Johnston v. Ragan

265 Mo. 420 | Mo. | 1915

WALKER, J.

Tliis is an action brought in the circuit court of Jackson county at Independence in October, 1909, under section 2535', Revised Statutes 1909, to ascertain and determine the title to certain land in said county described in the petition. Upon a trial, before the court, judgment was rendered for the plaintiff, from which the defendants appeal.

Stephen C. Ragan, who died in October, 1908, was the common source of title. The plaintiff was his sister. In 1887 and 1888 she loaned him and another $7200, evidenced by four promissory notes in different amounts and due at different times, the last maturing May 15,1890. These notes were payable and delivered to plaintiff and were signed by Stephen C. Ragan and his co-maker. To secure their payment Stephen C. Ragan and his wife, Josephine Gr., one of the defendants here, on May 10,1895, made and delivered to plaintiff a deed of trust on the land in question, naming therein Thomas A. Witten as trustee. In August, 1909, default having been made in the payment of said notes, the trustee sold the land therein described to satisfy the debt, and the plaintiff became the purchaser for the sum of $2000. The trustee thereupon executed and delivered a deed to the property to the plaintiff, and it is under this conveyance she claims title.

The defendants who are contesting this proceeding are Josephine Gr. Ragan, the widow of Stephen C., and Greenberry Ragan, one of his sons, and William C. Forsee, counsel for defendants. Several other defendants named in the petition made default. Josephine G. claims title by devise, her husband having bequeathed to her all of his real estate. Greenberry Bagan and William C. Forsee claim title by mesne conveyances from others than Stephen C. Ragan.

There is no controversy concerning the pleadings as such, bnt it will become necessary to discuss the replication in determining whether error was committed in the admission of certain evidence to avoid the bar of the Statute of Limitations. The petition is in the usual form. The answers of the defendant Josephine G. Eagan, who pleads separately, and Green-berry Eagan and William C. Forsee, who plead jointly, are substantially the same except as later noted. They deny plaintiff’s claim of title, assert, ownership in fee, and plead that the notes described in the deed of trust, under the foreclosure of which plaintiff claims title, were barred by the Statute of Limitations, and that the trustee Witten’s deed to plaintiff under said foreclosure and sale was void and conveyed no title; and that S. C. Eagan did not at any time execute or deliver to plaintiff any of said notes or a deed of trust conveying said lot to Witten as trustee to secure to plaintiff, her heirs or assigns, the payment of any of said alleged notes, and that no sale of said lot was made by said Witten or other trustee under such deed- of trust. In addition, the defendants Greenberry Ragan and William 0. Forsee claim title under a judgment and sale of said land in partition made in 1886; that all persons under whom plaintiff and these defendants severally claim title to the lot here in controversy were parties to said partition action; that in and by the decree rendered in said cause said land was partitioned in kind and the lot here in controversy was allotted to and the title thereto confirmed in those under whom these defendants claim, and from whom, by proper mesne conveyances they derived title; that these defendants by such conveyances acquired and yet hold and own, as such tenants in common, the title in fee to said lot, said Greenberry Eagan being the owner of an undivided two-thirds thereof, and said Forsee of an undivided one-third thereof.

• Plaintiff’s replies denied each of the allegations of the answers, except that she alleged she had acquired and held title to the land in question under the deed made to her by the trustee Witten by reason of the foreclosure of the deed of trust and the sale of said land to satisfy the notes made to her by S. 0. Ragan.

I. Sufficiency of Abstract of Record.- — Motions filed by plaintiff attack the integrity of the abstract of record. These demand disposition before considering the exceptions submitted by the appeal.

The grounds of these motions will be discussed in the order in which they have been pleaded.

The first contention is that the abstract does not show that plaintiff or her attorneys agreed to the bill as true or that the judges who signed same, or either of them, found the bill to be true. This contention is, of course, based upon what is shown by the abstract of the record, which alone is proper matter for our consideration on account of the manner in which the proceedings are brought to this court for review.

The statute upon wdiich this contention is based is as follows:

“In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard.” [Sec. 2032, R. S. 1909.]

The order entered of record of the filing of the bill of exceptions, as shown by the abstract, is as follows :

‘ ‘ N'ow at this day come defendants (naming them) in open court before Hon. Walter A. Powell, regular judge of this court at Independence, and Hon. R. B. Middlebrook, successor in office to Hon. John Q-. Park, late judge of Division One of this court at Kansas City, before whom this case was tried at Independence, said judges sitting .together, and tendered to said judges their bill of exceptions herein, which bill of exceptions is by said judges signed, allowed and ordered to be filed, and the same is filed and made a part of the record herein.”

The statute above quoted, which authorized the signing of this bill by the succeeding judge, is in the disjunctive, and whether or not it be necessary to the validity of the action of the judge who signs the bill that such bill be “agreed to be true” by the parties to the action or their attorneys, or that it be shown to him to be correct, we must presume, in the absence of anything to the contrary of sufficient force to impeach a record, that before the' bill was signed by these judges they satisfied themselves'as to its correctness, because the record they have here made was within the limit of their judicial power and imports verity, for not only does it appear in tbe abstract filed by defendants, but in the additional abstract filed by plaintiff, that the bill “was tendered in open court and was by said judges signed and ordered to be made a part of the record therein.” This is all, under any reasonable construction of the statute, that can be required. It is true that so far as the requirements of the statute are concerned it is not necessary that this bill should have been signed by Judge Middlebrook, but his signature can in nowise affect the validity of that of Judge Powell, who, it clearly appears from the record, “was the succeeding judge of the court where the cause was heard.” More especially is the rule true in this case that the record under discussion imports absolute verity, because it is not sought to be overcome except by the unsupported motions of the plaintiff.

In State v. Taylor, 171 Mo. l. c. 475, affidavits of witnesses were tendered in support of a motion to impeach a record, and the court, in disposing of the matter, said: “Upon this question the record, which imports absolute verity, is sought to be overcome and shown to be false by the affidavits of witnesses in regard to which there can be no difference of opinion. If the record entries of a court of record can be overcome in this way, then the truism that such records import absolute verity is a deception and a snare. ’ ’

It is next contended that the exhibits introduced in evidence and set out in the abstract of the record should be stricken out because same were not deposited with the clerk of the trial court but were simply called for in the original bill of exceptions and subsequently incorporated at length in defendants’ abstract. The portion of the statute relied upon to sustain this contention is as follows :

“But it shall not be necessary for the review of the action of any lower court on appeal or writ of error that any pleading, motion, instruction or record entry in the case, or any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk, to remain in his custody until after the determination of the cause in the appellate court, shall be copied or set forth in the bill of exceptions filed in the lower court; Provided, the bill of exceptions so filed contains a direction to the clerk to copy the same and the same are so copied into the record sent up to the appellate court.” [Sec. 2083, B. S. 1909.]

This statute was rendered more comprehensive under the amendment made thereto in 1903 (Laws 1903, p. 105), in adding to the instruments or documents not theretofore required to be set out at length in the original bill of exceptions others therein named, provided same were deposited with the clerk of the trial •court, when, without more than a general call therefor, they were authorized to he included in the bill; this amendment, however, is not to be so construed as to render the abstract of the record or the full transcript filed in the appellate court subject to attack for insufficiency here on account of a failure to deposit any of the instruments or documents referred to, provided same have been correctly set forth in the abstract of the record or full transcript transmitted to this court. Such an interpretation as is sought to be given this section by plaintiff would not only work a hardship in many instances on parties not immediately interested in the suit, but would be difficult if not impossible to comply with; oftentimes the evidence offered would consist of private papers, which a witness could not be required to deposit, except in violation of his constitutional rights as to property, or they might consist of public records, which could not from their nature be deposited, or such as were in use in a witness’s private business and which he could not without detriment thereto be deprived of. The general rule is that all laws should receive a rational and not an arbitrary construction. [State ex rel. Spriggs v. Robinson, 253 Mo. 271.] Any other than the construction we have given the section under review would deprive the appellant, in the event of his failure or inability to deposit with the clerk of the trial court all instruments or documents not set out in full in the original bill, of the benefits of his appeal, a right clearly accorded him under other statutes than the one here considered, although, as.is the case here, there might be no claim that the abstract was in anywise incorrect.

Statutes are not to be construed so as to result in an absurdity or to impose unnecessary burdens, and, in the absence of express terms, it will not be presumed that the Legislature intended to authorize and require an unreasonable proceeding. [Neenan v. Smith, 50 Mo. 525.] Fortunately we are not without support in our reasoning in this matter. In Quail v. Lomas, 200 Mo. l. c. 683, this court held that the conclusion here reached is the correct one. In construing the statute (Sec. 2083, supra) Gantt, J., speaking for the court, said: “Indeed, the only additional thing which the act above noted requires is that the documents therein referred to ‘ shall be deposited with the clerk to remain in his cusody until after the determination of the cause in the appellate court.’ This provision is a wise one and will obviate all difficulty as to the identity of the instruments copied into the transcript and those offered and read in evidence on the trial, but while the act permits the instruments or documents named therein, when properly identified and deposited with the clerk, to be copied and set forth in the transcript without having been copied at length into the bill of exceptions, there are no negative words indicating that a bill of exceptions calling for documents and instruments in the manner long approved by the decisions of this court would not constitute a part of the record, and that those instruments should not be copied in full by the clerk in certifying the transcript to this court or by counsel by making their abstracts under the provisions of section 813 [now Sec. 2048]. ’ ’ Then follows a discussion as to the particular instruments, to-wit, a deed of trust and a trustee’s deed, which had been introduced in evidence and were called for by the bill of exceptions but had not been deposited with the clerk, in regard to which the court, continuing, said: “If either of said instruments had been incorrectly copied or matter interpolated into them which was not therein when they were offered and read in evidence, it would have been perfectly competent for the defendants in this case to have called attention to these inaccuracies or unauthorized interpolations and corrected the same by their counter abstract, but it will be observed that it is not claimed by defendants that these documents as copied into the plaintiff’s abstract are not correctly and truly set forth therein, but merely that because they were not filed and left with the clerk to remain in his custody until after the determination of this appeal, they cannot be considered. We are unwilling to give the statute such1 a narrow construction. ’ ’

We would not be understood as holding, nor is it so held in Quail v. Lomas, that a respondent may not opportunely take such steps below as to compel the ap^ pellant to comply with section 2083, supra, in making up the original bill of exceptions; but, when a complete transcript or an abstract of the record has been made out in full compliance with section 2048, Revised .Statutes 1909, and has been filed in this court and is admitted to be correct in every other particular, we will not question its verity on the alleged ground that parts thereof were not deposited with the clerk of the trial court, but were simply called for in the original bill.

We therefore overrule plaintiff’s motions.

II. Authority of Other Than Regular Judge.— It is contended that Hon. John Gr. Park, who tried this case, was without judicial authority in the premises, and as a consequence the proceeding lacked legal sanction.

Jackson county, in which are located Kansas City and Independence, constitutes, under our legislative enumeration of circuit courts, the Sixteenth Judicial Circuit, composed, at the time of this trial, of eight subdivisions, of' which the Independence Division, where this case was tried, was one. The regular judge of the Independence Division at the time was Hón. Walter A. Powell, and Hon. John Gr. Park was a regular judge in one of the subdivisions of the circuit court in Kansas City. Under section 3977, Revised Statutes 1909, it is provided, among other things, that whenever the judge of any division of a circuit court having more than two divisions shall be sick, absent or from any cause unable to hold any term or part of term of court in such division, such term or part of term may, by request of the judge of such division, be held by a judge of any other division of said circuit court. Under the sanction of this statute it appears in plaintiff’s additional abstract filed herein, that on February 21, 1910, the following order was made and entered of record in said Independence Division of the circuit court:

“Court met pursuant to adjournment. Judge Walter A. Powell being absent and unable to attend court and having requested Hon. John G. Park to hold court in his stead, the Hon. John G. Park being present held court and the following proceedings were had and entered of record. . . .”

The minutes then disclose the waiver of a jury by the respective parties, the taking and submission of testimony, and an adjournment of the court until February 23,1910. On this day court met pursuant to adjournment, present same as on February 21, 1910, and the following was entered upon the record:

“Magdaline Johnston, Plaintiff, vs. Josephine G. Eagan et al., Defendants.

“Now on this day comes plaintiff by attorney and defendants appear in person and by attorney. The .trial of this cause having been heretofore commenced on the 21st day of February and all of the evidence having been submitted to the Court, Honorable John G. Park, and said evidence being concluded on this date, said judge takes said ease under advisement. ’ ’

Thereafter appears of record this entry:

“Now, on this March 5, 1910, the 69th day of the 1909 December term of the court, Hon. John G. Park, one of the judges of the circuit court of Jackson county, Missouri, again sitting and acting as the court in cause No. 22713, entitled Magdaline C. Johnston, plaintiff, vs. Josephine G. Eagan et al., defendants, now orders and causes to be entered and made of record in said cause the following:”

This is followed by a finding that defendants Josephine G. Ragan, Greenberry Ragan and William C. Forsee have no title, estate or interest in the land in controversy, describing same as in plaintiff’s petition, followed by a judgment so determining the title and adjudging plaintiff to own the fee in and be entitled to said land.

Motions for a new trial and in arrest of judgment were then filed by defendants and by their consent same were at once considered and overruled by the court, Judge Park sitting, and time was granted for the filing of a bill of exceptions.

In April, 1910, Judge Park resigned as circuit judge and R. B. Middlebrook became his successor. On June 27,1910, within thé time granted by the court for the filing of the bill of exceptions, appears the following record entry:

“New on this day come defendants, Josephine G. Ragan, Greenberry Ragan and W. 0. . Forsee in open court before Hon. Walter A. Powell, regular judge of this court at Independence, and Hon. R. B. Middle-brook, successor to Hon. John G. Park, late judge of Division One of this court at Kansas City, before whom this cause was tried at Independence, said judges sitting together, and tender to said judges their bill of exceptions herein, which bill of exceptions is by said judges signed and ordered to be made a part of the record herein.”

The signatures of the judges of the circuit court who signed the bill of exceptions prepared by defendants, towit,' Judge Middlebrook, the successor of Judge Park, and Judge Powell, of the Independence Division, are preceded by this statement:

“All of the foregoing proceedings of the court in this pause recited in this bill of exceptions were by and before Hon. John G. Park, judge of the circuit court of Jackson county, Missouri, and regular judge of Division One of the court at Kansas City, who resigned his office and ceased to act as judge of said division in April, 1910.”

Following this is the usual tender of the bill and the prayer of the defendants that the court may allow and sign same, which was done, same being signed by the two said judges.

Upon the filing of their bill of exceptions in the trial court defendants filed here a short form of transcript followed by what should have been “an abstract of the entire record of said cause” (Sec. 2048, R. S. 1909) but inadvertently, we presume, omitted therefrom the entries in regard to Judge Powell’s absence, the calling in of Judge Park and his judicial participation in the trial until after the overruling of the motion for a new trial. This necessitated the filing of an additional abstract by plaintiff under section 2048, supra, setting forth the omitted entries which have heretofore been discussed. The transcript of the proceedings, thus completed, shows that Judge Park did not act without authority.

But defendants contend, despite their necessary knowledge of the calling in and presence of Judge Park during the trial, that they were authorized to ignore and omit the entries included in plaintiff’s additional abstract from their bill of exceptions and their original abstract, because the clerk of the trial court had improperly failed to enter them on the record. This pretext for the omission by defendants of these entries from their abstract is not indicative of a disposition to comply with the reasonable requirements of section 2048, supra; however, if the contention possessed merit, it can afford no aid to defendants, because, upon the discovery of the omissions, plaintiff proceeded in a formal and authorized manner, after due notice to defendants, to procure from the trial court a nunc pro tunc order requiring the omitted order's' to be entered upon the record, and it was upon the record thus amended that plaintiff based her additional abstract.

While it is true that a circuit court loses jurisdiction of a case by appeal, it still retains sufficient power over its own records to authorize it by a nunc fro tunc order to correct a bill of exceptions to the extent that it may speak the truth. [Wilson v. Darrow, 223 Mo. l. c. 528; State v. Gordon, 196 Mo. l. c. 196; Reed v. Colp, 213 Mo. 577, 586; Althoff v. Transit Co., 204 Mo. 166, 172; Coy v. Landers, 146 Mo. App. 413; State v. Libby, 203 Mo. 596; Ward v. Bell, 157 Mo. App. l. c. 528.] This application was properly addressed to and the order made by the trial court. [West v. Burney, 71 Mo. App. 271, 273; Gamble v. Gibson, 83 Mo. 290.] The propriety of .this course is evident in that the errors should, and in fact can only be properly corrected, where committed.

There was ample record evidence here from which the amendments could be made if the facts themselves had not been admitted, and under such circumstances it was not material that at the time of the application the judge was out of office who had signed the bill. [Baker v. Railroad, 122 Mo. 533,] The amendments referred to having been properly made, the additional abstract filed here by plaintiff became as much a part of the abstract filed by defendants as if originally incorporated therein. [Gamble v. Daugherty, 71 Mo. 599.] Thus made to speak the full truth, it showed not only Judge Park’s authority to sit in the trial of the case, but that he continued to sit until the motions for a new trial and in arrest of judgment had been submitted and overruled.

But it is contended that” Judge Park could not legally have tried this case because it is asserted the record shows that Judge Powell was’not absent during the trial. The abstract contains no entry supporting this contention, nor is it supported by the bill of exceptions which defendants have deemed it necessary to deposit with the clerk to sustain their statement in this regard. A separate certificate of the clerk of'the trial court shows two orders of adjournment signed by Judge Powell during the trial of this case by Judge Park, but they are not submitted for our consideration under the authority of section 2048, supra, nor is it claimed that the record entries supplied by plaintiff’s additional abstract are incorrect, but that these alleged orders of adjournment should have been included therein. There is no statute or rule of appellate procedure which required the plaintiff to include these entries in her abstract. [State ex rel. v. Thomas, 245 Mo. l. c. 75.] If grounds for exception, they should have been included in defendants’ bill, which would have authorized their incorporation in the original abstract and their consideration on this appeal. [Betzler and Clark v. James, 227 Mo. 375, 387.]

It is elementary that the right of appeal is purely statutory and the course prescribed by the statute must be pursued to entitle an appellant to a review of any question. An abstract of record cannot be brought here by piecemeal, especially when the portion sought to be supplied attempts to supplement a bill of exceptions and incorporates therein an alleged error, purely an afterthought and not an exception saved during the trial. [Tie & Timber Co. v. Naylor Dr. Dist. Co., 226 Mo. 420; State ex rel. v. Broaddus, 216 Mo. 336; Owens v. Mathews, 226 Mo. 77.] We cannot, therefore, consider this contention. First, because it is no part of the appeal (Sec. 2081, R. S. 1909; Burdoin v. Trenton, 116 Mo. l. c. 374; Gilchrist v. Bryant, 213 Mo. 442; Hubbard v. Slavens, 218 Mo. l. c. 616); and, second, because it is at a variance with all other facts which clearly show Judge Park’s judicial presence in the conduct of this trial.

The further contention is made that under section 29 of article 6 of the State Constitution the authority of Judge Powell to call in another judge was limited by said section, which only provides for the calling in of a judge from cmother circuit. This contention might offer a fertile field for a discussion as to the extent to which a constitutional provision may limit the law-making’ power. The framers of the Constitution, however, in the closing portion of this section removed any doubt as to this question in providing that “in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary.” [Sec. 29, Art. 6, Constitution.] This clause, afforded authority for the enactment of the statute of 1907 (Laws 1907, p. 203) now section 3077, Revised Statutes 1909, especially applicable to the case under review. The ruling of this court in Bank v. Graham, 147 Mo. l. c. 257, does not militate against the conclusion here reached; in that case the provisions of the Constitution were only considered which related to the calling in of a judge of another circuit.

In the argument it was rather timorously contended that the record entry of the order requesting Judge Park to try this case was insufficient'in not stating the reason therefor. This contention misconceives the meaning of the order; it clearly states the reason to be “the absence and inability of Judge Powell to attend and try the case. ’ ’ This is sufficient. In State v. Newsum, 129 Mo. l. c. 159, we held that it was not necessary for the record to disclose the reason for requesting another judge to attend and try a case, because the authority thus exercised was in obedience to an express statute and a reason therefor was consequently unnecessary. The Newsum case was affirmed in State v. Gillham, 174 Mo. l. c. 673, which held in addition that the power thus conferred was vested in the judge in whose court the case was pending and not in the court itself and that he was authorized to make the. request in chambers or even in vacation.

In the city of St. Louis, which constitutes the Eighth Judicial Circuit, the practice has long prevailed, in the absence of any statute, for any circuit judge if sick, absent or otherwise temporarily nnable to hold court, to request another judge of the court, of which there are now fourteen subdivisions, to hold court for him. The validity of this practice was considered and upheld in an opinion rendered by Valuant, C. J., in State ex rel. v. Allen, 235 Mo. 298, in which it was held that the judge of the court who answers such request does not intrude into the judicial premises of the judge who invites him or encroach on his jurisdiction, for the judicial authority he exercises arises from his election and qualification as a judge of the same circuit; and the fact that he has been assigned to a division does not make him any the less a judge of the circuit court of the particular circuit; it only apportions to him his share of the work and gives him éxclusive jurisdiction thereof. 'The ruling in the Allen case, supra, is not cited as a precedent here because of the existence of the statute (Sec. 3977, supra), especially applicable to the class of judicial circuits to which Jackson county belongs; if not controlling, the lucid reasoning of this case may serve to dissipate the many technical objections urged by the defendants to the calling in of Judge Park in the case at bar.

III. Plaintiff’s Title. — Defendants’ second contention is that there is no evidence in the record to show that plaintiff had any right, title, interest or estate to the land in question. This contention is based upon the ground that there was no evidence in the record to show that plaintiff had acquired the title to this land of Stephen C. Ragan. Not only the bill of exceptions but the abstract made therefrom, discloses in different ways other than by direct proof that the plaintiff held a deed of trust from said Ragan on this land to secure the payment of certain notes made by Ragan to her, and that this deed of trust was foreclosed by the trustee and the plaintiff became the purchaser of the land and a deed was made and delivered to her of the same. Defendants, however, contend, in the absence of a showing in the bill of exceptions of these facts, that there is lacking evidence of title in the plaintiff, which will preclude her recovery. The bill of exceptions, it should be borne in mind, was prepared by the defendants. While it was not a prerequisite to its validity that the bill- should have been submitted to plaintiff’s counsel before being signed by the judge, this is usually done and is a custom to be commended, but it is evident that it was not done in this instance; as a consequence, it was not until after the bill had been-filed and defendants’ abstract made therefrom had been served on the counsel for plaintiff that the latter had any knowledge of the omission therefrom of plaintiff’s proof of title. When this discovery was made, plaintiff, through her attorney, after notice to defendants, filed a motion in the trial court to amend the 'bill of exceptions so as to include therein the showing that during the trial not only the deed of trust to this land theretofore made by Stephen C. Ragan to Witten, the trustee, had been introduced in evidence, but that there was also evidence introduced of the foreclosure of said deed, the purchase of the land by the plaintiff and the transfer of same to her by the trustee. The motion was granted and the bill of exceptions amended so as to show that proof had been made of these facts. Authorized by the court’s order, the omitted facts were included in plaintiff’s additional abstract as a part of the proceedings at the trial. The sustaining of the motion which authorized the amendment of this bill was not against the right or justice of the matter, did not alter the issues between the parties and was sustained by ample proof that the facts and questions had been introduced in evidence at the trial, but had been omitted from defendants’ bill of exceptions and abstract. The overruling of the foregoing contention will dispose of defendants’ complaint that there was no evidence to sustain the judgment. With this showing as to plaintiff’s title, we overrule defendants’ contention in regard thereto..

IV. Statute of Limitations: Pleading. — It is next' contended that the notes described in the deed of trust to Witten, and the deed of trust itself, are barred by the Statute of Limitations; that defendants have so pleaded in their answer and that it was incumbent upon plaintiff in addition to the specific denials contained in her reply, to plead the payments made on such notes,. ’ as well as the waiver of the statute by S. C. Ragan, to entitle her to make proof of these facts as a bar to the statute.

There were four notes shown to have been made by S. C. Ragan to the plaintiff, one for $1000, dated November 11, 1887, and due twelve months after date. On this note were these indorsements: “Interest paid on the within note to January 1,1892. Received on the within note $4, November 22, 1902. Received on the within note $1, March 8, 1906.” After the sale made by Witten, the trustee, appears the following endorsement: “Paid on the within note $2404.95, in full of proceeds of trustee’s sale August 14, 1909. Thomas A. Witten, Trustee.”

The second note was for $1200 dated December 30, 1887, due twelve months after date. Thereon appeared the following indorsements: “Interest paid on the within note to January 1,1892. November 22,1902, received on the within note $4. March 8,1906', received on the within note $1” and the following in the handwriting of Witten, the trustee: ‘ ‘ Credit on within note August 14, 1909, $36.55, proceeds of trustee’s sale. Thomas A. Witten.”

The third note was for $2500|, dated March 10, 1888, due two years after date; and the fourth note was for $2500, dated May 15,1888, due twelve months after date. On each of these notes there appeared the following indorsements: “Interest on the within note-. paid to January 1, 1892. Eeceived on the within note November 22, 1902, $4. Eeceived on the within note March 8, 1906, $1.”

On their faces these notes were barred by the Statute of Limitations. This defense is available only in a case of this character by an affirmative answer setting up the statute, for if no issue be taken upon a special matter, the plaintiff will not know that he is required to produce proof nor will the defendant be informed as to whether or not the plaintiff intends to produce proof of any special matter of exception. [Coleson v. Blanton, 3 Hayw. (Tenn.) 152.] To remove the burden thus east upon the defendants 'by this plea (Wojtylak v. Coal Co., 188 Mo. l. c. 294; Berryman v. Becker, 173 Mo. App. 346; Schell v. Weaver, 225 Ill. 159) it became incumbent upon them to prove that the cause of action did not accrue within the time prescribed by the statute. This proof consisted in the introduction in evidence of the notes. Plaintiff in rebuttal introduced testimony showing the indorsements of payments on the notes before they were barred, in the handwriting of S. C. Eagan, the debtor, and oral testimony that these payments were intended to apply and were applied as credits on the notes. [Smith v. Brinkley, 151 Mo. App. 494.] In addition, it was shown that S. C. Eagan, on November 12, 1902, made and delivered to plaintiff this writing: “I do hereby waive the Statute of Limitations of mortgage on Lot 1, Blue Eiver Park. S. C. Eagan.” The description of the property in this writing was that of the land in controversy.

The proof of the credits of payments is ample in itself to take the debt out of the statute (Beck v. Haas, 111 Mo. 264; Chidsey v. Powell, 91 Mo. 622; Clinton County to use v. Smith, 238 Mo. l. c. 127) and hence sufficient to continue the lien of the deed of trust against the land (Johnson v. Johnson, 81 Mo. l. c. 335; Berryman v. Becker, 173 Mo. App. l. c. 356) for the reason that the deed of trust was but an incident to the notes and in contemplation of law and by statute (Sec. 1892, R. S. 1900; Hower v. Erwin, 221 Mo. 93; Higgins v. Harvester Co., 181. Mo. 310) it ran with them and ceased to have any potential force when they were paid.

Notwithstanding the seeming probative force of the testimony introduced to prove that the running of the statute was interrupted by the payments shown, defendants confront us with this proposition, viz., was this testimony admissible under the pleadings'? It will be recalled that the petition was in the form usually employed in eases of this character. The answers, among other things, after setting forth in detail the making of the notes by S. C. Ragan to the plaintiff, alleged “that no cause of action accrued to the plaintiff within ten years next prior to the alleged sale and conveyance by the trustee, Witten, in consequence of which each and every one of said notes were at said date and are barred by the Statute of Limitations, and that said alleged trustee’s deed was and is null and void.” Plaintiff’s replies were specific denials of each paragraph of the answers. While it is elementary, it may not be inappropriate in this connection to say that such replies as were here made have no greater legal effect than general denials. There is a conflict of authority as to the necessity of a special, as distinguished from a general, reply to a plea of the Statute of Limitations, it being held in several jurisdictions that if the plea of limitations is interposed in an action at law, the plaintiff must by reply controvert the facts on ' which it is based" or allege facts bringing himself within an exception to the statute.

Under our simple system of code pleading, however, a special reply is not necessary to an answer setting up the Statute of Limitations, it being sufficient where an affirmative defense of this character is interposed to meet same with a general denial which puts the question squarely at issue. It is not' necessary' to 'question the ruling of this court seemingly to the contrary in Keeton v. Keeton, 20 Mo. 530, which was incidentally referred to with approval in Moore v. Granby M. & S. Co., 80 Mo. l. c. 91, and Zoll v. Carnahan, 83 Mo. 35, because the rule announced in the Keeton case Vas under the provisions of the Civil Code adopted in 1849 (Laws 1849, pp. 73-109) which was so amplified in 1875 (Laws 1875, p. 106) as to authorize the plaintiff, when the answer contains new matter to reply to same within such time as the court may'by rule require, denying generally or specifically the allegations controverted by him. Defendants’ contention, therefore, in regard to the inadmissibility of evidence to toll the bar of the' statute under a general reply is overruled.

V. Claim of Title of Certain Defendants: — In disposing of the claim of title of defendants Greenberry Ragan and William C. Forsee to the land in controversy, we will not further lengthen this opinion by a statement in detail of the mesne conveyances offered in evidence commencing-with that of Jerome'Anderson arid-ending with the transfer to Stephen-C. Ragan, the common source of title, nor the latter’s acceptance of this land following a judgment in partition of the quarter section of which the land-formed-a part, because of said Ragan’s adverse, open and notorious possession of the land' in person and by tenant for sixteen consecutive years.

1 ■ VI. Instructions. — Defendants assign as error the refusal by the trial, court to give the declarations of law asked by defendants and the giving by it of .those asked by plaintiff and the giving of others by the court on its own- motion. It is scarcely necessary to say in this connection what is known to every lawyer, that the object of an assignment of errors is to enable opposing counsel and the appellate court to see upon what points defendants ash a reversal and to limit the discussion thereto. This assignment does not meet this requirement. Its general nature does no more than to call the appellate court’s attention in a general and indefinite manner to the declarations of law given and refused, leaving the court to analyze by comparison and contrast all of the declarations and ascertain therefrom in what particular defendants claim error has been .committed. This is no such an assignment of error as is contemplated by our procedure. The defendants should have pointed out the errors committed in the' giving and refusing of the declarations.

■ There having been no prejudicial error committee! in the trial of this case, the judgment of the trial court is affirmed, and it is so ordered.

AH concur.