described real estate shall not be made between the parties, or any of them, or between any persons claiming through or under any or either of them, until such time and upon such terms as the parties then owning said real estate shall mutually agree upon. And the said parties further covenant and agree that the said parties of the first part, their heirs, executors, administrators, and assigns, and that the said parties of the second part, their regular successors or assigns, or any person or persons holding under, by, or through them, or either of them, may at any time convey the fee-simple title to such undivided interest as said parties, or either of them, may have in and to said described real estate, and appurtenances thereto belonging, and that such conveyance or

conveyances shall not invest the purchaser or purchasers with any other or greater title and interest in and to said described premises than such as are held and enjoyed by the original parties, respectively, under this conveyance."

It was the contention of defendants that certain conditions in said deed, which were binding upon both the said lodge and upon the grantor, Cunningham, from whom defendants claim, were material elements, which should be taken into consideration by the court in ascertaining the value of the ground which was to be the measure of plaintiff's damages upon the covenants of warranty of title; and with that view they propounded the following questions to a witness of the plaintiff: "Mr. Chapman, what is the value of that lot of ground in controversy, subject to the right of Dr. Egan to use those premises and maintain a building thereon forever?" "Mr. Chapman, knowing the relations of the lodge to the owner of the lower room of the building on that lot as you do know it, I will ask you to state if, in your judgment, the one-half interest claimed to exist in the lodge is worth $300?" "With the limitation in the deed that the lodge claims under, and the only deed that it can claim under, providing that neither party shall partition the lot without consent of both the owners of the upper story and the lower story, what difference, in your judgment, does that make in the value of the land?" Plaintiff's counsel objected to each one of these questions, which the court sustained. It seems, from an expression of the court while passing upon the competency of the proposed inquiry, that it entertained the opinion that the holding of this court in the case on the first appeal limited the inquiry as to the value of the ground itself, without reference to its value as affected by the conditions of the deed referred to. And it is the contention of the plaintiff, as stated, that the questions presented were res adjudicata. An examination of the instruction which this court held should have been given does not warrant such construction. It was general in its nature, and it was not intended to limit the evidence to the value of the ground merely as such, but it must be taken as meaning the value of ground as affected by the character of the title. It is apparent that the ground itself would be worth more without restriction upon the power of alienation than with such restriction. The deed in ques-tion provides against partition, except upon such terms and at such a time as may be mutually agreed upon by the grantors and grantees. As it appeared upon the face of the deed that there could be no partition of the property, except as stated, and the court: would, as a matter of common knowledge, know that the estate would be worth less than an unconditional estate, it was a pertinent inquiry to ascertain what its value was as it thus stood. The court, by refusing to allow the witness to answer the questions propounded,

prevented defendants from introducing evidence tending to prove the real damage plaintiff had sustained by reason of the broken covenants of their deed. All of said questions were proper for the purpose stated, because they all had reference to conditions in the deed that tended to impair the value of the estate in the land in controversy.

All other questions raised by the appellants are matters that have been adjudicated in former appeals, and are therefore not open for further controversy.

For the error noted, the cause is reversed and remanded. All concur.

PEOPLE'S SAV. BANK v. GORDON et al. (Court of Appeals at Kansas City, Mo. Jan. 5, 1903.)

WRIT OF ERROR-DEFECTIVE ABSTRACT-EQUITY-EVIDENCE-REVIEW.

1. Where the abstract filed by the plaintiffs in error is not of the entire record, as required by Rev. St. 1899, § 813, and does not set forth the substance of the petition, or of the instruments and records given in evidence, or show whether the recitals in respect to the filing of the motion for new trial were taken from the record proper or from the bill of exceptions, or whether the rulings of the court on such motion were preserved by the bill of exceptions, such abstract is not sufficient to warrant an investigation of the alleged errors of the trial court, and the writ of error should be dismissed.

2. In an equity case the evidence cannot be reviewed unless all of it, or its substance, has been preserved by a bill of exceptions.

Error to circuit court, Livingston county; J. W. Alexander, Judge.

Action by the People's Saving Bank against Mary J. Gordon and others. From a judgment for plaintiff, defendants bring error. Writ of error dismissed.

Scott J. Miller and L. H. Waters, for plaintiffs in error. Sheetz & Sons, for defendant in error.

PER CURIAM. The plaintiffs in error have failed to file an abstract of the entire record, as required by the statute. Rev. St. 1899, § 813. The petition on which the case was tried is not therein set forth, nor is it epitomized. It is true that it is therein stated that the "plaintiffs filed an amended petition making Mary Gordon and Liston Gordon, her guardian, and Chesterfield Gordon, the owner and holder of said deed of trust, parties defendant, and asking that said Chesterfield Gordon be paid the amount found due him on his deed of trust, and that three-fourths of the residue be paid to plaintiff and one-fourth to Mary J. Gordon." It does not appear that the allegations of the amendment were in other respects the same as those of the original petition, but, if it was so stated, the substance of the original petition is not set forth so that the nature and extent of its allegations can be ascertained. The deeds, the will, and the pleadings and judgment in the suit

to set aside said will, which it is stated were all given in evidence, are neither set out in hæc verba nor in substance. It appears that a bill of exceptions was allowed, signed, and filed, but it does not appear whether the recitals in respect to the filing of the motion for new trial were taken from the record proper or the bill of exceptions; nor does it appear whether or not the rulings of the court in disposing of the motion were preserved by the bill of exceptions. This meager and defective abstract is not sufficient to warrant an investigation by us of the alleged errors of the trial court. It would be unsafe to do so. And, besides this, it is alleged that the case is one in equity, and, that being so, we cannot review the evidence unless all of it, or its substance, had been preserved-as it has not-by a bill of exceptions so as to make it a part of the record.

We are unable to discover any reason why the plaintiff's motion to dismiss the writ of error should not be sustained, which will be ordered accordingly.

CRAWFORD v. DIXON et al.

(Court of Appeals at Kansas City, Mo. Jan. 5, 1903.)

FRAUD-APPEAL EVIDENCE.

1. Though the appellate court, on appeal in a suit to set aside on the ground of fraud allowances of claims against an estate, may determine the case for itself, yet, the evidence being largely from the mouths and conduct of witnesses, it is privileged to be largely influenced by the finding of the trial judge.

2. The evidence in a suit by a judgment creditor of one of the children and heirs intestate to set aside on the ground of fraud allowances of claims of the other children against the estate exceeding the value of the estate, held sufficient to sustain a finding of fraud.

Appeal from circuit court, Cedar county; D. P. Stratton, Judge.

Proceeding by Mollie Crawford against Delphia Dixon and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. P. Veerkamp, J. E. Stephens, and Rechow & Pufahl, for appellants. Cole & Burnett and W. W. Younger, for respondent.

ELLISON, J. This proceeding is to set aside certain allowances against the estate of Zimri Dixon in the probate court of Cedar county as having been procured by fraud, and to set aside an order for the sale of lands to pay such allowances, and to restrain the defendants from taking any steps to subject said lands to the judgment of such allowances. The decree was for the plaintiff, whereupon the defendants appealed to the supreme court, which court transferred the case here on the ground that it had no jurisdiction.

Zimri Dixon died in September, 1895, leaving several children (all of age) and a widow. Four of these children and the widow are all

that figure in this controversy. They are America, the widow, Delphia, a daughter, and George, Lincoln, and Lewis, three sons; Lewis at the time of the trial being 26 years old, and the youngest. The estate left consisted of between 200 and 300 acres of land. There was no will, and, if we except the matters here in controversy, there were no debts. In June, 1896,-the year following his death, -the widow applied for letters of administration on the estate, and they were granted in July. Prior to this the son Lewis got into trouble with this plaintiff, a young woman, and on March 18, 1896, she sued him, in the Cedar county circuit court for breach of promise of marriage, for $3,000, and recovered judgment for that sum in October following. Thereafter she caused an execution to issue on such judgment and levied upon said Lewis' one-eighth interest in the lands so left by his father, and had the same sold, she becoming the purchaser. It appears that George, Lincoln, and Delphia never left the family home, continuing, with their father and mother, as members of the family, and that Lewis, though at home some, was away at school a part of the time. The record does not disclose clearly what became of the other children, and they do not appear in the controversy. Between taking out letters of administration in July and this plaintiff's judgment against Lewis in October, George, Lincoln, and Delphia presented claims to the probate court against the estate for five years' services in labor and work performed for their father; George's account including a sum for building a house on the farm. These claims aggregated a sum more than the value of the estate, and. if sustained, will effectually cut out this plaintiff in her effort to make the amount of her judgment against Lewis. The substance of plaintiff's charge is that the claims are spurious, and were concocted for the purpose of defeating her judgment. At the trial there was evidence submitted in behalf of the defendants George, Lincoln, and Delphia tending to prove that they had performed services in doing farm work for their father, and that George had built a house on the farm; that Delphia had aided in the housework; and that all of it was done on the promise of the father that they should be paid for it. Each of them and their mother denied any collusion or fraud. And the probate judge before whom their claims were allowed disclaimed any knowledge of fraud or collusion, and there is nothing in the case to show that he had. On the other hand, there are strong circumstances appearing in the case sufficient to excite grave suspicion as to the claimants, and to these is added some direct evidence bearing on the controversy, sufficient, it seems, to lead the trial judge to conclude, after mature deliberation, that the claims were not honest ones, and that they had been allowed by collusion between the parties. While in a case of this character we may determine it for ourselves,

yet, when the evidence is largely from the mouths and conduct of witnesses, we are privileged to be largely influenced by the finding of the trial judge. King v. King, 42 Mo. App. 454; Snell v. Harrison, 83 Mo. 651; Sharpe v. McPike, 62 Mo. 300; Cox v. Cox, 91 Mo. 71, 3 S. W. 585. It is remarkable that the deceased, a man who avoided debts, should allow his whole estate to be eaten up by the labor of three of his children; that nothing was ever paid them, and no account kept, and no direction left as to their claims or their payment. No administration seems to have been thought of until after this plaintiff had begun her suit for breach of promise, but, on the other hand, a suit for partition of the lands between the heirs had been filed. The claims of the two sons and the daughter were each for five years (it was stated that limitations had run against any further claim), and each was a witness for the other in proving them. The widow waived notice of presentation, and the claims were put through, the probate judge testifying that there was "no fight." They were all represented by the same attorney. A full understanding of the evidence shows that this attorney had charge of the whole affair from the beginning. He was Lewis' counsel in the breach of promise suit. He saw to the widow's appointment as administratrix. He made out the application for her in her absence. He went out to the farm, and wrote up the inventory and appraisement. He stated in testimony that he did this to accommodate Mrs. Dixon. He waived service of notice as attorney for Mrs. Dixon, thus appearing to represent both sides. He stated in testimony that he did not represent Mrs. Dixon, and that his name came to be on the back of the claim by his showing her how the waiver could be made; that, when his attention was called to it in court, he had his name erased, and her own counsel to sign his instead. Yet the probate judge testified that his record showed this attorney waived notice of presentment and demand, and that his recollection was that "he started in as attorney for the administratrix, and probably in this claim waived notice for the administratrix as attorney"; and that "it seems to me I heard something said that one attorney could not act very well for both sides, but I do not remember what it was now." rate, the beginning of the trial was arrested at that point, and another attorney then appeared for the administratrix. He could not say who employed him. He, with Mrs. Dixon's approval, then and there signed her name to the waiver. He, however, stated that he had consulted with Mrs. Dixon before, and there is nothing to show that he had anything to do with the matter other than what an attorney not aware of any collusion might properly do. No subpoenas were issued for witnesses, and those outside the family who appeared were the same in all Yet the claimants stated they did not

cases.

At any

know who the witnesses for the other would be, and that they had not talked with one another about their own claims, or how much they would be. It seems that Mrs. Dixon waived her dower rights, and elected to take a child's part. She could have had dower free from these claims, and thus secured herself a home; but instead she accepts that which must be taken from her if these claims are allowed to stand as valid against the estate. It is a strange circumstance of selfsacrifice, and is urged by plaintiff as a link in the chain of her charge of fraud and collusion. It was also shown in this connection that when the attorney aforesaid was returning from the farm where he had been assisting Mrs. Dixon in inventories and appraisements, he stated, in answer to a question from the justice of the peace who was called upon to take Mrs. Dixon's release of dower in the estate, why she was doing so; and he answered that "the boys had been working there a good while, and that they were going to probate the claim against the estate, and sell it, and buy it in to keep that Crawford woman [plaintiff] from getting any of it." Defendants' abstract shows this was objected to, but plaintiff has filed an additional abstract wherein it is stated that it was not. We have not pretended to set out all the evidence heard. There were many circumstances against the honesty of defendants' claims, yet we concede that they each stoutly maintained that the amounts claimed by them were fair, and were justly due. But we have concluded, after a full examination of the record and argument in briefs and at the hearing, to defer to the finding of the trial judge. The principles of law governing cases of this nature are well settled, and the authorities will be found in the briefs of the respective counsel.

There are some technical points stated by defendants in their brief; among them that there was a defect of parties, that the petition did not state a cause of action, and that plaintiff had a complete remedy at law. We have concluded that these contentions are not well founded at this time. See authorities in plaintiff's brief. But, however that may be, defendants have stated that they prefer not to rest their case on such grounds, and ask the court to decide it upon its merits. The judgment is affirmed. All concur.

Appeal from circuit court, Schuyler county; Nat M. Shelton, Judge.

Suit by William Magee against W. H. Verity and others. Decree for plaintiff. Defendants appeal. Reversed.

Fogle & Eason and Jno. D. Smoot, for appellants. Higbee & Mills, for respondent.

ELLISON, J. This is a proceeding in equity to cancel a note and deed of trust, and restrain a sale thereunder. The decree in the circuit court was for plaintiff. Plaintiff became a member of the Missouri Guarantee Savings & Building Association, which company afterwards made an assignment, and defendant Verity was made assignee. Plaintiff borrowed of such association $400, giving his note, containing a contract that plaintiff was to pay the association on the 20th of each month $2 on his stock, $1.60 for premium and preference in the loan, and $2.40 interest; making a total of $6 per month. The interest charge, together with the charge made for preference of loan, exceeded the rate allowed by law. Therefore, if it be true, as the evidence tended to show, that there was no competitive bidding for preference of loan, the statute on building and loan associations in force at date of loan will not protect the loan from the vice of usury. Brown v. Archer, 62 Mo. App. 277, and like cases since decided. And assuming that plaintiff's calculations of amounts paid were correct, he would be entitled to a cancellation of the note and deed of trust, unless for the following consideration: Defendant charges, by answer, that after the note aforesaid had been running for a long space of time, and many payments had been made, there was a settlement in writing between plaintiff and the assignee aforesaid, wherein the note and all payments made by plaintiff, and all profits due him, were adjusted, and a new obligation entered into by plaintiff; thus bringing the case within the rule laid down in State v. Stockton, 85 Mo. App. 477; Cover v. Association, 93 Mo. App. 302. In those cases the rule is stated, and the reason given therefor, that if a borrowing member of a building and loan association, who has taken a loan outside the protection of the statute, and thereby infected with usury, afterwards makes a settlement with the association, and takes to himself a part of the money earned by his and other contracts, he is bound by it. But conceding such to be the law, plaintiff charges that the settlement did not contain the contract between the parties, and was also obtained by fraud, and is therefore not binding on him. He contends that, even though the settlement was not obtained by fraud, yet he had a right to show that it did not contain the contract between the parties. and cites Wright v. McPike, 70 Mo. 175, in support of his assertion. That case sustains plaintiff's position, but it has been lately overruled by the supreme court, and declared