Casler may be considered in evidence. That either party may offer any other further and additional testimony on the hearing of this cause, and any further testimony can be offered by either party; and any correction of facts can be made, and all records in case considered in probate and recorder's office."

Martha Reeves took possession of the premises and cultivated the same, and on the 31st day of July, A. D. 1883, married the plaintiff John H. Casler, by whom she had one son, the plaintiff John H. Casler, Jr., who was at the time of the trial aged 7 or 8 years. At the time of her death she was occupying the premises in suit as her homestead with the plaintiffs, and they constituted the family. On the 11th day of February, A. D. 1890, plaintiff John H. Casler joined his wife in a deed of trust on the premises in suit and other lands to secure a note for $360 and interest, on which at her death there was due about $169. Said trust deed specified that on payment of $100 of the principal the premises in suit were to be released therefrom. Said deed of trust was satisfied in full of record July 30, 1894. On the 4th day of February, 1893, there was paid on the principal of said note the sum of $75, which left a balance of principal and interest at that date of $169.20. Forty dollars were paid thereon on June 18, 1890; $55 on August 2, 1890; $35 on principal February 2, 1891, and all interest to February 2, 1893; and the amount paid in full to S. McWilliams on May 14, 1894, was $185.57. Martha Casler died on the 13th day of April, A. D. 1893, leaving a will by which she bequeathed to her husband some checks that were never heard of, and the remainder of her property to the infant plaintiff and her children by the former marriage. Her estate was administered, and the premises in suit, consisting of about 32 acres, and appraised at $250, were sold by her administrator for the payment of debts which had accrued long after her homestead had been acquired by her; and the defendant purchased the same at said sale, and took possession thereof on March 1, 1895, and was in possession at the time this suit was brought. It was admitted "that the monthly rents and profits of the premises are $4.12, and that the plaintiffs have been damaged in the sum of $137.50, for which they shall have judg ment if they recover in this suit." John H. Casler was duly appointed guardian and curator of John H. Casler, Jr. Both parties claim title through Martha Casler,-the plaintiff John H. Casler, as tenant by the curtesy, and also of homestead right for himself and son; the defendant, by virtue of her administrator's deed.

It is claimed by defendant that the curtesy of John H. Casler, Sr., was in the equity of redemption held by his wife, Martha Casler; that the sum of money the land brought when sold, above the debt secured by the deed of trust, was the equity of redemption, and in that John H. Casler had his curtesy,

and not in the land paid for by defendant. But this contention is untenable, under the facts in this case, for the reason that the land was not sold under the deed of trust, but the debt the payment of which was secured by it was allowed against his wife's estate, and classed as other demands; and it makes no difference that the proceeds of the sale of the land when sold by the administrator for the payment of demands allowed against the estate in pursuance of an order of the probate court may have been applied to the payment of this debt, as it in no way affected Casler's rights as tenant by the curtesy. The deed of trust was then satisfied and of no effect. If, however, the land had been sold under the deed of trust, then the curtesy of Casler would have been in the equity of redemption in the sum of money that the land brought in excess of the debt secured by it. Kinner v. Walsh, 44 Mo. 65. But this, as we have seen, was not the case. Casler's wife was seised of the land in question during their marriage, during which time a child, John H. Casler, Jr., was born to them, which created in John H. Casler, Sr., tenancy by the curtesy initiate; and upon her death he became tenant by the curtesy consummate, and entitled to the possession of the land during his life, subject, however, to the deed of trust. And his wife could not by will deprive him of his estate by the curtesy in her lands. Section 8869, Rev. St. 1889; Soltan v. Soltan, 93 Mo. 307, 6 S. W. 95.

It is also insisted that as certain bequests were made to the plaintiff John H. Casler, Sr., by the will of his wife, which he received, he cannot take under the will, and at the same time claim curtesy in her real estate. It is sufficient to say with respect to this contention that it could only operate by way of estoppel, which, in order to be available, must be pleaded. Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Avery v. Railroad Co., 113 Mo. 561, 21 S. W. 90; Price v. Hallett, 138 Mo. 561, 38 S. W. 451.

It is insisted by defendant that the statute only gives a homestead in succession when it is owned by the husband and not by the wife, and therefore John H. Casler, Jr., had no homestead in his mother's land. This precise question was passed upon by the Kansas City court of appeals in Keyte v. Peery, 25 Mo. App. 394; and it was held that if a married woman owned land by general title, occupying it as a homestead, and dies leaving a husband and minor children, there is no provision of law for the continuation of the homestead in either the husband or children; that homestead succession has nothing to uphold it but the force of positive statute law; that instances of homestead secured to a person while living as head of a family, but not carried by succession to family after death, are limited to statutory provisions. So it was held in Richter v. Bohnsack, 144 Mo. 517, 46 S. W. 748, that under the statutes of this state a husband has no homestead in his de

ceased wife's estate, in which he has no curtesy and no legal or equitable or marital interest of any kind. But whether John H. Casler, Jr., had a homestead interest in the land in question is unnecessary to decide, for the reason that his co-plaintiff was tenant by the curtesy, which entitled him to its possession. That a homestead may be sold, by an order of a probate court having jurisdiction, for the payment of demands against an estate, subject to the homestead rights of the head of the family and minor children, while it cannot be sold under attachment or execution against the head of the family during his or her lifetime, was recently decided by this court in the case of Keene v. Wyatt (not yet reported) 60 S. W. 1037. And the same rule applies where the title of the homestead is in the wife, and she dies leaving a husband who is the head of a family, as does where the title is in the husband, and he dies leaving a widow and minor children. Kendall v. Powers, 96 Mo. 142, 8 S. W. 793. The judgment will be modified by striking out the name of John H. Casler, Jr., wherever it appears in the judgment, and in all other respects affirmed.

SHERWOOD, P. J., and GANTT, J., conGANTT,

cur.

McVEY v. CARR.

(Supreme Court of Missouri, Division No. 2. Feb. 12, 1901.)

EJECTMENT-TITLE-ADVERSE POSSESSION

TAX DEED-COLOR OF TITLE.

1. Where the owner of land sold and conveyed by proper description the east half and the northwest quarter of the tract, and afterwards sold the southwest quarter to another person, but in his deed described it as an undivided fourth of the entire tract, the conveyances show that he had parted with his entire interest in the land, and a quitclaim deed of the tract from his heirs conveyed no title or interest.

2. Where a sheriff's deed is not delivered to the purchaser of land sold under a judgment for delinquent taxes, the purchaser acquires no title, even though the sheriff signs a deed.

3. Where defendant entered into possession of land under a quitclaim deed from one who claimed title as purchaser at a sheriff's sale under a void judgment for delinquent taxes, he was in possession under color of title.

4. Where, during a portion of the 10 years necessary to give plaintiff title to land by adverse possession, his only acts of ownership consisted in pasturing the land and paying the taxes thereon, such acts did not constitute such visible, notorious, continuous, and actual possession as is required to give title by the statute of limitations.

5. Where the defendant is in possession of land not under color of title, plaintiff cannot eject him therefrom without showing title and right of possession in himself.

Appeal from circuit court, Livingston county; E. J. Broaddus, Judge.

Action by William R. McVey against Bentley B. Carr. From a judgment for plaintiff, defendant appeals. Reversed.

L. A. Martin, for appellant. Davis, Loomis & Davis, Samuel & Son, and Sheetz & Sons, for respondent.

BURGESS, J. This is ejectment for the possession of the S. W. 4 of the S. E. 4. and the S. E. 4 of the S. W. of section 26, township 57, of range 23, in Livingston county. John Graves is the common source of title. The tract, according to the government survey, contains 88.90 acres. John Graves sold this tract in three parcels. He sold the east half to Robert M. Graham on the 23d day of March, 1869, and the northwest quarter of said tract he sold to the plaintiff, McVey, March 23, 1869, and on the 9th day of January, 1871, he sold the southwest quarter of said tract to James H. Ryan. In the deed to Ryan the land conveyed thereby is described as the undivided one-fourth. By different conveyances and descriptions of the land the parcels conveyed by John Graves to Graham and Ryan passed to William Hamilton and Francis Jacquett, and was sold under a judgment against them for taxes on the land on September 25, 1882, at which sale one Robert S. Moore became the purchaser, but it does not appear that he ever received the sheriff's deed therefor. On the 30th day of September, 1896, Robert S. Moore conveyed by quitclaim deed, for the expressed consideration of $400, the land to the defendant, Bentley B. Carr. The deed was made in correction of a deed made by Moore to Carr on the 19th day of June, 1894, in which the land was incorrectly described, about which time Carr entered into the possession of the land. Plaintiff read in evidence a quitclaim deed from John W. Graves and others to him, dated April 1, 1895, conveying the land in litigation to him, and also a quitclaim deed to the same land from Flavius J. Williams and others to him, dated January 1st. The grantors in these two deeds are heirs of John Graves, deceased. Plaintiff introduced evidence which tended to show that when he got the deed from John Graves in 1869 he immediately took possession of the land, and has been in the possession ever since, paying the taxes thereon; that he used the land and the timber on it, and also used it several years as pasture, and fenced it in the spring of 1890 or 1891, in April or May; that he owned other land south of the land in contest, in section 35, which is inclosed; it is in two pieces; that he had the land in contest fenced, and used it as pasture; that it was inclosed for about seven years; that he had possession of the land until the defendant, Bentley B. Carr, took possession of it about three years ago, some time before the commencement of this suit; that plaintiff had a house built on the land, and a man lived in it as his tenant over a year, and cultivated part of the land; the house was built in 1891 or 1892; that the defendant, Bentley B. Carr, is now in the possession of the land; that the plaintiff

had the land inclosed, and a man living on it, four years before Carr took possession. The evidence also tended to show that defendant entered into possession of the land in 1894, under his purchase from Robert S. Moore, who claimed to have purchased it at sheriff's sale under a judgment against it for taxes; that Robert S. Moore never had possession of the land, never exercised any acts of ownership over it from the time of his purchase until he conveyed it to appellant in 1894; that then he did not describe the land in contest in the deed, and on the 28th day of September, 1896, he executed a quitclaim to defendant correcting the description of the land as described in the former deed; that defendant took possession in 1894; that said Moore sold a few loads of wood 12 or 13 years ago off of some land, but did not know whether or not it came off the land in controversy. The record clearly shows that defendant acquired no title to the land by reason of his purchase from Moore, for the reason that the sheriff's deed under which Moore claimed title was never delivered to him, which was essential to the transfer of title. This was a condition precedent to the effectiveness of the deed (Ebersole v. Rankin, 102 Mo. 488, 15 S. W. 422; Crowder v. Searcy, 103 Mo. 97, 15 S. W. 346; Sneathen v. Sneathen, 104 Mo. 201, 16 S. W. 497; Allen v. De Groodt, 105 Mo. 442, 16 S. W. 494, 1049; Hall v. Hall, 107 Mo. 101, 17 S. W. 811; Cravens v. Rossiter, 116 Mo. 338, 22 S. W. 736; Rumsey v. Otis, 133 Mo. 85, 34 S. W. 551); and, as it was not delivered, it was of no more effect than if not signed (Turner v. Carpenter, 83 Mo. 333; Hammerslough v. Cheatham, 84 Mo. 13). Moreover, the judgment for taxes under which the land was sold, at which sale Moore became the purchaser, was absolutely void for the want of jurisdiction in the justice over the subjectmatter of controversy, and the deed to Moore, even if it was delivered, passed no title to him, and, of course, he could convey none. State v. Hopkins, 87 Mo. 519. But it is equally as clear that plaintiff did not acquire the legal title to the land by reason of the deed from Graves and wife to him of date March 23, 1869, and, unless defendant was a mere trespasser (Bledsoe v. Simms, 53 Mo. 305; Spurlock v. Dougherty, 81 Mo. 171; Prior v. Scott, 87 Mo. 303), or plaintiff acquired the title through the deeds to him from the heirs of his grantor, Graves, before the commencement of this suit in 1895. or he had been in the visible, notorious, continued, and actual possession of the land claiming it as his own for 10 consecutive years before that time, he was not entitled to recover in this action. Defendant went into the possession in 1894, under color of title. He was not, therefore, a mere intruder or trespasser. Nor was plaintiff's possession visible, notorious, continuous, and actual for the period of 10 consecutive years, which was absolutely necessary in order to give him title by the statute of

limitations, and to entitle him, under the facts disclosed by the record, to recover in this action. Pasturing the land and the payment of taxes upon it did not constitute such possession. Carter v. Hornback, 139 Mo. 238, 40 S. W. 893; Pharis v. Jones, 122 Mo. 125, 26 S. W. 1032. With respect to plaintiff's claim to the legal title it appears that John Graves, under whom he claims, was the owner of section 26, township 57, range 23, which, according to the government survey. contained 88.90 acres. Graves sold this land in three different parcels. The east half of the tract he sold to Robert M. Graham on the 23d day of March, 1869, and the northwest quarter of said tract, containing 22.22 acres, he sold to plaintiff, McVey, on the same day, March 23, 1869, and the south-west quarter of said 88.90-acre tract-the land in contest in this suit-he sold to James H. Ryan, January 9, 1871. While the land is described in the deed from Graves to Ryan as the undivided one-fourth, as Graves had theretofore sold the other three-fourths, the remaining one-fourth must have been left unsold at the time of the execution of the deed by Graves to Ryan. It thus appears that Graves had disposed of all the land that he acquired by his purchase from the original patentee, Tuttle, prior to his death, and therefore no title to this land passed to his heirs at his demise, or by their deeds to plaintiff. It follows that, as plaintiff had no paper title to the land, and had not acquired the title by the statute of limitations prior to defendant's entry into its possession, he was not entitled to recover judgment for its possession. For these considerations we reverse the judgment and remand the cause.

GANTT, P. J., and SHERWOOD, J., con

cur.

HULBERT ▼. TREADWAY et al. (Supreme Court of Missouri, Division No. 2. Feb. 12, 1901.)

JUDGMENT VACATION -REVIEW - MOTION

-AFFIDAVIT-DISCRETION.

1. Circuit courts are of general jurisdiction, and have control of their judgments, and, in the absence of statutory inhibition, may, in their discretion, set aside a default at any time during the term at which it was rendered.

2. Unless the discretion of the circuit court in setting aside a default is erroneously exercised, the supreme court will not interfere with its action.

3. In support of a motion to vacate a default, defendants' affidavit tended to show that they had a good defense; that plaintiff had admitted to them that they did not owe him anything, and had agreed to dismiss the suit, and thereafter assured them that he had done so; and that, relying on his représentations, they were not present when the case was heard and judgment rendered. Held, that such facts fully justified setting aside the judgment.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by A. G. Hulbert against Dwight Treadway and others. A motion to set aside a default judgment for plaintiff was sustained, and he appeals. Affirmed.

Plaintiff sued defendants in the circuit court of the city of St. Louis for the sum of $3,666.66 principal and $427.16 interest, being the balance alleged to be due by them to him on a contract. Defendants answered the petition by way of general denial. On January 14, 1898, the case was called for trial, but defendants were not present. Plaintiff introduced the contract in evidence, and testified himself to the balance due thereon. The court rendered judgment for plaintiff in the sum of $5,076.32. Thereafter and during the same term, to wit, January 14, 1898, defendants filed their motion to set aside said judgment upon the following grounds: "First, defendants have a good and meritorious defense to plaintiff's complaint; second, the judgment has been obtained by false, fraudulent, and deceptive motives; third, defendants' attorneys did not notify them of the setting of the case; fourth, plaintiff had agreed to dismiss said cause, and had assured defendants he had done so." Defendants W. C. and J. B. Dines filed their affidavit in support of said motion. On April 29, 1898, the motion was sustained and the judgment set aside. Plaintiff duly excepted, and appeals.

Boogher & Taylor, for appellant. John E. Bowcock, for respondents.

BURGESS, J. (after stating the facts). In this state circuit courts are of general jurisdiction, and proceed according to the course of the common law, have control of their judgments, and may, in the absence of statutory inhibition, at any time during the term at which rendered set aside or vacate them at their discretion (Rottmann v. Schmucker, 94 Mo. 139, 7 S. W. 117; Nelson v. Ghiselin, 17 Mo. App. 663; Scott v. Smith, 133 Mo. 618, 34 S. W. 864); and it is only in case such discretion is erroneously and improvidently exercised that the supreme court will interfere. The affidavit filed by defendants in support of their motion tended to show that they had a good defense to plaintiff's action; that plaintiff had admitted to them that they did not owe him anything, and had agreed to dismiss the suit, and thereafter assured them that he had done so; and that they relied upon his statements and representations, and by reason thereof were not present at the time the case was heard and the judgment rendered. These facts, we think, fully justified the court in setting aside the judgment, and show that the discretion of the court was not erroneously exercised in so doing. Finding no reversible error in the record, the judgment is affirmed.

GANTT, P. J., and SHERWOOD, J., con

cur.

STATE v. NORMAN et al. (Supreme Court of Missouri, Division No. 2. Feb. 12, 1901.)

CRIMINAL LAW-APPEAL-NEW TRIAL-
INSTRUCTIONS.

1. Where, in a motion for a new trial in a criminal case, the assignments of error as to rulings on evidence are general, they will not be considered on appeal.

2. Where no objection was made at the time instructions were read to the jury that the court had failed to instruct on all the law of the case, such objection could not be raised for the first time on motion for a new trial.

3. Where a new trial was asked on the ground of newly-discovered material evidence, but the evidence was not set out in the motion so that the court might pass on its materiality, it will not be considered on appeal.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Alice Norman and Mary David were convicted of taking away a female under the age of 18 for the purpose of prostitution, and they appeal. Affirmed.

Bowcock & Fickeissen, for appellants. The Attorney General and Sam B. Jeffries, for the State.

The facts are substantially as follows: Susie Wilson had been employed for more than two years at the Planters' Hotel, in the city of St. Louis, first as “dishwasher,” and then as a "scrub girl." She was 15 years old at the time of the offense. The evidence is conflicting as to where she and defendants became acquainted, the prosecuting witness testifying that Mrs. David was a guest at the Planters' Hotel for about a week, and that during this time she became acquainted with her; that, according to engagement, they took a walk one evening, and came across defendant Alice Norman at a wine room; that it was agreed that she should go with Mrs. David to her home in "West End," and do light housekeeping for her; that she and Mrs. David went to see Mrs. Wilson, Susie's mother, and that the mother was satisfied with the change from the Planters' Hotel to light housekeeping for Mrs. David. Mrs. David and Mrs. Norman represented themselves to the prosecutrix as sisters, and Mrs. David took the prosecutrix to Union Station, and told her to remain there till Mrs. Norman came, when they would take the train for their West End home. Mrs. Norman went to the station, where she found the girl waiting for her, and secured tickets to Rood

house, Ill.,-a small town about 72 miles north of St. Louis. They left St. Louis about dark, and arrived at Roodhouse about 11 o'clock that night. The prosecuting witness said she thought she was going to West End, and on arriving at Roodhouse did not know where she was until some of the defendant Norman's family told her. The evidence on the part of the defendants is to the effect that they met the prosecutrix at the wine room, and arranged for her to go with Mrs. Norman to Roodhouse for the purpose of acting as a common bawd; that they refused to let her go until she had stated that she was over 18 years of age, and had been in the habit of visiting assignation houses for about 2 years past; that before she could go the matter must be presented to her mother, and her consent obtained; that defendant David went with the prosecutrix to her mother's house, where she was fully informed of the intention of prosecutrix; that her mother said Susie was over 18 years of age, and could do as she pleased, as she had to make her own living. After reaching Roodhouse on the night of November 7, 1900, Susie Wilson went with the defendant Norman to her home, which proved to be an ordinary sporting house. From the testimony, there can be no question but that the full intention of defendants was to take the prosecutrix away for the purpose of prostitution. About two weeks after the prosecutrix went to Roodhouse with defendant Norman, she wrote to her mother, in St. Louis. On receiving the letter the father of the girl went to Roodhouse, and by the aid of the police officers located her, and returned to St. Louis; defendant Norman going with them. An arrest followed, and defendants were jointly indicted.

The statute under which defendants were indicted (section 1842, Rev. St. 1899) reads as follows: "Every person who shall take away any female under the age of 18 years from her father. mother, guardian or other person having the legal charge of her person, either for the purpose of prostitution or concubinage, and any father, mother, guardian, or other person, having the legal charge of her person, who shall consent to the same, shall upon conviction thereof, be punished by imprisonment in the penitentiary not exceeding five years." In the motion in arrest of the judgment filed by defendants the indictment is challenged upon the ground, as claimed, that it will not sustain the verdict, but for what reason we are not informed, nor are we able to conceive. It is in strict compliance with the statute, and, we think, free from objection.

In the motion for a new trial it was asserted that the court erred in admitting incompetent and immaterial evidence on the part of the state, and in excluding competent and material evidence offered by defendants; but these assignments are of such a general character that we are unable to

determine, without more specific reference, what evidence was meant, and will not undertake to do so.

Another ground for new trial assigned in the motion is the failure of the court to instruct upon all the law of the case. But no such objection was made at the time the instructions were read to the jury, and could not be raised for the first time on motion for a new trial. State v. Cantlin, 118 Mo. 100, 23 S. W. 1091; State v. Meadows, 156 Mo. 110, 56 S. W. 878; State v. Waters, 156 Mo. 132, 56 S. W. 734.

A new trial was also asked upon the ground of newly-discovered evidence, but the evidence was not set out in the motion. The mere fact asserted in the motion that the newly-discovered evidence was material did not prove it to be so. It should have been set out, in order that the court might pass upon its materiality. For these reasons, besides others unnecessary to mention, this question cannot be considered by this court.

There was an abundance of evidence upon which to predicate the verdict of the jury. The judgment is affirmed.

SHERWOOD, P. J., and GANTT, J., con

cur.

KEENE et al. v. WYATT et al. (Supreme Court of Missouri, Division No. 2. Feb. 12, 1901.)

HOMESTEAD

ESTATES

1

ADMINISTRATOR'S

SALE-WIDOW AND MINORS-
FRAUD-EVIDENCE.

1. Rev. St. 1879, § 2693, provides that on the death of a husband, leaving a widow and minor children, his homestead shall continue for their benefit, exempt from the husband's debts, until the youngest child shall attain majority and until the widow's death, but that the title and interest of the deceased in the premises, except the estate of homestead, shall be subject to payment of debts against the husband's estate. Held, that the fee in the land subject to such homestead may be sold to pay debts, in the course of administration of the husband's estate, during the minority of his children and life of the widow, and there is no ground for postponement of the sale until the death of the widow or majority of the youngest child, since their right of occupancy is of certain duration, and the law does not contemplate that an estate shall be in process of settlement for the lifetime of the widow, or that there should be more than one administration of the estate.

2. Where there is no substantial evidence to sustain charges of fraud by the purchasers of land at an administrator's sale, and the inadequacy of the price is not sufficient to justify setting the sale aside, the sale should be sustained.

Appeal from circuit court, Mississippi county; H. C. Riley, Judge.

Action by Ida Keene and others against Elizabeth J. Wyatt and others to set aside an administrator's sale of land. From a judgment for defendants, plaintiffs appeal. Affirmed.