and were used by him to prevent his field from being flooded, yet it was also true that if hot blood was engendered in defendant by seeing his fence or wall thus removed, he was not guilty of a higher grade of offense than manslaughter in the fourth degree; and these instructions should have been enlarged so as to embrace that point. And it is not the law that self-defense may not coexist with a right to have an instruction given, based upon manslaughter in the fourth degree.

Therefore judgment reversed and cause remanded.

All concur.

HOMICIDE-SELF-DEFENSE-RETREAT-RIGHT OF ATTACK.-Where a person, being himself without fault. reasonably apprehends death or serious bodily harm to himself, unless he kills his assailant, the killing is justifiable: Note to State v. Robertson, 69 Am. St. Rep. 395; People v. Lewis, 117 Cal. 186, 59 Am. St. Rep. 167; for he is not, in such a case, bound to retreat: High v. State, 26 Tex. App. 545, 8 Am. St. 488. He may act according to the surrounding circumstances as they appear to him, though it may turn out that they are deceptive, and that, in reality, his life or person was in no danger at the time: Pinder v. State, 27 Fla. 370. 26 Am. St. Rep. 75; Smith v. State, 59 Ark. 132, 43 Am. St. Rep. 20. In most jurisdictions, however, to sustain a plea of self-defense in case of homicide, there must be shown a pressing necessity, real or apparent, to protect the life of the defendant, or his person, from great bodily harm. He must not be the aggressor, and he must retreat from the combat if there is a mode of escape consistent with his safety: Notes to State v. Robertson, 69 Am. St. Rep. 394; Sullivan v. State, 48 Am. St. Rep. 28.

HOMICIDE ON ONE'S OWN PREMISES-RESISTING TRESPASS-RETREAT.-A homicide committed in defense of habitation. or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either, is justifiable homicide: Powell v. State, 101 Ga. 9, 65 Am. St. Rep. 277; but the killing of a person, with a deadly weapon, while he is merely trespassing upon property, is murder: Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97; Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450; McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93. Compare Tiffany v. Commonwealth, 121 Pa. St. 165, 6 Am. St. Rep. 775. A person attacked in his own domicile is not bound to retreat to avoid killing his adversary: Karr v. State, 100 Ala. 4, 46 Am. St. Rep. 17. So, one attacked on his own premises is not obliged to retreat, but may stand his ground: People v. Lewis, 117 Cal. 186, 59 Am. St. Rep. 167; State v. Cushing, 14 Wash. 527, 53 Am. St. Rep. 883. Compare Lee v. State, 92 Ala. 15, 25 Am. St. Rep. 17.

HOMICIDE-HEAT OF PASSION-MANSLAUGHTER-TRESPASS.-Sudden provocation, acted on in the heat of passion produced thereby, may reduce a homicide to manslaughter: Holmes v. State, 88 Ala. 26, 16 Am. St. Rep. 17; note to High v. State, 8 Am. St. Rep. 497; Anthony v. State, Meigs, 265, 33 Am. Dec. 143; State v. Roberts, 1 Hawks, 349, 9 Am. Dec. 643. But trespass is not such a provocation as entitles one to use a deadly weapon, or reduces a killing below the degree of murder: Note to Tiffany v. Commonwealth, 6 Am. St. Rep. 781.

PRATT V. CONWAY.

[148 MISSOURI, 291.]

SURETYSHIP-GRANTEE'S

ASSUMPTION OF MORTGAGE DEBT-CREATION OF RELATION OF PRINCIPAL AND SURETY.-When a grantee accepts a deed with a clause reciting that he assumes to pay a debt secured by mortgage on the property so conveyed to him, he becomes directly liable to the holder and owner of the debt, and the relation of principal and surety thereafter exists between the grantee and the mortgagor, or principal debtor.

SURETYSHIP - GRANTEE'S ASSUMPTION OF MORTGAGE DEBT-DISCHARGE OF SURETY BY EXTENDING TIME OF PAYMENT-NOTICE-EFFECT OF.-If a grantee assumes the payment of a mortgage debt on the property conveyed, thus making the relation of the grantee and grantor or mortgagor toward the mortgagee that of principal and surety, any valid agreement between the mortgagee, where he has notice of the assumption of the debt, and the grantee, to extend the time of payment, without the consent of the surety or mortgagor, will discharge the latter, and a clause in the deed, reciting that the grantee assumes to pay the debt, is notice of the change of liability.

SURETYSHIP-GRANTEE'S ASSUMPTION OF MORTGAGE DEBT-DISCHARGE OF SURETY BY EXTENDING TIME OF PAYMENT-WANT OF NOTICE-EFFECT OF.-ALthough a grantee assumes the payment of a mortgage debt on the property conveyed, thus making the relation of the grantee and grantor or mortgagor toward the mortgagee that of principal and surety, an extension of the time of payment. made by the mortgagee, does not discharge the mortgagor from his liability as surety, where there is no recital in the deed of such assumption of the debt, and the mortgagee has no knowledge or notice that the grantee agreed to assume it.

SURETYSHIP-GRANTEE'S

ASSUMPTION OF MORTGAGE DEBT-DISCHARGE OF SURETY BY EXTENDING TIME OF PAYMENT-PLEADING.-If a grantee has assumed the payment of a mortgage debt on the property conveyed, thus making the grantee a principal, and the grantor or mortgagor a surety, with respect to the mortgagee, the mortgagor, to secure a discharge as surety, by reason of an extension of time of payment given by the holder of the debt, must plead the assumption of the debt by the grantee, and that the extension was made by the mortgagee with knowledge of the fact of such suretyship.

TRIAL-OPENING STATEMENTS-ADMISSIONS

PRE

CLUDING RECOVERY-PRACTICE.-When counsel, in their opening statements, declare or admit facts the existence of which precludes a recovery by their clients, the court may close the case at once, and give judgment against the clients.

INSTRUCTIONS-FACTS

ADMITTED IN OPENING STATEMENTS.-Instructions may be shaped in accordance with facts conceded or admitted by counsel in their opening statements. EVIDENCE-ADMISSIONS-OPENING STATEMENTS.-A defendant is bound by his counsel's admission, in his opening statement, that the plaintiff is the owner of the note on which suit is brought.

EVIDENCE.-A CERTIFIED COPY OF A DEED IS ADMISSIBLE in evidence upon proof of the loss of the original.

Lathrop, Morrow and Fox & Moore, for the plaintiff in error.

Teasdale, Ingraham & Cowherd, for the defendant in error.

293 GANTT, P. J. This is an action on a promissory note for one thousand dollars.

The cause has been certified to this court by the Kansas City court of appeals, because in the opinion of that court there is a conflict between its opinion and a prior decision of the St. Louis court of appeals.

294 The action was against Thomas Conway and Bridget T. Conway, his wife. At the trial plaintiff dismissed as to Mrs. Conway. Plaintiff recovered a verdict and judgment in the circuit court, but the court, on a motion for a new trial, set aside the verdict and granted a new trial, and this is assigned

as error.

The facts are as follows: In 1887 Thomas Conway was the owner of certain property in Kansas City, Missouri, and he, together with his wife, executed a deed of trust upon said property to secure the payment of the thousand dollar note in controversy. He afterward made a written contract of sale of said property with one Coburn, the consideration being fifteen thousand dollars. A few days after the said contract was signed, the said Coburn, in turn, effected a sale of the property to one W. B. Grimes, and the contract of sale was transferred to Mr. Grimes, and deed was made by Thomas Conway and wife to W. B. Grimes, in which no mention is made of the one thousand dollar note in controversy.

It is claimed by the defendants that the contract of sale between defendant Conway and Mr. Coburn recited that the grantee assumed and agreed to pay the note in controversy. In the deed from Conway to Grimes the grantee did not assume the one thousand dollar note in controversy. The evidence tended to show that, while Mr. Grimes was the owner of the property in controversy, he secured an extension of the note herein sued on, by paying the holder of said note the sum of twenty dollars commission.

There is no testimony in the case that the holder of the note, at the time the extension was made, knew, or had reason to believe, that any person had assumed and agreed to pay the debt in controversy, or that there was any person obligated to pay said debt other than the maker of the note, Mr. Conway. There

295

is no allegation in the answer that the holder of the note, at the time the extension was made, knew, or had reason to believe, that anyone except Conway was liable upon the note in controversy. It was claimed at the trial that the maker of the note, Mr. Conway, was released by the extension of the note sued upon, made at the time when Grimes was the owner of the property. This proposition is denied by the plaintiff, and the question before the court for determination is whether, under the pleadings in this case, and under the facts as developed at the trial the extension of the note, made while Grimes was the owner of the property, had the effect of releasing the defendant Conway from his liability thereon.

Plaintiff contends under the undisputed facts in the case there was no release of the defendant Conway, and that he remains liable upon the note sued upon. It was claimed by defendant that the plaintiff did not, at the trial, prove the ownership of the note to be in the plaintiff. Plaintiff insists that the ownership of the note by plaintiff was admitted by counsel for defendant and was a conceded fact throughout the trial.

1. The doctrine that when mortgaged property is sold and the vendee assumes the payment of the mortgaged debt, the mortgagor's obligation as principal debtor is, as between him and such vendee, changed to that of surety, as asserted by defendant, is not controverted by plaintiff, but plaintiff vigorously attacks the position that the mortgagee is affected by such a change unless he consents to accept the vendee as his principal debtor. The general rule of law is, that a creditor cannot be compelled to accept any other person as his debtor, than the one he chooses.

In Shepherd v. May, 115 U. S. 505, the supreme court of the United States held that where a vendee expressly promised to pay the mortgage debt, that alone, without the assent of the mortgagee, did not change the mortgagor into 296 a surety merely: Cucullu v. Hernandez, 103 U. S. 105; Rey v. Simpson, 22 How. 341.

That court reasserted this rule in Keller v. Ashford, 133 U. S. 625, saying: "Such an agreement (sale of mortgaged premises and assumption of debt by vendee) does not, without the mortgagee's assent, put the grantee and the mortgagor in the relation of principal and surety toward the mortgagee, so that the latter, by giving time to the grantee, may discharge the mortgagor."

These decisions were subsequently explained in Union Mutual

Life Ins. Co. v. Hanford, 143 U. S. 187, where it was said that it is the settled law of that court that the grantee is not directly liable to the mortgagee at law or in equity, and the mortgagee's only remedy was by bill in equity in the right of the mortgagor to avail himself of the security. It was further held that whether the remedy of the mortgagee against the grantee is at law and in his own right, or in equity in right of the mortgagor, must be determined by the law of the place where the suit is brought. And as it appeared in that case that by the law of Illinois, where that case originated, as in other states, the mortgagee might sue at law the grantee who, by absolute conveyance, assumes the mortgage debt, it was held that as soon as the mortgagee had notice of the agreement of the grantee, the grantee became directly and primarily liable to the mortgagee and the relation of grantor and grantee was not only changed as between themselves, but as to the mortgagee, and thenceforth that of principal and surety existed as to all three, and any subsequent agreement of the mortgagee with the vendee, without the assent of the mortgagor, extending the time of payment, discharged the grantor: Calvo v. Davies, 73 N. Y. 211, 29 Am. Rep. 130; Bank v. Waterman, 134 Ill. 461.

The law is settled in this court that when a grantee accepts a deed with a clause reciting that he assumes to pay a debt secured by mortgage on the property so conveyed 297 to him, he becomes directly liable to the holder and owner of the debt, and that the relation of principal and surety thereafter exists between the grantee and the mortgagor or original debtor: Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 70 Mo. 685; Fitzgerald v. Barker, 85 Mo. 13; Orrick v. Durham, 79 Mo. 174.

Any valid agreement by the mortgagee, with notice of this assumption of the debt, with the grantee to extend the time of payment without consent of the mortgagor, discharged the latter: Wayman v. Jones, 58 Mo. App. 313.

So that the decisions of this court are entirely in harmony with the reasoning of the supreme court of the United States, it being conceded by that court that, if the law of the former permits a suit at law by the mortgagee against the grantee, the consequence must follow that the relation becomes one of principal and surety.

But in all the cases heretofore decided by this court holding that the assumption of the debt by the vendee or grantee constituted him the principal debtor, and the mortgagor his surety,