source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    JOHN G. PRIEST, Trustee, et al. v. RINGROSE J. CAPITAIN et al., Appellants.
    Division One,
    July 12, 1911.
    1. SUMMONS: Without State: Proof in Manner Prescribed by Statute. Where the statute prescribes a single method in which proof of the service of a summons shall be made, no other proof can be accepted. And the statute (Sec. 2029, R. S. 1889) relating to personal service upon defendants residing in another State, which says that “such service may be made by any officer authorized by law to serve process within the state or territory where such service is made, and shall be proved by the affidavit of such officer, stating the time and manner of such service, made before the clerk or judge of the court of which affiant is an officer,” prescribes a single method of proof of service, and the proof can be made in no other way.
    2. -. -: -: Necessary to Judgment: Jurisdiction. The court cannot adjudicate the res until legal notice has been given to defendants; and it is without jurisdiction to proceed .to adjudicate the subject-matter of the suit until due proof has been made that such legal notice was given, where the statute authorizes a substituted or constructive notice.
    3. --: -: -: Amendment. The court, after judgment on a defective return, or after an insufficient proof of service of summons by the officer of another State, cannot, after that officer has gone out of office, permit him, upon his application, to amend his proof of the service. Such officer is not an officer of the Missouri court. Where the law speaks of and permits amendments of returns of process, it means official returns, and not proof of service by the affidavit of an individual. The ' law only contemplates amendments by officers of the Missouri court. A sheriff in another State is only an individual to the Missouri court; he gives no bond in this State, and in serving in his own State process issuing out of a Missouri court he does not act under his official oath.

      4. -: - — -: -; By Officer. An officer out of office may be permitted by the court to amend his return. But he must be an officer of the Missouri court. If he was sheriff in another State at the time he served the summons and has since gone out of office, he is not an officer of the Missouri court, but a mere individual, and cannot amend his proof of service.
    5. -: -: -: Strict Construction. The service which the statute authorizes an officer of another State to make is a substituted or constructive service; and, therefore, that part of the statute which directs how it shall be done and how the service shall be proved must be strictly construed, which means that it can be done in no other way.
    6. -: -: -: -: Definition. By strict construction of a statute is meant a construction according to its letter — a construction which recognizes nothing that is not expressed, takes the language used in its exact and technical meaning, and admits no equitable considerations or implications.
    7. -: -: -: By Deputy Clerk. The statute says that the service by an officer of another State “shall be proved by the affidavit of such officer, made before the clerk or judge of the court of which affiant is an officer,” and that statute must be strictly construed, and when so-construed it means that the service can be proved before the judge or clerk, and no other officer. It cannot be proved before the clerk’s deputy, thus, “T. H. Ward, Clerk of the Superior Court, by A. A. . Bailey, deputy,” even though the statute of the foreign State authorizes the appointment of a deputy clerk. The legal suf- ■ ficiency of the proof of service depends not upon the statute of the foreign State, but' upon the statute of this State. A judg- - ment rendered against defendants upon a service or return proved before a deputy clerk is void.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Reversed and remanded (with directions)'.

      Robert <& Robert, William F. McLaughlin, and William L. Becktold for appellants.
    (1) "Where the officer serving the writ without the State of Missouri swears to it before anybody but the “clerk or judge of the court of which he is an officer,” the return is void. R. S. 1899, sec. 582; R. S. 1889, sec. 2029; Russell v. Grant, 122 Mo. 179; Murdock v. Hillyer, 45 Mo. App. 287; Adams v. Heckscher, 80 Fed. 742; Barber v. Morris, 37 Minn. 194; Harris v. Sargent, 37 Ore. 41; State v. Foreman, 121 Mo. App. 509. (2) Where a mode of securing jurisdiction differing from that of the common law is prescribed by the statute, nothing less than a rigid and exact compliance with the provisions of the statute will confer jurisdiction. Kelly v. Murdagh, 184 Mo. 377; Feurt v. Caster, 174 Mo. 289; Corrigan v. Schmidt, 126'Mo. 304; Harkness v. Cravens, 126 Mo. 233; Myers v. McRay, 114 Mo. 377; Charles v. Morrow, 99 Mo. 646; Quigley v. Bank, 80 Mo. 297; State ex rel. v. Staley, 76 Mo. 158; State ex rel. v. Horine, 63 Mo. App. 1; Tourville v. Railroad, 61 Mo. App. 533.

      Joseph 8. Laurie, Albert Blair and Robert E. Collins for respondents.
    (1) The requirements of our statute were fully satisfied by the execution of said certificate by the deputy in the name of his principal, the clerk. We thus see that the contention between the opposing parties herein rests upon the construction of our statute.R. S. 1899, secs. 582, 4160; State ex rel. v. Allison, 155 Mo. 330; Springer v. McSpadden, 49 Mo. 299; Nat. Acc. Soc. v. Spiro, 37 C. C. A. 388; Hope v. Sawyer, 14 111. 254; Mechem, Pub. Off., sec. 584; Devlin, Deeds, sec. 473; 9 Am. & Eng. Ency. Law, 369. The decisions in construction of the U. S. Stat., sec. 905, as to whether the term “clerk” includes the deputy, are not uniform. A number of decisions hold directly the reverse of those decisions cited in the Murdock case. Young v. Thayer, 1 G. Green 196; Greason v. Davis, 9 Iowa 219; Steinke v. Graves, 16 Utah 293. We refer the court to the following decisions of our own Statq, Carr v. Jackson, 28 Mo. 314; Etz v. Wheeler, 23 Mo. App. 449; Martin v. Gray, 142 U. S. 236. (2) The alleged defect in the return was cured by amendment. 18 Ency. PI. & Pr. 590, 959, 961, 962, 963; R. S. 1899, secs. 660, 670; Scruggs v. Scruggs, 46 Mo. 271; Phillips v. Evans, 64 Mo. 171; Webster v. Blount, 39 Mo. 500; Magrew v. Poster, 54 Mo. 258; Bank v. Grewe-, 84 Mo. 478; Smoot v. Judd, 184 Mo. 540; Judd v. Smoot, 93 Mo. App. 289. (3) The decree finds specifically that service was made in the State of California by an officer authorized by the law of that State to make such service; and such finding is conclusive. (4) The Statute of Jeofails provides that no judgment shall be reversed or affected for any imperfect or insufficient return.
   GRAVES, P. J.

In 1892, John G. Priest, trustee, for Sophia Capitain, Manette Capitain, and Prank J. Capitain filed a bill in equity in the St. Louis Circuit Court against Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain, Chouteau Capitain, Ringrose J. Watson and Catherine A. Watson, his wife. The petition uses both the names Sophia Capitain and Sophia M. Capitain, but they both refer to the same person.

By this petition it was alleged that Ringrose J. Watson conveyed to Joseph Bogy and Edward T. Parish, certain property in the county and city of St. Louis in trust for Sophia Capitain, his daughter, she being then a femme sole under the name of Sophia Watson; that such conveyance was for an estate during the life of the said Sophia Watson, free from the control of her husband, should she marry, and after her death the same to go to any surviving child or children of the said Sophia upon said child attaining the age of twenty-one years, but in the event the said Sophia died without heirs, then such property to revert to the grantor or his heirs wholly discharged of said trust.

The petition further alleged that said Bogy and Farish entered upon said trust; that Bogy resigned in 1878 and Farish in 1879, whereupon Frank J. Capitain was appointed trustee hy the circuit court of the said city of St. Louis; that in 1889 the said Frank J. Capitain became a non-resident of this State and John O. Priest was appointed in his place by said circuit court. The petition then avers the marriage of Sophia Watson to Frank J. Capitain and the names of the children born of such marriage. It then charges the insanity of the said Sophia, and that under the orders of the said circuit court the said Priest had incumbered a part of such real estate for the support and maintenance of the said Sophia; that said incumbrance was due, as well as other charges upon said real estate ; that the rents and profits from said real estate were insufficient to discharge said liens, and that the said Sophia and her children were without means of support; that there was then due for medical attention to the said Sophia, the sum of $4,000. The petition then thus concludes:

“That hy reason of the premises, it has become and is indispensable to the welfare of the said insane person and her said minor children that the said parcels of land hereinbefore described be sold so that the charges, incumbrances and debts be paid and a proper reinvestment of the remaining proceeds of said estate be made so as to make such remaining proceeds of said estate productive and obtain a suitable income for the support and maintenance of the said insane person, 'and the support, maintenance and education of her said minor children.
“That neither of the said parcels of land can be made so far productive as to provide a sufficient income to meet the necessities of said estate and to discharge the said incumbrances.
“That unless the said parcels of' land are sold and the said incumbrances, charges and debts satisfied thereby, the whole of said estate will stand in danger of being lost and sacrificed, but that by means of the change in investment herein contemplated provision can be made for the early payment of all such incumbrances, debts and charges and a suitable income be obtained for the said insane person and her said minor children.
‘ ‘ That the present is a favorable time for the sale of said parcels of land and that the said plaintiff, John Gr. Priest, has received, as trustee under said deed, an offer for the purchase of said parcels which is deemed by him and will, upon hearing, be found by this Honorable Court to be the full market value of said real estate.
“Wherefore, by reason of the premises, the said plaintiffs pray that by its proper- order and decree this Honorable Court will direct the said real estate to be sold, the said incumbrance, charges and debts to be paid with the proceeds thereof, the expenses of sale and of this proceeding to be paid, the charges of said trustee to be satisfied and the remainder of the proceeds of sale to be invested for the maintenance of said insane person, and for the maintenance and education of her said minor child and for all other and proper relief.”

On this petition summons was issued and personal service had upon Catherine A. and Ringrose J. Watson in the city of St. Louis in March, 1892. For other defendants a summons was sent to the State of California. This summons was thus served, as appears from the record:

“State of California, County of Los Angeles, ss.
“E. D. Glibson, sheriff of Los Angeles county, being duly sworn, makes oath and says that he executed the annexed process in the city of Los Angeles, state and county aforesaid, on the 17th day of March, 1892, by delivering a true copy of the petition and summons as hereto annexed to Sophia M. Capitain, Eingrose J. Capitain, Isabella Capitain and Chouteau Capitain.
“E. D. Gibson.
“Sworn to and subscribed before me this 17th day of March, 1892.
“Witness my hand and the seal of the superior court of Los Angeles county, at office in- the city of Los Angeles, this 17th day of March, 1892.
“I further certify that said E. D. Gibson was at the date aforesaid and now is sheriff of the county of Los Angeles, and duly authorized to serve process in the county of Los Angeles and the State of California, and that he is an officer of said court.
“T. H. Ward,
“Clerk of Superior Court.
“By A. A. Bailey,
“Deputy.”

After this service, an amended petition was filed and an alias writ of summons issued. This alias writ was sent to the State of California, and return made thereon in this manner:

“State of California, County of Los Angeles, ss.
“C. A. Alexander, deputy sheriff, being duly sworn, makes oath and says that he executed the annexed process in the city of Los Angeles, state and county aforesaid, on the 12th day of May, 1892, by delivering a true copy of the petition and summons as hereto annexed to Sophia M. Capitain, Eingrose J. Capitain, Isabella Capitain and Chouteau Capitain.
“C. A. Alexander,
“Deputy Sheriff.
“Sworn to and subscribed before me, this 13th day of May, 1892.
“Witness my hand and the seal of the superior court of Los Angeles county, at office in the city of Los Angeles, this 13th day of May, 1892.
“I further certify that said C. A. Alexander was at the date aforesaid and now is deputy sheriff of the Los Angeles county, and duly authorized to serve process in the county of Los Angeles and State of California, and that he is an officer of said court.
“(Seal) T. H. Ward, *
“Clerk of Superior Sourt, said Co. and State.
“By A. Bray, Deputy.” .

The difference between the original and amended petitions may become material later.

Following this was a decree, the particulars of which are not necessary at this point, except that it granted the prayer of the petition for a sale of the property and the discharge of the liens and expenses, and reserved to the court the- right to further direct the investment of the surplus. Under this decree the land was sold by Priest and deeds made to the purchaser. Part of the purchase price was. cash and a larger part was by secured notes. The matter thus stood for some years, but in 1905 Ringrose J. Capitain, Chouteau Capitain and Isabella Capitain Williams brought their suit to set aside the decree in the Priest suit, supra, as well as the conveyance thereunder. The plaintiffs in this last case are alleged to be the children of Sophia M. (Watson) Capitain and Frank J. Capitain. Before trial of this last case, C. A. Alexander applied to the circuit court of the city of St. Louis for leave to amend his return, which said original return we have set out in full above. . The amendment proposed, as per the application filed, was to be as follows:

“State of California, County of Los Angeles, ss.
“C. A. Alexander, being duly sworn, makes oath and says that upon the 12th day of May, 1892, he was a deputy sheriff of the county of Los Angeles in the State of California, and that as such, under the laws of California, he was authorized to serve summonses in suits at law and other judicial writs; that at said date he received from the circuit clerk of the city of St. Louis, State of Missouri, a writ of summons to which was annexed a certified copy of an amended petition issued in a certain suit then pending in Court Room No. 5 of the circuit court of the city of St. Louis, State of Missouri, a certified copy of said amended petition and said summons being hereto annexed with direction to serve said writ of summons upon Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain and Chouteau Capitain, then residing in the city of Los Angeles, California; that in compliance with direction he executed said process in the city of Los Angeles, State and county aforesaid, on the 12th day of May, 1892, by delivering a true copy of said amended petition and summons as hereto annexed to Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain and Chouteau Capitain, that is to say, by delivering a true copy of said amended petition and a true copy of said summons to each of said defendants.
“C. A. Alexander.
“Sworn to and subscribed before me this 13th day of December, 1905.
“(Seal) C. Gr. Keyes.
“County Clerk and Ex-Officio Clerk of the Superior
Court of Los Angeles County, State of California.
“(Seal)
“Witness my hand and the seal of the superior court of Los Angeles county at the office of said court in the city of Los Angeles, this 13th day of December, 1905.
“I further certify that said C. A. Alexander was on the 12th day of May, 1892, a deputy sheriff of the county of Los Angeles, and as such was duly authorized to serve process in the county of Los Angeles and State of California, and that at that date he was an officer of said conrt.
“(Seal) O. GL Keyes.
“County Clerk and Ex-Officio Clerk of the Superior court of Los Angeles County, State of California. ’ ’

This application the court sustained and allowed the amendment as prayed. Prom such order this appeal was taken. Later, the case to set aside the judgment in the original Priest case was tried, and appealed to this court. In such trial this amended return, as well as the other returns, became potent factors or are so considered by counsel. The two cases were then ordered by this court to be heard together and were so argued. Upon our record, the one now under consideration is numbered, 14,373, and the other, 14,965. To our mind the action upon the part of the court as to this amended return, as well as the force and effect of the previous return, should be first determined in this case before the discussion of the succeeding case. The foregoing sufficiently states all facts for the present case.

I. Under the facts three questions are presented, (1) does the law contemplate the amendment of a return made by an officer of a foreign state under our statute which provides for this substituted service, (2) if so, can one out of office make such amended return,'and (3) if such amendment was improperly made was the original return sufficient. The latter proposition comes more properly in the companion case, but as the two cases must be read and considered together, we might as well dispose of the whole matter in this case. The latter question has been briefed in this case and we are therefore not without light upon the subject. These questions we take in order. This service was made in 1892 and the statutes of 1889 was the governing law.

Section 2029, Revised Statutes 1889, reads: “In any of the cases mentioned in section 2022, the plaintiff may cause a copy of the petition, with a copy of the summons, to be delivered to each defendant residing or being without this state, and at any place within the United States or their territories, twenty days before the commencement of the term at which such defendant or defendants are required to appear; and if the defendant shall refuse to receive such copy of the petition and summons, the offer of the officer to deliver to him the same, and such refusal, shall be as effectual service as though such copies were actually delivered to such defendant. Such service may be made by any officer authorized by law to serve process within the state or territory where such service is made, and shall be proved by the affidavit of such officer, stating the time and manner of such service, made before the clerk or judge of the court of which affiant is an officer. Such clerk or judge shall certify the official character of the affiant, and to his authority to serve process within the state or territory where such service was made. "When such certificate is made by a clerk or judge of a court of record, the same shall be attested by the seal of such court, and when the same is made by a judge of a court not of record, the official character of such judge shall also be certified by the proper officer of the state, under his official seal. And any return of service, made and certified as above provided, shall be prima-facie evidence of the facts stated in such return. If the plaintiff, in any of the causes mentioned in section 2022, shall make the affidavit required by said section and shall file in said cause proof of service of process on any defendant or defendants, in conformity with the provisions of this section, it shall not be necessary for such plaintiff or plaintiffs to obtain the order provided in section 2022, or to procure the publication provided in section 2028. Service of process in conformity with this section shall be as effectual within the limits of this State as personal service within this State, and judgments rendered against defendants thus served shall have the same force and effect within the limits of this State as judgments rendered against defendants personally served with summons in this State.”

The latter clause of the section has been held to be violative of constitutional rights, if construed to mean that a personal judgment could he entered upon such a service. [Moss v. Fitch, 212 Mo. 484, and cases therein reviewed.]

This statute, it will be observed, requires service of notice to he made by some officer authorized to serve process in the state in which service is sought. It then prescribes what, the proof of that service shall be. That proof must appear upon the summons, one of the files of the case. Upon that proof the courts of this State assumes or refuses to assume jurisdiction. The statute having prescribed a single mode of proof, none other can be accepted.

Upon this point it has been well said by Goode, J., in Harbert v. Durden, 116 Mo. App. l. c. 515: “The general rule of law is that when a statute designates the mode in which due publication of a notice shall be proved, this mode is the only one for making the proof. [Comfort v. Ballingal, 134 Mo. 281, 294; Martin v. Allard, 17 S. W. 878; Martin v. Barbour, 140 U. S. 644; Luffborough v. Parker, 16 Serg. & Rawles Rep. 351.] All the decisions we have found upholding that doctrine were based on statutes which appeared to exact a certain mode of proof; instead of merely saying, as the one under examination does, that a given mode shall he sufficient.”

He had under consideration the statute referring to the proof to be made of a publication. That statute says that such proof as therein named “shall be sufficient evidence of the publication,” but does not limit the proof to the method suggested by the statute. The statute under consideration prescribes a single method of proof. It does not leave it open to other methods of proof. It says: “Such service may be made by any officer authorized by law to serve process within the state or territory where such service is made, and shall be proved by the affidavit of such officer, stating the time and manner of such service, made before the clerk or judge of the court of which affiant is an officer

This therefore is the only proof which the court has before it upon the question of its jurisdiction, because the court cannot proceed to adjudicate the res until some kind of a constructive notice has been legally given. ' It is without jurisdiction to proceed with the res until due proof has been made of notice.

What we have said above readily bears more upon a succeeding question than upon the one now under discussion, but we add it now to the end that it may enable us to get a clearer view of the question we desired to discuss in this paragraph. That question is: Did the circuit court have the right to allow the amended proof of service in this case?

That an officer of a court may by leave of court amend his return of service of process, there is no doubt. But the party serving this notice was not an officer of the court to which he applied for leave to file a new and additional affidavit of service. His service of notice or process was not evidenced by an official act. He was an officer in California, but not an officer in Missouri. Officers in Missouri make their returns under their official oaths, and if they find that they have made a mistake in a return, by leave of court they can under their official oath amend it. And further, having once been an officer of the court, we have permitted them to amend their returns, even after leaving office. But all this is on the theory that they are or have been officers of the court and known to the court. And it might be said to be upon another theory, i. e., that they have an official bond which stands good for any false amendments, if snch they mate. And this too might be suggested as reason for giving snch officers .leave to amend their returns to comport with the facts. Their bond would be released from an action on the first return. These things do not apply to an officer or class of officers in California pointed out by our statute as suitable persons to render service in particular eases pending in Missouri. He is by the statute recognized as an individual and not as an officer. He makes no official return, but makes an affidavit of what he has done. He is in no way liable on his official bond. His proof of service is by evidence in the way of an affidavit, the officer’s proof of service is by way of his official statement on his oath of office, and for which official statement he is responsible upon his bond. I am fully convinced that there is no authority in law for the amended affidavit permitted by the circuit court. When the law speaks of and permits the amendments of returns of process it means official returns, and not proof of service by the affidavit of an individual. The seriousness of the course last named is seen in this case. If as a matter of law the first proof failed, then we have a void judgment made valid upon the ex parte affidavit of an individual. We find no case in point, but in our judgment there was error in permitting this new affidavit to be filed in support of the judgment. Such to us appears to be the reason of the thing. Of course, this affidavit being mere evidence of service, if before judgment the first affidavit was found to be defective, a proper new affidavit might be-procured and filed at any time before the trial court was called upon to try the cause and pass judgment. That, however, is not this case. What we have said and will say should be taken in the light of the facts now being adjudicated.

II. Groing to the second question above suggested: “Can one out of office make such amended return?”. We think the matter has been fully disposed of as above. That is to say, if the service in this case was not made by an officer of the court, then such individual cannot amend an affidavit which is his proof of service. As urged in the first paragraph, the law only contemplates amendments by officers of the court, and not amendments of affidavits in the nature of proof of service by an individual. To the Missouri court, the deputy sheriff was nothing more than an individual. ' The statute by requiring an affidavit rather than an official return so recognizes him. But answering the question now under consideration, we say that an official out of office may be permitted by the court to amend his return. [Judd v. Smoot, 93 Mo. App. 289; R. S. 1909, sec. 1861; Blaisdell v. Steamboat William Pope, 19 Mo. 157; Scruggs v. Scruggs, 46 Mo. l. c. 273; Feurt v. Caster, 174 Mo. l. c. 298.]

These amendments are allowed under special statute .in this state, but must be within the sound discretion of the court. [Authorities, supra.] The statute, Revised Statutes 1909, sec. 1861, reads: “All returns made by any sheriff or other officer, or by any court or subordinate tribunal, to any court, may be amended in matters of form by the court to which such return shall be made, in its discretion, as well before as after judgment.”

It must be noted that fight to amend is given to a sheriff or other officer, and not to an individual. Under this statute we have permitted amendments of returns both before and after judgment, but in no case have we permitted an individual to amend his affidavit in proof of service. Such was not contemplated by the statute. So answering our second proposition, we say that an official may amend his return 'by leave of court after such an official goes out of office, but that such ruling does not authorize the action of the court nisi in the case at bar.

III. This brings us to the third proposition in the case, i. e., was the original affidavit to the service sufficient in law to confer jurisdiction upon the court? It is not denied that a deputy sheriff was authorized to serve process in California, and the only question is as to whether or not the proof of service is good. As we have above stated, imder our statute, the proof of service can be made but in one way. This statute is one providing for substituted or constructive service. [Moss v. Pitch, supra.]

All the cases hold that statutes of this character are to be strictly construed, and for the good reason that property should not be taken under this process of necessity without a rigid compliance with the law.

In this State we have two classes of service by necessity, i. e., one by publication, and the other as provided for in the statute under construction. [Moss v. Fitch, supra.] Neither was recognized by the common law.

In a very recent case, Stanton v. Thompson, 234 Mo. 7, this court said: “By force then of express charter terms, service by publication may be had only as in suits in the circuit court. That call points to the general statutes for the conditions under which effective newspaper service may be had. In going there we go quickened by the cardinal precepts: First, that, where a statute creates a new right and prescribes the remedy, the remedy prescribed is preclusive, and must be followed-; and, second, that service of process by newspaper publication is allowed as of necessity. It is due process of law more in form than in substance. However convenient, it is a harsh and highly technical substitute for service of process; therefore, is strictissimi juris, and (being of rigid right) a party invoking it is entitled to cold law — no less, no more. ’ ’

The numerous cases cited by Lamm, J., in the Stanton case, supra, leave no doubt as to the correctness of the rule announced. See also cases cited under point two of appellant’s statement and brief.

Now, what is strict construction? Black’s Law Dictionary, p. 254, thus well defines the term: “Construction of a statute or other instrument according to its letter, which recognizes nothing that is not expressed, takes the language used in its exact and technical meaning, and admits no equitable considerations or implications.”

In the case at bar it is contended that the original proof of service is invalid because it does not come within the strict letter of the statute. That it should come within such strict letter is apparent from the authorities, supra. The affidavit for service was made before the deputy clerk rather than before the clerk in the State of California. Is this sufficient? Counsel for respondent were not of the opinion that it was, because when the question was raised in the second suit they immediately and before trial of that case undertook to correct the defect. But we are not bound by their views of the law then, even though it be against their contentions now. The question as to the sufficiency of this proof is here for our determination and we must face it without regard to the changed views of counsel, if in fact they have been changed.

The statute says this affidavit must be made before the clerk or judge of the court of which the serving officer is an official. Does the word “clerk” include deputy clerk? In this State that which may be done by the clerk may be done by his deputy. This is per force of statute. [R. S. 1899, sec. 4160; now sec. 8057, R. S. 1909.] This statute, so far as applicable, reads: “When a statute requires an act to be done, which by law, an agent or deputy as well may do as the principal, such requisition shall he satisfied by the performance of such act by an authorized agent or deputy.”

That the deputy clerk of a county in this State could swear a person to an affidavit is unquestioned. Such, however, is not the real question here. That at common law a clerk could appoint a deputy and the acts of such deputy in the name of the principal would be as valid as if performed by the deputy may also be conceded. [Small v. Field, 102 Mo. 104.] Yet this does not reach the exact question here. This statute must be construed strictly. It must be construed according to its letter and not according to reasonable intendment. It says that the affidavit must be made before the clerk or the judge. It could have said before the clerk or his deputy and left the judge out. It could have said before the clerk or his deputy or before the judge, but it does not. In other words, the State was providing for a service of notice beyond the jurisdiction of the courts of the State, and in providing for such a service, unknown to the common law, and in derogation of the common law, the State saw fit to point out the official or person in the sister State before whom the proof of such service could be made. The State by its legislative act might have pointed out a notary public in preference to either a clerk or judge of a court. It might have pointed out any other officer before whom an affidavit could be made. The lawmaking power, however, saw fit to name but two officials of a sister State to perform this duty, and if the statute is to be strictly construed, as we think it is, then the deputy clerk cannot - perform the duties enjoined upon the clerk. We should not use the word “enjoined,” because a Missouri Statute can enjoin no duty upon a citizen or official of another State. All this State can do is to say to her own citizens, If you desire this kind of service, then you must have, your proof of service made before a certain person or officer in order that such proof will be taken here. That is all this statute undertakes to do, and if the proof is not made before the person or officer designated, it is void and no proof at all. This court has not heretofore passed upon the precise question, but the Kansas City Court of Appeals has passed upon it.

In Murdock v. Hillyer, 45 Mo. App. l. c. 292, Ellison, J., for the Kansas City Court of Appeals, said: “There is another fatal objection to the service made. The statute is that the officer in the foreign State making such service shall make affidavit thereto before the clerk or judge of the court of which he is an officer, and that his official character shall be certified to by such clerk or judge. In this case the affidavit was made before the deputy clerk, and he certifies to the official character of the affiant. This was not a compliance with the statute. The only authority which a deputy clerk in Kansas has to act for his principal is the law of Kansas; but the power to act in the present case is derived from the law of Missouri which gave authority to the clerk in person and not the deputy. A like construction is put on the Federal statute, concerning certificates to judgments of one state, which are to receive full faith and credit in all other states. [Greenleaf, Ev., sec. 506; Morris v. Patchin, 24 N. Y. 394; Stephenson v. Baumster, 3 Bibb, 369; Kansas Pacific Ry. Co. v. Cutter, 19 Kan. 83.] In Flint v. Noyes, 27 Kan. 351, under a statute similar to ours, a writ was sent into Missouri for service by the sheriff of Buchanan county. Service was made by the deputy, and it was held not to comply with the law. Our conclusion is that the process against Hillyer, and the service thereof, are each void, and that no personal judgment should have been rendered against him. And since there was no order of publication, no judgment of any kind can be taken against him or his interests, if he has any.”

In a later case, State v. Foreman, 121 Mo. App. l. c. 509, the same judge says: “We regard the introduction of the court record of the district court of Clarke county in the State of Iowa as improper. It appears that Oliphant was an important witness for the defense and the State sought to discredit him and thereby in effect to deprive defendant' of the benefit of his testimony by showing a court record of his conviction for selling liquors illegally in the State of Iowa. In attempting to authenticate that record under the provisions of the act of Congress, declaring that full faith and credit shall be given in one State to the judicial record proceedings of another State, the certificate was made by the deputy clerk of the court in the name of the clerk, thus ‘F. M. Stacey, Clerk of the District Court. By W. E. Morrow, deputy.’ The act of Congress requires that the clerk himself shall do so, and not by or through his deputy. [Murdock v. Hillyer, 45 Mo. App. 287; Morris v. Patchin, 24 N. Y. 394; Flint v. Noyes, 27 Kansas 351; Railway Co. v. Cutter, 19 Kan. 83.] In the latter case the certificate was made by the deputy in the name of the clerk, but in an opinion by Brewer, J., it was held to be insufficient. It is true that our statute, and if it be assumed that the statute of Iowa also, makes the acts of the deputy in the name of his principal the acts of his principal. Yet the validity of the certificate of a foreign record does not depend upon State laws. The State does not give authority to the clerk. The clerk derives his authority from the law of Congress and not the law of the State.”

In Adams v. Heckscher, 80 Fed. l. c. 742, Philips, J., said: “The attempted service of summons on defendant in the State of Pennsylvania is clearly bad, for the reasons that process in that State was not served upon the defendant in person, as required by section 2022, Revised Statutes 1889; and, second, be cause the-affidavit of such service made by the sheriff w.as not made, before the clerk of the court, as required by the statute, but was made before a deputy.”

A very similar question is passed upon by Horton, C. J., of the Supreme Court of .Kansas, in Flint v. Noyes, 27 Kan. l. c. 353, whereat.be says: “However, as an important question concerning the service of a summons out of the State is discussed in the briefs, we pass to the consideration of that. It is alleged, among other grounds for the vacation of the judgment, that the defendant had not been duly served with the process of the court,, and that the court had no jurisdiction to try and determine the cause at the rendition of the,judgment. Section 76 of the Code prescribes that ‘in all cases' where service may be made by publication, personal service of summons may be made out of the State by the sheriff of the county in which such service may be made.’ In making the service of the summons, out of the State, a sheriff derives- his authority from this statute, not from the State laws where he resides; and under this statute, it seems to us that the service of the summons must be made by the sheriff in person; and that the service cannot be made by a deputy or any other person acting as a substitute for him. The statute authorizes the summons to be served out of the State by a sheriff, and names no other person. [Morris v. Patchin, 24 N. Y. 394; Railway Co. v. Cutter,. 19 Kas. 83.] In this case, the sheriff of Buchanan county did not make service of the summons; therefore the statute was not complied with, and the defendant was not served at the time of judgment with the process of the court as. prescribed by law. The deputy sheriff of Buchanan county had no more authority to make service than any other person acting as a substitute for the sheriff.”

It is urged in the case at bar that a deputy can act for the officer. If this be true as to a clerk it would likewise be true as to a sheriff. Both are ministerial officers and can appoint deputies, even without express statutory authority, but so far as we know there is statutory authority in all of the states. The United States statute relating to the proof of judgments and records of the different states which are to be used in evidence in some one of the states, is very much like the statute we have under construction. This statute has received numerous constructions and some upon the exact point in issue.

In Railway Co. v. Cutter, 19 Kan. 83, Brewer, J., had the Federal statute under consideration. That distinguished jurist there said: “This was an action under section .422 of the code, by the personal representative of Joseph Stewart, deceased, to recover damages for the death of the deceased caused by the negligence of the company. The first error alleged is in the admission of a record of the probate court of the Territory of Colorado, certified to in the name of the clerk by a deputy. It is not claimed that this record as authenticated was admissible under the section of our own statutes applicable thereto (Gen. Stat, p. 700, par. 371), but it is claimed that it. was under section 905 of U. S. Revised Statutes. That section, however, authorizes attestation by the clerk, and names no other person. And it seems to be settled that this of itself grants no authority to a deputy clerk. [1 Greenleaf on Ev. (13 Ed.), par. 504; Stephenson v. Baumster, 3 Bibb, 369; Morris v. Patchin, 24 N. Y. 394.]”

Judge Brewer, later Mr. Justice Brewer, cites and quotes from Morris v. Patchin, 24 N. Y. 394. In the Morris case, Allen, J., goes direct to the question of moment in the case -at bar. After discussing the functions of the judge and his cerifícate under the Federal statute, he thus proceeds to discuss the certificate of the clerk: “So, too, the attestation is directed to be by the clerk, and not by any person acting as a substitute for the clerk, or possessing like powers under the State laws. In malting the certificate, which is made evidence under act of Congress, the cleric derives his authority from the Federal and not from the State laws, and the certificate has vitality and effect, not by reason of the official character of the officer malting it under the laws of the State, but in virtue of the act of Congress prescribing it as the mode of proof in this particular case. The certificate of the judge is as to the form of the attestation; that is, that in the attestation the forms in use in the State from which the record comes have been observed. [Ferguson v. Harwood, 7 Cranch, 408; Conk. Treat., 2 Ed., p. 240.] It is made necessary, because the courts of one State cannot officially know the forms of another State. [Smith v. Blagge, 1 Johns. Cas. 239.] The certificate of the judge, as prescribed by the act of Congress, is that the attestation of the clerk is in due form, and he is not authorized to certify that the certificate of any other person is of equal validity with that of the clerk in the State when made. The form of the attestation is one thing, the person by whom it is made is quite another; the certificate of the' judge determines the sufficiency of the former, the statute alone declares the latter. Prof. G-reenleaf lays down the rule that the clerk alone can certify under this statute, and that the certificate of his under-clerk in his absence is incompetent (1 Greenl. Ev., par. 506); and to this he cites Sampson v. Overton, 4 Bibb, 409. The certificate of the judge as to the authority of any person other than the clerk to make the certificate is of no more force than would be a like certificate as to the effect of the judgment. Again, if a deputy clerk or other person could make the certificate by reason of the power conferred upon him by the State laws, and thus satisfy the act of Congress, such law should be proved as other facts are proved or as other laws are proved, and not by the certificate of the judge, which is not made evidence of any such fact. The records were not competent evidence and were improperly admitted. ’ ’

So in the case at bar. The clerk in California-acts because our statute says to a plaintiff desiring service of this character, yon must get a named officer to act. The statute could have named many officers of California, but it did not. It could have named some Federal officer located in California, but it does not. It saw fit to distinguish one particular officer of all the number which might be found in the several States, and confine the taking of proof of service to be made before him. Under our statute this proof becomes a part of.the judgment roll, as much so as the summons. If defective there is no jurisdiction to proceed with the cause. We think the proof fails to meet the requirements of our statute and the judgment entered thereon is void.

Small v. Field, supra, is urged as stating a different doctrine. This case determined the right, of a deputy clerk in another State to take the acknowledgment to a deed. We perhaps state this too broadly. In that case a deed was offered in evidence which had been acknowledged before the deputy clerk of the territorial court of Washington Territory. The case was briefed on the theory that the clerk had no authority to appoint a deputy and it was upon this question that Sherwood, J., spent the force of his argument in the opinion. The point we have at stake was not discussed by that learned jurist.

But aside from this a sufficient answer would be that the staute we have under consideration demands strict construction, whilst the statute pertaining to the acknowledgment of deeds does not require the application of that rule.

IY. To my mind, in addition to what we have said in our paragraph two above, there is another good and sufficient reason for holding that the trial court was in error in permitting this amended affidavit to be filed. The statute says that the service •“'shall he proved by the affidavit of such officer, stating the time and manner of service, made before the clerk or judge of the court of which affiant is an officer.”

This statute says that the affidavit must he made before the clerk or judge of which the affiant is an officer, not of which affiant has been an officer. The wording of the' statute itself would seem to preclude the idea of an affidavit from one who was not an officer of the court at the time the affidavit was made.

Upon the whole, the court was clearly in error in allowing this amended affidavit to he made a part Of the record, and this cause is reversed and remanded with directions to the trial court to set aside its judgment and order so allowing such amendment, and enter a judgment and order overruling the application, of C. A. Alexander to make such amendment.

All concur»


author: BLAIR, C.

text:
    JOHANNA WITTE, Appellant, v. JOHN F. STORM et al.
    Division One,
    July 12, 1911.
    1. AGENT: Acquiring Adversely to Principal. An agent is prohibited from acquiring, to the prejudice of his principal, directly or indirectly, any interest in property which is the subject-matter of his agency.
    2. TRIAL THEORY OF CASE: Gleaned from Record. It is from the record as made that the Supreme Court must reach its conclusions as to the theory on which a case was tried, and to overthrow a contention of counsel as to that theory it is enough that the pleadings and the evidence disclose the contrary.

      3. FRAUD: Sale Under Deed of Trust: Agency: Termination. Appellant made defendant her agent to handle her property. According to agreement the property was sold under existing deeds of trust and title taken, at defendant’s instance, ■ in the name of defendant’s confidential clerk. This clerk then executed a trust deed to defendant at defendant’s instance. The property was afterwards sold under this deed of trust and bought in by another person for defendant, this last fact being concealed from appellant. Held, that such sale did not terminate defendant’s agency nor the trust relation existing through the employment of the confidential clerk to hold the legal title for appellant’s use.
    4. AGENCY: Renunciation: Adverse Interest: Trust. Before an agent can be permitted to acquire an interest adverse to his principal in the subject-matter of his agency, there must have been a previous unequivocal and absolute renunciation of the agency. Where a renunciation .was made simply for the purpose of acquiring an interest in the principal’s property, the relation will continue, and the agent will be treated as a trustee. Moreover, in the case under review the nature of the agency precluded any revocation until the subject-matter was restored as far as possible to the principal.
    5. FRAUD: Agency: Adverse Interest: Clandestine Purchase: Trust. The clandestine purchase by an agent of the subject-matter of the agency raises a trust in favor of the principal which carries with it all the obligations previously existing between the parties.
    6. -: -: -: Trust. Where an agent has taken in the name of his confidential clerk the legal title to his principal’s property for the admitted purpose of so managing it as to pay off all liens, he cannot purchase the equitable title arising from a sale under a judgment against the property which existed of record when the agreement of agency was formed, and then, having added such equitable title to the legal title held in trust, deny that the trust traveled with the whole. The legal title being strengthened in the agent’s hands, the principal’s equitable title is further fortified.
    7. -: -: -: Agent’s Own Funds. An agent cannot acquire his principal’s property by using his own funds to make what is in effect a redemption of the subject-matter of the agency.
    8. -: -: -: Ejectment: Res Judicata. Judgments in ejectment avail but little as bases for the plea of res judicata, and a judgment in ejectment obtained by a trusted agent through fraud upon his principal, involving the very property that il the subject-matter of. his agency, is worthless for such purpose.-

      9. -: -: -: -: Equitable Defense. A defendant in an action at law who has knowledge of fraud available as a defense, is entitled to let the judgment go at law and then institute his suit in equity.
    10. -: -: -: Trust: Denial of Original Interest. It does not lie in the mouths of those who are both agents and trustees, to accept and administer the trust, and, when called upon to account, deny the original interest of their principal and cestui que trust in the title of the property confided to their keeping..
    11. LACHES: Notice. Laches cannot be imputed save when delay is united with notice, actual or constructive, and this is especially pertinent when the intentional concealment of the facts constitutes part of the fraud giving rise to the cause of action to which the defense of laches is urged as a bar. Further, there must be evidence that the situation of the parties with respect to the property in suit has been changed.
    12. APPEAL: Reopening Case in Equity: Stated Accounts. Statements by an agent which amount to nothing more than information furnished the principal of the manner in which said agent was using the principal’s funds in accomplishment of the purpose of the agency, cannot be relied upon as stated accounts and as a bar to the re-examination and reopening of an equity case in the Supreme Court.
    13. TRUST: Purchasers in Good Faith. The trust follows the trust estate into the hands of all save those who purchase in good faith, for a valuable consideration and without notice. And as far as the trust follows the property, so far will equity follow the trust, retake the trust estate, and restore it to its rightful owner.
    14. -: -: Corporate Grantees. Purchasers of a trust estate, in good faith, for- a valuable consideration and without notice, the trustee being -in actual possession of the estate and empowered to sell, take good title against the cestui que trust; and these principles are as applicable to corporate grantees as to others.
    15. QUITCLAIM: Prior Equities. Title in the hands of grantees by quitclaim deeds is subject to the equities with which it was impressed in the hands of their grantors.
    16. PRINCIPAL AND AGENT: Fraud: Commissions. An agent who has been guilty of fraud in the transaction of his principal’s business, forfeits his rights to commissions as such agent.
    Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.

      Eevbrsed and remanded (with directions).

      Seneca N. Taylor and A. A. Paosson for appellant.
    (1) Plaintiff has not in any sense of the word ever had an accounting. Storm’s own letters show that he was still acting under the powers of attorney at a date subsequent to the date of the alleged statement rendered. Besides that statement, was objected to and never assented to by plaintiff or her attorney, but they both repudiated it as inaccurate. Again, it would not bind the plaintiff, because she had been and was at the time deceived as to the title. (2) Storm’s sale of the property as trustee under the $2000 deed of trust to Kehoe, who, as it turns out, was acting for Storm, was absolutely void. A trustee can not buy at his own sale or speculate with the trust property. Harrison v. Craven, 188 Mo. 591; Newton v. Babeneck, 90 Mo. App. 672; Newman v. Newman, 152 Mo. 398; Tuggles v. Callison, 143 Mo. 536; Stitt v. Stitt, 205 Mo. 166; Van Eaalte v. Epstein, 202 Mo. 173; 1 Am. & Eng Ency. Law (2 Ed.), 1071; Barthelmew v. Leech, 7 Watts, 472; Thornton v. Irwin, 43 Mo. 163; Boardman v. Florez, 47 Mo. 562; Fov v. Mackreth, 2 Broc. 400; Marshall v. Ferguson, 94 Mo. App. 175; Palmer v. Pirson, 24 N. T. Supp. 333; Stewart v. Eanch Co., 128 U. S. 388; Davis v. Kline, 96 Mo. 401; Grumley v. Webb, 44 Mo. 431; Lass v. Sternberg, 50 Mo. 124; Gaines v. Allen, 58 Mo. 537; Darling v. Potts, 118 Mo. 507. (3) The judgment in the ejectment suit is not res adjudícala, nor an estoppel by record, in this case. The plaintiff in that case was Storm under Kehoe’s name. The situation and condition of neither .party has been changed thereby to his or her prejudice or detriment. Speed v. Eailroad, 163 Mo. 123; Barkhoefer v. Barkhoefer, 93 Mo. App. 381; Winham v. Kline, 77 Mo. App. 36; Garland v. Smith, 164 Mo. 1; Overshimer v. Brit-ton, 169 Mo. 341; Johnson v. Stebbins, 177 Mo. 581; Rodney v. G-ibbs, 184 Mo. 1; Calvert v. Hoobs, 107 Mo. App. 7; Davidson v. Mayhew, 169 Mo. 258; Patillo v. Martin, 107 Mo. App. 653. (4) The proceedings of sale under the Leonori judgment can not be invoked by the defendants to their gain in this case. They were instructed by the plaintiff, when the powers of attorney were given, to pay that judgment out of the first money they obtained, and it was defendant’s duty to have done so. Not only so, but at the sale under the Leonori judgment the property was struck off to R. J. Delano, and by Delano conveyed to N. B. Hatcher, January 23, 1899, and on the same day conveyed by said Hatcher to Frank P. Storm, who was only a straw man for Storm & Farish, and Frank P. Storm on the 18th day of March, 1901, conveyed said property to Edward H. Brockmeyer. Therefore, if any title passed under the Leonori judgment sale to Delano, whatever that title, was finally culminated in Edward H. Brockmeyer on the 18th day of March, 1901, Brockmeyer was simply the bookkeeper of Storm & Farish, and never had any beneficial interest in any of this property. Whenever there was a holding in Brockmeyer’s name of this property, such holding was for the use and benefit of plaintiff. (5) Plaintiff explains her reason for delay: She had no funds with which to institute proceedings to vindicate her rights; and the situation of none of the parties to this' suit is in any way changed to his or her detriment by the delay. Sicher v. Rambousik, 193 Mo. 129; Lipscomb v. Adams, 193 Mo. 531; Newman v. Newman, 152 Mo. 398; Lindell Oo. v. Lindell, 142 Mo. 78. (6) A broker who is guilty of fraud or gross negligence in his dealings with his principal, and'who knowingly renders false and fraudulent accounts; or who neglects to keep true and correct books, and accounts of his transactions; or who, having sold the goods, converts the money to bis own use; or wbo violates bis instructions in regard to the same forfeits his commissions and may be held liable to compensate his principal for the loss and injury sustained. Mechem on Agency, sec. 1027; Brennen v. Strauss, 76 111. 234; Norman v. Pepper, 24 Fed. 403; Fórdyce v. Pepper, 16 Fed. 516; Talcott v. Chew, 27 Fed. 273; Dodge v. Killotson, 12 Pick. (Mass.) 328; Seeger v. Parish, 20 Gratt. (Va.) 672; Kilpatrick v. Wiley, 197 Mo. 169; Harrison v. Craven, 188 Mo. 592; Gibson v. Bailey, 114 Mo. App. 350; Dennison v. Aldrich,-114 Mo. App.. 701; 12 Am. & Eng. Ency. Law (2 Ed.), 671; 1 Am. & Eng. Ency. Law (2 Ed.), 671; Broch v. Hart Co., 57 Mo. App. 610; Smith v. Crews, 2 Mo. App. 269. (7) If the principa), in order to secure his claim against the broker, is compelled to resort to litigation, the broker will not be allowed any commissions. Mechem on Agency, sec. 1027; Vennum v. Gregory, 21 Iowa, 326; Yan Raalte v. Epstein, 202 Mo. 173, 196; Harrison v. Craven, 188 Mo. 592; Gibson v. Bailey, 114 Mo. App. 350; Dennison v. Aldrich, 114 Mo. App. 701. (8) The record facts are of such a character as to destroy any right in the defendants for compensation for their services. Agents who act in bad faith with their principal are not entitled to compensation or commissions. Harrison v. Cramer, 188 Mo. 610; Paul v. Mach. Co., 87 Mo. App. 654; Schaefer v. Blair, 149 U. S. 248; Wadsworth v. Adams, 138 U. S. 380; Sea v. Carpenter, 160 U. S. 412; Yennum v. Gregory, 21 la. 326; Sumner v. Reicheniche, 9 Kas. 320; Porter v. Silvers, 25 Ind. 395; Fordyce v. Pepper, 16 Fed. 516. (9) “To support the plea of a stated account so as to conclude the parties in relation to all the dealing between them, the accounting must be shown to have been final. Hence the binding force of an account stated will not be given to the mere furnishing of an account or other transaction which was not with a view to asserting a claim, establisting a balance due, or finally adjusting tbe matters of account between tbe parties.” 1 Cyc. 366-367; Brown v. Kimmel, 67 Mo. 430; Powell v. Railroad, 65 Mo. 658; Railroad v. Com. Co., 71 Mo. App. 299; McCormick v. Sawyer, 104 Mo. 36; McKeen v. - Bank, 74 Mo. App. 281; Wind v. Bank, 39 Mo. App. 72. (10) “An acount stated must be made witb knowledge or with opportunity of knowledge on tbe part of tbe debtor of all tbe circumstances, and tbe rule that retaining an account without objection makes an account stated cannot be applied to cases in which tbe party to whom tbe account is rendered has no knowledge of bis own interests in tbe matters contained in tbe account. So, where a party renders an account under a mistake of -facts, it is held that tbe rule that acquiescence in an account rendered will make it an account stated does not apply.” 1 Cyc. 382, 383. Tbe allegation in tbe answer is not sufficient to base tbe claim or defense of “account stated.” 1 Cyc. 389. “A former settlement is no bar to an action for account unless fully and fairly made. ’ ’ Alexander v. Solomon, 15 S. W. 906; Story Eq. Jur., secs. 465, 1277c, 468; In re Playter, 32 W. R. 26, 16-8; Hilliard v. Talford, 4 C. D. 389; 1 Perry on Trusts, (5 Ed.), see. 229; Micbond v. G-irod, 4 How. 561; Trevelyan v. Charter, 11 Cl. & Pin. 714; Pyrn v. Byrne, 5 Yes. 681; Maloney v. L’Estrange, Beat. 406; Carpenter v. Canal Co., 35 Ohio St. 307; Prevost v. Gratz, 6 Wheat. 481; Morse v. Hill, 136 Mass. 60. (11) Defendants should be charged witb compound interest, witb annual rents, for the rents collected from tbe Jefferson avenue property, which ought to have been turned over to plaintiff. Cruce v. Cruce, 81 Mo. 686; Bobb.s v. Bobbs, 89 Mo. 421; 1 Perry on Trusts, sec. 471; In re Murdock & Dickson, 129 Mo. 499; Pullis v. Sommerville, 218 Mo. 639. (12) On an appeal from a decree in equity, it is tbe duty of tbe appellate court to consider all tbe evidence and apply tbe law thereto. It is a trial de novo. Robertson v. Shepperd, 165 Mo. 360; Sheridan v. Nation, 159 Mo. 27; Dnnivan v. Dunivan, 157 Mo. 157; Hoeller v. Haffner, 155 Mo. 597; Hall v. Harris, 145 Mo. 620; Lins v. Leonhardt, 127 Mo. 271; Van Franck v. Road Co., 89 Mo. App. 460; Trimble v. "Wollman, 62 Mo. App. 548; Gunby v. Rogers, 42 Mo. App. 465; Nichols v. Nichols, 39 Mo. App. 293. (13) The appellate court will defer considerably to the findings of the trial court where the evidence is oral, and the case had been decided promptly after the evidence is introduced; but not so where the case has been held up for many months after the evidence is concluded. Meyers v. Schuchmann, 182 Mo. 177; Kinney v. Murray, 170 Mo. 707; Becht v. Becht, 168 Mo. 525; Garter v. Dilly, 167 Mo. 564; Hoeller v. Haffner, 155 Mo. 589; Strine v. Williams, 159 Mo. 582, 585.

      Jones, Jones, Hooker <& Davis for respondents.
    (1) While on appeal cases in equity are considered substantially de novo, at the same time the appellate courts will greatly defer to the conclusions reached by the trial court and will not disturb its findings unless they are manifestly wrong. Becht v. Becht, 168 Mo. 528; Chance v. Jennings, 159 Mo. 560; Dennison v. Dennison, 157 Mo. 160; Durlings v. Potts, 118 Mo. 530; Johnson v. Duer, 115 Mo. 375; Barlow v. Elliott, 56 Mo. App. 378. (2) A cause must be disposed of on appeal upon the same theory as that assumed at the trial by the parties. Benton Co. v. Zeitler, 182 Mo. 265; B. & L. Assn. v. Obert, 169 Mo. 507; Kilpatrick v. Wiley, 197 Mo. 171; Williams v. Lobban, 206 Mo. 487; St. Louis v. Wright, 210 Mo. 491; Mitchell v. Railroad, 125 Mo. App. 11; Bank v. Zook, 133 Mo. App. 604. (3) An agent may renounce his agency at any time where the agency is indefinite in duration, even if he has “not accomplished prosperously what he has undertaken.” The agent’s reasons for termination of the agency are of no consequence. It may either be because he is unable to accomplish the purpose of the agency or because of the conduct of his principal. It is sufficient if he gives notice. Duffield v. Michaels, 97 Fed. 825; Mechera on Agency, sec. 233; Tiffany on Agency, sec. 33; Barrows v. Bush-way, 37 Mich. 481; U. S. v. Jarvis, Davis (U. S. D. C.) 274 ; 31 Cyc. Law and Proc. 1306; Hitchcock v. Kelly, 18 Ohio C. C. 808; Convey v. Brandgee, 2 La. Ann. 132; E. and C. L. and P., 1256. (4) (a) No doctrine of equity is better settled than that a stated account is a good defense to an action for an accounting. 1 Ency. L. & P. 749; 1 Cyc. 443; Oreen v. Harris, 9 R. I. 408; Suttle v. Doggett, 87 N. C. 205; Stiles v. Brown, 1 Grill 350; Brown v. Vandyke, 55 Am. Dec. (N. J.) 250; Harrison v. Farrington, 40 N. J. Eq. 356; Craig v. McKinney, 72 111. 305; Driggs v. Gfarretson, 25 N. J. Eq. 179; Weed v. Small, 7 Paige (N. T.) 573. (b) An account and vouchers rendered may become an account stated by acquiescense, either express or implied from lapse of time or the conduct of the parties. 1 Ency. L. & P. 693, 698; Story Eq. Jur., sec. 526; Freeman v. Howell, 50 Am. Dec. 562; Powell v. Railway, 65 Mo. 658; Brown v. Kimmel, 67 Mo. 430; Shepard v. Bank, 15 Mo. 143; Bank v. Morgan, 117 U. S. 106; McCormick v. Sawyer, 104 Mo. 43; McKeen v. Bank, 74 Mo. App. 288; Spellman v. Muehfals, 166 N. T. 249; Sutcher v. Eells, 108 111. App. 156; Seinbach v. Wolle, 211 Pa. St. 629. (5) Under the Missouri statutes an execution sale under a judgment rendered by a justice of the peace, the transcript of which has been filed in the circuit court, carries with it all title, legal and equitable, of the judgment debtor which such debtor had at the time of the filing of the transcript or which he acquired before the date of the execution sale. R. S. 1909, secs. 2124, 2125, 2161, 2192, 7528; Williams v. Lobban, 206 Mo. 410; Slattery v. Jones, 96 Mo. 216; Eneberg v. Carter, 96 Mo. 650. (6) There can be no trust without a res. “The very term ‘trust’ implies an estate in the trustee. ... A trust is a relation between two persons by virtue of which one of them (the trustee) owns property for the benefit of the other (cestui que trust).” Corby v. Corby, 85 Mo. 371; Taylor v. Mayo, 110 IT. S. 165; 28 A. & E. Ency., 858, 859, 866; 13 Laws of England, p. 89; Smullin v. Wharton, 73 Neb. 683. (7) After the relation between the •principal and the agent is fully terminated all duty of the latter to the former ends and the agent may become the purchaser from a third person of the property of his former principal; the disabilities of the agent arise out of the relation and case with it. 2 Ency. L. and P., 1054; McGinley v. Irwin, 13 Ala. 681; Smith v. Tyler, 57 Mo. App. 668; Dennison v. Aldridge, 114 Mo. App. 709; 1 Clark & Skyles, Law of Agency, sec. 413, p. 929; McGar v. Adams, 65 Ala. 106; Munn v. Burges, 70 111. 604; Bush v. Sherman, 80 111. 160; Walker v. Carrington, 74 111. 446; O’Reiley v. Bevington, 155 Mass. 72; Evans v. Evans, 196 Mo. 18; Boehlert v. McBride, 48 Mo. 505; Dry Goods Co. v. Gideon, 80 Mo. App. 609. (8) A constructive trustee may purchase the trust property at a sale brought about by a third party which he had no part in procuring and over which he could have had no control. Bruner v. Finley, 187 Pa. St. 389; Allen v. Gilette, 127 IT. S. 589; Fisk v. Sarber, 6 W. and S. (Pa.) 18; Clark v. Holland, 72 la. 34; Harrison v. Mulvane, 62 Kan. 461; Reid v. Clendening, 193 Pa. St. 406; Evans v. Evans, 196 Mo. 23; Dillenger v. Kelly, 84 Mo. 561; Prevost v. Gratz, 11 Peters 378.
   BLAIR, C.

In February, 1897, at the inception of the various transactions which resulted in this litigation, appellant was the owner of the equitable title to a tract of ground in the city of St. Louis at the intersection of Forest Park Boulevard and Kingshighway, designated as the Kingshighway property, and certain lots, and improvements thereon, on Jefferson Avenue in the same city.

At the time mentioned deeds of trust executed by appellant and her husband on both these properties were about to be foreclosed, the total indebtedness of all kinds against both plots being $43,305. In her extremity appellant applied to respondents, John F. Storm and J. PI. Farish, then partners in the real estate business, to assist her in devising a means to-save the properties, and the upshot of her negotiations with them was that Storm and Farish undertook to manage the property for appellant, negotiate loans thereon sufficient to discharge all existing liens and indebtedness against the two tracts, and then to collect the rents on the Jefferson Avenue property to meet interest charges, taxes, etc., and to sell enough of the Kingshighway property to pay off all liens on both parcels so that, in the end, appellant would have left a part of the Kingshighway property, on which it appears she expected to reside, and the whole of the improved Jefferson Avenue property, unencumbered.

In order tliat Storm & Farish might carry out these plans, it was agreed that the sales under the existing deeds of trust were to he -permitted to he made, and appellant executed a power of attorney authorizing Storm & Farish to negotiate new loans on the properties, from thirty to thirty-five thousand dollars on that on Kingshighway, and from ten to fourteen thousand dollars on that on Jefferson Avenue, as might he required. Storm & Farish were also authorized to “do any and all acts necessary in order to carry out the above instructions and perfect the title by the payment of any taxes or costs that may accrue. ’ ’

On the same day, February 27, 1897, appellant also executed an instrument whereby ghe appointed Storm & Parish her sole agents to collect rents and sell both the Kingshighway and Jefferson Avenne properties, fixing therein the minimum prices per front foot at which the several portions of the Kings-highway tract were to be sold, and leaving the selling price of the Jefferson Avenne property to be determined by subsequent agreement.

The Jefferson Avenne property was sold under deed of trust on March 1, 1897, and that on Kings-highway was similarly sold April 13, 1897, the title being taken, in both cases, at the instance of Storm & Parish, in the name of E. H. Brockmeyer, collector for that firm.

The purpose of this was to facilitate the transaction of the business which Storm & Parish had undertaken for appellant, and it is affirmed by all parties that Brockmeyer held the legal title at all times until May, 1898, for appellant.

A loan of eleven thousand dollars was negotiated on the Jefferson Avenne property, and one of thirty-one thousand five hundred dollars on that on Kingshighway, Brockmeyer in each instance executing deeds of trust to secure the loan. Brockmeyer then executed to Storm as trustee a deed of trust on both pieces of property, securing a note payable to Parish for two thousand dollars. . Appellant testified that she was assured that the execution of this last mentioned deed of trust was “a matter of form,’’ and respondent Storm testified that it was executed to secure his firm for funds advanced by it in clearing up the indebtedness against the properties.

In 1896, one Leonori had obtained judgment against appellant and her husband for five hundred dollars. Appellant testified that she mentioned this judgment specifically in detailing the liens against the properties preparatory to the execution of the powers of attorney to Storm & Parish. This Storm denies.

The rents of the Jefferson Avenne property amounted to about $1800 to $2000 per annum, according to Storm’s testimony, and to about $2400 to $2500, according to appellant’s.

In November, 1897, Brockmeyer conveyed to Richard D. Hatton a portion of the Eingshighway property, seventy feet fronting on Forest Park Boulevard, for an expressed consideration of one dollar, and January 19, 1898, Hatton conveyed this lot to John F. and Lizzie Storm. Hatton was, respondents Storm and Farish admit, a mere conduit and Storm-was the real purchaser, paying for the lot sixty-five dollars per front foot, fifteen dollars per .front foot less than the minimum price fixed by the power of attorney given his firm by appellant. In April, 1898, all the property was sold under the Leonori judgment, of the existence of which judgment Storm & Farish had been advised for over a year by the certificate of title used in procuring the loans in the spring of 1897, and the payment of which judgment they had guaranteed in writing April 16, 1897, to the St. Louis Trust- Company, from which institution the $31,500 loan on the Kingshighway property was procured.

In May, 1898, the whole of the property in controversy was sold under the $2000 deed of trust above mentioned, the note secured thereby never having been negotiated by Storm & Farish, and C. J. Kehoe, the answer admits, bought at this sale for Storm. Farish was the payee in the note, and- Storm as trustee -in the deed of trust made the sale and execnted the trustee’s deed to Kehoe. Appellant was present at the sale but the fact that Kehoe was buying for Storm was concealed from her until after this suit was brought. Storin testified that he concealed this fact from her because he “did not want her to know it.”

Immediately after this sale Storm, & Farish, wrote appellant as follows:

“The property has, as you are aware, been sold ■under the second deed of trust, and the purchaser, Mr. C. J. Kehoe, has authorized us, by reason of onr familiarity with the property, to continue to have charge of it, as his agents. We have gone over the matter fully with him, have explained the situation thoroughly, and have endeavored to impress him with your condition. That is to say, we have explained to him that you are not in a position to pay a rental that the Kingshighway property demands, and he. had said to us that hi's idea is to make the rental nominal until such time as he may be able to find a purchaser.

■He has further instructed us to say to you that for the months of June, July and August, he is willing that you should retain possession of the property, and probably longer,. at a rental anywhere from one to five dollars a month. Of course, he could not treat you more leniently in the matter than by a proposition of this kind.

He also stated that one of his reasons for so doing was that you would use your best efforts in showing the property and endeavoring to find a purchaser. Mr. Kehoe has vested us with full authority to act for him, and we would be very much pleased to have you call at the office at your very earliest convenience, and see our Mr. Storm, in reference to this matter.

Anticipating an early visit, we remain,

Yours very respectfully.”

In a short time Storm, after failing in his efforts to induce appellant to attorn to Kehoe, instituted, in Kehoe’s name, a suit'in ejectment against appellant, and prosecuted it to judgment, thereby securing in May, 1899, possession of all the property.

Whatever title passed by the sale under the Leonori judgment was conveyed March 18, 1901, to Brockmeyer for Storm & Farish. On the same day Kehoe executed a deed, to the same grantee, to all the property in controversy except fifty feet on Duncan Avenue theretofore sold by Storm & Farish to respondent Lnla Yonng.

In May, 1901, Brockmeyer conveyed to Eda K. Meyer all of the Kingshighway property except the lots sold to Mrs. Yonng and that which Storm sold to Hatton for himself. Storm organized the Storm Real Estate Company, of the capital stock of which he owns all save two shares, and two of his sons own' one share each. • The Jefferson Avenue property was conveyed to this corporation and the title now stands in its name. The title to the seventy-foot lot on Forest Park Boulevard is now in the name of Frank P. Storm, son of John F. Storin, and clerk and bookkeeper for Storm & Farish during these transactions, having been conveyed to him by the Storm Real Estate Company in 1904 for a recited consideration of $5, to which company it had been conveyed by Brockmeyer in 1903.

Frank P. Storm paid nothing for the lot, John P. Storm having furnished the money therefor, and Frank P. has no beneficial interest in it. Brockmeyer acted at all times under, the direction of Storm and Farish and at no time claimed any interest in any of the property, the legal title to which was taken in his name merely to facilitate the performance by Storm and Farish of their duties as appellant’s agents.

The evidence discloses, and appellant concedes, that Lula Young and Eda K. Meyer purchased and paid for the portions of the Kingshighway tract which they acquired, without knowledge of appellant’s interest or of any facts putting them on inquiry. They did not participate in or have any knowledge of the fraud practiced upon appellant, but purchased in good faith, for a valuable consideration and without notice.

There is practically no controversy as to the principal facts in the case. Other facts necessary to a determination of the cause will be mentioned in the course of the opinion.

OPINION.

Advanced in years, unable to read or write the language in which her business must be transacted, deprived, by reason of his insanity, of the aid and counsel of her husband, overwhelmed by the apparent imminence of the loss of all her property, appellant, in her extremity, applied to Storm & Parish to extricate her from her financial difficulties.

Under these conditions Storm & Parish undertook the management of appellant’s affairs and properties, the ultimate object of their agency being to pay off all liens against both tracts out of the proceeds of sales of parts of the Kingshighway block, so that appellant would, in the end, come into the enjoyment of the residue of that block and the whole of the Jefferson Avenue property, unencumbered.

That Brockmeyer, at the instance of Storm & Parish, his employers, took title to the property as trustee for appellant is evidenced by express declarations, written and oral, of Storm and Parish and of Brockmeyer, testified to on the trial by Storm and Brockmeyer, conceded by Parish in his testimony, and not questioned in respondent’s brief. That Brockmeyer took the title by direction of Storm & Parish and in all respects acted at their instance, under their guidance and as their alter ego, is undisputed and indisputable.

The net result of the numerous transactions and conveyances disclosed by this record is that Storm, the agent, now occupies the position with respect to the property in suit in which he undertook, as her agent, to place appellant, his principal.

Respondents’ counsel do not controvert the familiar rule that an agent is wholly prohibited from acquiring, to the prejudice of his principal, directly or indirectly, any interest in property which is the subject-matter of his agency (Grumley v. Webb, 44 Mo. 444; Meek v. Hurst, 223 Mo. l. c. 698; Dodd v. Wakeman, 26 N. J. Eq. 484; Lytle v. Beveridge, 58 N. Y. l. c. 606; Van Epps v. Van Epps, 9 Paige’s Ch. l. c. 241; .Mickoud v. Girod, 4 How. l. c. 554; Trice v. Cornstock, 121 Fed. (C. C. A.) l. c. 623; but seek to avoid tke force of this and cognate rules by contending (1) tkat this is a suit for an accounting simply, and, as suck, was correctly decided below, (2) tkat tke agency of Storm & Farisk was- terminated by tke sale under tke two thousand dollar “blanket” deed of trust, (3) tkat tke title acquired by tke Real Estate Company by mesne conveyances, under tke execution sale under tke Leonori.judgment extinguished appellant’s claim, (4) tkat tke Statute of Limitations constitutes a valid defense and (5) that appellant has been guilty of laches.

As to tke contention tkat this is a suit merely for an accounting, tkat it was tried on tkat theory and tkat course precludes tke presentation and consideration of any other theory here, it will suffice to say tkat tke pleadings and tke evidence disclose tke contrary. It is from tke record as made tkat this court must reach its conclusions as to tke theory on which tke case was tried. As to rents, other receipts, and expenditures an accounting is involved, but simply as an incident to tke main relief prayed. So muck for tke trial theory.

In considering tke effect of tke sale under tke two thousand dollar deed of trust upon tke agency of Storm & Farish, it is to be noted tkat this trust deed was executed by Brockmeyer, at tke instance of Storm & Farisk, to Storm as trustee for Farisk; tkat Storm made tke sale as trustee; tkat Kekoe bid in the property for Storm, and tkat Storm & Farisk concealed from appellant this last mentioned fact. Nor did Storm content himself with mere silence, but deliberately deceived appellant by means of letters written by him for the firm asserting Kehoe’s ownership of the property.

Certainly Storm conld not purchase at his own sale made in his capacity as trustee in the two thousand dollar deed of trust and hold- the property so purchased against appellant who was the owner of the equitable title. Nor could he do' by indirection what he might not directly do. The “trust was not advanced as between the parties by the sale” (Giraldin v. Howard, 103 Mo. l. c. 46; Reddick v. (Pressman, 49 Mo. l. c. 392), and the relation of the parties was unchanged thereby. We are not impressed with the argument that this sale, though not changing the relation of the parties as fixed by the deed of trust itself, nevertheless terminated the agency of Storm & Farish and destroyed all rights of appellant dependent upon that relation and upon the trust relation arising out of the utilization by Storm & Farish of their employee and representative, Brockmeyer, as the depositary, for the purpose of facilitating the accomplishment by them of the objects of that agency, of the legal title for appellant’s use.

Before an agent can be permitted to acquire an interest adverse to his principal in the subject-matter of his agency, there must have been a previous unequivocal and absolute renunciation of the agency. [Fountain Coal Co. v. Phelps, 95 Ind. l. c. 275; McMahon v. McGraw, 26 Wis. l. c. 623; Bowman v. Officer & Pussey, 53. Iowa, l. c. 642.]

The evidence in this case does not disclose any such renunciation' brought home to appellant.- The renunciation relied on here, construed in the light of Kehoe’s purchase for Storm, was made “simply for the purpose of acquiring an interest in the principal’s property; . . . such relation will be deemed to continue, and such agent treated as a trustee.” [Fountain Coal Co. v. Phelps, supra.]

In addition, by the very arrangement which, invested Storm & Parish with the character of appellant’s agents, they obtained, in effect, through Brockmeyer, the title to all her property and took into their hands all her sources of income. The very nature of their agency, under the circumstances of this case, precluded their renunciation of it until they restored' to her the subject-matter of it, in so far as they were' able, to the end that she might have some opportunity to protect her interests. We have no difficulty in concluding that the sale under the two thousand dollar deed of trust in no way relieved Storm & Farish of' the burden they assumed when they accepted the-agency for appellant’s properties, and took over inBrockmeyer’s name the legal title thereto. They occupied a dual relation to appellant. They were her agents by force of the powers of áttorney and the contemporaneous. oral agreement, and they were, in effect, trustees for her by reason of their holding and controlling, in the name of their confidential clerk, Brockmeyer, the title to her property. Even could it be said that the sale terminated the agency, the .purchase at that sale by Storm, through Kehoe, raised' a trust in favor of appellant which carried with it all' the obligations which previously sprung from either the agency or the trust which arose from taking title in Brockmeyer’s name.

Nor can it be held otherwise than that whatever title may have been acquired by the purchase of the' interest conveyed by the sale under the Leonori judgment accrued to appellant’s benefit and further fortified her equitable title by strengthening, in the hands of her trustee, the legal title to the properties. [Quackenbush v. Leonard, 9 Paige’s Ch. l. c. 344; Ringo v. Binns, 10 Pet. l. c. 281.]

Some effort is made to contend that the Leonori judgment was not mentioned hy appellant in her preliminary negotiations with Storm & Farish and that,. therefore, they might purchase under that sale and under that purchase hold adversely to appellant.

The evidence discloses beyond a reasonable doubt, and Storm in his testimony admits, that the purpose of the agency was to so manage the properties as to pay off all liens of every kind. The Leonori judgment has already been rendered and was then a public record. In addition, in procuring the loans on the Kingshighway property, Storm & Farish guaranteed the St. Louis Trust Co., in writing, dated April 16, 1897, against loss by reason of this identical judgment. Further, the sale under the Leonori judgment could not have conveyed the legal title which was in Brockmeyer’s name and under the control of Storm & Farish. Appellant was still in possession of the prop•erty. With the knowledge they possessed, and in the position they occupied, Storm & Farish could not violate thejr agreement to protect the properties from the Leonori judgment, permit the sale thereunder to be made and then by purchase of the title so conveyed add to the legal title held in trust by them the equitable title they thus attempted to acquire and deny that the trust traveled with the whole. [Chaffin v. Hull, 49 Fed. l. c. 528; Newcomb v. Brooks, 16 West Va. 32; Ringo v. Binns, 10 Pet. l. c. 281.] Nor is it important out of whose funds the consideration was paid for the title conveyed under the judgment sale. “An agent cannot acquire his principal’s property by using his own funds to make what was in effect a redemption of the subject-matter of the agency.” [DeMallagh v. DeMallagh, 77 Cal. l. c. 128.]

Beyond all doubt the protection of the property from the lien of this judgment was one of the things which Storm & Farish undertook to accomplish, and under the principles applicable here respondents can-mot be permitted to set up this title against appellant. [Rothwell v. Dewees, 2 Black 613.]

Neither can the judgment in ejectment obtained by Storm & Parish in the name of Kehoe avail to extinguish appellant’s rights. The sale to Kehoe was a fraud upon her, and that fraud was concealed from her by her trusted agents. The action itself was a fraud upon her. It was calculated and doubtless designed to further convince appellant of the bona fidesof Kehoe’s purchase.

In truth, since Kehoe was a figurehead and held or attempted to hold for Storm, and since Storm was-at all times trustee for appellant and held or controlled the title for her, the judgment in the ejectment suit, as between the parties to this, possesses exactly the same efficacy to bar appellant’s present claim against Storm and Parish as it would have had had appellant been named in that case as both plaintiff and defendant.

Judgments in ejectment avail but little as» a basis for a plea of res adjudicata (Davidson v. Mayhew, 169 Mo. l. c. 265; Garland v. Smith, 164 Mo. 1; Speed v. Railroad, 163 Mo. 111), and that referred to in this record is worthless for such purpose.

Appellant might, had she known of the fraud practiced upon her, have set up as a defense in the suit in ejectment the facts she now alleges as the basis of her cause of action, but she did not have knowledge of the fraud then and had she known of it was entitled to let the judgment go at law and then institute her suit in equity, as she has done. [23 Cyc. 1200; Clark v. Hindman, 46 Ore. l. c. 70; Lorraine v. Long, 6 Cal. 452.]

So far as concerns the averments of the answer and some observations in the briefs to the effect that appellant did not own the Jefferson Avenue property when she constituted Storm & Parish her agents to manage it for her, no such proof was made, but the contrary. Besides it does not lie in the mouth of agents and trustees, such as Storm & Parish early in the history of these transactions became, to accept and administer, as they did, the trust and when called to account deny the original interest of their principal and cestui que trust in the title to the property she has confided to their keeping. [Perry on Trusts, secs. 260, 433.]

The Statute of Limitations has no place in this case. [R. S. 1909, secs. 1889 and 1894; Bent v. Priest, 86 Mo. l. c. 487.] Nor was appellant guilty of any laches. The facts were concealed from her and laches cannot be imputed save when delay is united with notice, actual or constructive (Butler v. Lawson, 72 Mo. l. c. 249, 250), and this observation is especially pertinent when the intentional concealment of the facts constitutes part of the fraud which gives rise to the cause of action to which the defense of laches is urged as a bar. Further, there is no evidence that the situation of the parties with respect to the property in suit has'been changed.

In the consideration of this case the rule as to the deference to be paid to the finding of the chancellor has little part to play.

The principal facts upon which our decision rests are uncontroverted. All others which enter into the minor premises on which we base our conclusion are established by the evidence beyond question. Doubtless the learned chancellor gave, on the trial, a more attentive ear to counsel’s contention that this was merely a suit for an accounting than we have been able to offer on the cold record here, and disposed of the case on that theory. In that case his decision involved no finding of fact, save one, which it is necessary for us to consider. The correctness of the statements furnished appellant by Storm & Farish showing the various amounts received and expended by them as her agents was not at any time conceded, but was denied by her. Nor do these statements purport to be final in their character, nor to cover any thing subsequent to the sale to Kehóe for Storm. In addition, some of the items depended upon the validity of transactions which were frauds upon appellant’s rights, of the fraudulent character of which she was kept in ignorance.

For these reasons these accounts cannot be relied upon as stated accounts (Powell v. Railroad, 65 Mo. l. c. 661) and as a bar to a re-examination and reopening of them in this case, even as to rents, etc., prior to May, 1898. They amounted to nothing more than information furnished appellant of the manner in which Storm & Farish were using her funds in furtherance of the accomplishment of the purpose of their agency.

As to the respondents other than Storm & Farish, it cannot be questioned that the trust follows the trust estate into the hands of all save those who purchase in good faith, for a valuable consideration and without notice (Coffee’s Admr. v. Crouch, 28 Mo. 106; Paul v. Fulton, 25 Mo. l. c. 162; Darling v. Potts, 118 Mo. 506), nor that those who do so purchase, the trustee being in the actual possession of the trust estate, and empowered to sell, take good title as against the cestui que trust (Grove v. Heirs of Robards, 36 Mo. 523), nor that these principles are as applicable to corporate grantees as to others. [Farmers’ & Traders’ Bank v. Kimball Milling Co., 1 S. D. 388, and cases cited; Bank v. Peyton, 15 Tex. Civ. App. 189.] And, as far as the trust follows the property, so far will equity follow the trust, retake the trust estate and restore it to its rightful owner. [Oliver v. Piatt, 3 How. l. c. 401.]

As already stated, it is conceded that Lula Young and Eda K. Meyer bought in good faith, for a valuable consideration, and without notice, and took good title to the lots they purchased.

Frank P. Storm, one of the defendants, in whose name the title to the seventy-foot lot in the northeast corner of the Kingshighway tract now stands, was the son of John F. Storm, of' Storm & Farish, and the clerk and bookkeeper of that firm, took title with notice of the trust and paid nothing for the lot, John F. Storm having furnished the money therefor and claiming the beneficial interest therein. -

John F. Storm and Frank P. Storm own one hundred and ninety-nine of the two hundred shares of the Storm Real Estate Company, in the name of which corporation the title to the Jefferson Avenue property now stands. John M. Storm, a son of John F. Storm owns the other share of stock in that company. John F. Storm conducted for both himself and the company the exchange of properties whereby the Jefferson Avenue property was conveyed to the Storm Real Estate Company. He owned the property exchanged by the company and is and was the owner and manager of' the company itself. The Storm Real Estate Company took title with notice, paying nothing. Besides, the deeds to the Storm Real Estate Company and to Frank P. Storm were deeds of quitclaim, and, by force of that fact also, the title in their hands is subject to the equities with which it was impressed in the hands of their grantors. [Eoff v. Irvine, 108 Mo. l. c. 385, 386; Condit v. Maxwell, 142 Mo. 266; Zweigart v. Reed, 221 Mo. l. c. 46.]

Under the circumstances of this ease no commissions can be allowed Storm & Farish or either of them for any of their services in respect to the property in controversy. “It is settled law in this State that an agent who has been guilty of fraud in the transaction of his principal’s business forfeits his rights to commissions as such.” [Van Raalte v. Epstein, 202 Mo. l. c. 196; Harrison v. Craven, 188 Mo. l. c. 610.]

Since Storm & Farish were authorized by the. terms of their agency to sell, therefore as to that portion of the property which they sold to Lula Young and Eda K. Meyer, they are not chargeable with the present value of the property, but with its value at the time it was sold. The minimum price at which they were to sell having been fixed by the terms of the instrument which created their agency and there being no satisfactory evidence that the property sold to the purchasers mentioned was of greater value at the time of sale than the minimum fixed as stated, we are of the opinion that they should be charged with such minimum in the case of the property sold to Eda K. Meyer, to-wit, $46,265, as of the date of the sale. As to the property sold to Lula Young, since that included the house on the Kingshighway property, with which Storm & Parish had no right to intermeddle, they should be charged with the whole ámount received for that lot, $5500, and allowed nothing for the expense incurred in moving the house thereto.

The judgment in this case is reversed and the case remanded with directions to the trial court to enter its judgment declaring all conveyances of the properties in controversy,'whether at trustee’s sales or otherwise, to Brockmeyer, John P. Storm, Prank P. Storm, John M. Storm, The Storm Real Estate Company and Kehoe to have been conveyances in trust for the use and benefit of appellant; and also divesting Prank P. Storm of the title to the lot fronting seventy feet on Forest Park Boulevard, conveyed by Brockmeyer to TIatton, by Hatton to-John P. and Lizzie J. Storm, by John P. and Lizzie J. Storm and John M. Storm to the Storm Real Estate Company, and by the Storm real Estate Company to Prank P. Storm, vesting the same in appellant; also divesting the Storm Real Estate Company of the title- to the Jefferson avenue properties and vesting the same in appellant. Further, judgment will be entered canceling the four thousand dollar deed of trust on the properties in controversy and the Laclede avenue property and the note secured thereby, and canceling the $3500 deed of trust on the lot fronting seventy feet on Forest Park Boulevard.

In settling the accounts between the parties, Storm & Farish must be charged with thé actual rents received to May 26, 1898, the date of the sale to Kehoe, and with a sum not less than two hundred dollars per month thereafter until December 17, 1904, and after this last mentioned date John F. Storm and the Storm Real Estate Company must be charged with $228.50 per month to the date of this judgment, unless the rents during that time exceeded that amount, in which event the actual amount received must be charged to them.

Storm & Farish must also be charged with the $5500 received from Lula Young, as of the date of the deed to her, and with $46,265, as of date of the deed to Eda K. Meyer.

Credits are to be allowed for interest on the original deeds of trust executed by Brockmeyer and for the amounts paid on the principal thereof, for taxes, special taxbills, and necessary repairs, not including any repairs on the house on the Kinghshighway property and not including any amount expended in removing that house to the lot sold to Lula Young.

No credit is to be made or charge allowed in connection with the sale to Hatton for Storm of the seventy-foot lot on Forest Park Boulevard. Credit.must also be given for the sum of $500 and costs of suit in taking account of the purchase o'f the title conveyed by the sale under execution on the Leonori judgment, unless the amount actually paid was less than that sum, in which event credit should be given for the amount paid.

No commissions of any kind will be allowed Storm & Farish and no commission allowed on the loan negotiated on the lot sold Hatton for Storm. Interest at eight per cent per annum is to be allowed appellant against Storm & Farish and the Storm Real Estate Company on any balance in their hands at any time belonging to appellant.

The deed of trust for $11,000 on the Jefferson Avenue property,' in case it is now held otherwise than by or for Storm or the Storm Real Estate Company, with interest to date, must be taken into account in determining the amount of the money judgment to be' rendered. If held by or for Storm or the Storm Real Estate Company it must be ordered canceled.

With these directions, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Brown, G., concurs.

PER'CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.