author: BROWN, C.

text:
    J. M. LEFTRIDGE v. WESTERN UNION TELEGRAPH COMPANY, Appellant.
    Division One,
    March 1, 1919.
    1. TELEGRAPHY: Interstate Commerce. The transmission of messages from State to State by telegraph wire is interstate commerce, and therefore subject to regulation by Congress.
    2. -:-: Control Taken: Penalty to Use Diligence. By the Act of June 18, 1910, 36 Statutes at' Large, 544, Congress took control of the transmission of telegraph messages by wire from a town in One State to a town in another State, and so occupied the field as to exclude the power of a State to impose a penalty upon the telegraph company for failure to deliver, without material alteration, a message received by it in the one State to be delivered to an addressee in- the other State.
    3. -: -: Statutory Penalty for Failure to Deliver: Superseded. In view of the Act of Congress of June 18, 1910, taking full control of interstate telegraph, companies, and the decisions of the Supreme Court of the United States holding that said act nullifies State laws imposing a penalty on them for failure to deliver messages promptly and without material alteration, the sender cannot recover from the Western Union the penalty of three hundred dollars imposed by Sec. 3330, R. S. 1909, for its failure to transmit and use due diligence to deliver, without material alterations, into the hands of the addressee at McComb, Illinois, a message received by it for transmission at Clarence, Missouri; and in view of said decisions, that must be the ruling, even though said act imposes no such penalty, and it might therefore be said, with plausibility, that Congress had left the State free to exercise its police power on the subject.
    Appeal from Macon Circuit Court. — Hon. Nat Shelton, Judge.
    REVERSED AND REMANDED (with directions).

      Franfclin Ferriss, George F. Maid, and Albert T. Benedict, of counsel, for appellant.
    (1) Interstate communication by telegraph is interstate commerce. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; Western Union Tel. Co. v. Pendle-ton, 122 U. S. 347. (2) Under the original act, and prior to the amendment of June 18, 1910, Congress not having legislated on the subject, State statutes affecting interstate telegrams for acts done within the State were enforcible. Western Union Tel Co. v. James, 162 U. S. 650; Western Union Tel. Co. v. Crovo, 220 U. S. 364. (3) Under the terms of the Interstate Commerce Act as amended June 18, 1910, Congress has taken exclusive possession of the field of interstate communication by telegraph. Hence the Missouri penalty statute cannot be applied to an interstate message by wire. Chap. 309, 36 Stat. at Large, 544; 8 U. S. Compiled Stats. 1916, p. 9053; Gardner v. Western Union Tel. Co., 231 Fed. 405; Western Union Tel. Co. v. Bilisoly, 116 Va. 562; Poor Grain Co. v. Western Union Tel. Co., 196 Mo. App. 557; Western Union Tel. Co. v. Lee, 174 Ky. 210; Western Union Tel. Oo. v. Compton, 114 Ark. 193; Western Union Tel. Oo. v. Johnson, 115 Ark.-564; Durre v. Western Union Tel. Co., 165 Wis. 190; Western Union Tel. Co. v. Hawkins, 73 So. (Ala.) 973; Western Union Tel. Oo. v. Spencer, 156 Pac. (Okla.) 1175; Hall v. Western Union Tel. Oo., 94 S. E. (S. 0.) 870; Norris v. Tel. Oo., 174 N. 0. 92; Western Union Tel. Co. v. Scliade, 137 Tenn. 214; Bailey y. Western Union Tel. Co., 97 Kan. 619; Strauss Gas & Iron Co. v. Western Tel. Co., 59 Pa. 122. (4) The questions in the case properly raised by demurrer. La Cost y. Chicago, R. I. & P. Ry. Co., 203 S. W. (Ark.) 586; Davis v. Western Union Tel. Co., 202 S. W. 292; Taylor v. Western Union Tel. Co., 294 S. W. 818; Western Union Tel. Co. v. Johnson, 115 Ark. 534; Durre v. Western Union Tel. Co., 165 Wis. 190.
   BROWN, C.

This is a suit against the Western Union Telegraph Company, a corporation, to recover the penalty of three hundred dollars imposed by the terms of Section 3330 of the Revised Statutes of this State (1909), for failure to transmit and use due diligence to deliver into the hands of the addressee at McComb, Illinois, without material alteration, a telegram delivered to it by plaintiff on May 21, 1915, at its office in Clarence, Missouri, for that purpose, all charges being paid. The telegram was materially altered before delivery by the substitution of the word “dead” for the word “bad.”

No fault is found with the form of the petition ’except as indicated in a general demurrer filed thereto with the following specification: “And for the further reason that said petition on its face shows that the message upon which this suit is based was filed at the town, of Clarence in the State of Missouri and destined to the town of McComb in the State of Illinois and is therefore interstate commerce, so that the statute of Missouri, Section 3330, under which this suit is brought if construed as authorizing the recovery of the penalty therein provided in respect to such message would be unconstitutional, null and void and in violation of Article 1, Section 8 of Subdivision 3 of the Constitution of the United States conferring on Congress the power to regulate commerce among the several states, and would also be in violation of and in opposition to the acts of Congress passed and approved in pursuance, of said Article I, Section 8' of said Subdivision 3, and especially the act of -Congress passed and approved June 18, 1910, being the Thirty-sixth Statute at Large of the United States, at page 539.”

The demurrer was overruled, and the defendant declining to plead over, judgment was entered for plaintiff, from which the defendant prosecutes this appeal.

The only question presented is whether the provision of the state statute imposing the penalty sued for was, at the time this message was delivered to the defendant for transmission, valid and operative under the provisions of the interstate commerce clause of the Constitution of the United States and the acts of Congress upon the same subject.

That the transmission of messages from State to State by paeans of telegraph is commerce among the several states, and therefore subject to regulation by Congress under the power granted in Section 8 of the First article of the Federal Constitution, is unquestioned. [Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1; Telegraph Co. v. Texas, 105 U. S. 460; Western Union Telegraph Co. v. Pendleton, 122 U. S. 347; Western Union Telegraph Co. v. James, 162 U. S. 650.] It is equally well settled that the character of these carriers as instruments of interstate commerce does not relieve them from operation of laws enacted by the states in the exercise of their power over men and things situáted within their jurisdiction. This control covers the entire field of human activity, both civil and criminal, within their borders. Contracts made within the State are construed and enforcible according to its laws, and acts are adjudged crimes' by the same standard. Congress, by failing to legislate upon the subject of interstate commerce, did not leave the states without juridiction to enforce civil rights and redress civil wrongs incident to its prosecution within their borders.

The enactment by Congress of the interstate commerce law in the exercise of the constitutional power changes’ this condition materially with respect to interstate carriers by rail and placed them under the control of the commission it created, in many respects. This control was extended by laws enacted from time to time in the interest of safety and uniformity, until the instrumentalities of interstate transportation were controlled in their operation by Federal laws applying to every detail in the relation of these carriers to the public as well as to their own employees, leaving no room for the intervention of the State, which still retained, in most respects, the power to regulate telegraphic agencies in their relation to the public. [Western Union Telegraph Co. v. James, supra; Western Union Telegraph Co. v. Milling Co., 218 U. S. 406; Western Union Telegraph Co. v. Crovo, 220 U. S. 364.]

The only question in this case is whether Congress has now, by the Act of June 18, 1910, 36 Statutes at Large, 544, occupied the field covered by this suit so as to exclude the power of the State to impose upon the Telegraph Company a penalty for its failure to deliver a message received by it in this State to the addressee in another State without material alteration. It would be difficult to imagine a cleaner illustration not only of the interstate character of the transaction, but also the interstate character of the control assumed by this State, in which the only act necessarily performed is the harmless one of receiving the message and payment for its transmission. The act or failure to act which incurs the penalty is to be performed in another .State. It is not contemplated that the law should hold its ear to the instrument receiving it in the foreign State to ascertain whether it gives forth the proper sound. The operator who writes it down is the one who puts it in words which it did not contain, for delivery.

If the duty of the Telegraph Company in receiving 'and handling this message is completely covered hy the Interstate Commerce Act as amended in 1910, it is plain that the State law prescribing the performance of the duty and imposing the penalty for its non-performance is thereby abrogated, for when it had performed its entire duty under the paramount law there was no room for further control. This principle has been so often applied in cases involving the acts of Congress relating to employers’ liability and safety appliances that it would he futile to cite the many cases in the Federal and State courts which have placed it outside the 'region of legitimate debate. In the late case of Holloway v. Missouri, Kansas and Texas Railway Company, 276 Mo. 490, this court said: “When Congress, in the exercise of its plenary constitutional power, enacts a law relating to a particular subject, the statute so enacted is not only paramount to all State legislation upon that subject, but the legislative power of the State to occupy the same field ceases.” It only remains to state whether Congress has occupied the field we are now traversing.

By the first paragraph of Section One of the act to regulate commerce as amended by the Act of June 18, 1919 (36 Statutes at Large, 545, United States Compiled Statutes, 1918, sec. 8563), it is provided as follows:

“That the provisions of this act shall apply to any corporation or any person or persons engaged in the transportation of oil or other commodity, except water and except natural or artificial gas, by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, and to telegraph, telephone and cable companies (whether wire or wireless), engaged in sending mes .sages from one' State, Territory or District of the United States to any other State, Territory or District of the United States, or to any foreign country, who shall be considéred and held to be common carriers within the meaning and purpose of this act; . . . provided, however, that the provisions of this act shall not apply to . . . nor shall they apply to the transmission of messages by telephone, telegraph or cable wholly within one State and not transmitted to or from a foreign country from or to any State or Territory as aforesaidThe amendatory words are in italics.

Paragraph Three of the same section as amended, provides:

“All charges made for any service rendered or to be rendered in the' transportation of passengers or property and for the transmission of messages by telephone, telegraph or cable as aforesaid, or in connection therewith, shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful: Provided, that messages by telegraph, telephone or cable, subject to the provisions of. this act, may be classified into day, night, repeated, unrepeated, letter, commercial, press, Government, cind such other classes as are just and reasonable, and different rates may be charged for the different classes of messages. And provided, further, that nothing in this act shall be construed to prevent telegraph, telephone and cable companies from entering into contracts with common carriers for the exchange of services.”

Section Three makes it unlawful for any common carrier subject to the provisions of the act to give any unjust or unreasonable preference. Section Ten provides that any common. carrier subject to the provision of the act who shall violate any of its provisions shall be guilty of a misdemeanor and subject to a fine not to exceed $5000. Section Fifteen of the act gives the Interstate Commerce Commission upon investigation plenary' power to prescribe what shall be reasonable rates to be charged by telegraph companies as well as of other common carriers under its jurisdiction.

If there is anything provided in this act or in any other Congressional legislation covering the same field it has not been called to our attention. The provisions of the Interstate Commerce Act imposing the penalties being limited to cases of violation of the terms of the act, which contains no provision to which our attention has been directed regulating or expressly requiring the delivery of interstate messages promptly and without material alteration, to the addressee at the place of destination, it may be contended that the subject has been deliberately left by Congress to the exercise of the police power of the several states having cognizance of the wrong. There is plausibility in the argument, for it is not to be presumed that Congress would withdraw from the State the right to protect persons and property within its limits otherwise than by the expression of a clear intention to that effect. This argument in its application to this case has been met by the Supreme Court of the United States in the case of Western Union Telegraph Co. v. Brown, 234 U. S. 542, in which it was sought to recover damages authorized by a statute of South Carolina for the nondelivery of a telegram transmitted from that State to the addressee in the District of Columbia. The Court held the statute to be unconstitutional as an attempt to regulate commerce among the states in so far as it attempted to determine the conduct required of the Telegraph Company in transmitting a message from South Carolina to the District of Columbia, by determining the consequences of not pursuing such conduct. This case was followed in Western Union Telegraph Co. v. Bilisoly, 116 Va. 562. That case lite the one at bar was a suit for a penalty imposed by the State of Virginia for non-delivery of a message filed for transmission in-that State. The same question afterward came before the United States Circuit Court of Appeals of this circuit on appeal from the Western District of Oklahoma. [Gardner v. Western Union Telegraph Co., 231 Fed. 405.] The action was by -the addressee for delay in delivery to him in Oklahoma of a message transmitted from Kansas. The question arose upon the validity of the following agreement printed upon the hack of the message: .“That the company should not be liable for damages or statutory penalties in any case where the claim was not presented in writing within sixty days after the message was filed with the company for transmission.” The Constitution of Oklahoma made this limitation as to time null and void. The court held that this constitutional provision was not applicable to the interstate messages.

These three cases together stand upon the theory that although the Amendment of 1910 contains no provision directly controlling the action of the respondent with respect to the delivery of this message it was an exercise of the constitutional authority of Congress by which the company was placed under the control of the Interstate Commerce Commission with respect to its rates, rules and classification of its contracts, including the equality and fairness of its service and charges; that by imposing certain penalties for violation of its duties in these respects it exercised its undoubted prerogative to control the conduct of this class of business by penal process, and that having occupied this field of legislation the State was excluded. If Congress chose to let the rights and duties of the company rest upon the common law, the State could not complain.

This is the foundation upon which these cases stand. We think it is sound even without the authority of the Brown case, which controls us. The judgment of the circuit court for Macon County is reversed, and the cause remanded with directions to enter judgment in accordance with these views.

Bailey, C., concurs.

PER CURIAM: — The foregoing opinion of Brown, C., is adopted as the opinion of the conrt.

All of the judges concur.


source: Caselaw Access Project

author: RAILEY, C.

license: Public Domain

text:
    OLIVIA P. WRIGHT et al. v. ESTHER HETHERLIN et al., Appellants.
    Division One,
    March 1, 1919.
    1 ADMINISTRATION: Ancillary Administrator De Bonis Non. After the former administrator has made' final settlement, his settlement approved and he discharged, the prohate court" has power to appoint an ancillary administrator cLe Toonis non, for the purpose, of collecting a debt due the estate of a citizen who died in another State and which is there being administered. The constitutional provisions, in connection with the statutes carrying them into effect, confer ample power and jurisdiction to appoint such ancillary administrator. The legal representative appointed in the foreign state to administer the estate of a decedent there cannot sue in this state, and the beneficiaries of said estate are entitled to have some one appointed in this state to represent them in the collection of a debt due the estate.
    2. HOMESTEAD: Sale After Owner’s Death. The head of a family did not in 1892 have the right to so dispose of his homesteád by will as to defeat judgment debts against him. Under the Homestead Law as it stood from 1875 to 1895 the probate court had power in 1894, subject to the homestead right of the widow and minor children, to sell the homestead of a -deceased head of a family against whom in his- lifetime a judgment for debt was obtained in the circuit court in 1888 and revived against his administration in 1892.
    3. -: -: Kentucky Statute. The Homestead Statute of Kentucky is not like the Missouri Homestead Law from 1875 to 1895, and consequently decisions of Kentucky Courts upholding the right of a homesteader to dispose of his homestead by will furnish no valid ground for a like ruling concerning a Missouri "homestead.
    4. PROBATE COURT: Judgment: Collateral Attack. Judgments and proceedings of the probate court as to all matters within its jurisdiction are impervious to collateral attack.

      Appeal from Pike Circuit Court. — Rim Edgar B. Woolfolh, Judge.
    AFFIRMED.

      D. A. Ball for appellants.
    (1) The probate court bad no jurisdiction to appoint an administrator de bonis non of tbe estate of Charles C. Wells, deceased. The appointment was a nullity and wholly void. So were all the acts and doings of said Purse following said void appointment. The administration of the Charles C. Wells estate had been fully and finally settled by James R. Reeds, public administrator in charge of said estate, and he as such administrator had made his final settlement of said estate and his settlement had been approved by the probate court and he finally discharged. The only authority given to the probate court to appoint an administrator de bonis non is found in Sec. 46, R. S. 1889, Long v. Joplin Mining Company, 68 Mo. 432; Cary v. West, 139 Mo. 146; Byers v. Weeks, 105 Mo. App. 73; Pullis v. Pullis, 137 Mo. App. 294; Bick v. Tanzey, 181 Mo. 515; Norton v. Reed, 253 Mo. 236; Jones v. Schafl: Bros., 174 S. W. 177; State ex rel. Harrington v. Pratt, 170 S. W. 418; G-rayson v. Weddell, 63 Mo. 523. (2) The revival of the judgment obtained by James Gr. Reeds, Public Adminstrator in charge of the Charles C. Wells estate in 1888, was void, first, because the probate court had no jurisdiction to appoint Purse administrator de bonis non of the Charles C. Wells estate. Second, the judgment of revival was void, because the judgment on its face shows that process of court was had upon Lewis Holliday as an individual, and not as executor of the estate of Lemuel M. Wells. No process was served upon Job T. Wells and Emma J. Wells named in the will of Lemuel M. Wells, the remaindermen named in the will. Third, the judgment ■should have been revived, if at all, in the name of James G. Reeds, Public Administrator-in charge of the estate of Charles C. Wells. Bick v. Tanzey, 181 Mo. 515; Whitworth v. Barnes, 256 Mo. 468. (3) The land here in dispute was the homestead of Lemuel M. Wells at the date of his death. He and his wife and children had occupied it as a homestead since 1846. None of the debts allowed against his estate antedated the acquisition of the homestead. His creditors had no right or claim to it. He could, with the consent of his wife, have given it away by deed for no consideration other than love and affection. Therefore, we insist that what he could do by deed, he could do by his will. Seilert v. McAnally, 223 Mo. 505; Barnard v. Bateman, 76 Mo. 415; State ex rel. Stigo Co. v. Mason, 88 Mo. 222; Moor v. Willcerson, 169 Mo. 334; Rose v. Smith, 167 Mo. 81; Kendall v. Bowen, 96' Mo. 142; Davis v. Lane, 88 Mo. 436; Reed Bros. v. Nicholson, 189 Mo. 396; Balance v. Gordon, 247 Mo. 119; Myers v. Myers, 89 Ky. 442; Pendergest v. Heekin, 94 Ky. 384. The Myers case, 89 Ky. 442, is directly in point and holds, under homestead law substantially like that of .Missouri that homesteader can convey by will as he could do by deed. (4) “The probate of a will relates to the death of the testator and confers title from that time.” Barnard v. Bateman, 76 Mo. 414. (5) The judgment rendered against Lemuel M. Wells in 1888, if it ever had been a lien on the real estate of said Wells, had expired long- prior to the revival of the judgment in 1892. Therefore, the defendants, Job T. Wells and Emma J. Wells, had acquired title to the homestead land, under and by virtue of the will, and their title could not be affected -by the revival of the judgment, even though the revival of the judgment be held good. See. 2127, R. S. 1909; Pullis v. Pullis, 157 Mo. 515.

      W. O. Gray and Hostetler & Haley for respondents.
    (1) The law in force at the time of the death of the homesteader, governs and controls the rights of all parties interested in the homestead tract. Ailey v. Burnett, 134 Mo. 317; Register v. Hensley, 70 Mo. 189; Burgess v. Bowles, 99 Mo. 543; Davidson v. Davis, 86 Mo. 440. Lemuel M. Wells, the homesteader, having died in 1892, the law then in force is applicable. (2) Between 1875 and 1895 a homestead, on account of the wording of the Statute of 1875, was subject to sale for the payment of the deceased homesteader’s debts, subject of course to the rights of his widow and minor children. Poland v. Vesper, 67 Mo. 727; Keene v. Wyatt, 160 Mo. 1; Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568;- Sec. 2693, R. S. 1879. (3) The judgment of a probate q'ourt in matters within its jurisdiction is final and is impervious to collateral attack. Covington v. Chamblin, 156 Mo. 587; Rott-mann v. Schmueker, 94 Mo. 144; Bingham v. Kollman, 256 Mo. 589; Wilson v. Wilson, 255 Mo. 536; Harter v. Petty, 266 Mo. 303; Bradford v. Wolfe,' 103 Mo. 391; Johnson v. Beazley, 65 Mo. 254; Rogers v. Johnson, 125 Mo. 212. (4) Purse’s appointment as administrator to take charge of the Charles C. Wells estate cannot be attacked in this collateral proceeding. Bradford'v. Wolfe, 193 Mo. 395; Creen v. Tittman, 124 Mo. 375; Headlee v. Cloud, 51 Mo. 301; Wetzell v. Waters, 18 Mo. 396; 1 Woerner’s Am. Law of Administration, sec. 180; Johnson v. Beazley, 65 Mo. 256; Scott v. Crews, 72 Mo. 261.
   RAILEY, C.

On February 2, 1915, Olivia P. Wright and others filed in the circuit court' of Pike County, Missouri, their petition for the partition of about eighty-five acres of land located in said county. Esther Hetherlin and various other parties were made defendants in the above action. Under the pleadings, and on the trial below, there were three sets of claimants of the land sought to be partitioned. (1) Plaintiffs claim title through Theodore Purse, administrator de bonis non of the estate of Charles C. Wells, deceased, who purchased the land at an executor’s sale during the administration of the estate of Lemuel M. Wells, deceased, who died testate in the year 1892, his will being probated May 11, 1892. (2) Tbe Fielden Estes beirs filed their separate answer, and at the trial claimed title to the above land through Fielden Estes, who purchased the same in 1888, when said land was sold under an execution, issued on a judgment obtained by Reeds, public administrator in charge of the estate of Charles C. Wells, deceased, against Lemuel M. Wells. The land when sold under above execution had already been set off and assigned as a homestead to said Lemuel M. Wells. The trial court held that the Fielden Estes heirs acquired no title to said land under the execution sale aforesaid, and no appeal was taken by them. (3) The defendants, Job T. Wells, the Hetherlin children and their father, T. Guy Hetherlin, claim title to the land in controversy, under and by virtue of the will of Lemuel M. Wells. Job T. Wells is a son, and the Hetherlin children are grandchildren of said Lemuel M. Wells.

The evidence tends to show that- Lemuel M. Wells acquired title to the land in dispute in 1846; that with his wife and children he lived upon said land, and used it as a homestead to the date of his death, in April, 1892. In 1869, Lemuel M. Wells became largely indebted to his brother, Charles C. Wells, of West Virginia, whose estate was administered upon in that State. The debt of Lemuel M. Wells was a part of the assets of the estate of Charles C. Wells. On November 30, 1886, the probate court of Pike County, by an order entered of record, directed James G. Reeds, public administrator of said county, to take charge of the estate of Charles C. Wells, deceased, which said Reeds did, and proceeded to administer the same under the order of said probate court. On April 17, 1888, Reeds, as such administrator, obtained a judgment against Lemuel M. Wells, for $31,395.41/ An execution was issued on this judgment and placed in the hands of the sheriff of Pike County, Missouri. The latter, on September 13, 1888, levied upon and sold the land in said county belonging to Lemuel M. Wells, including the homestead in controversy, to Fielden Estes for about $5300. The purchase price for said land bought by Fielden Estes, was paid to J. G. Reeds, the public administrator of said county, in charge of the estate of said Charles C. Wells. Said J. G. Reeds, as such administrator, paid the purchase price of said lands to the executor of the Charles C. Wells’ estate in West Virginia, on the order of the probate court of Pike County, Missouri. Tlierealflter, said Reeds, as public administrator in charge of the estate of said Charles C. Wells, made (bis final settlement with the probate court aforesaid, on December 13, 1890, and was finally discharged by said court.

Lemuel M. Wells died in April, 1892, the owner of said land as a homestead. His widow Kate W. Wells,, survived him, but he had no minor children at the time of his death. The widow continued to use the homestead until the date of her death, in August, 1914. Lemuel M. Wells’ will was dated April 21, 1892, and was probated iin Pike Couny, Missouri, on May 11, 1892. He gave to his wife a life estate in the homestead of 85 acres, find the remainder was to be divided between his son, John T. Wells, or hisi heirs, and Emma J. Hetherlin, or her heirs. Emimia Hetherlin died after her father, leaving a husband and four children surviving her, who are the appellants in this cause.

Under the terms of the will of Charles C. Wells, the interest which testator had growing out of the notes which he held against his brother, Lemuel M. Wells, and which includes the homestead in controversy, was devised and bequeathed as follows: One-third to the children and heirs at law of his brother, Lemuel M. Wells, one-third to the children and heirs at law of his sister, Sadie Rachel Austin, and one-third to the children and heirs at law of his brother, J. D. Wells. The children and heirs at law of these two brothers of Charles C. Wells, viz., Lemuel M. Wells, J. D. Wells, and of the sister, Sadie Rachel Austin, are all parties to this suit, and are all plaintiffs in the case, except Job T. Wells, and Emma Hetberlin’s husband and heirs, who are defendants and appellants herein claiming all the title. The remaining defendants are the Fielden Estes devisees. Job T. Wells, and the Hetherlin heirs, appellants herein, being heirs at law of Lemuel M. Wells, have, by virtue of the will of Charles 0. Wells, an interest, with the other heirs of Lemuel M. Wells, in the homestead tract in controversy, and this interest is set out in the petition and was accorded them by the trial court in the interlocutory decree appealed from.

After the death of Lemuel M. Wells, Lewis Holliday, who was named in the will as executor, qualified and administered on his estate, in the probate court of Pike County, Missouri.

On May 14, 1892, letters of administration were granted,, in vacation of the probate ,court of Pike County, Missouri, to Theodore Purse, as administrator de bonis non of the estate Charles C. Wells, deceased, and his appointment was approved by said probate court, June 20, 1892. His bond was approved by the probate court.

Soon after the appointment of said Purse as administrator de bonis non aforesaid, he sued out a writ of scire facias to revive the judgment of April 17,1888, for $31,395.41. The suit to revive said judgment was in the name of “Theodore Purse, Administrator.de bonis .non of the Estate of Charles C. Wells, deceased, against Lewis Holliday, Executor of the Estate and Will of Lemuel M. Wells, deceased.” The judgment was revived as above stated, September 1, 1892. A number of claims and demands were allowed against the estate of Lemuel M. Wells, and the widow was given her usual allowances. Among the claims was the judgment of the Charles C. Wells estate, which was classified by the probate court on November 17, 1892, in favor of Theodore Purse, administrator de bonis non of the estate of Charles C. Wells, in the sum of $35,200, and assigned to the fourth class of-demands.

The probate court records of Pike County show that on August 15, 1893, Lewis Holliday, executor of Lemuel M. Wells’ last will, presented a petition in the usual form, accompanied by accounts and inventories, showing that the personal estate of Lemuel M. Wells was insufficient to pay the debts and allowed demands, and asking for an order of sale for the purpose of paying the debts and allowed demands, etc. An order of publication was then made by the probate court and the sheriff directed to serve all resident heirs with a copy of the order of publication, at least ten days prior to the next' term of the probate court. It is agreed that the petition for sale of the real estate is in the usual form. At the next regular term of the probate court, to-wit, on November 13, 1893, the order of sale was made by the probate court. The order of sale recited, among other things, that an order of publication had been duly published in the “Bowling Oreen Times,” and that the sheriff had served notices of a copy of such on all the heirs of Lemuel M. Wells, who resided in Pike County, and that such service was had on them more than ten days prior to the November term of said court. Among those named in the order, as being served by the sheriff, is E. Jennie Pletherlin. She was the Emma Hetherlin who is now dead and was the mother of the Hetherlin heirs. This order of sale authorized and directed the executor to sell, not only the homestead tract, but some other small tracts and certain lots in the village of Ashley.

On February 12, 1894, a renewed order of sale was made by the probate court, at its regular February term, 1894, containing the usual recitals that the sale had not been made under the original order.

Under date of May 18, 1894, the probate court records recite that the executor, Lewis Holliday, had sold the real estate in the order of sale described, including the homestead, and that Theodore Purse, administrator aforesaid, had purchased the homestead tract for $1455, and an appropriate recital was made in such order, confirming the sale, and ordering the executor to execute, acknowledge and deliver to said Theodore Purse, administrator of the estate of Charles C. Wells, deceased, a deed conveying to him all the right, title and interest which the deceased Lemuel M. Wells had in said homestead tract at the time of his death, which deed the executor made, and delivered to said Purse, whom the plaintiffs claim held said title in trust for the beneficiaries of the Charles C. Wells’ estate.

Theodore Purse was a son-in-liaw of Lemuel M. Wells, and died prior to the institution of this suit. His heirs at law are among the plaintiffs and are only claiming, with the other plaintiffá, as beneficiaries under the Charles C. Wells’ will.

The files of the probate court relating to the sale of the homestead tract are printed in the abstract of record, and show that all the proceedings are regular, if the probate court had the power to appoint Theodore Purse administrator de bonis non of the estate of Charles C. Wells, deceased.

The $1455, which was paid for the homestead tract by Theodore Purse, went into and formed a part of the Lemuel M. Wells’ estate, and was used by the executor, in connection with other funds in his hands, in paying other allowed demands in full, which belong to classes prior to the fourth class, including taxes, expenses of administration, etc., a portion of it being applied to the fourth class claim in favor of the estate of Charles C. Wells, deceased.

The trial court, after ascertaining and determining the interests of the parties in the land aforesaid, found and recited of record that it could not he partitioned in kind and ordered a sale of same, etc. Esther Hetherlin, Adeline Hetherlin, John Hetherlin, Ralph Hetherlin, T. Guy Hetherlin and Job T. Wells filed their motion for a new trial, which was overruled, and the cause duly appealed by them to this court.

I. It is contended by appellants, .that the action of the probate conrt of Pike Connty, Missouri, on May 14, 1892, in appointing Theodore Purse as ancillary administrator of the estate of Charles C. Wells, deceased, of West Virginia, is cor am non judice and absolutely void. If this contention be well grounded, the proceedings of the probate court of said county, in respect to above matter, can be inquired into in this proceeding.

Was the action of the probate court, in making said appointment, void? It appears from the record that about 1869, Lemuel M. Wells, while living in Pike County, Missouri, became largely indebted to his brother, Charles C. Wells, a resident of West Virginia, as evidenced by a promissory note; that said Charles C. Wells died January 14, 1885, testate, in West Virginia, and his estate was administered upon there. The probate court of Pike County, Missouri, on November 30, 1885, ordered James Gr. Reeds, public administrator of Pike County, to take charge of the estate of said Charles C. Wells, deceased, in said county. Reeds, as public administrator, took charge of said estate, and on the 17th-day of April, 1888, obtained judgment in the circuit court of Pike County, ’Missouri, against said-Lemuel M. Wells, on the note aforesaid, for $31,395.41. An execution was issued on this judgment, and through inadvertence, the homestead, with all the other land of said Lemuel M. Wells, was sold thereunder, for about $5300. The homestead of said Wells had been set off! by commissioners before said sale. After the real estate, of Lemuel M. Wells, outside of the homestead, had been exhausted, it left more than $25,-000 still due and unpaid on said judgment. Reeds, as public administrator, made his final settlement with the probate court aforesaid, and was, on September 12, 1890, discharged accordingly.

Lemuel M. Wells died testate in April, 1892, and in his will, dated April 21, 1892, attempted to dispose of the homestead in controversy. At the time of his death said Lemuel M. Wells was still indebted to the estate of- Charles C. Wells, largely in excess of $25,000. Thereupon the probate court of Pike County, Missouri, on the date aforesaid, appointed Theodore Purse administrator de bonis non of the estaté of Charles C. Wells. He qualified as such administrator and commenced suit in the circuit court of Pike County, Missouri, to revive the judgment aforesaid. The style of the cause last mentioned was “Theodore Purse, Administrator de bonis non of the Estate of Charles C. Wells, deceased, plaintiff, versus Lewis Holliday, Executor of the Estate and Will of Lemuel M. Wells, deceased, defendant.”

The judgment of revival was entered on September 1, 1892, and said judgment, among other things, recites the following:

“Now at this day the parties appear by their respective attorneys, and this cause coming on to be heard, and being submitted to the court,” etc.

In other words, the record recites that both parties appeared to the action. The judgment was revived for the sum of $35,200, and a transcript of same was ordered to be certified to the probate court of Pike County, Missouri, for allowance against the estate of Lemuel M. Wells- This judgment, as revived, was allowed and placed in class four by the probate court aforesaid.

Turning to Section 1 of Article 6 of the Constitution of 1875, we find that it contains the following provisions :

“The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in . . . probate courts.”

Section 1023, Revised Statutes 1879, which is the same as Section 3225, Revised Statutes 1889, reads as follows:

“The Supreme Court of the State of Missouri . . . and the probate courts in this State shall be courts of record, and shall keep just and faithful records of their proceedings.”

Section 34 of Article 6 of the Constitution of 1875 provides that:

“The General Assembly shall establish in every county a probate court, which shall be a court of record, and consist of one judge, who shall be elected. Said court shall have jurisdiction over all matters pertaining to probate business, to granting letters testamentary and of administration.” (Italics ours.)

The Legislature, in 1877, carried the above provision of the Constitution into effect by the enactment of Section 1176, Revised Statutes 1879, which reads as follows:

“Said court shall have jurisdiction over all matters pertaining to probate business', to granting letters testamentary and of administration.” (Italics ours.)

This section was carried into Revised Statutes of 1889 without change, and there appears as Section 3397.

The provisions of the Constitution of 1875 above quoted appear as new sections in said instrument. They .confer upon the probate courts of this State general jurisdiction over the subjects above mentioned. We are of the opinion that the constitutional provisions aforesaid, in connection with the sections of the statute carrying the same into effect, conferred upon the probate court of Pike County, Missouri, ample power and jurisdiction to appoint Theodore Purse as ancillary administrator of the estate of Charles C. Wells, deceased. The legal representative of the latter estate in West Virginia could not sue in Missouri. The public administrator heretofore had made his final settlement of said estate in Pike County, and had been discharged. Here was a judgment for more than $25,000 in favor of the estate of Charles C. Wells still unpaid. After the death of Lemuel M. Wells, if the homestead could then be sold under the jurisdiction of the probate court for the payment of his-debts, tbe beneficiaries of. tbe estate of Charles C. Wells were entitled to bave some one appointed to represent tbe West Virginia estate in tbe collection of said debt. There was nothing in onr laws which militated against tbe right of tbe probate court to make sncb an appointment. Tbe contention of appellants, in respect to above matter, is accordingly overruled.

II. It is insisted by appellants that, aside from tbe Question discussed in the previous proposition, Lemuel M. Wells bad tbe right to dispose of tbe homestead by will. In order to determine this question it is necessary to consider tbe law as it stood in 1875 to 1895 in respect to homesteads.

Section 2693, Revised Statutes 1879, was passed in 1875. [Laws 1875, p. 60, sec. 1.] The same was carried into Revised Statutes of 1889 as Section 5439. It reads as follows:

“If any such housekeeper or bead of a family shall die, leaving a widow or any minor children, bis homestead to tbe value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow; and such homestead shall, upon the death of such housekeeper or head of a family, be limited to that period. But all the right, title and interest of the deceased housekeeper or head of a family in the premises, except the estate of the homestead thus continued, shall be subject to the laws relating to devise, descent, dower, partition and sale for the payment of debts against the estate of the deceased, and the probate court having jurisdiction of the estate of the deceased housekeeper or head of a family shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.”

This court, in construing the law as it stood from 1875 to 1895, sustained the right of the probate court to sell the homestead for the payment of debts under such circumstances as are disclosed in this case. [Poland v. Vesper, 67 Mo. 727; Keene v. Wyatt, 160 Mo. 1; Robbins v. Boulware, 190 Mo. 33; Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568; Wilson v. Wilson, 255 Mo. l. c. 535.] It is clear from reading the above statutes, in connection with the former rulings of this, court, that the probate court of Pike Coun Missouri, had jurisdiction over the homestead in question, if it became necessary to sell same for the payment of the debts due from the estate of Lemuel M. Wells.

III. The judgment and proceedings of the probate court of Pike County, Missouri, in respect to all matters within its jurisdiction, are not obnoxious to collateral attack [Thompson v. Pinnell, 199 S. W. l. c. 1013 and cases cited; Nodaway County v. Williams, 199 S. W. l. c. 226-7; Fitzgerald v. De Soto Special Road District, 195 S. W. l. c. 696-7; Wilson v. Wilson, 255 Mo. l. c. 537; Bingham v. Kollman, 256 Mo. l. c. 589; Harter v. Petty, 266 Mo. l. c. 303.] Having heretofore reached the conclusion that the probate court of Pike County, Missouri, was within its jurisdiction in the appointment of Theodore Purse, as administrator de bonis non of the estate of Charles C. Wells, deceased, of West Virginia; and no proceedings of the probate court thereafter having been shown to be void, we are of the opinion that the trial court reached correct conclusions in its disposition of the case.

IV. The cases of Myers’ Guardian v. Myers Admr., 89 Ky. 442 and Pendergest v. Heekin, 94 Ky. 384, are strongly relied upon by appellants as supporting their contention that Lemuel M. Wells had the legal .right to dispose of his homestead by his will. The Kentucky statute was not like the Missouri law from 1875 to 1895', and, hence, the above decisions furnish no valid reasons for departing from the construction of the Missouri statute, supra, placed thereon by this court.

V. The case seems to have been fairly and care-tried by the circuit court and the conclusions reached by the latter meet with our approval. We accordingly affirm the judgment.

Brown, C., concurs.

PEE CURIAM: — The foregoing opinion of Bailey, C., is adopted as the opinion of the court.

All concur, Bond, J., in the result.


author: BOND, J.

text:
    GERMAN EVANGELICAL PROTESTANT CONGREGATION OF THE CHURCH OF THE HOLY GHOST et al. v. FREDERICK SCHREIBER et al., Appellants.
    Division One,
    March 1, 1919.
    1. QUIETING TITLE: Effect of Decree Upon Other's. The object of the statute, (Sec. 2535, R. S. 1909) is to ascertain and determine the title to the land as between the parties to the suit, and vest it in the one who has title superior to that of the other, whether or not either has a title that is good as against the world.
    2. --: -: Conveyance in Trust: Right of Reversioners: Objections for Trustees. Where land was conveyed to trustees to be held for the benefit of a certain religious congregation for the purpose and uses of a- cemetery, and said congregation was after-wards incorporated, and only the heirs of the- grantor appeal from a judgment, in the suit to quiet title brought by the congregation, investing the title in the church corporation, the only question for determination is whether the judgment deprived said heirs of any interest or estate reserved to them by the terms of the deed to the trustees. If the language of the deed reserved to them no right of re-entry they are not aggrieved by the judgment vesting the title in the church corporation, nor can they complain that there was no formal deed from the trustees to the corporation, nor is it necessary to review the correctness of the judgment with reference to the rights of the heirs' of the original trustees.
    3. CONVEYANCE: Reversión: Condition Subsequent. A deed may contain a condition subsequent authorizing a reversion to the grantor or his heirs without being stated in express words, but the deed as a whole, together with thé circumstances attending its execution, must demonstrate that the grantor intended a reversion upon a subsequent breach of a lawful condition. The rule is that estates once vested in fee will not be uprooted except upon proof of the happening of a lawful condition attached to a continuance of the estate by the terms of the deed, and further proof that it was the intention of the grantor in making the conveyance that the estate should revert when the condition ceased to exist.
    4. -: -: -: For Cemetery Purposes: Cessation of Uses. The grantor bought a parcel of ground in a city and six months later, for nearly twice what it had cost him, conveyed it to trustees elected by a church organization, by a deed, otherwise a fee simple absolute, which contained this clause: “To have and to hold unto the said parties of the second part and unto their successors in office in trust for the benefit of their said congregation for the purposes and uses of a graveyard, burying-ground or cemetery, forever and for no other purpose, foreign or adverse to the one mentioned, whatsoever.” Lots in the cemetery were sold to purchasers, who received certificates showing an equitable but not a legal title. In the court of time a business and residence section grew up around the cemetery, and the city by ordinance withdrew it from the list of cemeteries in which interments would be “recognized and authorized as legal.” Thereupon disinterments and removals were rapidly made by relatives of decedents. Held that the fact that the grantor received the full value of. the land as a consideration for the deed is not to be ignored, and there being no provision for a reverter expressed and nothing in the language used or the circumstances to impute to either party to the deed an intention that a breach of the condition should inure to the grantor, his heirs have no right to a reversion.
    ■5. -: -: -: Further Use Prevented Without Fault of Grantee. Where a condition subsequent becomes incapable of performance without fault of the grantee or from a legal obstacle, it cannot defeat the fee granted or work a reversion to the grantor. Where land was conveyed to trustees of a religious congregation for uses as a cemetery, and. the city by valid ordinance has prohibited its further use as a burying-ground, the condition is discharged, and there can be no reversion to the grantor or his heirs.
    Appeal from St. Louis City Circuit Court. — Hon. Ttiomas C. Hennings, Judge.
    Affirmed.

      A. W. Wenger and John Cashman for appellants.
    (1) The petition fails to state facts sufficient to constitute a cause of action or to entitle the plaintiffs to the relief sought. The petition expressly states that neither of the plaintiffs after being incorporated ever received any conveyance of the land from the trustees of the church congregation nor from the congregation. (a) A voluntary religious church association or congregation of people by simply forming a corporation by or among some of its members does not thereby convey any title or interest in any of its real estate to the corporation so formed. Evangelical Church v. Sehreiber Heirs, 187 S. W. 845; Catholic Church v. Tobbein, 82 Mo. 418; Frank v. Drenkhahn, 76 Mo. 508; Kansas City v. Scarritt, 169 Mo. 482; Lilly v. Tobbein, 103 Mo. 477; Klix v. Polish Church, 137 Mo. App. 347. (b) The petition is otherwise fatally defective in that it recites provisions from the deed from Johan Sehrei-ber, which shows that’ he only conveyed a limited, determinable easement, which was terminated by the voluntary abandonment of the use specified in the deed, to-wit, a cemetery. Allen v. Wabash Railroad, 84 Mo. 651; Price v. Thompson, 48 Mo. 365; Railroad v. Frowein, 163 Mo. 1; Campbell v. Kansas City, 102 Mo. 326; Board of Regents v. Painter, 102 Mo. 464; Cummings v. St. Louis, 90 Mo. 250. (2) The trustees of the church congregation and the church congregation and all persons claiming under or through either having voluntarily abandoned the land in question as a cemetery, the heirs of the grantor immediately became vested with a fee-simple title therein and were and are entitled to a decree so determining and adjudging the title in and to them under Sec. 2535,- R. S. 1909. Union Cemetery Association v. Kansas City, 252 Mo. 466; Kansas City v. Scarritt, 169 Mo. 482; Campbell v. Kansas City, 102 Mo. 326; Cummings v. St. Louis, 90 Mo. 259; Railroad v. Frowein, 163 Mo. 1; Reynolds v. Reynolds, 234 Mo. 144; Allen v. Wabash Railroad, 84 Mo. 651; Price v. Thompson, 48 Mo. 365; Reed v. Stouffer, 65 Md. 236; University Society v. Dugan, 65 Md. 460; Scott v. Stipe, 12 Ind. 74; Young v. Board of Commissioners, 51 Fed. 585; Church v. Alexander, 20 Ky. Law Rep. 391; Cray v. Blanchard, 8 Pick. 284; Jackson v. Pike, 9 Col. 73; Police Jury v. Reeves, 6 .Martin’s Red.. (La.) 221. (3) The court will give that construction to the Schreiber deed which the congregation had adopted and' given to it themselves as shown by the certificates issued to purchasers of burial lots. Each certificate expressly recites that lots sold in the cemetery are sold “subject to the conditions and restrictions contained in the deed of said Schreiber to the congregation.” Sedalia Brewing Co. v. Sedalia Water Works Co., 34 Mo. App. 49; Patterson v. Camden, 25 Mo. 13; Dobbins v. Edmonds, 18 Mo. App. 307; Railroad v. Frowein, 163 Mo. 1; St. Joseph Union Depot Co. v. Railroad, 131 Mo. 291; Ridge v. Transfer Co., 56 Mo. App. 133; Burnett v. McCluey, 78 Mo. 676; Jones v. Ue Lassus, 84 Mo. 541. (4) The fact, if it be a fact, that a valuable consideration may have been paid by the grantor does not defeat his or his heirs’ right to re-enter and own the granted premises , after the same have been abandoned by the grantee for the uses specified in the deed. The’ owner of real estate may make such disposition of it as he pleases. If he concludes to convey it to another upon condition or to convey a limited estate, it is in his power to impose such conditions as he chooses, or to convey such estate as he feels disposed to, and if a grantee accepts a deed with conditions or provisions which amount to a condition, or accepts a deed conveying a limited estate with, special provisions, then that is the contract between the parties and' both must abide by it. Reed v. Stonffer, 65 Md. 236; University Society v. Dugan, 65 Md. 460; Scott v. Stipe, 12 Ind. 74; Young v. Board of Commissioners, 51 Fed. 585. (5) The plaintiffs are bound by the averments of ownership stated in their petition. The petition expressly declares that from the date of the incorporation of the cemetery, in 1865, “said cemetery corporation has been by said congregation considered and taken to be the owner of said real estate, and treated as such by said congregation.” The incorporation of the church was not intended to, and did not,, alter this view, for in sections 7 and 32 of the church articles of incorporation the continued existence of the charter of the cemetery corporation 'is expressly recognized. The plaintiff church corporation cannot be heard to deny the effect of its own solemn pleading and its recitals in its articles of incorporation and claim now that it, and not the cemetery corporation, is owner. A party is absolutely concluded by the averments of their pleading. Otrich v. Railroad, 154 Mo. App. 437; Weil v. Posten, 77 Mo. 284; Knoop v. Kelsey, 102 Mo. 291; Davis v. Bond, 75 Mo. App. 32. (6) A grant of land to a religious body for the use and purpose of a church and burying ground is a grant for that special purpose, and when the purpose fails the land reverts to the grantor or his heirs. Gumbert’s App., T10 Pa. 496 (1A, 437). A cemetery does not lose its character, as such, because further interments in it has ceased, or become impossible. Campbell v. Kansas City, 192 Mo. 326; Dangerfield v. Williams, 26 App. (D. C.) 508; Tracy v. Bittlej 213 Mo. 302; Kansas City v. Scarritt, 169 Mo. 471; Roundtree v. Hutchinson, 57 Wash. 414, 27 L. R. A. (N. S.) 875; May v. Belson, 10 Ont. L. 686; Com. v. Wellington, 7 Allen, 299; Stockton v. New„ark, 42 N. J. Eq. 531; Hunter v. Sandy Hill, 6 Hill (N. Y.) 407. (7) Where land is conveyed for a graveyard or cemetery it does not lose that character by mere disuse. Tracy v. Bittle, 213 Mo. 302; Com. v. Wellington, 7' Allen, 299; . Campbell v. Kansas City, 102 Mo. 326. And where the land is conveyed in trust for a burial place, the trust is not to be considered as at an end when the last body which can be buried in it has been deposited. Stockton v. Newark, 42 N. J. Eq. 531. Where premises have been conveyed for graveyard purposes they remain subject to that use so long as bodies remain buried there, and until they are removed by public authority or by friends or relations, and this is so, although the tract has been grossly neglected. Bitney v. Trim, 73 Or. 257. And where land has' been conveyed to a village or city as a public cemetery it is not competent for the authorities, in their character of trustees, to abandon the use and thereby defeat the beneficial interest of the public therein. Kansas City v. Scarritt, 169 Mo. 471; Campbell v. Kansas City, 102 Mo. 326; Newark v. Watson, 56 N. J. L. 667; (Hum-bert’s App., 110 Pa. 496; Stockton v. Webber, 98 Cal. 433. (8) Where land is conveyed on condition subsequent, express or implied, the land must be held and used in strict conformity to the terms of the conveyance, and for the use declared, otherwise the heirs of the grantor will become reinvested with the title. Reed v. Stouffer, 56 Md. 236. (9) Ordinance 21128 is void in that it arbitrarily undertakes to exclude the “Pickers Cemetery” from a right it previously enjoyed to make interments of human bodies therein after the Board of Health of St. Louis had officially determined that said cemetery did not constitute a nuisance, and there being no evidence before the court that the cemetery was a public nuisance, the ordinance negatively undertaking to prevent interments in cemeteries, is void. Union Cemetery Association v. Kansas City, 252 Mo. 466. A cemetery is not a nuisance per se. Harper v. City of Nashville, 70 So. 1102. Said ordinance is further void for the reason that it undertook to permit other cemeteries situated within the limits of the City of St. Louis to continue to make interments while it undertook to deny said privilege to the Pickers Cemetery and thereby denied to said cemetery the equal protection of the laws and violations of the Constitution of Missouri .and of the United States. Union Cemetery Association v. Kansas City, 252 Mo. 466; State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 400; St. Louis v. Spiegel, 90 Mo. 587; St. Louis v. Russell, 116 Mo. 248; Hannibal v. Tel. Co., 31 Mo. App. 23. (10) The courts of Missouri have the power to inquire into the reasonableness of ordinances, though duly enacted by proper authority of any municipality and are not compelled to accept such enactments as a final determination that the thing commanded or prohibited may be a neeéssary or reasonable exercise of police power. The courts may go. deeper and beyond the motives for the exercise of such power and the reasonableness of the power undertaken tó be enforced and declare an ordinance where it is unreasonable and oppressive and discriminates in favor of one party to the detriment of other parties. Union Cemetery Association v. Kansas City, 252 Mo. 466; American Tobacco Co. v. St. Louis, 247 Mo. 374. (11) The plaintiffs’ petition is bottomed on' what is now Sec. 2535, R. S. 1909, and as the petition shows on its face that neither of the plaintiffs had any title or interest in the land in question, their action must fail for the reason that that statute does not empower the court in the proceeding under it to create an interest or estate in a party suing under the statute, but can only define and adjudge to that party such interest or estate as the party already has at the time of institution of suit. Seidel v. Cornwell, 166 Mo. 51; Howard v. Brown, 197 Mo. 36; G-raton v. Land & Lumber Co., 189 Mo. 322; Felker v. Breece, 226 Mo. 320; Maynor v. Land and Timber Co., 236 Mo: 722. (12) The same rule applies in suits to quiet title under Sec. 2535, R. S. 1909, that applies to suits in ejectment: that is, the plaintiff must stand upon the strength of his own title and not upon the weakness of his adversary’s title. Harrison Machine Works v. Bowers, 200 Mo. 234; Gardner v. Bobertson, 208 Mo. 605; .Charles v. White, 214 Mo. 187; Wheeler v. Beynolds Land Company, 193 Mo. 279.

      Geo. W. Lubke and Geo. W. Lubke, Jr., for respondents.
    (1) The Schreiber heirs have no interest or ownership of any kind now or prospective, in or to the realty in controversy. Their ancestor sold and conveyed it to the trustees of the congregation in fee simple and without any reservation and was paid his full price and profit for it. No abandonment or change in the use specified in his deed can give them a right of re-entry to the property. Hand v. St. Louis, 158 Mo. 204; Commissioners v. Young, 59 Fed. 96; Academy v. Clemens, 50 Mo. 167; Goode v. McPherson, 51 Mo. 126. The doctrine of reverter applies only to a donation for a charity, not to an outright sale and conveyance for a valuable consideration. McBoberts v. Moudy, 19 Mo. App. 26; Gibson v. Armstrong, 7 B. Mon. 489. The reason for the rule is that the grantor has parted with all his title at the time he made the conveyance and the grantee having acquired the whole title, any limitation upon his right to convey it is opposed to public policy. Kessner v. Phillips, 189 Mo. 525. The trustees 'named as grantees in the Schreiber deed had no active duties imposed on them. The congregation as beneficiary was charged with these and has performed them and now asks the court’s aid in continuing to so do. And when the congregation became an incorporated body its right and power to hold the title to real estate without the intervention of trustees also became complete. .The statute of uses may then have passed the title to the incorporated body. Boberts v. Mosely, 51 Mo. 282; Christian Church v. McGowan, 62 Mo. 288; Prank v. Drenkhahn, 76 Mo. 508; Lilly v. Tobbein, 103 Mo. 488. But because the Schreiber heirs asserted title by reversion to the property the plaintiff congregation was obliged to institute this suit to have it definitely determined for whom the trustees named in the deed held the title, and also to obtain the directions of the court as to the future use or disposition of the property if it belonged to the plaintiff congregation, and was charged with a trust. And the decree of the court correctly vested the title in the congregation as prayed in the petition of the plaintiff. (2) The so-called owners of lots in the cemetery acquired no title to the soil. They acquired only a privilege or license to make interments in the lots exclusive of others, this privilege or license being subject to the police power of the State in the exercise of which future interments, may be prohibited and the remains of persons theretofore buried may be removed. Although evidenced by certificate or deed for the particular lots they were or are only easements in the land belonging to the congregation and correspond to certificates given pewholders in a church. Wooldridge v. Smith, 243 Mo. 190; Wash-burn‘on Easements (2 Ed.), 604; Richards v. N. W. Prot. Dutch .Church, 32 Barb. 42; Jones v. Towne, 58 N. H. 462; Page v. Symonds, 63 N. H. 17; Sohier v. Trinity Church, 109 Mass. 21; Kincaid’s Appeal, 66 Pa. 411; Buffalo Cemetery v. City of Buffalo, 46 N. T. 503; Patridge v. Eirst Independent Church, 39 Md. 631; Rayner v. Nugent, 60 Md. 515; Price v. N. E. Church, 4 Ohio, 515; Dwenger v. Geary, 113 Ind. 106. Where a deed is made on condition subsequent that the premises should be used as a cemetery and a law renders further performance, of the condition unlawful, it is discharged and the title of the grantee is no longer subject to it. Scovill v. McMahon, 62 Conn. 378, 21 L. R. A. 58; Ricketts v. Louisville & C. R.' R., 91 Ky. 221; Went v. Methodist Protestant Church, 80 Hun, 266, 150 N. Y. 577. (3) The charter invested the city, as part of its Health Department, with full power to regulate cemeteries and interments therein, and therefore when the Municipal Assembly passed and the Mayor approved the ordinance which, took ont of the list of the cemeteries wherein interment might he made the cemetery of the plaintiffs, the right thereafter to nse this property for further interments ceased. And later when the Assembly passed and the Mayor approved the ordinance which authorized removals to he made from this cemetery at all times of the year and without special permit in each case, the municipality gave further effect to the previous ordinance. Campbell v. Kansas City, 102 Mo. 326 ; People ex rel. Oak Hill Cemetery Assn. v. Pratt, 129 N. T. 68; Austin v. Austin City Cemetery Assn., 87 Tex. 330. And the defendants have no right to question the validity of these charter provisions or of these ordinances since they have’ no interest in the cemetery property as lot owners or otherwise, and are not even members of the congregation. E. S. 1909, sec. 1729; Hutchings v. Weems, 35 Mo. 285; Bank v. Burns, 178 Mo. 731; Dickey v. Porter, 203 Mo. 1.
   BOND, J.

This is a second appeal, the suit originating in the St. Louis Circuit Court in July, 1910, to quiet title in plaintiffs to certain described land commonly designated as the “Old Picker’s Cemetery.” In 1864, Johan Schreiber, together with his wife, Agnesa, conveyed this land, for a consideration of $1800, to A. C. Cordes and seven other specified trustees, to the use and benefit of the Herman Evangelical Protestant Congregation of the Church of the Holy Ghost. The land was laid out and platted as a cemetery and lots therein sold by the Congregation to purchasers, who received certificates showing an equitable but not a legal title.

In 1865 certain lot-owners and their associates and successors, by a special act of the Legislature, were granted a charter of incorporation under the name of the Evangelical Protestant Cemetery of the Holy Ghost Association, and thereafter, on , March 12, 1884, the German Evangelical Protestant Congregation of the Church of the Holy Ghost was also incorporated, but no formal deed to the land in controversy was ever made to either of these corporations by the trustees to whom Johan Sehreiber conveyed the land.

The chnrch corporation thus formed continued to use the land as a cemetery until 1903, when, by ordinance, the City of St. Louis withdrew it from the list of cemeteries in which interments would be “recognized and authorized as legal,” for the reason that it had become unsuitable for use as a cemetery, owing, to the fact that a business and residence section of the city had grown up around it. Accordingly disinter-ments and removals were rapidly made by the relatives of decedents.

Thereafter, in order that it might sell this land and purchase a more suitable site for a cemetery, the church corporation, together with the cemetery corporation, instituted this suit against Johan Sehreiber and hip heirs and the heirs of Albrecht C. Cordes, deceased,, the last surviving trustee named in the Sehreiber deed, and prayed for a quieting of the title in fee simple in said plaintiffs.

The Sehreiber deed contained the following clause, on which appellants base their claim of title by reversion:

' “To have and to hold unto the said parties of the second part and unto their successors in office in trust for the benefit of their said congregation for the purpose and uses of a graveyard, burying-ground or cemetery, forever and for no other purpose, foreign or adverse to the one mentioned whatsoever.”

The deed from the Congregation to each lot-owner recited that it was “subject to the conditions and restrictions contained in the deed from said Sehreiber to the Congregation.”

On the first appeal this court reversed and remanded the judgment in favor of the plaintiff church corporation, in order that evidence might be adduced that the congregation authorized the incorporation of the church and intended to and did part with its property to the corporation thus formed. [187 S. W. 845, Woodson, J., dissenting.]

At the second trial the incorporation of the religious society on March 6, 1884, was shown and, also, that said religious body, on May 19, 1884, recognized its incorporation and, in writing, accepted its charter. (This written acceptance was excluded by’the trial court). Also the resolution adopted by the Congregation on January 8, 1917, was introduced, setting forth the various acts of the Congregation since its organization in 1834, its incorporation and customs, and, among other things, reciting “that the Corporation now also has outstanding a contract with Richard C. Spackler for the sale and conveyance to him of the cemetery properties of the Congregation; that this contract was authorized to be made for the Congregation as a corporation by the members thereof and that it is their desire that by the pending suit against the Schreiber heirs the Corporation’s title to this south half of the cemetery property is made perfect.”

The court found the issues in favor of the plaintiff, the German Evangelical Protestant Congregation of the Church of the Holy Ghost, and ordered a .decree entered of record vesting the fee-simple title to the land in controversy in said church corporation, free and clear from any trust, and dismissed the defendants’ cross-bill. From this decree none of the defendants except the Schreiber heirs appealed.

I. ‘ The only question presented by the appeal in this case is whether or not the appellant, the Schreiber heirs, have been aggrieved by the decree rendered in the circuit court, since that judgment is assented to and acquiesced in by all other parties to the record.

The theory of appellants is that the deed of their ancestor to the property in question (a certain portion of the Old Picker Cemetery) contained a condition subsequent by the non-compliance with which the land conveyed has reverted to them. This ,. . „ , . , » . question is one ot. law under the terms oi the deed taken in connection with the undisputed facts. The latter may be briefly referred to in order to show the circumstances under which the deed was executed. The grantor in the deed had purchased the land in question a few months prior to his conveyance thereof for $1900. He sold it to seven individuals in trust for an unincorporated religious association for $1800, receiving a part of the purchase money in cash and taking a mortgage back from the trustees to secure the balance. The debt thus secured was paid before its maturity. The deed of bargain and sale to said trustees purported to convey a fee simple, unless defeasible under the condition above quoted. These trustees, under the terms of the deed, took a dry, legal title, coupled with no active duties. The deed in express terms provided that the-equitable owners of the land, the religious association, should use it for a ‘ ‘ graveyard, burying ground or cemetery and for no other purpose foreign or adverse to the one mentioned whatsoever.” The deed further provided for a plat and plan of the intended cemetery by the religious association,' and that the sale of the burying lots should be made by 'a committee appointed by said religious association, from time to time, styled the ‘ ‘ Cemetery Committee, ’ ’ by the method of executing certificates in the name of the congregation to the respective purchasers of such lots, such cemetery committee being restricted in making sales to the powers given them by the “private records of said congregation and to this deed;” and that such certificates should carry only an equitable and not a legal title to the purchaser. The deed in question contained no provision for a reversion or for any right of reentry upon the land therein conveyed in favor of the grantors (Sehreiber and wife) or their heirs.

It is well to note that in suits under Section 2535, Revised Statutes 1909, the court before whom an action to quiet title is pending, is empowered “to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property.”

In speaking of the meaning of this statute this court said:

“It has been again and again ruled by this court that the object of this statute (as expressly said in it) is to ascertain and define ‘respective titles’ and to adjudge or decree the ‘several’ estates of the parties between themselves. Whichever of the parties has the better title, is entitled to have it quieted against his adversary. It is not essential that either plainiff or defendant should possess the highest form of ownership, in land, such as would warrant a judgment investing him with a fee simple title good against the world. It is sufficient if one of the parties proves title and ownership superior to that of the opposite party. When this is done the owner of the better title has the right to a judgment or decree establishing it as against the opposite party and quieting it from further attack by him. [Maynor v. Land & Timber Co., 236 Mo. l. c. 728; Gage v. Cantwell, 191 Mo. 698; Graton v. Land & Lumber Co., 189 Mo. 322.]”—Toler v. Edwards, 249 Mo. l. c. 161, 162. See, also, Felker v. Breece, 226 Mo. l. c. 332.

Therefore, as stated, the only question that can arise under the present appeal is whether the judgment of the lower court has deprived the Sehreiber heirs of any interest and estate in the lands reserved to them by the terms of the deed executed by their ancestor to the trustees named therein for the benefit of the unincorporated religious association; for if the language of that deed left no reversion or' right of re-entry in favor of them in any event, then they could not have been aggrieved by tbe decree of the trial court vesting the title in the church corporation which was subsequently formed by the religious association named in the deed. As to all persons not appealing' from that judgment, its findings are absolutely conclusive. Hence, in the determination of the rights of the Schrieber heirs, it is wholly unnecessary to review the correctness of the judgment of the trial court as to the other parties in interest; i. e., the heirs of the original trustees to whom the property was conveyed, the corporation which succeeded the voluntary religious association, and the corporation legislatively granted to the cemetery committee.

Assuming for the argument only, that the pleadings of the Sehreiber heirs amounted to an assertion of their right to a reversion under the terms of the deed in question, equivalent to a re-entry (Lackland v. Hadley, 260 Mo. l. c. 567; Bredell v. College, 242 Mo. l. c. 337; Hoke v. Central Twp. Farmers’ Club, 194 Mo. l. c. 586), it only remains to determine whether, in the circumstances of this case and under the language of that instrument, there has been a breach of the condition subsequent contained in the deed which woitld enure to the benefit of the Schreiber heirs.

The law governing the rights flowing from breaches of conditions subsequent, as well as that controlling the creation of such methods of defeating a conveyance, is well settled in this State and has been formulated in accordance with our adjudications, to-wit:

“While a condition subsequent may be inserted in a conveyance of lands in fee without using express terms of reverter upon the breach of such condition, if the deed in its entirety and the circumstances attending its execution, demonstrate that the object of the grantors was to cause a reversion of the estate upon the subsequent happening of a. lawful condition; yet no such conclusion will be drawn if it may be avoided by any other reasonable construction of the language of the deed. This is the settled policy of the law. The reason of which is, that estates once vested in fee onght not to he nprooted, except npon proof of the happening of a lawful condition attached to the continuance of the estate by the terms of the deed, and further proof that if was the intention of the grantor in making the conveyance that it should revert when this condition ceased to exist. [Morrill v. Railroad, 96 Mo. 174; Krueger v. Railroad, 185 Mo. 227; Roberts v. Crume, 173 Mo. l. c. 581; Ellis v. Kyger, 90 Mo. 600; Studdard v. Wells, 120 Mo. 25; Messersmith v. Messersmith, 22 Mo. 369; Moore v. Wingate, 53 Mo. 398; O’Brien v. Wagner, 94 Mo. 93; Haydon v. Railroad, 222 Mo. l. c. 139; Lackland v. Hadley, 260 Mo. 539.]”—Catron v. Scarritt College, 264 Mo. l. c. 723.

In determining whether non-compliance with the condition subsequent inserted in the deed would cause a reversion upon re-entry or equivalent acts by the heirs i of the grantor, we must consider the intent of the parties, as ascertained from a consideration of the instrument as an entirety, the circumstances of its execution, and the facts causing the violation of the condition subsequent; and if from all or any of these sources of inquiry, it should be patent that there was no intention by the parties to the deed that the land should revert to the grantor or his heirs, or if it should appear that the performance of the condition subsequent was illegal or impossible (Clarke v. Brookfield, 81 Mo. l. c. 509; Morgan v. Cox, 22 Mo. l. c. 373; Scovill v. McMahon, 62 Conn. 371; Ricketts v. Railroad, 91 Ky. 221; Taylor v. Sutton, 15 Ga. 103; Ordway v. Farrow, 79 Vt. 192; 8 R. C. L. 1107, sec. 167), then the breach of the condition subsequent did not enure to the benefit of the Schreiber heirs; for uuon either hypothesis they could have no interest whatever in the land conveyed.

II. When the deed in question was made, the grantor sold a piece of land for $1800 which he had acquired only six months before for $1000. Except as to the condition subsequent therein, the deed was one conveying a fee simple absolute. The. grantor did not insert any words providing for a reversion to himself or heirs.

In circumstances somewhat similar, where land was conveyed to the City of St. Louis to be used as a public market, it was held that an abandonment of that use did not cause a reversion. [Hand v. St. Louis, 158 Mo. l. c. 209.] It does not appear in that case that any consideration whatever was paid for the conveyance to the .City of St. Louis. For a much stronger reason the rule therein announced should be applied in the present case, where the consideration paid was the full value of the land at the time of its conveyance by Schreiber and wife; indeed, was nearly twice what he paid for it only six months previously. In these circumstances it would be quite unreasonable to impute to both parties to the deed an intention that the breach of the condition subsequent should enure to the benefit of the grantors, for whom no provision for reverter was put in the deed. It would'be difficult to perceive any sensible motive on the part of the buyers of the land at a full price, for surrender of their title in case the land was not put to the particular use prescribed in the deed, which use primarily concerned the purchasers. The nature of that use (church cemetery) points-unmistakably to the fact that the condition subsequent providing for it, was inserted for the benefit of the parties who were buying and paying for .the land in order to procure a burying ground for all the members of the religious association whom they represented and who furnished the entire consideration. This unincorporated religious association was incapable of taking eo nomine a deed. It had the distinct purpose' of procuring a burying ground for its deceased members, .and in order that' a trust to that effect should be created, it bought and paid for land with' a provision in the deed prescribing the particular use to which they intended to devote it. By this plan the religions association avoided circnity of conveyances; for though incapable of taking a deed as an aggregate body of unincorporated persons, the religions association, which paid for the land, might have taken a deed to a third party or parties for its benefit and might have required such trustee or trustees to make a second conveyance declaring the purpose for which he or they stood seized of the title. Instead of doing this they adopted the simple device of requiring an insertion in the direct deed from the first grantor.

We do riot think any other conclusion as to the purpose of the insertion of the condition subsequent in the deed under review could be rationally arrived at from a consideration of the terms of the instrument and the circumstances surrounding its execution and the obvious purpose of the religious association, as shown by the records of its action in this matter. It follows that the Sehreiber heirs, having no right to a reversion of the land in the terms of the deed of their ancestor or by the intent of the parties thereto, were not prejudiced by the judgment of the lower court from which they alone appealed.

III. There are other facts in the present record which are equally conclusive against the right of the Sehreiber heirs to any redress on this appeal. The law is that where a condition subsequent becomes incapable of performance without fault of the gurantee or from any legal obstacle, it cannot defeat the fee granted .or cause a reversion to the grantor or his heirs. That the City of St. Louis, in the' valid exercise of its police powers, had full authority to order the cessation of interments' in the cemetery in question, is a proposition which cannot be gainsaid, either in reason or upon authority, and it is affirmed with a full citation of cases, by Woodson, J., in Union Cemetery Assn. v. Kansas City, 252 Mo. l. c. 502, as well as in the cases cited in this opinion. There are no circumstances in this case invalidating the ordinances of the City of St. Louis prohibiting any further use of the property in question for cemetery purposes, such as appeared in the case cited supra (Union Cemetery Assn. v. Kansas City). Besides, in this case the owners of the cemetery property acquiesced in the reasonableness of the ordinance prohibiting further interments in the cemetery in question, and have complied therewith by purchasing a cemetery whose location frees it from unsanitary conditions and-aré seeking to effectuate that purpose by the present suit. In the Kansas City case, supra, the owners of the cemetery denied the reasonableness of the ordinance and were sustained in that contention by this court. The facts of the two cases are essentially dissimilar, and the present case falls within the general rule that a reasonable ordinance of a municipal body prohibiting further interments in a cemetery within its limits, is within the power of that body and must be obeyed. Applying .this .principle to the matter in hand, the rule is thus stated by a standard text-writer:

“Where a deed is made on the condition subsequent that the premises should be used as a cemetery, and an act of the Legislature renders further performance of the condition unlawful, the condition is discharged, and the title of the grantee is no longer subject to it.” [2 Devlin on Real Estate (3 Ed.), sec. 961.]

The result is that even if the deed had contained any provision securing a reversion of the property in question or if such had been the intention of the parties, it would not be available in the present case to the Schreiber heirs.

The judgment of the trial court is, therefore, affirmed.

All concur.