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Leirs and devisees they are, under and by dence a certified copy of the judgment aforeTirtoe of his last will and testament,

said, which also contained a recital of the and upon the condition precedent as herein fact that the defendants had filed motions set out, and in consideration of the sum of for new trial and in arrest of judgment. The oce dollar ($1.00) to them paid by Joseph record. did not show affirmatively that said Lamertine Hudspeth,

they have motions bad been overruled or acted upon. granted, bargained, sold and transferred, and The plaintiffs objected to the introduction of do by these presents, grant, bargain, sell and the said certified copy of the judgment on the transfer, unto the said Joseph Lamertine ground that the defendants' answer admitted Hodspeth, upon the terms and conditions that the judgment was a final judgment, and, tereinafter set forth," certain property, further, because the certified copy did not siounting to 120 acres, and covering the purport to be a copy of the whole record or 70 acres here in dispute. The deed contained proceedings in the case. The court sustained the following further provisions: “This con- the objection, and excluded the record on Terance being made upon the express con- the ground that the defendants' answer pleaddition that the above described real estate ed the judgment as a final judgment and the shall not be liable to any debts that the said plaintiffs' reply admitted the same. The deJoseph Lamertine Hudspeth may now have, fendants excepted to the ruling of the court. or that he may contract during the period The defendants then offered in evidence the of thirty years from the date hereof. And will of Robert N. Hudspeth, which, so far as the said Joseph Lamertine Hudspeth shall is material here, devised the property in conbare no right, power or authority to, in any troversy to the brothers and sister of the manner, sell, incumber or dispose of said real testator absolutely, as stated. The defend estate or any part thereof for the period of ants then called Edward P. Gates, one of the thirty years from the date hereof, except to attesting witnesses to the will, and over the dispose of the same by his last will and testa- objection of the plaintiffs the court permitted ment. After the expiration of said thirty him to testify that at the time the testator Fears, as aforesaid, said real estate shall vest executed the will be apprehended some diffiatsolutely in the said Joseph Lamertine culty, which might result in his sudden death, Hudspeth, free and clear of all the conditions But the witness testified that no such ocberein named, to use and enjoy and dispose currence took place, and that the testator of in any manner he may deem proper. The lived a number of years afterwards. The desaid Joseph Lamertine Hudspeth to have the fendants also called Mrs. Malinda Wood, Be and enjoyment and the income therefrom née Bell, the sister of the testator, and one of from this date upon the terms and conditions the grantors in the deed to the defendant above named. But should be sell, or attempt Hudspeth, and over the objection of the plain. to sell or incumber, said premises at any tiffs the court permitted her to testify that time during the said thirty years, then in that she and her brothers executed the deed to erent the title to the above-described prem- the defendant Hudspeth in conformity to ises shall immediately vest in the said first the verbal direction of the testator that they parties, their heirs or assigns.” The plaintiffs should convey the property to the defendant offered in evidence the sheriff's deed under Hudspeth, and should fix it so that it could the judgment a foresaid. The defendants ob- not be taken for his debts for a period of 30 jected to the introduction of the deed upon years, and so that he could not alienate it. two grounds: First, because the deed does She further testified that the defendant Dot show on its face that the law in reference Hudspeth paid nothing for the land. This to the setting apart of a homestead had been was all of the testimony in the case. As 00mplied with; and, second, that the judg- before stated, the trial court entered a judgpent under which execution was issued was ment for the plaintiffs, and after proper steps pot a final judgment, and therefore the clerk the defendants appealed. had no right to issue the execution. The 1. The crucial question in this case is what court orerruled the objection, and the defend- interest the defendant Hudspeth had in the ants saved exception. The sheriff's deed land in controversy. The defendants conshowed that commissioners were appointed tend that Robert N. Hudspeth, by verbal dito set out the homestead of the defendant rections to his brothers and sister, created a Hodspeth, and that they did set apart to spendthrift trust for the defendant Hudsbim 30 acres of the tract as a homestead, and peth, and that said brothers and sister efthat the remaining 70 acres were sold to the fectuated the trust by the execution of the plaintiffs. The plaintiffs also offered in evi. deed to him, and that the proper construction dence the amended petition in the case where- of that deed is that the land could neither to the judgment aforesaid was rendered, be alienated by the defendant Hudspeth or which showed that the plaintiff Kessner was taken in invitum by his creditors until the the wife of Joseph W. Kessner, and that the expiration of the period of 30 years limited defendant Hudspeth had willfully shot and in the deed, and hence that the sale of the alled him, for wbich she sued for $5,000 land under execution to the plaintiffs was damages. The plaintiffs also showed the void, and conveyed no title. On the other rental value of the land, and then rested. On hand, the plaintiffs contend that an express their bebalf the defendants offered in evi. trust in land can only be created, under the

statutes of this state, in writing, and that donee must be only of the income. He must the deed of the defendant Hudspeth is in take no estate whatever, have nothing to no sense the creation of a spendthrift trust, alienate, have no right to possession, have and only limits the sequestration of the land no beneficial interest in the land, but only for debts contracted by Hudspeth, and does a qualified right to support, and an equitanot prevent the land from being sold to sat- ble interest only in the income. Second. The isfy a judgment based upon a tort of said legal title must be vested in a trustee. Hudspeth. In view of the conclusion herein Third. The trust must be an active one, not reached, it is not necessary to follow the able a mere dry trust, which may be executed and ingenious argument of counsel in ref- under the statute of uses. 26 Am. & Eng. erence to the creation of an express trust Enc. of Law (2d Ed.) p. 142 et seq.; Mcby the verbal direction of the donor and the Ilvaine v. Smith, 42 Mo. 55, 97 Am. Dec. subsequent written declaration of the trus- 295; Partridge v. Cavender, 96 Mo. 457, 9 tee or grantee. The doctrine of spendthrift S. W. 785; Lampert v. Haydel, 96 Mo. 439, trust is recognized in this state. Mcllvaine 9 S. W. 780, 2 L. R. A. 113, 9 Am. St. Rep. v. Smith, 42 Mo. 55, 97 Am. Dec. 295; Part- 358; Kingman v. Winchell (Mo.) 20 S. W. ridge v. Cavender, 96 Mo. 457, 9 S. W. 785; 296; Ehriswan y. Sener, 162 Pa. 577, 29 Atl. Lampert v. Haydel, 96 Mo. 439, 9 S. W. 780, 719; Keyser's Appeal, 57 Pa. 236; Rife v. 2 L. R. A. 113, 9 Am. St. Rep. 358; Pugh Geyer, 59 Pa. 393, 98 Am. Dec. 351; Upham v. Hayes, 113 Mo. 424, 21 S. W. 23. But v. Varney, 15 N. H. 462; Lear v. Leggett, whether a conveyance created a spendthrift 2 Simons, 479; Bank V. Adams, 133 Mass. trust is always the question primarily for 170, 43 am. Rep. 504; Bank v. Davis, 21 consideration. A "spendthrift trust" is the Pick. 42, 32 Am. Dec. 241. "On the other term commonly used to designate a trust hand, where the cestui que trust has an abcreated for the maintenance of the cestui que solute right to the fund or its avails, such trust and to secure the fund against the im- as a right to keep the land and to receive providence of the cestui que trust. The Eng. the income therefrom,

or where lish rule, which has been adopted in most of it is absolute property, and may therefore the states of this Union, is that it is against be alienated by him," to where the land is the policy of the law for the grant to be so conveyed upon a simple condition that it limited thata donee shall have the possession shall not be subject to the grantee's debts, and enjoyment of the property, but shall not no spendthrift trust arises or is created, and have the power of alienation, or that the prop- the donee's interest may be sold under exerty shall not be liable for his debts. Under ecution, or sequestrated in equity. 26 Am. the English law it is competent to make the & Eng. Enc. of Law (2d Ed.) p. 144; 1 estate determinable, as upon the bankruptcy Jones on Real Property, § 663; Gray's Reof the donee, in which event the estate is straints on Alienation, $ 259; Potter v. Merto revert to the donor, or to some person rill, 143 Mass. 190, 9 N. E. 572; Maynard specified in the grant. In such case the V. Cleaves, 149 Mass. 307, 21 N. E. 376; creditor is deprived of the estate by the act Smeltzer v. Goslee, 172 Pa. 298, 34 Atl. 44; which deprives the. donee thereof. But Young v. Easley, 94 Va. 193, 26 S. E. 401. where no such provision for the determina- The deed to the defendant Hudspeth, here tion of the estate is contained in the grant involved, falls radically short of the requirethe property will pass to the assignee in ments of the rule as to the creation of spendbankruptcy. The American doctrine differs thrift trusts, and especially so in the folfrom the English rule, and is thus stated in lowing particulars: First, no trust estate is 26 Am. & Eng. Enc. of Law (20 Ed.] p. 139: created; second, no trustee is appointed; “This doctrine is that it is lawful for a third, Hudspeth's interest is not limited to testator or grantor to create a trust estate the enjoyment of the income, nor is his right for the life of the cestui que trust, with the simply a right to support; fourth, an absoprovision that the latter shall receive and lute estate in fee simple is vested in Hudsenjoy the avails at times and in amounts peth; fifth, Hudspeth is given the right of either fixed in the instrument or left to the possession, of managing and controlling the discretion of the trustee, and that such avails

property, and of receiving the whole income shall not be subject to alienation by the therefrom without let or hindrance. In beneficiary nor liable for his debts.” The short, the conveyance to Hudspeth is of the most learned discussion of the subject and whole legal title, with all the incidents and of the difference between the English and rights appurtenant thereto, with only a futhe American. doctrine is that of Mr. Justice tile attempt to annex repugnant conditions Miller in Nichols v. Eaton, 91 U. S. 716, 23 thereto to the effect that the land shall not L. Ed. 254. The Am. & Eng. Enc. afore- be liable for the payment of any debts he said, at page 140 et seq., has collected the had or might thereafter contract during a arguments pro and con bearing upon the period of 30 years, and that he should not two doctrines, but it is not necessary to the have power to sell, incumber, or dispose of determination of this case to pursue the in- the property for a like period except by will, quiry further. In order to create a spend- and with the further qualification that if thrift trust certain prerequisites must be he sold, or attempted to sell or incumber, observed, to wit: First. The gift to the the property during that period, the title

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sball immediately rest in the grantors. Ever property, but insufficient to prevent the land since the statute of quia emptores was en- being sold for the payment of her debts. On seted, the rule of law has been that, “after the other hand, Jones on Real Property, $ an absolute conveyance in fee simple, a 662, points out that a condition attached to dause providing that the grantee shall not an absolute fee that the grantee shall not mortgage or dispose of the property is re- alienate within a limited time has been held pugnant and void." Lawrence v. Singleton void in Murray v. Green, 64 Cal. 263, 28 Teon.) 17 S. W. 265; Hall v. Tufts, 18 Pac. 118, Mandlebaum v. McDonell, 29 Mich. Pick 455; Gleason v. Fayerweather, 4 Gray, 78, 18 Am. Rep. 61, and McCleary v. Ellis, 54 345: Walker 7. Vincent, 19 Pa. 369; Laval Iowa, 311, 6 N. W. 571, 37 Am. Rep. 205. In T. Staffel, 64 Tex. 370. So, also, “a condi- Overman's Appeal, 88 Pa. 276, the Supreme top that land conveyed shall not be subject Court of Pennsylvania, speaking to this sub30 the grantee's debts is in restraint of ject, said: “It contra venes that general polalienation and void. Notwithstanding such icy which forbids restraints on alienation condition, the land is subject to levy on ex- and the nonpayment of honest debts. keition, and passes to an assignee in bank

Property tied up for half a century ruptcy. Liability for debts is an incident contributes nothing to the general wealth, of property, just as the right to convey it is." while it is a great stretch of liberality to the 1 Jones on Real Property, $ 663. In Tilling-ownership of it to suffer it to remain in this best F. Bradford, 5 R. I. 205, Ames, C. J., anomalous state for so many years after its said: “Certainly no man shall have an es- owner has left it behind him. Clearly, it is tate to live on, but not an estate to pay his against public interest that the property of čebts with. Certainly property available a future generation shall be controlled by a for the purpose of pleasure or profit shall be deed of a former period, or that nonpayment a's amenable to the demands of justice." of debts should be encouraged.” It is the It follows that the deed in question, whether policy of the law in this state to permit the eltcuted in pursuance of either a written creation of spendthrift trusts, and to allow or verbal direction of Robert N. Hudspeth the owner of property to apply a portion or or by the grantors of their own motion, the whole thereof to the maintenance and wotnlly fails to create a spendthrift trust. support of those he wishes to provide for, Taless, therefore, the conditions annexed and who are not able to control and manage to the absolute grant are sufficient and legal, their own affairs. So long as such a conthe land in question was subject to the debts veyance does not offend against the law of of the defendant Hudspeth.

perpetuity, and so long as the conveyance The defendants tacitly concede that such is a proper trust, the courts will observe the eneral limitations, even with a provision wishes of the donor. So, too, it is competent fc cesser, cannot have the effect in law of for the owner to convey or devise property cutting down the absolute grant, or of with- in trust for the benefit of those the donor drawing the property from the reach of the wishes to befriend, and such trusts may conmantee's creditors; but they contend that it tinue for a limited period, or even during is legal to limit the right, of the grantee in the life of the beneficiary. In all such cases, fee simple to convey, mortgage, or dispose

however, the beneficiary has only an equitof the property, and likewise to prohibit it ablé interest, and not the fee in the land. from being seized by the grantee's creditors, Such rules, however, do not apply where for a limited period of time. In support of the conveyance is absolute to the donee, their contention the defendants cite and rely coupled with either a perpetual or limited aron 2 Washburn on Real Property (5th Ed.) | power of alienation, or attempts to place the p. 9; McWilliams v. Nisley, 7 Am. Dec. 654; | property beyond the reach of the creditors Lapzdon v. Ingram's Guardian, 28 Ind. 360; of the donee. The better rule and the better Stewart v. Brady, 3 Bush (Ky.) 623; Stewart reason is that such limitations or conditions 5. Barrow, 7 Bush (Ky.) 368. Washburn cannot be grafted upon a fee simple estate, lays down the rule that a fee may be limited because they are repugnant to the absolute so as to restrain the conveyance for a certain ownership incident to the fee. Donors who time. The Pennsylvania case cited holds have such limited confidence in their donees, that, while a general or perpetual restraint should create spendthrift trusts, and not, of alienation is repugnant and void to a fee as here, attempt to evade and violate fundasimple, nevertheless a partial restriction for mental and wise provisions of law in refera particular time or against conveying to a ence to mere legal estates. It follows that particular person is good. The same gen- the conditions against alienation or liability eral doctrine is stated in the Indiana case for debts in the deed here involved are void, dited, although the real estate there involved because they are repugnant to the absolute #as a trust estate, and the direct question ownership granted by the deed to the granbere involved was not there decided. In tee. Stewart v. Brady, 3 Bush (Ky.) 623, the land 2. Defendants next contend that the trial was devised subject to a limitation upon court erred in excluding the certified copy alienation until the devisee attained the age of the judgment. The gist of this contention of 35 years, and it was held a valid restric- is that the certified copy showed that the tion against ber voluntary disposition of the judgment was not a final judgment, because

the motions for new trial and in arrest had be taken before land, which is in whole or not been acted upon at the time the execu- in part a homestead, can be lawfully subtion was issued. The trial court properly ex- jected to seizure and sale. The section of cluded the evidence offered, for the reason the statute quoted requires the sheriff, first, that under the issues tendered by the de- to give the homesteader a fair opportunity to fendants and conceded by the plaintiffs, the make a choice and selection, and only aujudgment under which the execution issued thorizes the sheriff to have the homestead was alleged to be a final judgment. Such set apart after the homesteader has refused being the issues, it was incompetent for the to designate or choose. If the statute stopdefendants to contradict them.

ped here, the general presumption of law 3. Lastly, the defendants contend that the that an officer has performed his duty would sheriff's deed is void, for the reason that it obtain. But the statute expressly requires does not affirmatively appear therein that that, “Such proceedings in respect to the the defendant Hudspeth was afforded an homestead shall be stated in return upon opportunity to select the portion of the land such execution." This statute destroys the which he would hold as his homestead. The general presumption of law aforesaid, and deed in question recites that commissioners expressly requires that all of the preliminary were appointed, and that they set apart 50 steps provided to be taken before property acres as a homestead for the defendant. The in which a homestead right exists can be deed does not affirmatively show that prior sold must be stated in the return upon the to the appointment of the commissioners the execution. But, whilst such are the prosheriff gave the defendant Hudspeth an op- visions of the statute as to the return, there portunity to choose that portion of the land is no provision in the statutes that the sherhe would select as his homestead. It is also iff's deed shall contain all of the recitals true that the defendants offered no evidence which the statute requires the return or exwhatever tending to prove that the sheriff ecution to set out. The return of the sheriff had failed in his duty in this regard. Sec- on the execution in question here is not contion 3617, Rev. St. 1899, which was the law tained in the record, nor is there any eviin force at the date of the levy and sale un- dence that it did not fully comply with the der the execution in this case, provides that requirements of the statute. The defendwhen an execution is levied upon a home- ants therefore have wholly failed to afford stead the homesteader shall have a right to the foundation upon which the statute bases designate and choose the part of the land their right to make the objection to the to which the exemption shall apply, "and validity of the sale here contended for. upon such designation and choice, or in case From such failure so to do it is fairly inferof a refusal to designate and choose, the able that no such basis existed, and, as the sheriff levying the execution shall appoint statute does not require such recitals in the three disinterested appraisers, who shall, sheriff's deed, and only requires them to be first being sworn to the faithful discharge of stated in the return on the execution, this their duties, fix the location and boundaries contention of the defendants must be reof such homestead, and the sheriff shall then solved against them. proceed with the levy of such execution upon 4. It is said by defendants that the trial the residue of such real estate, as in other court erred in treating this case as a case in case; and such proceedings in respect to the equity. The answer of the defendants set homestead shall be stated in return upon up an equitable defense, but asked no afsuch execution." This court has frequently firmative equitable relief. The case therefore held that, unless the sheriff gives the home- is a case at law, and not one in equity. steader a fair opportunity to make his selec- Martin v. Turnbaugh, 153 Mo. 172, 54 S. tion, the sale is void, and that until such W. 574. The defendants, however, failed to opportunity is afforded and such homestead

preserve any exception to this action of the er refuses to make a selection the sheriff has court, but, on the contrary, acquiesced thereno power to have a homestead set apart. in, and tried the case as if it was one propMacke v. Byrd, 131 Mo. 682, 33 S. W. 448, erly cognizable in equity. They are therefore 52 Am. St. Rep. 649; Brewing Association v. not in position now to assign this as an error. Howard, 150 Mo., loc. cit. 450, 51 S. W. 1046; In view, however, of what is hereinbefore Keene v. Wyatt, 160 Mo. 31, 60 S. W. 1037, said, it is immaterial whether the case be 63 S. W. 116. Ordinarily, the law is that an treated as one in equity or one at law, for officer is presumed, in the absence of a show- in either event the result would be the same. ing to the contrary, to have performed his The 70 acres of land in dispute were sold duty. Under this general presumption, a by the sheriff for the insignificant sum of sheriff, except for the provisions of the stat- $50, and it would appear a great hardship to ute, would be presumed to have performed the defendant to lose the land for such a his duty and to have given the homesteader price, and therefore this court has sought an opportunity to designate and choose the with great care to find some ground upon portion of the land he desired to retain as which to set aside the sale, to the end that his homestead. But a homestead is purely a the land may be made to realize its full statutory creature, and the statute in this value; but, after a careful and painstaking state bas prescribed the steps which must examination of the case, the court is unable

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so to do, and the defendant Hudspeth must saffer the consequences of his own failure to see at the proper time that the land brought its full value.

Finding no error in the record, the judgment of the circuit court is affirmed. All concur.

as in fraud of creditors, the power of the court is limited to a finding that the money which purchased the land belonged to the husband, except a portion thereof belonging to the wife; and, on such finding, where the land is occupied as a homestead, the court is limited in its decree to directing the sheriff to give the homesteader the right to select the particular land he desires to hold as a homestead, and to appoint commissioners to value and set apart the same to him, and thereafter to direct the sale of any land in excess of area or value of the exemption, and the payment from the proceeds of the amount due the wife, and the application of the balance to plaintiff's judgment. 9. HUSBAND AND WIFE POSSESSION OF WIFE'S PROPERTY.

In such action, evidence examined, and held insufficient to show a reduction by the husband to his possession of the wife's money invested by him in the land, so as to entitle him to such money under the rules of the common law.

Appeal from Circuit Court, Lawrence County; Henry C. Pepper, Judge.

Bill by Reed Bros. against R. D. 0. Nicholson and wife. Decree for plaintiffs, and de fendants appeal. Reversed.

Henry Brumback and Gibbs & Henson, for appellants. Jos. M. McPherson and Wm. B. Skinner, for respondents.

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REED BROS. v. NICHOLSON et ux, (Supreme Court of Missouri, Division No. 1.


As, ander Rev. St. 1899, $ 3616, a homestead is exempt from attachment and execution, a boreyance thereof by a husband to his wife is Dot fraudulent as against his creditors.

Ed. Note. For cases in point, see vol. 24, Cent Dig. Fraudulent Conveyances, 88 118 122) 2. HOWESTEAD-MORTGAGED PBOPERTY.

Where the land is subject to a mortgage, the homesteader is entitled to a homestead to the amount of the exemption in what remains of the total value of the land after the mort. age is deducted. 2. SAME-SELECTION.

Under Rev. St. 1899, $3617, conferring on a homesteader the right to designate and choose the part of the land which shall be exempt from execution under section 3616, a wife is entitled to select the particular part of land correged to her by her husband, to the value of toe amount of exemption which she will retain as a bomestead. 4. SAYE-ILLEGAL SALE ON EXECUTION.

Under the further provision of said section 3617 making it the duty of the sheriff, on such designation or choice being made, or on refusal to make the same, to appoint three disinterested appraisers to value and set apart the bomestead, and then to levy the execution on the residue of the real estate, where these prerequisites of the statute have not been obseryed any sale by a sheriff is void. 5. SAVE.

The fact that a proceeding to set aside a cobrevance by a husband to his wife of land as in fraud of creditors is one in equity does not change such homestead rights, and authorize a court of cbancery to order the whole land sold, and the homestead exemption to be turned over to tbe homesteader in cash, instead of land, as even courts of equity are bound by the homestead laws of the state, and cannot order the bomestead interest paid to the homesteader in cash, instead of allowing him to designate the particular piece of the land he will hold as such homestead. 6 SAME-SETTING APABT.

Where a house is located on one of the 40's of land consisting of 160 acres, 120 acres of which, including the house site, is covered by a mortgage, it is possible for the homesteader to designate and choose lands of the value of the exemption, exclusive of the mortgage, out of the whole tract, and for commissioners appointed to value and set apart to him such a homestead in kind. 7. SAME_VALUATION.

Whether land subject to a mortgage exceeds in value tbe $1,500 homestead exemption, over and above the mortgage, can only be ascertained by commissioners appointed to value the land, as the statutes do not confer power on the court-even on a court of equity—to determide the question. & SAHE.

In a proceeding in equity to set aside a conveyance of land by a husband to his wife

MARSHALL, J. This is a bill in equity to set aside a deed made by the defendant R. D. 0. Nicholson to his wife, Nancy E. Nicholson, on the 27th of March, 1896, conveying to her the southwest quarter of the southeast quarter of section 26, township 29, range 25, and the west half of the northeast quarter and the southeast quarter of the northwest quarter of section 35, same township and range, in Lawrence county, Mo., on the ground that it was made to de fraud the creditors of the husband-the plaintiff's among the number. The circuit court entered a decree in favor of the plaintiffs, and the defendants appealed.

The case made is this: On the 16th of October, 1895, the husband executed his note for $360 to one J. A. Fretwell or bearer, payable at six months; the consideration being the right granted to him to sell in Greene county, Mo., a certain patented bed brace. The note was not paid, but before maturity had passed into the hands of the plaintiffs herein, who on the 7th of July, 1896, instituted suit against the husband thereon, which resulted in a judgment in favor of the plaintiffs on the 28th of August, 1896, for $381.60. In the meantime the husband had made this deed, here sought to be set aside, to his wife, and after the return of the execution nulla bona the plaintiffs instituted this suit to set the same aside on the ground that it was fraudulent as to the husband's creditors. Upon the trial of this case the plaintiffs introduced the deed in question, and the records and files in the case of the plaintiffs against the husband on the note aforesaid, together with the execution and the return thereon. The plaintiffs then called the de

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