a verdict in this case has been set aside once before on the ground that it was against the weight of the evidence, and the court would not disturb the verdict on that ground except for the fact that a party by the name of Jay Elliston, on behalf of the plaintiff, made an attempt to influence one of the jurors; that he did not reach the juror that he attempted to influence, but that he had with him a card to which he referred, upon which he apparently had the names of several persons, presumably jurors; that he was making an effort to influence this juror on behalf of the plaintiff, and the circumstances are so suspicious with reference to this party, Mr. Elliston, that in view of the fact that this verdict is against the weight of the evidence, and in view of these suspicious circumstances with reference to the jury, the court sets this verdict aside. The juror attempted to be influenced was Juror Kendall, who did not sign the verdict." From the order granting defendant a new trial, plaintiff appealed.

Appellant's contention is that the court had no right to grant a second new trial on the ground that the verdict was against the weight of the evidence. The trouble with this contention is that it assumes that the circuit judge set the verdict aside on this ground. But did he set it aside because the verdict was against the weight of the evidence, or did he set it aside because of the alleged attempts to influence the jury, "and in view of these suspicious circumstances with reference to the jury"? It cannot be denied that, in expressing his reason for granting a new trial, the judge was not as clear, precise, and accurate as he might have been; and therein he has caused us much trouble. At first glance it would seem, in reading the reason given, that the judge is really setting aside the verdict on the ground that it is against the weight of the evidence and has seized on the conduct of Elliston as a means of getting around the statute forbidding another new trial. But we cannot impute such conduct or motive to him unless his language is so plain as to admit of no other construction. And a slight analysis shows that his language will not bear such an unhappy interpretation.

he considered the verdict against the evidence as a circumstance convincing him that the improper influences had been successful. In such case what right have we for disturbing his action on appeal? If his suspicion of improper influences being exerted and reaching their mark have a basis in fact and not in mere wild fancy, and is so strong as to lead him in the exercise of judicial discretion to set the verdict aside on account thereof, can we interfere with such discretion, in the absence of a showing that it was unsoundly exercised? If we do, then we establish a precedent that although a circuit judge has grounds for thinking things are not right in a trial before him, and sets aside a verdict on account of improper influences surrounding the trial, yet the appellate court will undertake the task of reviewing his action, although it is within his discretion and, so far as we are able to tell, he has soundly exercised it. This would be a dangerous precedent to establish. No one is in a better position than the trial judge to know what is in the air and what is going on from the facts laid before him.

We must remember that this is a case where the judge sustained the motion. That is, he was so impressed with the existence of the matters calling for a new trial that he granted it. It is not a case where the judge has considered the matters and, in the exercise of his own best judgment, has overruled the motion. If that were the case, we could readily say that the suspicious circumstances were not sufficient to overturn the verdict since the trial judge found they were not. In other words, if the trial judge exercised his judgment and discretion and found no reason for setting the verdict aside, that ruling ought not to be disturbed by an appellate court whose judges do not see the witnesses, nor hear the trial, nor feel the atmosphere surrounding it, nor perceive the circumstances, suspicious or otherwise, attendant thereon. But, on the other hand, if the trial judge does think the verdict should be set aside, ought not the appellate court to defer also to his discretion, when he exercises it, in granting a new trial? We think we should, unless the facts on which he bases his action are so utterly insufficient as to [3] A reasonable interpretation of the trial show that the discretion he exercised was court's language shows that he set the ver- wholly unsound. In Allen v. Railroad, 167 dict aside because of the "suspicious circum- | Mo. App. 498, 151 S. W. 762, Judge Nixon of stances" and the improper influences felt the Springfield Court of Appeals said: "The by the judge to be in the atmosphere. And he considered the fact that the verdict was against the weight of the evidence, both as to the facts creating liability and as to the injuries, only as a strong circumstance going to show that all was not right, and consequently in the interest of justice, he felt that he ought to set the verdict aside. He did not set it aside because the verdict was against the weight of the evidence, but because he had, to his mind, positive proof that improper influences had been exerted, and

rule has been announced in Missouri, with wearisome repetition, that trial judges have a wide discretion in granting new trials, in order to accomplish justice, that the duty of granting a new trial rests peculiarly and specially within the sound discretion of the trial judge, and that when a new trial has been granted the appellate court will reluctantly interfere, unless it is manifest and apparent that the judicial discretion of the trial judge has been abused, or that injustice has been done. Parker v. Britton, 133 Mo. App.

loc. cit. 274, 113 S. W. 259; Lee v. Knapp & | so as to the injuries sustained, and, as one Co., 137 Mo. 385, 38 S. W. 1107; Kuenzel v. new trial has been granted on that ground, Stevens, 155 Mo. 280, 56 S. W. 1076; Iron he cannot set the verdict aside for that reaMountain Bank v. Armstrong, 92 Mo. 265, son, but that, on account of the efforts to 4 S. W. 720; Ensor v. Smith, 57 Mo. App. improperly influence the jury, and in view of 584. Where a new trial is granted by the the "suspicious circumstances with reference court below, an appellate court will look at it to the jury," he sets the verdict aside, this with less scrutiny than if it had been refused. in reality is saying that improper influences Bloch Queensware Co. v. Smith-Saxton & Co., were exerted and that they are shown to be 107 Mo. App. 13, 80 S. W. 592; Udden v. successful by the verdict rendered contrary O'Reilly, 180 Mo. 650, 79 S. W. 691." As the to the evidence. In other words, this is, in case now before us is one where the trial fact, a declaration on the part of the trial judge sustained the motion, the cases cited court that, not only was there misbehavior as holding certain conduct to be insufficient on the part of the persons attempting to ingrounds on which to reverse the trial judge's fluence the jury, but that there was also misaction are hardly applicable. behavior on the part of the jury in listening to these suggestions and bringing in such a verdict. In such case, the statute is no barrier to the granting of a new trial. Because if, in granting a new trial the second time, the judge thought and had good reason to think that improper influences had been brought to bear on the jury, and, in addition to the "suspicious circumstances" discernible by him, he took into consideration a verdict which was not only contrary to the evidence as to how the injury occurred, but which was also returned in disregard of the evidence as to the extent of the injuries sustained, then the statute would not forbid the granting of another new trial. In such case the returning of a verdict thus regarded by the circuit judge after a trial in which he saw "suspicious circumstances" would, in legal effect, constitute such misconduct as to bring the case within the second exception mentioned by the statute. And unless the statute plainly forbids the granting of the second new trial, the case should be affirmed. Because, where a verdict is set aside by the trial judge for reasons like the present case, sound public policy requires that his action be upheld if possible. The strongest deterrent against improprieties of every sort is the knowledge that their inevitable result, if they are discovered, will be to undo all that is sought to be accomplished.

[4] But is urged that section 2023, R. S. Mo. 1909, forbids the granting of more than one new trial, and there having been one new trial granted heretofore, this precludes the granting of a second new trial. That section reads as follows: "Only one new trial shall be allowed to either party except: First, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior." This undoubtedly means that there is no limitation on the granting of a second new trial if either one of them is granted on grounds stated in the first or second exceptions contained in the statute. In Kreis v. Railroad, 131 Mo. 533, 33 S. W. 64, 1150, it was held that this section did not forbid the granting of one new trial to either party on the ground of the insufficiency of the evidence, regardless of the number of new trials that may have been granted such party on other grounds. In fact, by the very terms of the statute, if the new trial is granted on grounds contained in either the first or second exceptions mentioned in the statute, then the limitation of the statute to one new trial does not apply.

Now it is held in a number of cases that a verdict may be so contrary to the evidence as to amount, in legal effect, to misbehavior on the part of the jury, or may "be regarded as springing from improper motives, and should not be permitted to stand in any event." McGraw v. O'Neil, 123 Mo. App. 691, loc. cit. 705, 101 S. W. 132; Chlanda v. Transit Co., 213 Mo. 244, loc. cit. top of page 264, 112 S. W. 249; Partello v. Railroad, 217 Mo. 645, loc. cit. 661, 117 S. W. 1138. In Baker v. Stonebraker's Adm'rs, 36 Mo. 345, it is said that a verdict may be so greatly against the evidence "as to imply some gross partiality, or some prejudice or misconduct on the part of the jury." See, also, Price v. Evans, 49 Mo. 396; Spohn v. Mo. Pacific Ry. Co., 87 Mo. 74, loc. cit. 84; Rigby v. St. Louis Transit Co., 153 Mo. App. 330, loc. cit. 335, 133 S. W. 110.

So that, when the trial judge in this case says the verdict is against the evidence, both

[5] It will not do to say that, because affidavits were filed showing that Elliston failed to reach the juror he was caught attempting to reach, and because affidavits were also filed explaining that the association with one of the other jurors was perfectly innocent, and that nothing was said to him about the case, and because the court was unable to obtain affirmative proof to the contrary, therefore the court is compelled to overrule the motion for new trial. Defendant complained of this conduct, and requested that it cease while the trial lasted. This request was reasonable and proper and should have been instantly and heartily complied with. The fact that it was not complied with served rather to increase the litigant's suspicion than to allay it. As said by a distinguished

The order granting a new trial should be affirmed.

ELLISON, P. J., concurs. JOHNSON, J., dissents and cause certified to Supreme Court.

as important as the substance of it in the | to keep the founts of justice pure and unpolconduct of trials." The sanctity and purity luted will be greatly weakened and almost of proceedings in courts of justice should destroyed. be above suspicion. The same standard should be maintained in them as Cesar demanded in the reputation of his wife. To say that a litigant has no ground of complaint if affidavits are filed denying anything improper, is as unreasonable as to say that a husband cannot complain of improper appearances in the association of another man with his wife, provided they both assure him that nothing wrong has been done. And when the trial judge says that he is not satisfied that there was nothing wrong, but on the contrary believes there was, and that another trial should be granted on that account, shall we say to him that he is wrong!

A careful reading of the entire record in the case, done, not for the purpose of weighing the testimony or of coming to a conclusion as to whether there was corruption in the case, or whether there were improper influences exerted upon the jury, but to see whether or not the trial judge abused his discretion, will convince a disinterested person that there is a sufficient showing to justify the trial court's action. The trial court has exercised his discretion and judgment, and has granted a new trial. His action should be affirmed, since it does not appear that he has clearly abused that discretion. [6] As a matter of justice it should be said that the record shows that, if anything improper did reach the jury, the attorneys in the case were in no way responsible therefor, nor cognizant thereof, or of any attempt in that direction. We do not think that, even

by implication, it should be inferred that they were in any way to blame for whatever did occur.

JOHNSON, J. (dissenting). I am unable to concur in the foregoing opinion, and, deeming the conclusion therein reached to be in conflict with the decisions of the Supreme Court in McFarland v. Accident Association, 124 Mo. 204, 27 S. W. 436, and Kreis v. Railway, 131 Mo. 533, 33 S. W. 64, 1150, and of the St. Louis Court of Appeals in Vermillion v. Parsons, 98 Mo. App. 72, 71 S. W. 1092, and Troll v. Protected Home Circle, 161 Mo. App. 719, 141 S. W. 916, I ask that the cause be certified to the Supreme Court.

FERGUSON v. BOOTH. FERGUSON v. FERGUSON. (Supreme Court of Tennessee. Oct. 25, 1913.) 1. EVIDENCE (§ 383*) DOCUMENTARY EVI

DENCE-RECITALS IN DEEDS-EFFECT.

Particular recitals in a deed are conclusive

evidence of the facts recited, in actions in which the purpose of the deed is directly involved.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.*] 2. EVIDENCE (§ 383*) DOCUMENTARY EVIDENCE-RECITALS IN DEEDS-EFFECT-COLLATERAL ISSUE.

who conveyed property to her husband and the In ejectment between the heirs of a wife husband's grantees, the deed from the wife is collateral to the purpose of the action, and the recitals therein are only prima facie evidence receivable as such against all those claiming of the facts recited, but they are evidence and under the deed.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.*] 3. EVIDENCE (§ 383*) DOCUMENTARY EVIDENCE- RECITALS IN DEEDS-WEIGHT AS EVIDENCE.

Neither is there an affirmative showing of any connection of plaintiff with such improper efforts. And the point is made that since the attorneys knew nothing of anything wrong, and no relation of Elliston with plaintiff was made to affirmatively appear, therefore plaintiff ought not to be punished by having her judgment set aside on account of Where the recitals in a deed which is colany improper efforts having been attempted lateral to the purpose of the action are particuby him. The first answer to this is that lar and definite and are corroborated by the the judgment was not set aside as a punish-substantial evidence of the parties and are not ment to any one, but because the trial court contradicted by anything in the record, they may be accepted as true. thought that, under the circumstances, it [Ed. Note.-For other cases, see Evidence, ought not to stand. The only one to suffer Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.*] punishment was Elliston, whom the trial 4. TRUSTS (8 86*)-RESULTING TRUST-RELAcourt sent to jail for contempt. The next TIONSHIP BETWEEN PARTIES.

in the name of another and pays the consideraThe general rule that, where one buys land tion therefor, the land will be held in trust for the person paying the consideration does not apply where a parent purchases land in the name of his child or a husband in the name of his wife, in which case an advancement or gift will be presumed from the relationship.

answer is that, if the trial judge had good reason to think matters were not right and he set aside the verdict because of the belief, and the rule shall be established that nevertheless his action will not be upheld unless he can positively and affirmatively trace a corrupt intention direct to the party most deeply interested, then the trial court's power

[Ed. Note. For other cases, see Trusts, Cent. Dig. § 128; Dec. Dig. § 86.*]

5. HUSBAND AND WIFE (§ 119*)—WIFE'S SEP-1 which Shields sold to Mitchell the two lots ARATE ESTATE CONVEYANCE TO WIFE in controversy for the consideration of $600 HUSBAND'S REQUEST. to be paid by Mitchell and his son in labor to be rendered Shields at the rate of $1 per day each. Prior to this agreement with Mitchell, and on August 13, 1858, Shields sold lot No. 258 of the same subdivision of Lonsdale, and situated near to the lots in controversy, to Rufus Ferguson at the price of $275. This agreement also provided that Ferguson was to pay for his lot in labor at $1 per day. Ferguson and Mitchell had one and two years in which to pay for their lots.

Appeal from Chancery Court, Knox Coun- On May 30, 1859, Shields assigned the two ty; Will D. Wright, Chancellor.

that the title to said lots shall be vested in They are evidence, however, and are him, the said Rufus Ferguson:

"Now therefore, for the purpose of effecting the object aforesaid, I, the said Elizabeth Ferguson, do hereby transfer and assign and set over to my husband, the said Rufus Ferguson, the title of the lots described in said conveyance to myself; it being the intention of this instrument that the title of said lots shall vest in the said Rufus Ferguson in the same manner and to the same extent as if the conveyance had been made to him instead of me.

"For particular description of said lots reference is hereby made to the conveyance aforesaid to me.

"And I hereby acknowledge and agree that my said husband paid the consideration money for said lots, although the conveyance was made to me."

All of the foregoing instruments referred to in this statement of fact have been of record in Knox county for more than 20 years and more than 30 years before the filing of the bill in this case.

The facts recited in the deed to Elizabeth make it clear that Mitchell made a new arrangement with Jackson by and with the consent of Shields by which Mitchell was to pay for lots 306 and 316 the sum of $100, to be evidenced by his promissory note, instead of 600 days' labor at the price of $1 per day. It also makes it plain that this note has been "paid or caused to be paid" by Mitchell, and that Shields and Jackson were satisfied with the payment. Mitchell, Jackson, and Shields are strangers in blood to Elizabeth Ferguson. No reason appears from this instrument why such strangers would convey valuable property to the wife of another, unless the reason can be inferred from the statement that Mitchell had "caused the note executed to Jackson to be paid." This probably would be insufficient without more, but the deed of Elizabeth Ferguson to Rufus contains an express acknowledgment that Rufus paid the consideration money, although the conveyance was made to her.

re

ceivable as such against the grantor and the grantee in the deed and all those claiming under them. Devlin on Deeds, vol. 2, § 992 et seq. The deeds from which the facts above stated are extracted are collateral merely to the purposes of this suit, and the recitals contained in them are only prima facie evidence of the facts stated, but there is nothing in the record indicating their falsity, so that we feel reasonably certain that they are true. They are particular and definite and are corroborated by the subsequent conduct of the parties. Therefore we have a case of the husband paying the consideration price for the land and directing the deed to be made to the wife. What is the nature of the estate which the wife takes?

The complainants insist that Elizabeth's estate was general, and that her husband was tenant by the curtesy, and, as he did not die until 1910, no statute of limitations has run against them; that defendants are life tenants merely, in possession under Rufus, and upon his death defendants' right of possession terminated and that of complainants accrued.

[4] It is a general principle of equity that, when one buys land in the name of another and pays the consideration money, the land will be held by the grantee in trust for the person who so pays the consideration price. It is generally considered that this doctrine rests upon the natural presumption that he who supplies the money to pay for the land means the purchase to be for his own benefit; but this principle has its exceptions which are as generally recognized and accepted in courts of equity as the principle itself. As where a parent purchases land in the name of a child prima facie the purchase is deemed and intended as an advancement so as to rebut the presumption of a resulting trust for the parent. The law considers the moral obligation of the parent to provide for his children as of such consequence as to rebut the general presumption that the parent was buying for himself. And the same presumption exists in the case of a purchase by a husband in the name of his wife. Second Story's Equity, § 120.

wife. In a case similar in its facts to the one under consideration, the Supreme Court of Massachusetts used this language:

[1-3] If the recitals in the foregoing instruments are competent evidence against the complainants, they establish as a fact that Rufus Ferguson paid the consideration It is therefore an established doctrine that, price and had the deed executed to his wife. where the husband pays for land conveyed Recitals are introduced into deeds for the to the wife, there is no resulting trust for purpose of explaining why the deed is ex- the husband, but the purchase will be regardecuted or of showing circumstances to pre-ed and presumed to be a provision for the serve the connection in the chain of title. Such recitals are usually treated of as two kinds, particular and general. Particular recitals are conclusive evidence of the facts recited in actions in which the purpose of the deed is directly involved. George v. Bischoff, 68 Ill. 236; Usina v. Wilder, 58 Ga. 178; Mix v. People, 86 Ill. 329. But, if the deed is merely collateral to the purposes of the action, recitals contained in it are only

"Cases, which turn upon the general doctrine, that a gift to the wife is a gift to the husband do not apply to this case, which is a grant by the husband himself to the wife. The doctrine that a gift to the wife is a gift to the husband cannot apply where the husband himself makes a gift or grant to