use, hold, and exercise the powers of said office within the state and county aforesaid since the 9th day of November, 1901; denies that said respondent has unlawfully claimed, received, and enjoyed the rights, fees, and emoluments belonging and appertaining to said office; and denies generally and specifically each and every other allegation contained in said information. And for further answer respondent avers that heretofore, to wit, on the 8th day of November, 1898, he was the legal candidate of the Republican party of Crawford county, Missouri, for the office of circuit clerk and recorder of deeds, having been duly nominated for such office by nomination legally and regularly made, as shown by the certified copy of the nominations of the Republican party of Crawford county, Missouri, herewith filed, marked 'Exhibit A,' and made a part of this answer; that on the 8th day of November, 1898, at the regular and general election held in said Crawford county, Missouri, on the said 8th day of November, 1898, said respondent, as the candidate aforesaid, and one W. J. Self, were voted upon for the candidates to the office of circuit clerk and recorder of deeds within and for said county and state; that on the 10th day of November, 1898, the result of said election, and the votes cast thereat for the various candidates for the office of circuit clerk and recorder of deeds within and for said Crawford county, Missouri, was ascertained and determined by U. S. Wright, clerk of the county court within and for said county and state, together with the assistance of Marcus Earney and U. B. Wright, two of the judges of said county court, when and where it was ascertained and determined that the respondent herein, William C. Evans, had been duly and legally elected to the office of said circuit clerk and recorder of deeds,-he, the said respondent, having received 1,421 votes, as against 1,257 votes cast for W. J. Self, his opponent,— whereupon said U. S. Wright, clerk of the county court aforesaid, issued a certificate of election declaring that said respondent, William C. Evans, had been duly elected circuit clerk and recorder of deeds within and for said county and state, and certified the same to the secretary of state within and for Missouri, as required by law. And respondent further avers that afterwards, to wit, on the 5th day of December, 1898, a commission was duly issued by the governor of the state of Missouri, and attested by the secretary of state, commissioning said William C. Evans, clerk of the circuit court within and for said Crawford county, Missouri, for a term of four years, authorizing and empow ering him, the said respondent, to discharge all the duties according to law pertaining to said office, which said commission is hereto attached, marked 'Exhibit B,' and made a part of this answer; that on the 12th day of December, 1898, the respondent, William C. Evans, appeared before U. S. Wright,

clerk of the county court within and for said county and state, and qualified by taking the oath and giving bond to the state of Missouri in the sum of $2,500, conditioned that he, the said William C. Evans, the respondent herein, should faithfully perform and discharge all the duties enjoined on him by law as recorder of deeds within and for said county and state as required by law, a certified copy of which said bond is herewith filed, marked 'Exhibit C,' and made a part of this answer. Wherefore, by reason of all the premises, and by virtue of the certificate of election, qualification, and bonding as aforesaid, respondent avers that he has, during all the times aforesaid mentioned in the information herein filed, with legal right and authority, used, held, and exercised the duties and emoluments of the office of recorder of deeds within and for said Crawford county, Missouri, and still does lawfully use, hold, and exercise the rights, privileges, and liberties of said office of recorder of deeds, as well he might and still may do so under the law, as well as receive the emoluments of the office, all of which he is ready to prove and verify as the court shall award. Wherefore he prays judgment that the said office of recorder of deeds, its rights, duties, franchises, privileges, and emoluments belonging and appertaining thereto, by him claimed, may be adjudged to him as required by law. Wm. C. Evans, Respondent.

"State of Missouri, County of Crawfordss. On this 20th day of December, 1901, before me, a notary public, personally came one William C. Evans, who first being duly sworn, upon his oath says that the matters and facts stated and contained in the above and foregoing answer are true and correct. A. H. Harrison, Notary Public. [Seal.] My term expires August 30, 1903."

The attorney general's reply to respondent's return is as follows:

"In the Supreme Court of Missouri, Division No. 2, October Term, 1901. State of Missouri, ex informatione Edward C. Crow, Attorney General, Informant, vs. Williams C. Evans, Respondent. Comes now the informant herein, and, for reply to respondent's alleged answer, states that heretofore, to wit, on the 6th day of November, 1901, the county court of Crawford county, Missouri, being lawfully in session, made and spread upon its records an order dividing the office of recorder of deeds and the office of circuit clerk, which is recorded in Book

—, at page, in the county court records of Crawford county, Missouri, and a copy of which is hereto attached; that afterwards. on the 7th day of November, 1901, Governor A. M. Dockery, in pursuance of the power vested in him by law, appointed Thomas M. Wright recorder of deeds within and for the county of Crawford and state of Missouri, to hold until his successor is elected and qualified, and a copy of which said commission is hereto attached, and marked

'Exhibit B'; that afterwards, to wit, on the 8th day of November, 1901, Thomas M. Wright took and subscribed the following oath of office, to wit:

"State of Missouri, County of Crawford. I, Thomas M. Wright, do solemnly swear that I will support the constitutions of the United States and the state of Missouri, and faithfully demean myself in office as recorder of deeds of Crawford county, Missouri. T. M. Wright.

"'Subscribed and sworn to before me this 8th day of November, 1901. U. S. Wright, Clerk County Court. [Seal.]'

-And that on said 8th day of November, 1901, in pursuance of the statutes, he made and executed, with good and lawful securities, the following official bond:

"Know all men by these presents, that we, Thomas M. Wright, principal, and Uriah B. Wright, William Wright, Joseph N. Taylor, and L. C. Mattox, as securities, are held and firmly bound unto the state of Missouri in the sum of five thousand dollars, for the payment of which we hereby bind ourselves and our heirs, executors, and administrators. Witness our hands this 8th day of November, 1901. The condition of the above bond is such, however, that whereas, the said Thomas M. Wright was on the seventh day of November, 1901, duly appointed to the office of recorder of deeds of the county of Crawford, in the state of Missouri, and has been duly commissioned: Now, therefore, if the said Thomas M. Wright shall faithfully perform the duties enjoined on him by law as recorder, and shall deliver up all the records, books, papers, writings, seals, furniture, and apparatus belonging to the office, whole, safe, and undefaced, to his successor, then this obligation to be void; otherwise to remain in full force and effect.

""Thomas M. Wright. "Uriah B. Wright.

his

"William X Wright.

mark.

"Joseph N. Taylor. "L. C. Mattox.

"'Witness: H. W. Ramsey. "Filed November 8, 1901. U. S. Wright, County Clerk.

"Approved by the court. M. A. Clayton, P. J.'

-That said Wright was at the time of said appointment a qualified and legal voter of the state of Missouri, and a resident thereof for one year at least, a male citizen over twenty-one years of age, and in all respects duly qualified to hold the office of recorder of deeds within and for said county, and to perform the duties thereof. Informant states that upon said Thomas M. Wright being appointed, commissioned, and qualified as aforesaid, he became entitled to the office, and that respondent herein now unlawfully and unjustly deprives him thereof. Wherefore informant prays a judgment of ouster may be rendered against respondent, and

for such other orders in the premises as the court may deem proper. Edward C. Crow, Attorney General."

The motion for judgment on the pleadings is as follows:

"In the Supreme Court of Missouri, Division No. 2, October Term, 1901. State of Missouri ex informatione Edward C. Crow, Attorney General, Informant, vs. William C. Evans, Respondent. Comes now the informant, and prays the court to render judgment on the pleadings herein, for the reason that respondent has shown no title to the office, and on the face of the pleadings the state is entitled to a judgment of ouster against him. Edward C. Crow, Attorney General."

The duly-certified copy of the order of the county court of Crawford county made on the 6th day of November, 1901, and filed as an exhibit, and made part of the attorney general's reply, recites that it appeared to the court from the official census that Crawford county had a population of more than 10,000 inhabitants, and that the circuit clerk of said county had been, and was then, exercising and performing the duties of recorder of deeds of said county. It was thereupon ordered by the court that the office of the circuit clerk and recorder of deeds be, and the same are, divided and separated, under authority and in pursuance of sections 9079, 9080, Rev. St. Mo. 1899; and a copy of said order was directed to be certified to the governor of Missouri. The governor on the 7th day of November, 1901, appointed Thomas M. Wright recorder of deeds within and for said county of Crawford, and a commission in due form of law was delivered to him, and, as alleged, said Wright took the oath of office and filed his bond.

The Attorney General and Sam B. Jeffries, for informant. A. L. Reeves, Henry Clymer, and H. H. Harrison, for respondent.

GANTT, J. (after stating the facts). This court will take judicial notice of the published official census of the United States, for the purpose of determining the population of the several counties of this state at a given period. State v. Jackson Co. Ct., 89 Mo. 237, 1 S. W. 307; State v. Wofford, 121 Mo. 61, 25 S. W. 851. According to the census of 1900, Crawford county had 12,959 inhabitants. Section 9079, Rev. St. Mo. 1899, provides for the division of the office of circuit clerk and recorder as follows: "In every

county having a population of ten thousand inhabitants, it shall be lawful for the county court to make an order separating the offices of circuit clerk and recorder of deeds." Section 9080 of the same Revised Statutes provides that, if the order mentioned in the next preceding section shall be made 12 months next before the time provided for the election of a recorder, an election shall be ordered for the purpose of filling said office, to be held not exceeding 40 days thereafter; but, if the order is made within 12 months next before the time provided for the el

"Said tract containing a front of 85 ft. 4 inches on north line of Magnolia Ave., and extending northwardly to an alley, on the south line of which it has a width of 78 feet 4 inches; said tract being bounded east by California Ave., and on the west by the lot conveyed by Phil. Krechter to Cath. Zelhender," etc.

By her last will and testament, duly admitted to probate, she devised this property as follows: "Second. It is my will, and I hereby direct, that all the real estate owned by

60'W. AVE.

MARK ON BRICK WORK

ever.

me in city block No. 2076 (alias number 2067), of the city of St. Louis, Missouri, shall be disposed of in manner following: That is to say, I devise and give to my daughter Mary Grofe that certain brick building known as number 2801 Magnolia avenue, in said city of St. Louis, Mo., together with the lot of land on which it stands, fronting 32 feet and 6 inches, more or less, on the north line of Magnolia avenue, by depth northwardly of 156 feet, more or less, to an alley 15 feet wide, on which said lot has a front of 26 feet, more or less, to have and to hold the same unto her, her heirs, and assigns, forThe said lot is bounded as follows: On the east by California avenue, south by Magnolia avenue, and north by said alley. The foregoing devise is made, however, on the following condition: That she, the said Mary Grofe, shall pay or cause to be paid out of the land so devised the sum of thirty-five hundred ($3,500) dollars, whereof the sum of two thousand ($2,000) dollars shall be paid unto my said daughters Helena Krechter, now Sister Thekla, and Katharine Krechter, now Sister Johanna, share and share alike, and the balance of fifteen hundred ($1,500) dollars thereof shall be paid to my executor herein, and shall be used for the payment of all my just debts, my funeral expenses, and the three legacies hereinafter mentioned, for $100.00 each; and the surplus, if any, shall be paid over to the residuary legatee named in this, my will. I devise and give unto my daughter Philomena Krechter that certain brick building known as number 2803, north side of Magnolia avenue, in said city of St. Louis, Missouri, together with the lot of land thereto belonging, having a front of 27 feet and 9 inches, more or less, on the north side of Magnolia avenue, by a depth northwardly of 156 feet, more or less, to an alley 15 feet wide, and being bounded on the east by property hereinbefore devised to my said daughter Mary Grofe, and on the south by Magnolia avenue, and north by said alley: provided, however, that she, the said Philomena Krechter, shall pay or cause to be paid unto my said daughter Emma Kesselheim, out of the realty so devised, the sum of two thousand ($2,000) dollars. I do further direct that the several amounts charged against my said daughters Mary Grofe and Philomena Krechter, respectively, as specifiled herein, shall be paid by each of them within 12 months from the probate of this, my will, and without interest. I devise and give unto my daughter Emma Kesselheim a certain lot of ground situated in city block No. 2076 of the city of St. Louis, Mo., fronting 25 feet, more or less, on the north side of Magnolia avenue, by a depth northwardly of 156 feet, more or less, to an alley 15 feet wide, and being bounded south by Magnolia avenue, north by said alley, east by property herein last above devised to Philomena Krechter, and west by property now or formerly belonging to Catherine Zellahaber, to

have and hold the same unto her, her heirs and assigns, forever."

This tract was all inclosed, but there were no division fences. The building No. 2801 and 2803, mentioned in the will and shown upon the plat, is a double, three-story brick house, divided into two by a partition wall. It fronts on Magnolia avenue, running back northwardly 65 feet 8 inches, at right angles with that avenue. The line of the partition wall extended back straight from the rear of the building, in that direction, to the alley, is indicated on the plat by the red dotted line. The triangular piece of land between that line and the black line next west of it, is the land sued for. It appears from the evidence: That the brick building was erect ed in 1890, and since has been occupied by tenants using the lower story as stores, and the upper stories as dwellings. That it is supplied with water from the main in Magnolia avenue, and each house had separate pipes from the street, and separate meters; and the upper stories of each are also supplied with water-closets. That a frame porch about 8 feet wide in the rear of the building extends the whole length of it, the eastern end of which conforms to the west line of California avenue, which does not run at right angles with Magnolia avenue. That shortly after the building was erected a 7 by 9, one-story, frame privy, distant about 26 feet from the rear of the porch, was built, and in the rear of it two hydrants were pla ced, over which was afterwards erected a one-story, 12x12, frame shed, used as a wash house by some of the tenants. The hydrants were fed by separate pipes extended from the separate water pipes of each house, about on the line indicated by the black dotted1 line on the plat; and in the rear of the tract was erected a line of sheds, for coal, wood, hay, etc., fronting on the alley, and extending the whole width of the tract. The privy was divided by a wooden partition into two compartments, and a division of the wash house was indicated by the slight projection of a wooden partition from its south wall in the direction of the hydrants, on a line with that in the privy. That, as a rule, the tenants in No. 2801 used the east compartment of the privy, the east hydrant, and that side of the wash house, and the tenants of No. 2803 used the west compartment of the privy, the west hydrant, and the west side of the wash house, and that these outhouses were built and so used under the directions of the testatrix. And upon these facts the plaintiff contends, as the dotted red line aforesaid, being an extension of the line of the partition wall of the main building to the alley, is in line with the partition of the privy, and the partition indicating a division of the wash house, and runs between the two hydrants, that this

1 The red dotted line here referred to is the black dotted line in the plat.

The black dotted line here referred to is the heavy line in the plat