author: FARIS, J.

text:
    In Matter of ASSESSMENT OF COLLATERAL INHERITANCE TAX in Estate of CHARLES CLARK; GRACE CLARK, Appellant.
    Division Two,
    March 16, 1917.
    1. COLLATERAL INHERITANCE TAX: On Annual Income. A bequest of an income for life, or till tbe legatee’s divorce and re' marriage, payable annually in monthly installments by a trustee in such sums as he shall deem advisable and just, out of an estate devised in trust for that sole purpose, is not subject to a collateral inheritance tax under Secs. 309-331, R. S. 1909.
    2. -: -: Vested Estate: Contingency. If property is bequeathed to a trustee with directions to pay annually to a named legatee such a part of the income as the trustee deems advisable and just, the bequest vests and takes effect in immediate possession; and therefore Sec. 314, R. S. 1909, which provides that if the estate be one wherein possession is postponed or contingent the collateral inheritance tax shall not be due until the beneficiary obtains possession of the property, does not impose a tax upon such vested income.
    3. -: -: -: Indefinite Amount. If the amount of income which the legatee will annually receive is impossible of ascertainment, Sec. 310, R. S. 1909, affords no basis for the imposition of a collateral inheritance tax.
    4. -: -:-: Appraisement. Since Secs. 322 and 323, R. S. 1909, require the property to be appraised “at its clear market value at the time of the death of decedent,” those' sections afford no basis for imposing a collateral inheritance tax upon an annual income vested in praesewti whose amount is indefinite in that it is to be whatever sum the trustee may deem advisable and wise.
    5. -:-:-:-: Amount and Duration. To determine the present value of any limited estate, income or annuity, both the annual amount and the duration thereof must be known; or, the amount must be known and the duration be capable of being averaged by the mortality tables.
    6. -: Statutes: Construction. Taxation statutes are to be strictly construed, but not so far or so technically as’to defeat the intention of the Legislature. But if it cannot be said from an examination of them that the Legislature intended to impose a tax on incomes of a certain sotí, an attempted taxation of them cannot be upheld.

      7. _; -; Ascertainment Back Month. .To hold that the statutes provide for an ascertainment of the tax due each month from an annual income, to be paid in monthly installments, where the trustee is by the beguest to determine how much will be paid each month, is to give a violent construction to the statute, and one not warranted by its terms.
    Appeal from St. Louis County Circuit Court. — Hon. John W. McElhinney, Judge.
    Reversed and remanded (with directions).

      T. K. Skinker for appellant.
    (1) The interest of Mrs. Grace Clark in the estate of the decedent is not subject to any collateral inheritance tax, because (a) it is not'a life estate or interest; (2) it may determine upon either of two events that may happen before the expiration of her life, namely, upon her marriage, or upon a suit, being brought against her to subject her interest to execution for debt; (3) it is indeterminate and uncertain, depending for its value upon the discretion of the Mississippi Valley Trust Company, the trustee named in the will of the decedent. Appellant was the daughter-in-law of the decedent. Hinds v. Stevens, 45 Mo. 211; State ex rel. v. Scullin, 266 Mo. 319; Cooley on Taxation, chap. 12, p. 269; Disston v. McClain, 147 Fed. 114; R. S. 1909, secs. 310, 314; State ex rel. v. Henderson, 160 Mo. 190. (2) If her interest is liable to the tax at all, the appraisement and levy must be postponed until the expiration of her estate. Sloane’s Estate, 154 N. Y. 109; Millward’s Estate, 27 N. Y. Supp. 286; Babcock’s Estate, 65 N. Y. Supp. 926; Meyer’s Estate, 83 N. Y. App. Div. 381; Roosevelt’s Estate, 143 N. Y. 120; Curtis’ Estate, 142 N. Y. 219; Davis’ Estate, 149 N. Y. 547; Howell’s Estate, 69 N. Y. Supp. 1016; Estate of Simon, 7 Ohio N. P: 667, 39 Week. Law Bull. 369; Billings v. People, 189 111. 472; Howe v. Howe, 179 Mass. 546; McLemore v. Raine’s Estate, 131 Tenn. 637; State v. Bridgers, 161 N. C. 246; Com. v. Cambrón, 158 Ky. 577; Matter of Morss, 85 N. Y. Misc. 676; Matter of Granfield, 79 N. Y. Misc. 374; In re McLane’s Estate, 142 N. W. Snpp. 788. (3) The trial court erred in directing the assessment and levy of the tax on the installment plan, (a) Appellant’s estate is not an expectancy within the meaning of Sec. 314, R. S. 1909. 2 Blackstone Com., 163; Black’s Law Diet., title, Expectancy; Anderson Law Diet;, title, Expectancy; 3 Words and Phrases, title, Expectancy, (b) A liberal construction of the Collateral Inheritance Tax Law is not allowable. State ex rel. v. Scullin, 266 Mo. 319; State ex rel. v. Railroad, 251 Mo. 134; State ex rel. v. Alt, 224 Mo. 513; Matter of Cager, 111 N. Y. 350; Disston v. McClain, 147 Fed. 116; Matter of Curtis, 142 N. Y. 219; Matter of Roosevelt, 143 N. Y. 120; Matter of Zborowski, 213 N. Y. 109; Stewart v. See, 21 Mo. 515. (c) Monthly sworn return not called for by said section 314, (d) Assessment cannot be made in dribblets. Matter of Howe, 112 N. Y. 100; State ex rel. v. Henderson, 160 Mo. 190; State ex rel. v. Switzler, 143 Mo. 287.

      O. M. Barnett and Ernest A. Green for the curators of the University of Missouri.
    The bequest in this case is to a daughter-in-law of the testator. The property passes to her by the will of Charles Clark. Sec. 309, R. S. 1909, says that “all property which shall pass by will . . . other than to or for the use of the father, mother, husband, wife, legally adopted children or direct lineal descendant of the testator . . . shall be and is subject to the payment of a collateral inheritance tax.” It is, therefore, clear that the intention of the Legislature was to tax every bequest under a will which passes to a daughter-in-law. It is the duty of a court to construe the provisions of a statute so as, if possible, to give effect to the intent of the Legislature. Decker v. Diemer, 229 Mo. 324; State v. Probate Court, 112 Minn. 279. It is to be noted that if the State is to be at all sure of collecting the tax, it is absolutely necessary that the same be paid upon each' installment as it is delivered over. No lien exists by which the State can protect itself, and, furthermore, the will itself, by its very terms designates the payments to be made to Mrs. Clark to be snch as the trustee may deem advisable for her support. Therefore, if the trustee is correct in its judgment as to the amount necessary for her support, she will spend all the money which is paid to her, and at the conclusion of her tenancy there will be nothing left out of which to pay the tax. Authorities upon inheritance tax statutes seem to unite on the proposition that in cases of this sort it is not necessary to defer the collection of the tax until the expiration of the estate, but on the other hand that it is proper to collect the same upon each payment as it is made. Blackmore and Bancroft on Inheritance Tax, page 186; State ex rel. v. Probate Court, 100 Minn. 192; State ex rel. v. Probate Court, 112 Minn. 279.
   FARIS, J.

— This is an appeal from the circuit court of St. Louis County in a proceeding commenced originally in the probate court of that county to appraise the interest of Grace Clark (hereinafter for brevity calléd appellant) in the estate of one Charles Clark, deceased, for the purpose of collecting the collateral inheritance tax alleged to be due thereon. The probate court found against appellant and ordered that the ‘ Mississippi Valley Trust Company as trustee for said Grace Clark shall comply with the terms of the will of said Charles Clark with respect to said Grace Clark, and at the time of making payment of any sum of money, or its equivalent under and in compliance with the provisions of the will of said Charles Clark, deceased, by which Grace Clark is constituted a beneficiary, deduct and retain five per cent of said payment and within thirty days after such deduction pay said five per cent deduction as collateral inheritance tax under and pursuant to the provisions of sections 309 to 331 of the Revised Statutes of Missouri for 1909, to the collector of revenue of the county of St. Louis, and State of Missouri, which said five per cent of said payment or payments is hereby levied, assessed and fixed by the court as the inheritance tax payable under said sections to the State of Missouri.” Said probate court further ordered in and by its judgment that as to all sums theretofore paid out by the Mississippi Valley Trust Company as trustee, if said sums had been paid for as much as thirty days, said trustee should pay to the collector of St. Louis County five per cent, thereon.

Upon appeal to the circuit court of St. Louis County the order of the probate court in the case was affirmed. But said circuit court, however, went a little more into detail in its judgment and among other things pertinent made findings and ordered thus:

“The court doth further find from the evidence that prior to the date on which this appeal was to it submitted, an aggregated sum of $5,416.66%, consisting of thirteen monthly payments of $416.66-% each, beginning May 18, 1912, and including the payment of May 18, 1913, had been paid by said Mississippi Valley Trust Company under the terms of the will of Charles Clark to Grace Clark, and the court doth assess the value of each of said payments at $416.66%, and doth levy thereon a- collateral inheritance tax of $20.83%, and in the aggregate doth levy a collateral inheritance tax of $270.83 upon said aggregate sum of $5416.66%, which sum of $270.83 the court doth order and adjudge that said Mississippi Valley Trust Company shall forthwith pay to the collector of the revenue of St. Louis County, Missouri. The assessment of all further payments to Grace Clark under said will and the levy of collateral inheritance tax thereon is hereby postponed until the times hereinabove specified, at which the amou-nts of said payments may be determined. It is ordered and judged that appellant, Grace Clark, pay the costs and charges herein incurred on the appeal to this court.” (Italics ours.)

From this order and judgment of the circuit court of St. Louis County the appellant, after the usual motions, appealed.

The facts upon which the case turns, outside of the bare statement of the steps taken and the results thereof, will fully appear in the provisions of the will of said Charles Clark, deceased, who in his life time was the father-in-law of appellant. Dying, said testator left a will wherein and whereby certain provisions were made for the support of appellant during her life, unless and until she married again. These provisions we will set out in full in our discussion of the case, wherein they will be more apposite to an understanding than if they were set forth here.

It is fairly clear that two questions are presented by this appeal: (a) Does appellant come within the class of legatees whose legacies are chargeable? (b) Is the provision for her, or the bequest which she takes, such a one as the statute makes taxable, and if so how and when by statute must payment of the tax be made?

I. Is the provision made for her within the class of bequests, or estate, or incomes, which the statute makes chargeable with this tax?

The provisions of the will of testator, Charles Clark, pursuant to which appellant takes the estate, or provision about which this controversy revolves, are abridged and set out in appellant’s brief thus:

“Clause & provides that, after the payment of certain special legacies, the estate shall be divided into two parts. One-half of the estate is to be held by the Mississippi Valley Trust Company as trustee for the use and benefit of Lewis Vaughan Clark and Mrs. Grace Clark, his wife, upon the trusts named in that clause. Omitting details in regard to management of that estate, clause 8 proceeds:
“The net income deriving (derived) from the trust estate is intended for the support and maintenance of my son, Lewis Vaughan Clark and Grace Clark, his wife, during their lives and the life of the survivor of them, and to such issue as may be born of their marriage or any subsequent marriage of my said son, Lewis Vaughan Clark, during the minority of such issue.
■ ‘ ‘ The said trustee, from the net income derived from the trust estate as aforesaid,-shall annually pay in equal monthly installments during the lives of said Lewis Vaughan Clark, and Grace Clark, and to each, severally and separately, in such proportions as it may deem advisable and just, for their joint and separate support, considering their joint or several comfort, necessities and station in life, such part or all of said income, as it may determine to be necessary.
“In the event of the death of my son, Lewis Vaughan Clark, Grace Clark surviving him, leaving no issue by their marriage or any subsequent marriage of my said son Lewis Vaughan Clark, such part or all of the income as said trustee may deem necessary or reasonable or just for her support and maintenance, considering her circumstances and station in life, shall be paid to her at all times as such trustee may determine. If issue, either by the present or any subsequent lawful marriage of my said son, Lewis Vaughan Clark, should survive him also, then such income shall be apportioned by said trustee between such issue and said Grace Clark, until her death and the attainment of majority by the youngest issue aforesaid, as such trustee may, in its judgment, determine.
“While in this paragraph eighth of this will, I have heretofore provided for the said Grace Clark during her life, it is my will and I direct that, if she should marry again after the death of my son, Lewis Vaughan Clark, or after a legal separation between them, then at the time of her marriage, her interest in the trust estate shall end,' with the same effect as if she had died.
“The beneficiaries shall not encumber and sell or convey or in any manner anticipate his or her interests in the trust fund, principal or income, and any such sale, transfer, assignment, or encumbrance shall be utterly void; and if any creditor attempt by suit or otherwise to subject the interest of any beneficiary to the payment of any of the debts of such beneficiary, then and thereafter the trustee shall not be obliged to make payments as hereinbefore provided, to such beneficiary or beneficiaries respectively, but during the rest of the period during which the trust is to continue, may in its discretion apply such sums, or such part thereof as it thinks reasonable, for the support or comfort of the beneficiaries, or the family of the beneficiaries, respectively. The trustee shall semi-annually render to the beneficiaries a written statement and account of the transaction of the trust estate during the preceding half year. ’ ’

There are certain codicils attached to the will, which deal with the interest of testator’s son. Lewis Vaughan Clark, the husband of appellant, but counsel seem to take the view, in which after a careful reading we acquiesce, that these codicils do not in any material wise affect the provision made for appellant. We might say in passing that one provision of these codicils emphasizes the view, which, however, we understand counsel for appellant to concede, that the trustee was to deal separately and not jointly with the proceeds of the trust estate, that is, that it was to pay to appellant and to said Lewis Vaughan Clark each a sum “such as the trustee may deem advisable for his or her support. ’ ’ The codicil referred to simply commutes the sum. which may he paid from any source (including an income from his deceased mother’s estate) annually to Lewis Vaughan Clark for Ms separate support at a total of $6000. Since any residue goes hack into the corpus of the trust fund the codicil’s provision does not affect appellant’s interest in any manner, so far as we are here concerned. In other words, and reduced to its simplest analysis, is a bequest of an income for life, or till the legatee’s divorce and remarriage, “payable annually in monthly instalments” by a trustee “in such sums as the trustee shall deem advisable and just,” out of an estate devised in trust for that sole purpose, taxable under the terms of the Collateral Inheritance Tax Statutes? [Secs. 309-331, R. S. 1909.]

The will of Charles Clark, deceased, set forth certain contingencies, on the occurrence of which it may be said to be inferable that the income accruing to appellant might he increased to a sum equal to the whole income from one-fourth of the estate. But any change seemingly worked in the question stated by these contingencies will on inspection be found apparent and not real, since, in all cases any increased payment by tbe trustee to appellant is contingent upon her necessities as interpreted by tbe trustee’s discretion, thus leaving tbe entire matter as nebulous as before. In short, no subsequent contingency so modifies tbe situation as to render inaccurate our statement above of- tbe ultimate question involved.

Attending now specifically to tbe last question put, since in tbe view we take of tbe case it may be disposed of upon that point alone: We are of tbe opinion that tbe income here provided for appellant vests in possession at once. Its taking effect as a bequest of an income is not postponed to tbe happening of any contingency whatever ; it does not depend upon tbe falling in of any prior estate for either life or years, nor is it a remainder. It takes effect in immediate possession, just as, in all respects and just as surely as, any other devise or bequest of an estate in trust, wherein tbe income alone is to be paid to tbe cestui que trust. Only tbe amount of tbe income and tbe duration of tbe right to enjoy it are doubtful, or subject to be either changed or defeated — short of appellant’s death — by contingencies. Tbe contingency of duration for life or less, can be defeated only by appellant’s own voluntary act; that of uncertainty of amount of tbe annual income depends upon tbe judgment (semble, to be exercised annually) of tbe trustee as to tbe amount which will be required for tbe support of tbe appellant.

Even a casual reference to tbe question presented in tbe light of tbe statute shows clearly that there has been no method provided by tbe Legislature fixing tbe time, or manner of tbe collection of an inheritance tax on this sort of income. [Secs. 310 and 314, E. S. 1909.] The two sections last-above cited contain all of tbe legislative methods devised to that end. Section 310, supra, provides tbe manner in which these taxes are to be collected upon bequests vesting in immediate possession; but ■ a mere casual examination of this section shows that it can not be applied to tbe facts before us. Here tbe corpus of the estate vests in the trustee. Part of the income is to be used for the support of Lewis Vaughan Clark and part for the support of the appellant. But not necessarily is all of the income from one-half of the whole estate to be used for both, or an equal half thereof to be used for appellant; only such part of the whole estate (one-half in fact of what testator left) is to be used for appellant (and to make up for Lewis Vaughan Clark a total annual income of $6000, as above said) as her necessities may require, according to the best judgment and discretion of the trustee. The residue of the income, after deducting the amount contingently applicable to appellant’s use, goes back to the corpus of the estate. So, the amounts which appellant will receive annually are impossible of ascertainment.” Likewise, the duration of the payment of this unascertainable sum is impossible of determination. If it were for the life of appellant, and the annual sums necessary for her support known, no difficulty would be presented. A mere computation according to the mortality tables, would settle it. It is plain to be seen that collection can not be made upon any basis, pursuant to the provisions of section 310.

Looking at the facts presented in the light of section 314, we also meet insuperable difficulties. This section in pertinent substance provides that if the estate be one wherein possession is postponed, or contingent, the tax shall not be due till.the beneficiary gets possession of the property, and shall be assessable upon the value coming into possession. But we have seen that here possession is neither postponed nor contingent. Possession, that is the right to the income, is instanter; duration of enjoyment alone is contingent and liable to defeat. Besides, in order to thus secure deferment of assessment and collection' (present collection on a just and equitable basis under section 310, being as above shown, impossible) and as a condition precedent to deferment of instant payment, the trustee must make and file a bond (section 310, supra), in three times the amount of the tax. In case of a failure so to file a bond, the tax becomes immediately due and payable, and in such event is then to be reckoned “on the clear market value of the estate.” Since, as we have tried to make plain, the clear market value of the estate is impossible of ascertainment, as is likewise the annual amount of the income and the duration of the payment thereof, it is neither possible to fix the amount of the bond, nor to ascertain the amount of the tax on the clear market value of the estate.

While sections 322 and 323 of this statute may upon casual inspection seem to provide an equitable working plan by which to fix and levy this tax on appellant’s income, a more careful examination of the above sections discloses the fallacy of this view. Section 322, supra, provides inter alia that the probate court “shall, as often and whenever occasion may require, appoint a competent person as appraiser, to fix the valuation of estates which shall be subject to the payment of any tax imposed by this article.” But coming to an actual appraisement such appraiser is, by further provisions of this section, required to appraise the property “at its clear market value, at the time of the death of the decedent.” Under the facts before us we have seen that such an appraisement is here impossible.

Pursuing the matter of appraisement further, section 323, supra, provides that upon the coming in of the appraiser’s report the probate court having before him an appraisal fixing the value of the property “at the clear market value at the time of the death of the decedent, ’ ’ shall proceed to fix the cash value of the estate and assess the amount of tax to which it is liable. This section further provides for the determination of the value of “every limited estate, income, interest or annuity dependent upon any life or lives in being by the rule, method and standards of mortality and value which are employed by the superintendent of the insurance department in ascertaining the value of policies of life insurance and annuities.” The mere statement of the above rules providing for the appraisement of the property and for the manner of fixing the tax due thereon shows the utter futility of attempting to apply it to the facts in hand. For we know as well as any actuary could know, that in order to determine the present value of any limited estate, or income, or annuity, both the annual amount and the duration thereof must be known; or, the amount must be known and the duration be capable of being averaged by the mortality tables. Here both of these facts are unascertainable and it manifestly follows that the provisions of neither of the two above sections can be made to apply to the facts in the instant case.

Statutes by which the State taxes the property of the citizen are to be strictly construed. [Blakemore and Bancroft, Inheritance Taxes, 32; Matter of Enston, 113 N. Y. 174; Matter of Vassar, 127 N. Y. 1; 37 Cyc. 1556.] This rule is not, however, to be followed so far and so technically as to defeat the intention of the Legislature. [State ex rel. v. Switzler, 143 Mo. 287.] But the case presented is so palpably a casus omissus, that it can not be said that the Legislature had any intention to tax an income of that sort here under discussion, otherwise they would have provided some fair and equitable way to do so. No. method of taxing this income can be found in these statutes anywhere, which even measurably fits the facts confronting us.

Concerning’ the Collateral Inheritance Tax Statutes of the State of New York of 1885, from which State our own statutes were largely taken, and of which they are substantial rescripts (Laws New York, 1887, chap. 713. p. 921 et seq.), in a case wherein the impossibility of enforcing the collection of the tax upon a similar so-called expectancy was urged as rendering the whole law unconstitutional, the New York Court of Appeals said:

‘ ‘ The learned brief submitted by Mr. Hun, • on the part of the appellants, points out many imperfections in this act, and shows that there will be great embarrassment and difficulty in executing the act in the cases of contingent remainders and expectant estates, and in some other cases. The criticisms made by him upon the act are well worthy of the attention of the Legislature. But even if in some of the respects pointed out by him it should be found that the act is inoperative and impracticable, yet on that account we see no reason for condemning the entire act. If it should be wholly inoperative in eases of contingent and expectant estates and in some other cases mentioned by him, yet it can operate without difficulty or embarrassment in the great majority of cases coming within its purview; a majority of persons having property die intestate, and a majority of those disposing of property by will do it by simple bequests or devises, and the eases of contingent and expectant estates are not very common. There is no reason, therefore, for condemning the whole act because possibly in some eases it could not have operation according to the intent of the Legislature.” [Matter of McPherson, 104 N. Y. l. c. 324.]

The judgment nisi provided for the ascertainment of the tax due each month, bottomed upon the sum which the trustee should in its discretion decide to pay appellant for her support for that month. For, so runs the memorandum filed below: “Then it becomes known and certain and the amount of the tax is also then known and can be determined by the court, and is required by the law to be deducted and withheld and paid in thirty days by the trustee to the collector.” "We have shown that no statutory method has been provided, or exists by which the situation here presented is in any sense met, so that the plan adopted below is the result of the most violent construction. Such violence of construction we do not deem warranted in order to enforce a statute operating in invitum, as this and other taxing statutes do.

It is manifest that such a method of ascertainment and payment of the amount of tax due would be expensive in fees and burdensome in the extreme. Learned counsel for appellant insist that the monthly outlay in probate court fees necessitated by the order nisi would be $4.45 upon a total monthly tax, as developed by past experience in this case, of $20.83. In short, the costs entailed in fees would amount to more than twenty per cent of the monthly tax. Whether learned counsel is in error or not as to-the mathematics of his argument, it is plain that such an order, when nowhere provided for by the statutes, is too inequitable and unjust to sanction; and 'that the rule which enjoins upon us the duty to enforce the intention of the Legislature (in-collecting this tax, not in selecting those liable to pay. it), is not so flexible as to embrace a case so flagrant as this. The law' does not require us to leave the statute and go into the field of invention to find a way to tax this income.

The remedy lies with the Legislature. The statutes of 1887 of the State of New York, from which our statutes on the. subject largely come, have been so many times re-written and amended since we adopted this ancient law upon the subject as seemingly to permit (since the case of Matter of McPherson, supra, was decided) the taxing of an income similar to the one under discussion. Likewise, is this also the case in many other jurisdictions. • [Cf. State ex rel. v. Probate Court, 112 Minn. 279; Crompton’s Estate, 10 Pa. County Ct. 443; Chisholm v. Shields, 67 Ohio St. 374; People v. McCormick, 208 Ill. 437; In re Babcock, 81 N. Y. App. Div. 645; Billings v. People, 189 Ill. 472; Howe v. Howe, 179 Mass. 546; Matter of Sloane, 154 N. Y. 109.] But the condition of our statute regarded, to hold the income here involved as liable to this tax would necessitate so violent a construction of our statute as to amount to judicial legislation.

Having reached this conclusion we need not concern ourselves with the other questions reserved for discussion, since this one disposes of the case.

It results that the case must be reversed and remanded with -directions to the court nisi to enter judgment for the appellant. Let this be done.

All concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    MURRAY PHILLIPS, Appellant, v. NANNIE E. BROUGHTON et al.
    Division Two,
    March 16, 1917.
    1. EJECTMENT: Former Default Judgment as Bar. If a former default judgment adjudging plaintiff to he the owner of the land and forever enjoining defendants from asserting any title thereto is valid, it forever precludes defendants from introducing evidence of title in them at any time prior to its rendition.
    2. ■ — ■-: Former Judgment Void Because of Insufficient Prayer: Sec. 2092, R. S. 1889, and Sec. 2100, R. S. 1909. If the only relief prayed for in the petition in the former action begun in 1908 was that “the defendants may be summoned to show cause why they should not bring an action to try their alleged claim or title thereto, if any they have,” the default judgment adjudging plaintiff to be the owner of the land and forever enjoining defendants from asserting title thereto was void, because the petition clearly shows the action was instituted under Sec. 2092, R. S. 1889, which was repealed by the Act of 1897, Laws 1897, p. 74, and because if the judgment granted other relief than that prayed for it would not be binding upon defaulting defendants, since it is expressly provided by Sec. 2100, R. S. 1909, that in such case the relief granted “shall not be other or greater than that which he [the plaintiff] shall have demanded in the petition.”
    Appeal from Butler Circuit Court. — Hon. J. G. Sheppard, Judge.
    Affirmed.

      Oliver & Oliver for appellant.
    (1) Where a court has jurisdiction over the subject-matter of a suit and of the parties, its judgment is binding on the parties until set aside or annulled by appeal. Such a judgment may be irregular and voidable, but it is not void and cannot be attacked collaterally. Chouteau v. Gibson, 76 Mo. 46; Murphy v. DeFrance, 101 Mo. 151; Hardin v. Lee, 51 Mo. 244; Reed Bros. v. Nicholson, 158 Mo. 631; State v. Wear, 145 Mo. 203; Black on Judgments, sec. 170. (2) This is true, although the defense sought to 'be set up in the second suit was not set up in the first suit, provided such defense came within the scope of the inquiry of the first suit. Donnell v. Wright, 147 Mo. 647;. Railroad v. Traube, 59 Mo. 362; Tuttle v. Iiarritt, 85 N. C. 456; Hotel Assn. v. Parker, 58 Mo. 327; Hamilton v. McLean, 169 Mo. 51; Railroad v. Levy, 17 Mo. App. 507; Mc-Oalley v. Wilburn, 77 AJa. 549; 2 Black on Judgments, sec. 697; Freeman on Judgments (4 Ed.), sec. 36. (3) The issues tendered by plaintiff’s petition to quiet title in 1908 were: 1st, ownership in fee of the land described; 2nd, possession of the land described by plaintiff; 3rd, assertion that defendants set up some claim to the lands described, adverse to the plaintiff. These were the jurisdictional and issuable averments in the plaintiff’s petition. They conform to the requirements of the statute. To these charges no denial was interposed or made by either of the adult defendants. The minor defendant did deny them. The cause was submitted on the testimony offered by the plaintiff, and the court found all of the facts set up in plaintiff’s petition to be true. Judgment was entered, quieting the title in the plaintiff, and enjoining and prohibiting the defendants from further asserting claim or title to the lands. The defendants could have denied: (a) plaintiff’s ownership of the land; (b) plaintiff’s possession of the land; and: (c) averred ownership by adverse possession for ten years, if they had so elected; refusing to plead, they are estopped and barred from doing so in this case. Hamilton v. McLean, 169 Mo. 73, and authorities cited under point one. (4) In an action to quiet title, all matters affecting the title of the parties to the action may be litigated and determined, and the judgment therein is final and conclusive. A general finding of title in the plaintiff and consequently of no title in the defendant is a conclusive and binding decision against the defendant on the question of title from what-" ever source it may be derived, and forever estops him from asserting a claim of title which existed at the time of the finding and the judgment. This is the very purpose of the statute. 2 Black on Judgment, sec. 664, p. 800; Sec. 650, R. S. 1899; Sec. 2535, R. S. 1909. (5) The petition in the suit to quiet title was in accord with the provisions of the statute, except the prayer. The circuit court of New Madrid County, however, disregarded so much of the prayer as was inappropriate and unauthorized under the averments of the petition and the law, and entered a decree quieting title in plaintiff. The court had the right to grant plaintiff any relief “consistent with the case made by the plaintiff and embraced within the issues.” The character of an action is determined by the facts stated in the petition and not by the prayer for relief. Sec. 76, R. S. 1899; Sec. 2100, R. S. 1909; Sec. 767, R. S. 1899; Sec. 2091, R. S. 1909; State ex rel. v. Land & Lumber Co., 161 Mo. 671; Sharkey v. McDermott, 91 Mo. 657; Reed v. Bott, 100 Mo. 67; Commings v. Railroad, 48 Mo. 517; Lumber Co. v. Jones, 220 Mo. 197. (6) The judgment of the circuit court of New Madrid County of September, 1908, adjudging that the plaintiff was_ the owner in fee of the land in suit, and further adjudging and decreeing that the defendants and each of them be forever enjoined, restrained and forbidden from asserting any right, title, claim or interest in and to the land, is just as binding as any other judgment affecting real estate. The statute specially provides that such a judgment “shall have the same force and effect as a judgment obtained under the provisions of the Code of Civil Procedure.” Sec. 651, R. S. 1899; Sec. 2536, R. S. 1909.

      I. R. Kelso and J. G. Miller for respondents.
    (1) A suit to quiet title does not contemplate a judgment for possession, and that a writ of ouster go, “The precise point has been ruled upon and is no longer open.” Mann v. Doerr, 222 Mo. 11. (2) The Act of 1897, concerning suits to quiet titles, by declaring that it is enacted for the purpose of “taking the place of statutes which fail in.their object,” expressly repeals Sec. 2092, R. S. 1889 (Sec. 647, R. S. 1899), since there is no other section to which it can refer. Merriweather v. Love, 167 Mo. 514. (3) We call attention to some of the cases decided by the courts of this State under Section 2092, above mentioned, and under which appellant attempted to institute suit to quiet title after this statute had been repealed, (a) In order to institute a proceeding under this section the petitioner must be in actual possession of the premises. Yon Phul v. Penn, 31 Mo. 333; Rutherford v. Ullman, 42 Mo. 216; McGrath v. Mitchell, 65 Mo. App. 626; Root v. Mead, 58 Mo. App. 477; Chaffin v. Clark, 33 Mo. App. 99; Thompson v. New-berry, 93 Mo. 18. (b) A proceeding instituted under this section is not for the purpose of settling the title to the premises in the first instance, but is only preliminary to an action which the defendant or adverse claimant may be ordered to bring for that purpose. See cases above cited; also Colline Assn. v. Johnson, 120 Mo. 299. (c) On. the trial of the issues formed on the petition, evidence showing title in fee in the plaintiff, is not proper ; it being only necessary for him to show actual possession of the premises, claiming either an estate of freehold, or an unexpired term of not less than ten years. Dyer v. Baumeister, 87 Mo. 134. (d) A possession by the plaintiff that is merely nominal, or wrongfully obtained for the purpose of instituting a'suit so as to require the defendant to bring a suit to assert his title, is not sufficient to justify an order against the defendant to institute a suit. See last case above cited, (e) This section was not intended to authorize a proceeding that would be a substitute for the action of ejectment.
   WILLIAMS, J.

— This is a suit in ejectment to recover the north fractional half of the southwest fractional quarter of fractional section 13, township 22, range 13 east, containing 141.1 acres, situated in New Madrid County, Missouri. The suit was transferred on change of venue from the New Madrid Circuit Court to the Butler Circuit Court, where trial was had before the court, without a jury, resulting in a judgment, for the defendants. Plaintiff duly perfected an appeal.

The petition is in nsual form.

The answer is in five counts, admits possession of the property in defendants, bnt denies each and every other allegation in the petition. The ten-year and thirty-year Statutes of Limitation are also pleaded as defenses.

The fifth count of the answer is in the nature of a cross-bill, and alleges that the defendants are the owners of and in possession of said land and that they are informed and believe that plaintiff claims some title or interest in said land, the nature and character of which is unknown to defendants, but that defendants are informed that plaintiff is basing his claim to said land on’ a decree entered in the circuit court of New Madrid County at the September Term, 1908, in a proceeding wherein Murray Phillips was plaintiff and these present defendants were defendants. It is alleged that said decree is void because the court entering the same had no jurisdiction over the property described in said decree, and that said decree was not responsive to the petition attached to the copy of the summons served on the defendants, but wholly failed to describe the property as set out in said decree; thát defendants failed to file any answer or appear in any manner in said suit because they, in good faith, believed that said suit was not intended and did not in any manner affect any of the land described in this suit. In the prayer the court is asked to cancel and set aside said decree and to ascertain and determine the title to said land.

The reply denied the new matter set up in each count of the answer.

Plaintiff introduced evidence showing that the paper title to said land was in the plaintiff. The evidence further shows that said land was timbered land and none of it was prepared for cultivation and that a short time prior to the institution of this suit the record owner had some men on the land clearing it and that about six or eight acres had been cleared when defendants ordered said men off the place and took possession of the same. The disputed land is situated between the land owned by plaintiff and land owned by tbe defendants. Plaintiff testified that he did not know that this woodland, around which tbe defendants bad a fence, was- a portion of bis land until a surveyor (tbe date of tbe survey is not given) ran a line and it was discovered that tbe defendants’ fence extended a quarter of a mile too far south; that it is wood land and unoccupied.

The evidence upon the part of the defendants tended to establish the following facts:

The plaintiff was recalled for further cross-examination and testified that the suit which be bad formerly instituted in New Madrid County against tbe same defendants involved the same property as is now involved in this suit.

L. P. Steele, a surveyor of New Madrid County, testified that be bad known the land for three or four years and that' during that time Mr. Broughton bad been in possession of it. On cross-examination be testified that when be made the survey be found a fence along the south side of the land in suit (the south side adjoined the undisputed land of plaintiff); that it was not much of a fence, and it looked like a part of the fence bad been torn down; that tbe fence on tbe west side was apparently a good one, but that the, witness did not go around tbe north or east side of tbe tract.

Henry E. Broughton, Collector of New Madrid County for the past fourteen years, testified that said land was used by tbe defendants as a pasture during tbe last ten or fifteen years; that in tbe year 1897 tbe witness and bis brother (bis brother, now deceased, being tbe person under whom defendants claim) were partners, engaged in buying and selling cattle, and at that time a fence was built around tbe land in question and they kept cattle in there. Tbe fence which they built contained nine or ten wires, and that prior to tbe building of this fence there was a three or four-strand wire fence around this land, but tbe witness did not know bow long it bad been there or who built it. Tbe witness testified that tbe land in dispute bad been known as tbe Broughton land ever since tbe witness, who was fifty-four years old, could remember. This witness testified that defendants paid taxes on about sixty-one acres of this disputed land.

Defendants introduced in evidence two deeds conveying to persons under whom they claimed about fifty-six acres of the land in dispute. It does not appear that the grantors in these deeds had any record title, and from the showing made their interest would amount to only color of title.

H. E. Broughton, Jr., one of the defendants, testified that the defendants or those under whom they claimed built a nine-wire fence around the disputed property twelve or fourteen years ago and that the land had been enclosed by a fence ever since and had been used by the witness’s father as a pasture; and that there was a fence around the place before the nine-wire fence was built. Upon cross-examination this witness testified that his brother ran plaintiff’s negroes out of this land when they were there clearing the same; that the defendants, and those under whom they claim, claimed to own- all of this timber land enclosed by the fence and used the same as pasture “during all this time.”

Defendant Nannie Broughton testified that the defendants claimed to own all the property inside of the fence and that they first learned that their right was questioned by plaintiff about two years ago when he begun clearing it up; that when they found out that he was claiming the land they stopped him. This witness testified that she was served with a summons in the first suit instituted by the plaintiff in New Madrid County against these defendants; that when the summons and copy of the petition was served upon her she asked the sheriff what it meant and the sheriff told her that it meant that “Murray wants to borrow money and it seems the Hunter heirs are all mixed up in a law suit some way and he can’t get it unless the Hunter heirs all sign this paper; ’ ’ and that she thought the sheriff knew what he was talking about and, for that reason, she didn’t go to court and make a defense in the suit. The witness testified that her husband died February 10, 1904, and she kept a diary of everything that occurred; that in 1891 there were three strands of barb wire put around the woods pasture to keep the mares and colts in there, and that in 1897 the nine-strand wire fence was put around the land so they could pasture cattle in there.

Defendants introduced in evidence the summons and the petition in the first suit between these parties, which resulted in the decree in favor of the plaintiff entered by the New Madrid Court at its September Term, 1908. Said petition, omitting formal parts, was as follows:

“Plaintiff says that the defendant Nannie Broughton is the widow of Arthur Broughton, deceased, and that the other defendants except Alpheus Moore, the husband of said Ethel Broughton, are the children of said Arthur Broughton, deceased.
“Plaintiff says that he is the owner in fee and in possession of the following described land situated in New Madrid County, Missouri, to wit:
“The southwest fractional quarter of section thirteen (13.), township twenty-two (22) north of range thirteen (13) east.
“Plaintiff says he is credibly informed and believes that defendants make some claim to the estate of plaintiff in said above-mentioned lands, and therefore prays that defendants may be summoned to show cause why they should not bring an action to try their alleged claim or title thereto, if any they have.”

Defendants also offered in evidence the decree in said cause, which, omitting caption, is as follows:

“On this day comes the plaintiff by his attorney and Lelia M. Broughton, a minor, by her guardian ad litem, T. J. Brown, and it appearing to the court that the defendants, Mrs. Nannie Broughton, Edward S. Broughton, Henry E. Broughton, Jr., Jennie Broughton, Ethel Moore and Alpheus Moore, her husband, and Hunter Broughton, have been duly and personally served with process herein, they are called and come not but make default.
“Wherefore, on motion of the plaintiff by his attorney, this cause is taken up and submitted to the court upon the pleadings and the evidence adduced by the plaintiff, and the court being fully advised in the premises doth find: that the allegations in plaintiff’s petition are true; that the plaintiff is the owner in fee of the southwest fractional quarter of section 13, township 22 north of range 13 east in New Madrid County, Missouri.
“Wherefore it is ordered, adjudged and decreed by the court that the defendants, and each of them, be forever enjoined, restrained, forbidden and prohibited from asserting any right, title, claim or interest in or to the southwest fractional quarter of section 13, township 22 north of range 13 east in New Madrid County, Missouri, which would in any way abridge, modify, restrict or interfere with the free, full and complete fee ownership thereof by the plaintiff Murray Phillips, and that the costs of this proceeding be taxed against the plaintiff.”

In rebuttal plaintiff introduced in evidence tax receipts showing that plaintiff had paid the taxes on this land and other land for the years 1901, 1902, 1903, 1905 and 1907. Plaintiff offered other witnesses who testified that for the last twelve or fourteen years the land in question had been open most of the time, so that stock could go in and out whenever it pleased and that other persons’ stock would go in there; that it was the same as an open woods; that sometimes Prank Phillips would fix the fence and it would be up for a few days and then be down again; that some of the fence had nine wires and some three wires, and’ that there had never been anybody living on the place or in possession of it. One witness testified that he asked defendants if he could turn some stock on the land in question and that they said he could. Another witness testified that the fence around the land in question was down in several places and that: “You might say that there was no fence particularly around it. It has been in that condition since the year 1904. My stock run backward and forward into it; go in, there every morning and come out at night. It is just the same as an open woods. Anybody’s stock in .that neighborhood can go in there the same as any other old deadening.” On cross-examination this witness testified that the land had been used as Broughton’s pasture ever since the-witness knew it in 1904.

I. The result to be reached in this opinion will depend upon the validity or invalidity of the default judgment of the circuit court of New Madrid County, Missouri, entered at its September term, 1908. If that judgment is a valid one the defendants in this action would be precluded from introducing evidence as to the title of this land at a period prior to the rendition thereof, and upon the record here presented the present judgment in favor of defendants would be erroneous, because not supported by sufficient evidence. If, on tbe other hand, the judgment is null and void, then, we think, there are sufficient facts disclosed in the foregoing statement of facts to warrant the trial court in entering the judgment it did in favor of defendants, on the theory that defendants hold the title through adverse possession.

II. Is the judgment of 1908 null and void? Upon careful consideration, we have reached the conclusion that it is.

Said judgment and the petition upon which it is based will be found copied in full in the foregoing statement. It will be noted that the only relief prayed in said petition was as follows: “Plaintiff _ . . therefore prays that defendants may be summoned to show cause why they should not bring an action to try their alleged claim or title thereto if any they have.” Summons was issued and, together with a copy of said petition, was duly served upon the defendants. The defendants did not appear (with the exception of one minor defendant who appeared by guardian ad litem and filed answer), and a judgment by default was entered against them, whereby they were “forever enjoined, restrained, forbidden and prohibited from asserting any right, title, claim or interest therein. ”

A mere reading of said petition shows clearly that it was instituted under the provisions of section 2092, Revised Statutes 1889, which was carried forward (erroneously however) into Revised Statutes of 1899 as section 647, and the only relief there prayed was the relief contemplated by said section. The decree grants also only such relief as was by said section provided.

Section 2092, Revised Statutes 1889, had, however, by th'e Act of 1897 (see Laws 1897, page 74) been repealed long before the suit was instituted. [Meriwether v. Love, 167 Mo. 514.]

That being true the court was without authority to grant the relief as prayed or as contemplated by said repealed statute and the judgment in so far as it undertook to grant the relief afforded by that statute, and as prayed, was, therefore, null and void.

It is, however, contended by appellant that the relief granted was authorized by section 650, Revised Statutes 1899, the same being the Act of 1897, supra. We think it clearly appears from a reading of the decree, however, that the court did not attempt to grant the relief provided by section 650, supra, this because the title to the land was not specifically determined and adjudged as is contemplated by said section, but the decree merely went to the extent of enjoining the defendants from asserting title thereto as was contemplated and provided only by section 2092, Revised Statutes 1889, which, as we have above seen, was not then in force.

Furthermore even though it should be conceded that the decree granted other relief from that which was prayed, the other relief decreed would not be binding upon the defendants defaulting, this because of the express provisions of a statute, to-wit, section 2100, Revised Statutes 1909, which provides that upon default, such as occurred in that case, the relief granted “shall not be other or greater than that which he [plaintiff] shall have demanded in the petition, as originally filed and served on defendant.” [See also Janney v. Spedden, 38 Mo. 395, l. c. 402; Leavenworth Terminal Ry. & B. Co. v. Atchison, 137 Mo. 218, l. c. 230; Russell v. Shurtleff, 28 Colo. 414.]

The eases cited and relied upon by appellant in support of the contrary contention are not default cases and are therefore not in point here.

The judgment is affirmed.

All concur.


text:
    THE STATE ex rel. SCHOOL DISTRICTS NOS. 52 and 53 of CASS COUNTY et al., Plaintiffs in Error, v. LESLIE WRIGHT et al.
    Division Two,
    March 16, 1917.
    1. CONSOLIDATED SCHOOL DISTRICT: Hat: Certainty. Absolute mathematical certainty in lines and scale in the plats of a proposed consolidated school district required by the statute to be made and posted by the. County Superintendent, who is not a surveyor and who is given no fund with which to cause a survey to be made, is not to be expected.
    2. -:-: Sufficiency: Purpose. The plat of the proposed consolidated school district is sufficiently exact within the meaning of the statute if it shows the sections and subdivisions of lands in a manner sufficiently accurate to enable the ordinary citizen to ascertain from an examination thereof whether the boundaries of the proposed district will include his residence or lands so as to make him a voter and a taxpayer in the district. If it does that, and likewise enables the County Clerk to intelligently extend and the Collector to intelligently collect the taxes on the subdivisions of • real estate included, it contains all that is necessary.
    3. -: -: -: Bounded by River. Whether or not the posted plats make the boundary line of the proposed consolidated school district cross the southeast corner of a certain section, or to run thirteen links from the corner, is immaterial, if a certain river or well-known water course is there made the boundary line.
    4. -: Welfare of Adjoining Districts: Judgment'of Superintendent. In fixing the boundary lines in such a way as in the judgment of the County Superintendent “will form the best possible consolidated district,” the statute leaves both the measure of the judgment and the, quantum of due regard for the welfare of adjoining districts to his sound official discretion; and the sole way of correcting his exercise of a bad judgment and discretion is the rejection by the voters of the proposition to organize the consolidated district. "
    ’5. -: -: Quo Warranto: Substantial Evidence. A quo warranto to have declared illegal the attempt to organize a consolidated school district, is a law case; and if there is substantial evidence that the County Superintendent made effort to obtain facts upon which he might exercise his judgment as to the needs for the district and as to the welfare of the adjoining district, the finding of fact by the trial court that he did all the statute required is binding on the appellate court.

      6. -: Increased Taxes: Fraudulent Representations of Superintendent. Alleged fraudulent statements made to voters by the County Superintendent before the consolidated district was formed that their taxes would not be increased by its formation more than fifteen or twenty cents on the hundred dollars’ valuation, has no place in a quo warranto brought against the directors to oust them on the ground that the district was not legally organized, for even if made they are no grounds for outlawing the district.
    Error to Cass Circuit Court. — lion. B. G. Tlvurman. Special Judge.
    Affirmed.

      Smith & Chastain for plaintiff in error.
    (1) The statute under which the district in question was attempted to be organized required the County Superintendent of Schools on receipt of a proper petition to perform these duties: (a) To visit and investigate the needs of the community; and (b) To determine the exact boundaries of the proposed district, doing this so as to get the best possible district, having due regard to the welfare of the adjoining districts. Laws 1913, p. 722, sec. 3. (2) To this provision of the statute effect should be given by the court, because not an impractical thing to be done, and no different intent ¿an be found either expressed or implied in the act. Bank v. Repley, 161 Mo. 131; State v. Hunter, 188 Mo. 529. This effect will be given even if the court should be of opinion the requirement is an unwise one. Grist v. Construction Co.. 224 Mo. 384. (3) These statutory requirements are necessary conditions precedent to the organization of a district; in fact, jurisdictional. State ex rel. v. County Court, 66 Mo. App. 101; State ex rel. v. Higgins, 71 Mo. App. 185; State ex rel. v. Siebert, 97 Mo. App. 212, 219; State ex rel. v. Page, 107 Mo. App. 217; State ex rel. v. Metzer, 26 Mo. 65; State ex rel. v. Wilson, 216 Mo. 277; State ex rel. v. Woods, 233 Mo. 377; State ex rel. v. Jones, 181 S. W. 51. (4) The undisputed evidence is that: (a) The exact boundaries of the district were never determined by the superintendent. Exact means accurate, strictly correct, precisely-fitting, not differing in the least. 2 Ency. Dictionary, p. 1962. (b) He did not investigate the needs of the community having due regard to the interests of adjoining districts. To investigate is to “examine and inquire into closely.” 3 Ency. Dictionary, p. 2726. (5) The only “determining” of the boundaries of the district by the superintendent was the making of the plats, none of which were alike, but all agreed that at the southeast corner of section 9, Bates County, the map was inexact to the extent of more than thirteen chains. (6) The court erred in admitting the plats in evidence, because they did not show the boundaries of the district. Authorities under proposition one and two. (7) The court erred in excluding evidence as to fraudulent representations of the County Superintendent to the effect that the organization of the district would not increase taxation. State ex rel. v. Woods, 233 Mo. 337.

      C. A. Denton and W. E. Owen for defendants in error.
    (1) The statute providing for the creation and organization of consolidated school districts is a progressive act in keeping with the forward movement of the State and country at large, and before the court will declare the organization of a district under it invalid, or the law itself, the reasons therefor should be clear and unanswerable, and the court will scrutinize very closely all of the proceedings, and be fully satisfied that a clear case is made out against the legality of the organization of the district, as the ruling, if adverse to the district, prejudicially affects the rights and interests of the State as well as the inhabitants of the district and creditors thereof. State ex rel. v. Job, 205 Mo. 34; State ex rel. v. Westport, 116 Mo. 595; State ex rel. v. Cordon, 261 Mo. 649; Board of Commissioners v. Peter, 253 Mo. 520; State v. Baskowitz, 250 Mo. 82; State ex rel. v. Warner, 197 Mo. 656; State ex rel. v. McIntosh. 204 Mo. 602; State ex inf. v. Henderson, 145 Mo. 336. (2) No strict or technical construction is to be put upon the statute authorizing the organization of consolidated school districts. It was designed as a plain workable method for organizing larger districts with greater educational advantages, by plain, honest worthy citizens not specially learned in the law. State ex inf. v. Jones, 266 Mo. 201; State ex rel. v. Job, 205 Mo. 34; State ex rel. v. Andrea, 216 Mo. 636; School Dist. v. Hodkin, 180 Mo. 79; School Dist. v. Pace, 113 Mo. App. 140; State ex inf. v. Morgan, 187 S. W. 57. (3) The important thing for the voter in each district to know was how his district was to he affected by the creation of the new district, or by change of the boundary, and what particular territory is included in the new district, or what particular territory his district would lose in the creation of the new one, or by changing the boundary line. State ex rel. v. Job, 205 Mo. 28; Mason v. Kennedy, 89 Mo. 30; School Dist. v. Sims, 193 Mo. App. 480. (4) The plat of the proposed consolidated school district made by the County Superintendent is the instrument designated by the statute to he posted for the information of the voters as the territory therein included. And if it sufficiently gives this information it has served its purpose, and where permanent monuments like well defined watercourses are given as part of the boundary line, it will he a sufficient designation of such boundary. Monuments control courses and distances called for. Laws 1913, p. 721; Campbell v. Clark, 8 Mo. 553; McGfill v. Somers, 15 Mo. 80; Kronenberger v. Hoffner, 44 Mo. 185; Jones v. Poundstone, 102 Mo. 240; Whitehead v. Ragan, 106 Mo. 231; Smith v. Catlin Co., 117 Mo. 438; Harding v. Wright, 119 Mo. 1; Johnson v. Boulware, 149 Mo. 451; Peterson v. Beba, 161 Mo. 513; Clamorgan v. Railway, 72 Mo: 139; Brown v. Huger, 21 How. 305; State ex inf. V. Claves, 186 S. W. 685.
   FARIS, J.

— This is a proceeding by quo warranto, filed by the prosecuting attorney of Cass County, at the relation of two certain school districts and some sixty-two tax-paying citizens of that county, against defendants in error here, who were defendants below, to oust them from their offices as directors of a certain consolidated school district. The trial court refused to grant the writ of ouster and plaintiffs sued out and now prosecute their writ of error.

The action turns upon the question whether said consolidated school district was legally organized. There is but little dispute about the facts. Such of these facts as are necessary to an understanding of the points raised are substantially as follows: A petition containing the requisite statutory number of signers and which is conceded by plaintiffs to be sufficient in form and substance and sufficiently signed, was presented to one T. J. Walker, who was then superintendent of public schools of Cass County, requesting him to proceed officially under the provisions of the Laws of Missouri, 1913, page 721 et seq., to organize a consolidated school district in Cass and Bates counties, with the center of such proposed school district at or near the town of Archie in Cass County. Thereupon the County Superintendent personally went into the neighborhood to be affected and from which the territory to compose the proposed consolidated district would have to be carved, for the- purpose of examining the situation; Touching his acts in this behalf, he says: “I went to see these citizens and talked the matter over with them; observed the country and the lay of the land and kept in mind the different' boundaries that were to be included within the proposed consolidated district and kept in mind the territory that was to be embraced within the district, and later I took the plat and in my office laid out the boundaries, knowing as I did the boundaries of the district. I undertook to have in mind the welfare of the adjoining districts and that,I must not cripple any adjoining districts or leave them in a condition where it would be impossible for them to have school facilities.” This witness, who .is not a party to this action in anywise, testifying as to the manner, nature and extent of his investigations, also said: “I went with Mr. Pitcher to Archie where we drove over a large part of the territory and talked with a lot of resident citizens whom I told, as I visited them, what was my purpose; that I wanted to see the sentiment of the community as to whether they really wanted a consolidated district and high school facilities, telling them what in my judgment would be the advantages of such an organization; to most of them I called attention to the fact that there was at that time no high school existing between Drexel and Garden City, in Cass County, a stretch of country perhaps twenty-five miles from one town to another. Whenever a man expressed himself as favorable to it, I asked him if he would sign a petition as an evidence of his good faith, and a great many more were added, to the number of about seventy.”

There is no controversy as to the sufficiency of the notices, nor as to the posting thereof, nor as to the number of plats which were prepared by the County Superintendent and caused to be posted at the requisite statutory number of places. These plats were roughly and somewhat inartificially drawn upon blanks containing numbered sections, townships and ranges, all of which blanks were filled in as the situation required. The plats-as posted and filed show the southeast corner of the proposed district to be on a certain creek, or water course, known as Mormon Pork of Grand Eiver, which point, the testimony shows, was supposed to be coincident with the southeast corner of section nine, though it developed upon exact measurement that the southeast corner of said section nine was some thirteen chains east of this creek. Touching it, however, as well as regarding other contested points, the County Superintendent says that he was not personally acquainted with the lines bounding the school districts affected in Bates County; that he made inquiry as to all of these facts and afterward prepared the plats by the exercise of his best judgment as to what was the proper manner of running the lines.

The plat hereinafter set forth shows the inclusion of an eighty-acre tract, which has the effect to produce, a seeming inequality in the western boundary of this district. The testimony of defendants, which was, in its entirety as to the facts, corroborated by plaintiffs, shows that this tract of land is vacant and uncultivated, and situate in a small, weak common school district. For these reasons the County Superintendent included the above tract in the consolidated district. Regarding a certain eighty-acre tract — seemingly on the easterly side of the watercourses which partly bounded the consolidated district on that side — and a two-hundred-acre tract, being all that was left of a certain common school district in Bates County, both of which tracts were omitted, the County Superintendent testifies as to the former that he might have included it if he had known the true facts, but that such omission was justified possibly by the fact that these watercourses often become impassable on account of floods. As to the omitted two-hundred-acre tract he says his best judgment was to omit it, which he did, and that this judgment would not have been changed by knowledge (which he did not have at the time) that it was all that was left of a former Bates County common school district. The record does not contain any sufficient evidence by which the alleged bad judgment of the County Superintendent is demonstrated, or the judgment upon which he acted in the three certain behalves mentioned is impeached.

The court, as stated, refused to oust the defendants, thereby holding, in effect, that the district was lawfully organized. This is the decisive question and the sole question sought to be settled by this proceeding. Other facts tending to illuminate it will be found in the opinion.

Looking at the brief filed by learned counsel for plaintiffs in error in the light provided by the terms of our Rule 15 (adopted April 10, 1916), we find only the below points mooted: (a) That the exact boundaries of the district were never determined by the County Superintendent of Schools; (b) The County Superintendent did not investigate the needs of the community with due regard to the interests of adjoining districts; (c) the court erred in admitting the plat in evidence, because it did not show the boundaries of the proposed district; (d) the court erred in admitting evidence that some of the individual plaintiffs participated in and voted at the special election; and (e) that it was error to exclude evidence that the County Superintendent made alleged fraudulent representations as to the additional cost in taxes which would he entailed by the establishment of the proposed consolidated district.

I. Coming to a consideration of the complaint that the exact boundaries of the proposed district were never determined by the County Superintendent, we note that seven plats were caused to be posted by this official.

These plats were headed: “Plat of Proposed Consolidated District No. 2, of Cass and Bates Counties.” In the north margin thereof the ranges correctly numbered 31 and 32, respectively, and in the east margin the townships likewise correctly numbered 42 and 43, respectively, were shown, with the words “Cass County” written in said east margin under the words “Township No. 43.” In the south margin, appeared the legend: “Scale 1 inch=l mile.” All of the above matters and things are omitted from the plats shown by plaintiffs in error in their abstract. In all other respects the above plat which we take from the abstract, is a true representation of the boundaries of said proposed district.

Learned counsel for appellants concede that the notices posted were in proper form and that the petition for the organization of the district was duly filed. The point as made goes to the sufficiency of the above plat. The alleged phase of inexactitude touching the plats is that these plats fail to show the boundaries of the district. The contention upon which this charge is bottomed, so far as we are able to gather, is that while the southeast corner of the district as the plat shows it, seems to be the southeast corner of a certain section nine, this is not the ease in fact; because while upon the plat Mormon Fork of Grand River which actually forms the southeast boundary of the district, seems to cross the section line at a place coincident with the southeast corner of said section 9, it in fact crosses the south line of said section thirteen chains west of the southeast corner thereof. Regardless of this fact we yet think this plat, which we show above, was under the statute (Laws 1913, p. 722, sec. 3), a sufficient showing of the boundaries of the proposed district. It may be a matter of judicial regret that the above section of this act which designates all of the necessary statutory requirements of things to be done in order to lay out, organize and record a consolidated district, did not go more at length into the details of the procedure for such organization. But these things were for the Legislature and not for us. Reference to the language-of the act shows the only requirements of investigation and examination to be that: “On receipt of said petition, it shall be the duty of the County Superintendent to visit said community and investigate the needs of the community and determine the exact boundaries of the proposed consolidated district. In determining these boundaries, he shall so locate the boundary lines as will in his judgment form the best possible consolidated district, having due regard also to the welfare of adjoining districts.”

While the above language is all that the act contains as to the initial manner of “determining” the boundaries, the context, we think, shows that the word “determine” is not used in its strict sense of “ascertaining to a mathematical certainty; ’ ’ but it means that the County Superintendent shall “settle upon and decide” where such boundaries shall be. For it will be noted in determining these boundaries he is required to “so locate the boundary lines as will in his judgment form the best possible consolidated district.” Neither the district nor the boundaries thereof are required to be surveyed, for no provision exists to pay for any surveying and none is mentioned in the act. The plats which are to be filed and posted are likewise, from the context, to be prepared by the County Superintendent. For while he may procure others to make them, it is yet made his duty to post them, and, since nothing is said as to paying any other person or officer for making these plats, the duty to make them, or to procure them to be made without incurring any expense therefor, clearly falls upon him. Since we know what the duties and the statutory requirements as to eligibility of a County Superintendent of schools are, we know that he is not required to be either a surveyor, a civil engineer or a skilled draftsman. Therefore we would not expect absolute mathematical certainty in lines and scale in the plats filed and posted by the County Superintendent. Such a plat is sufficiently exact within the meaning of the statute when, it shows the sections and subdivisions thereof in a manner sufficiently accurate to enable the plain, ordinary citizen (State ex rel. v. Glaves, 268 Mo. 100) to ascertain from an examination thereof whether the boundaries of the proposed consolidated district will include his residence or lands so as to make him a voter and a taxpayer in the district. It follows that if a plat under this act does this much, and in so doing, it likewise enables the County Clerk to intelligently extend and the Collector to intelligently collect taxes on the subdivisions of real estate included, this is all that is necessary. We think the plat posted and filed and above shown did this. The error as to where the southeast corner of section nine is, affects the matter in no material way when viewed in the light of the objects intended to be accomplished. The Mormon Fork of Grand River is shown to be a watercourse and a permanent monument. Even the casual observer can • see from the plat that the district runs for a southeast boundary line or corner, to this watercourse; that it includes all lands up to this creek and no more, and that the same is true of Grand River itself.. No courses or distances are called for; if they were this creek would control and delimit such calls and form a natural monument even as against such calls. [Whittelsey v. Kellogg, 28 Mo. 404; Smith v. Catlin Land & Imp. Co., 117 Mo. l. c. 444.] Since these natural monuments form the southeastern and part of the eastern boundaries of the proposed district, it is evident that no lands which lie east of this creek and of this river are embraced within the district. So also it is not difficult to ascertain what sections or subdivisions of sections of land lie on the westerly side of these watercourses. Surely any voter may be presumed to know whether he lives and his land lies on the east side or the west side of streams like these. Besides, a mere reference to the above plat and a statement of the contentions of the learned counsel for plaintiffs show in the light of our recent rulings, that the point should be ruled against plaintiffs (State ex rel. v. Glaves, supra), which we accordingly do.

II. Coining to the contention that the County Superintendent did not sufficiently examine into the effect of the proposed consolidated district upon certain adjoining common school districts in Bates County: The statute which we quote above is, we repeat, regrettably meager in its details; it relegates the matter of fixing the boundaries of the district, that is, the creation of the district itself, to the judgment of the County Superintendent; it lays down no hard-and-fast rules, nor any certain method for him to follow, but within the limits of so locating “the boundary lines as will in his judgment form the best possible consolidated district,” in the light of a “due regard for the welfare of adjoining districts,” leaves both the measure of judgment and the quantum of due regard to the welfare of adjoining districts to the sound official discretion of the County Superintendent. The question of the correctness of the judgment exercised and the regard by him had to the welfare of adjoining districts is required (as the sole way of correcting his exercise of bad judgment and discretion) to be passed on by the voters at a special election held for this purpose. In this case the voters approved the district and its boundaries as an exercise both of good judgment and due regard. In addition, there was substantial testimony, which we set out in our statement of facts, that the superintendent made efforts to obtain facts on which, caeteris paribus, he might have been able to exercise the required statutory quantity of judgment and due regard. The learned trial court found from the facts shown that he did all that the statute required him to do. No instructions were asked or given; this is not an equity suit (State ex rel. v. People’s Ice Co., 246 Mo. 168), so we are in this condition of the record, bound by the holding of the court nisi.

III. It is contended that the trial court erred in refusing to admit proffered evidence that the County Superintendent made, fraudulent statements as to the additional cost in taxation which would be entailed by the formation and operation of the proposed consolidated district. This contention we think is erroneous both as to the facts and the law. Some three or more witnesses were permitted to state that representations were made by the County Superintendent that the increased cost by way of taxation to the owners of taxable property to maintain the proposed consolidated district would be only ten or fifteen cents on the hundred dollars’ valuation, but that the increase had run much higher in some at least of the territory included. The single objection made by plaintiffs to.testimony of this sort was sustained, because the question was leading. 'Afterwards the matter was gone into fully and some three or more witnesses testified about it. That any such inquiry in a proceeding like this was wholly incompetent, is manifest. The alleged fraudulent statements were made, according to the witnesses, while the superintendent was “visiting the community” and endeavoring to “investigate the needs” thereof. The petition by which the move toward the organization of the district was initiated had already been signed and filed. Conceding for the sake of the argument that the County Superintendent did hazard an erroneous guess as to the additional cost which would be entailed and have to be met by taxation, is that any reason why the district should be declared outlawed? At most, what the superintendent did was to make predictions as to future conditions, which it is averred time has not vindicated, and that this was done in order to obtain votes in favor of the district, when the matter should’ come to be voted on at the special election. We apprehend that such a ground would not avail even in an eléetion contest. . If it could even in such an action become relevant, we might view with alarm the grafting upon the right to hold an office the condition that all of the ante-election promises made should in the end eventuate, according to the strictest letter of each voter’s memory. Such a view might even be held eventually to extend to the platforms of political parties and there work remediless havoc. But be all this as may be, this is a collateral matter sought to be injected into a common law action; the County Superintendent is not a party, but a mere witness in the case; and since it is under the issues irrelevant, he could hot be impeached by the inquiry, and for the reasons given in the analogous case of Carder v. Drainage District, 262 Mo. l. c. 555, and the case of State v. Newcomb, 220 Mo. l. c. 63, among many others that could be set down did not time and space forbid, this contention is disallowed.

IY. It was perhaps “immaterial and irrelevant,” as the sole objection ran, that certain of the persons who are here objecting as relators participated in and voted the special election by which the district was organized. Bnt this was the only objection made and the eonrt nisi did not rule on the point at the time this objection was made, reserving his ruling thereon. He was never afterwards asked to rule, and has not yet ruled on it. So for both or either one of these reasons, we cannot review the point urged.

Other alleged errors reserved by us for discussion, are disposed of by what we have said on other but germane points. We find no error in the record, and hence affirm the case.

All concur.