JUDGMENTS—Continued.

been returned, and to remand the case for the sole purpose of
ascertaining whether he had been informed of the verdict be-
fore judgment was pronounced would be a useless proceeding,
and to affirm the judgment on the record proper would deprive
him of no right. State v. Taylor, 432.

3. Combination in Restraint of Trade: Punishment. In imposing
punishment on the members of an unlawful combination in re-
straint of trade, consideration will be given to the fact that fines
and conditional ouster in other cases have not prevented a recur-
rence or similar violation of the laws; to the fact that the combina-
tion has been an instrument for the public good in some of its
activities, and especially in eliminating dishonest practices; to the
fact that the cost of maintaining the combination has already added
materially to the burden of the consuming public; to the financial
strength and amount of business done by respondents; to the ex-
tent of the activity in the combination of particular respondents;
and to the fact that respondents endeavored to go as far as pos
sible in restraining trade and fixing prices without subjecting
themselves to prosecution.

Held, by DAVID E. BLAIR, J., in the majority opinion, and by
GRAVES, J., in an opinion on motion to modify judgment, in
which WOODSON, C. J., concurs, that a suspended judg-
ment, with fines, has not proven efficacious to prevent corpora-
tions from violating the anti-trust statutes, and that the punish-
ment should be judgment of complete ouster of all the cor-
porate respondents of their franchises to do business in this
State, and in addition a fine against each varying from $2,500
to $10,000.

Held, by JAMES T. BLAIR, J., in opinion on motion to modify
judgment with whom RAGLAND, WALKER and WHITE, JJ.,
concur, that it is irrelevant to say that judgments rendered
against other corporations have not prevented violations of
the statutes; that the court has never been called upon to en-
force a suspended judgment of ouster heretofore rendered
in similar cases, and that the punishment in this case should
be the complete ouster of the incorporated non-profit-sharing
exchange through which the other respondents violated the
statute, and the fines mentioned in the majority opinion against
said other respondents, and suspended ouster conditioned on
the payment of such fines and the complete abandonment of
all agreements and arrangements by them with each other to
fix prices or restrict competition.

Held, by WHITE, J., in an opinion on motion to modify, that,
owing to the peculiar language of the statutes, complete ouster
might defeat its own ends, and that a more effective remedy
is to keep the respondents in court, under suspended ouster,
for the purpose of compelling them to abandon all violations
of the law. State ex rel. Barrett v. Boeckeler Lbr. Co., 445.

4. Collateral Attack for Fraud: Privies. Parties to an action, and
those in privity with them, are not permitted to attack collaterally
for fraud a judgment rendered therein. Kaufmann v. Annuity Co.,
638.

5. Reversal Upon Stipulation: Collateral Attack by Privies. A suit
was brought by certain stockholders of a dry goods company, and

JUDGMENTS-Continued.

all stockholders similarly situated were invited to join in the
suit, and plaintiffs in the present suit, being stockholders simi-
larly situated, employed attorneys to look after their interests
and they here allege that their interests were involved there.
There was a judgment for plaintiffs in that suit appointing a re-
ceiver for the dry goods company to bring such suits as were
necessary to preserve its assets, and on appeal to this court the
judgment was reversed upon stipulations of the parties filed. In
the present suit, brought to impress with an equitable lien a build-
ing and lot with a named sum of money, on the ground that the
funds of the dry goods company, by ultra vires acts of its officers,
were invested in the property, the plaintiffs allege that they knew
nothing of the stipulation to reverse the judgment in the former
case and they charge that in the disposition of the case fraud was
practiced upon this court. Held, that when a class suit is brought
by one or more persons for themselves and all others similarly
situated, such others are virtually represented and concluded by
the judgment; and plaintiffs cannot collaterally attack the judg-
ment of reversal in the former suit on the ground of fraud, but
are bound by it in this collateral proceeding, and can attack it
only by a direct proceeding brought for that purpose, or by inter-
vening in that suit. Kaufmann v. Annuity Co., 638.

6. Reversal Upon Stipulation: Collateral Attack by Privies: Same Cause
of Action. Where the money of the dry goods company alleged in
the former suit of stockholders to have been misappropriated is the
same money alleged in this action to have been misappropriated by
the same ultra vires acts of its officers, and the same fraudulent
deals appear in both cases, and the issues as to the fraudulent
transactions which give rise to the cause of action are the same;
and the plaintiffs, also stockholders of the said company, employed
attorneys to protect their interests in the former suit, and they ex-
pected to obtain in that suit the same relief they ask in this, and
this suit was brought because they could not obtain justice in that
on account of the bad faith of the parties conducting it, the cause
of action in both suits is the same. Ib.

7.

:

:

: Different Relief: Different Parties But Suc-
cessive Relationship. Where the plaintiffs in the former suit had
a right to litigate every issue presented in the present suit, the
cause of action is the same, and the judgment in the former is a
bar to a renewal of the action until it is set aside by a direct pro-
ceeding. The fact that in the present suit a special lien against
real estate is asked does not differentiate it from the former, if in
that a receiver was appointed and he brought suit to enforce a lien
for the unlawful appropriation of the same money. Nor are the
parties different if two companies made defendants in this were
defendants in the receiver's suit to enforce the lien, though not
otherwise parties; nor if the board of directors of the dry goods
company made defendants in the former suit and a different board
are made defendants in this, for the successive relationships of
defendants constitute a privity, and the plaintiffs are following the
same fund, and custodians of the fund, though changed, are charged
with the same trust. Ib.

JURIES AND JURORS.

Misconduct: Visiting Scene of Accident. The misconduct of the jury
in visiting the scene of the accident before making up their ver-

JURIES AND JURORS-Continued.

dict, without the consent or knowledge of the court, while subject
to judicial rebuke, is not, if established only by the affidavits of the
jurors themselves, whether they be those who agreed to the major-
ity verdict or those who did not so agree, a ground for a reversal
of the judgment by the appellate court. Evans v. Klusmeyer, 352.

JURISDICTION.

Venue: Theft in One County: Stolen Property Sold in Another. The
evidence shows that peas of the value of $40 or more were taken
from the owner's barn, and taken to Bertrand in Mississippi County
and there sold to a merchant, but it does not show that the barn
was in Mississippi County. The statute (Sec. 3724, R. S. 1919)
provides that when property is stolen in one county and brought
into another "the offender may be indicted, tried and convicted
for such larceny in the county into which such stolen property was
brought." Held, that, under said section, the Circuit Court of
Mississippi County had jurisdiction to indict and try the offenders,
whether or not the barn was in that county. State v. Parker, 294.

LANDS AND LAND TITLES.

1. Conveyance: By Infant Married Woman: Disaffirmance. A deed
executed by an infant married woman stands on precisely the same
footing as a deed by any other. Her deed is voidable only, and
the title passed by it remains in the grantee until some clear act
of disaffirmance is done by her after she reaches legal age; and
one method of disaffirmance is the bringing of a suit, and another
is by deed. Holcomb v. Pressley, 208.

2.

3.

4.

:

: Married Woman's Act. Although an in-
fant and married when she executed her deed in 1880, the female
grantor, upon reaching legal age, although still under coverture.
could have maintained a legal action to cancel said deed under
the Married Woman's Act (Sec. 6864, R. S. 1889) at any time after
1839. Ib.

:

:

: Limitations: Tolling Statute. Sec-
tion 1879, Revised Statutes 1909, barring an action to recover land
or the possession thereof unless brought within ten years, applied
only to possessory actions, and Section 1881, which was a tolling
statute and extended the limitation of Section 1879 as to married
women, likewise applied to possessory actions.
Neither has any
reference to other statutes or to other kinds of actions, and neither
after 1889 excused a married woman who had previously reached
legal age from disavowing her deed previously made. Ib.

:

:

:

Deed Made in 1880. The
female grantor made her deed in 1880. She was then an infant
and married, and has ever since remained under the disability of .
coverture. In 1919, or thirty-nine years after its execution, she
filed her deed of disaffirmance, and then brought this ejectment.
Held, that in view of the Statute of Limitations (Sec. 1305, R. S.
1919) and the tolling statute extending the limitation as to married
women (Sec. 1881, R. S. 1909), both of which apply only to posses-
sory actions, and the Married Woman's Act (Sec. 6864, R. S. 1889)

LANDS AND LAND TITLES-Continued.

giving to a married woman the same right to sue as a feme sole,
there were more than ten years before her written disaffirmance
in which she could have adopted means to disavow her deed which
would have been within the terms of the married woman's statutes,
and her disaffirmance came too late and she is not entitled to re-
cover. Holcomb v. Pressley, 208.

5. Homestead: In 1872. Where the eighty acres of land was the home-
stead of the owner who died in 1872, the title, if the property did
not exceed $1500 in value, vested in his widow and minor children
in fee in the minors, however, only until they attained legal
majority. After the minors attained their majority, the widow
took the fee-simple title to the exclusion of her husband's heirs.
Jennings v. Cherry, 321.

6.

-: Abandonment: Right to Possession. Under the then home-
stead statute the widow, whose husband died in 1872, had no right
to sell or dispose of the homestead during the minority of his
children; but having sold and abandoned it, they thereafter had
the undoubted right to exclusive possession and to take appropriate
proceedings to establish such right. Ib.

7. Tax Deed: Wrong Description: Last Above Tract. Where the
sheriff's deed, made in pursuance to a judgment for taxes, recited
that he exposed for sale "the S. W. 4 of S. E. 4 of Section 28, in
township 28, range 10, and the S. E. 4 of Section 36, in township
24, range 12; also
all of Section 28, in township 27, range
8," and then recited that "the said last above described tract was
stricken off and sold," etc., his deed did not convey to the pur-
chaser the tract first described, namely, "the southwest quarter of
the southeast quarter of Section 28, in Township 28 and Range
10, and the grantee of such purchaser has no title, by reason of said
deed to said forty acres. Miller v. Corpman, 589.

8.

:

:

: Color of Title. A deed which does not de-
scribe the land and does not purport to convey it is not color of
title. Ib.

9. Dower: Limitations: Conveyance: Inheritance. Where the owner
of land died in 1870 and his widow conveyed it to their daughter
and only child by quit-claim deed in 1897, and sáid daughter died
in 1914 leaving the plaintiffs as her only heirs, it is immaterial
whether the widow's dower was barred by limitations, since, if
she had no dower, the plaintiffs took by inheritance. Ib.

10. Limitations: Finding of Trial Court. A finding by the trial court,
sitting as a jury, that defendant is not entitled to recover either
under the ten-year or the thirty-year Statute of Limitations, both
pleaded as defenses in the action at law to determine the title, if
supported by substantial evidence, is conclusive on appeal. Ib.

11. Power of Attorney: Unrecorded. A deed purporting to have been
executed by the attorney-in-fact of the owner of land conveys noth-
ing, where his power of attorney was not recorded, is not offered
in evidence and is not shown to have been legally executed. Ib.
12. Incompetent Witness: Power of Attorney: Deceased Maker.
grantee of a deed purporting to have been made by the attorney-in-

The

LANDS AND LAND TITLES-Continued.

fact of the owner of land is not a competent witness of any alleged
conversation with said owner who is deceased at the time of the
trial. Ib.

13. Ancient Document: Power of Attorney: Recitals in Deed. Where
the trial occurred in 1917, a deed purporting to have been executed
in 1894 by the attorney-in-fact of the owner of land, now deceased,
is not admissible in evidence as an ancient document. No power
of attorney having been recorded, or offered in evidence or shown
to exist, it cannot be presumed that recitals contained in the deed
of the alleged attorney-in-fact as to powers conferred upon him are
true. Ib.

14. Tenants in Common: Paying Taxes. The grantees by quitclaim deed
of an undivided half interest of the grantor in land, who take pos-
session, do so as tenants in common with the heirs of said grantor,
after her death, and hold and use the same and pay taxes thereon
for their use and benefit as well as their own, unless said grantees
take and hold possession under such circumstances as amount to
ouster of said heirs. Ib.

15. Tax Sale: Instituted to Acquire Another's Land: Owner Not Party:
Due Process. The owner of a quarter section had conveyed the
south half and the ten adjoining acres of the north half to his wife,
and she in turn conveyed to defendant. The remaining seventy
acres he conveyed to Edwards, who in turn conveyed to plaintiff.
The buildings and other improvements were located on the ten-acre
strip, which for many years was used in connection with the south
half, and Edwards made no claim to it. The north half (which
included the ten-acre strip) was described on the tax book as one
tract, and plaintiff permitted the taxes to become delinquent for the
purpose, as he says, of "bringing about its sale and perfecting his
title." Suit was brought for the delinquent taxes, the plaintiff,
Edwards and others, none of whom had any claim to the ten-acre
strip, being named as defendants, and at the sheriff's sale the
whole north half was sold and conveyed to plaintiff, who later
brought this ejectment against defendant for said ten-acre tract,
basing his title thereto on said sheriff's deed. At the trial the
evidence disclosed that plaintiff and the officials who brought the
tax suit well knew that none of the defendants in that suit had
any claim of title to the ten acres, and that they well knew that
the defendant in this suit was the owner. When informed that a
judgment for taxes had been obtained against the ten acres, the
present defendant, who was a non-resident, authorized his attorney
to appear at the sale and protest against the same, and said at-
torney notified the sheriff, both in writing and by public declara-
tion at the sale, that defendant was the owner of the ten-acre
strip and that no suit had been brought against him to enforce the
payment of taxes thereon, but the sheriff ignored the notice, and
also the attorney's request that only the land belonging to plaintiff
be subjected to sale. Held, first, to permit plaintiff to recover would
be to deprive defendant of his property without due process of law;
and, second, the entire proceeding, from the institution of the tax
suit to the making of the deed to plaintiff by the sheriff, was not
only irregular, but in defiance of that orderly procedure which
should characterize an action affecting individual rights of what-
ever nature. Hider v. Sharp, 625.