This case was passed upon by the supreme court, on aqipeal from a former trial, and is-reported in 79 Mo. 563. The cause having been remanded, it was re-tried on the same issues. The evidence, in every material particular, was. the same on the last as the first trial, with the single exception that the one dollar, assumed, in the opinion, to have been paid by defendant- on the purchase money, was not so intended. Yerdict and judgment for plaintiff, from which defendant prosecutes this appeal.
I. Every important and controlling question of law involved in this case, was considered and determined by. the supreme court. It was purposely so done, in remanding the cause, for the guidance of the trial court, in the event of further contention on the part of the defendant. That decision is binding and conclusive on this-court. Laws of 1883, sect. 6, p. 216.
II. It is- now insisted by appellant that there is a fatal variance between the allegations of the petition and the proof, in this, that the petition avers a separate estate in the plaintiff in the land in question, whereas the deed read in evidence, vesting title in her, only gave-her a legal estate. The allegation of the petition is, that plaintiff, “in her own right, was the owner, and in the quiet and peaceful possession of ” the land. It would. *593be a most strained construction of this language to hold that it created a separate estate in the plaintiff. Be this as it may, we are wholly unable to perceive how such a fact can affect the result. The single issue was, did the defendant contract to purchase of the plaintiff the lot in question, and promise to pay therefor the sum of two hundred dollars, on the tender to him of a deed, as alleged. What difference could it make to the defendant whether the plaintiff’s was a legal or separate estate ? In either event she would have a right to sell, and her husband would have to join her in the deed, if living ; and the defendant, under such deed, would acquire the fee absolutely. How could he, under such a state of fact, have made an affidavit of surprise or injury by such variance? The objection is the merest technicality, without substance or merit.
III. It is next urged that, as the plaintiff owned only a legal estate, as a feme covert, she could not, by a contract of sale, by agent or otherwise, bind herself to make a deed, enforceable, at law or inequity, against her, and, therefore, specific performance could not be maintained for lack of mutuality. This objection was anticipated in the opinion of the supreme court, in remanding the cause. The facts exist, and were found, which obviate this objection. They are satisfactory to our mind, and. if they wére not, we are bound by the directions of the supreme court.
IY. It is urged that time was of the essence of this contract, inasmuch as one witness testified that the deed was to be tendered on or before the first day of June, 1875 ; whereas, the deed read in evidence was not tendered before the second day of October, 1876. There are several complete answers to this objection. In the first place, no such issue is presented by the answer. And, if it had been, it would have been wholly inconsistent with the other denials of the answer. The answer denied *594the existence of any contract of . sale, and pleaded the statute of frauds; whereas, the plea of laches would have admitted that there was a contract, but the plaintiff had failed to tender the deed at the specific time •agreed upon. In the next place, the defendant entered into the possession of the premises, held and enjoyed them until the house thereon was destroyed by fire, and never, at any time, offered to surrender possession, or to cancel the contract under which he entered. The plaintiff ’s evidence was, that defendant agreed to pay for the property when the deed was tendered ; that such deed was tendered on the twenty-first day of June, 1875, which defendant refused, solely on the ground that it was not properly acknowledged. A second deed was tendered, which he refused, “because, as he claimed, the description was incorrect.” He was still holding on to the property, and raised no question as to the time of the tender. Then the deed of October 2, 1876, was tendered, and again he refused to accept; and no question, as to time, was ever raised until at the trial. The defendant himself testified, by deposition, in the cause, and the only fact testified to by him, as disclosed by this record, is, that he did not sign the title bond.
A court of equity, under such circumstances, will not regard time of the essence of the contract, especially so where the parties themselves have not so treated it. Melton v. Smith, 65 Mo. 315.
Y. It is now urged that the deed of October 2, 1876, was not properly acknowledged, because the certificate of acknowledgment implies that there were more than one clerk of the county court. The certificate recites that, “before the undersigned, a clerk of the county court, within and for the county of Olay,” etc. As, by the statute, there could be but one clerk of such court, when the certificate recites that the officer taking the acknowledgment is a clerk of such court, the inevitable conclusion of law must be that it was taken *595by the clerk of the county court, who is, by statute, authorized to take and certify such acknowledgments.
VI. It is finally contended that the weight of evidence in favor of the contention, that the contract was made in the name, and on behalf, of Nelson, without disclosing his agency for plaintiff, is such that this court should reverse and remand the cause, or enter judgment here for the defendant. It is true that one witness for defendant testified that the title bond was made in the name of Nelson, and another witness testified that he did not understand that Nelson was acting for the plaintiff, but rather in his own behalf. It is also true that Nelson is the son of‘plaintiff. But his testimony is most direct, that he acted for Mrs. Walker only; that defendant knew this fact, and the title bond was drawn in her name, and that the contract was, that defendant was to pay the two hundred dollars when the deed was tendered. The supreme court and appellate courts, in repeated decisions, emphasized of late, hold that the weight of evidence and the credibility of the witnesses is peculiarly the province of the trial court and jury, and that we will not interfere with this province, except where it is apparent' the conclusion reached must have been the result of passion, undue prejudice, or a blind disregard of the evidence. Hipsley v. Railroad, 88 Mo. 353, and citations ; Sherer v. Rischert, 23 Mo. App. 275 ; Johnson v. Barnes, 23 Mo. App. 546; Shockley v. Fischer, 21 Mo. App. 551; Hemelreich v. Carlos, 24 Mo. App. 264. And this rule is now much deferred to, even in equity trials. There, too, are many strong corrobatory facts and circumstances of the testimony of Nelson. The defendant, as we have already stated, took and held the title bond for months. He does not seem to have ever .made the objection that his contract was with Nelson, and not the plaintiff. In his deposition he did not testify to the fact, but only claimed that he did not sign the bond. If, in fact, the bond did not purport to be made in the name of plaintiff, it is most reasonable to *596presume that this would have been uppermost in. his-mind when the deeds were tendered in the name of plaintiff, and when he gave his deposition. His silence-on so vital a matter is most significant.
Equally improbable is it, that a man of intelligence should contract for property, in a community where he lived, and in a small town like that where this lot and house were situated, enter into possession, and hold it for months, without knowing who the real owner was.
' VII. Appellant has raised many other questions,, creditable to the ingenuity .of counsel, but they are of little force to overcome the paramount equity and right of this plaintiff to have her money, from a man who-entered into possession of a house and lot, enjoyed them until the house was destroyed by fire, and the property thereby rendered of little value, and then refuses to pay for it, by resorting to the statute of frauds, and every conceivable.quibble, to thwart the ends of justice.
The judgment is for the right party. Let it be affirmed. It is so ordered.
All concur.