author: FOX, J.

text:
    REBECCA J. PROCTOR et al. v. BOARD OF TRUSTEES OF METHODIST EPISCOPAL CHURCH, SOUTH, and SCARRITT BIBLE AND TRAINING SCHOOL, Appellants.
    Division Two,
    December 31, 1909.
    1. ABSTRACT: In Narrative Form. The statute does not require the record entries to he set out in full in the abstract. A narrative of the several steps in the trial is sufficient.
    2. BILL OF EXCEPTIONS: Timely Evidence Taken and Cause Continued. Where all the evidence was taken at one term, and the .cause continue'd on the only issue in the case, and there was no ruling at that term to which either party could have excepted, and judgment was rendered at the next term, the bill of exceptions was not due until said next term, and if filed then or in pursuance to an order then made it was timely filed.
    3. RELIGIOUS CORPORATION: Board of Trustees of Methodist Episcopal Church, South. The Board of Trustees of the Methodist Episcopal Church, South, a Tennessee corporation, whose primary purpose, according to its charter, is “to hold in trust, for the Methodist Episcopal Church, South, any and all donations, bequests, devises, legacies and grants of land, personal property or funds in trust,” is a religious corporation within the meaning of the Missouri Constitution which says that “no religious corporation can be established in this State, except ■such as may be created under a general law for the purpose only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages and cemeteries.”
    4. -: Scarritt Bible and Training School. So likewise is the “Scarritt Bible and Training School for Missionaries and other Christian Workers” — a Missouri corporation, whose object according to its charter, is to “establish, conduct and maintain in Kansas City, Missouri, a training school for missionaries and other Christian workers,” said training school to “be established, conducted, controlled and maintained under the auspices of the Woman’s Board of Foreign Missions of the Methodist Episcopal Church, South,” and having power to enlist, in behalf of the corporation, a corps of advisory members from other evangelical denominations, to have the rights and privileges of charter members except those of voting, and to formulate for each department of the school a course of study which missionary candidates are required to pursue, all of wliich was to be subject to the approval of the Woman’s Board of Foreign Missions — a religious corporation. The purpose of such school is not instruction in general education, but to educate young women for missionary and religious employments, and therefore it does not have the same status as a church college. Nor is the religious character of the school removed or altered by the fact that provision is made for enlisting in its behalf the advice and co-operation of other evangelical denominations.
    5. -: Title to Real Estate: Foreign Corporation: Comity. A foreign corporation cannot take title to real estate situate in this State, if domestic corporations of the same character are prohibited by statutes or Constitution from taking title to land under the same circumstances. Neither the Board of Trustees of the Methodist Episcopal Church, South, a Tennessee corporation, nor Scarritt Bible and Training School for Missionaries and Other Christian Workers, both being religious corporations, and neither being established for the sole purpose of holding title to real estate for church edifices, parsonages or cemeteries, can take title to real estate in this State, and a devise to either is void.
    6. -: Collateral Attack: Construction of Will: Partition. The testator -gave all his property to his widow for life, and the remainder to one corporation to be held as trustee for the usé and benefit of another. The widow renounced the will and elected to take under the statute, and she and testator’s brothers and sisters, being his sole heirs, bring suit against the corporations to have the will construed and for partition of the real estate. Held, that the suit is not a collateral attack upon the corporate existence of the defendants, but plaintiffs havej the right therein to have determined the question of whether or not the defendants are religious corporations and whether or not' being such they can take title to real estate, And it being determined that they are religious corporations other than those established for the sole purpose of taking title to real estate for church edifices, parsonages or cemeteries, it is held that they were not legally capable of taking and holding the property described in the will, but it descended directly to testator’s heirs; but that holding does not affect the corporate existence of defendants.
    Appeal from Polk Circuit Court. — Hon. Argus Cox, Judge.
    AFFIRMED.

      A. M. Seddon and Scarritt, ScarriM & Jones for appellants.
    (1) There is no dispute as to the execution of the will in question, nor that Asa J. Fender was capable of disposing of his property by will, nor is it contended that there is any doubt or obscurity as to the intention of the testator, as expressed in the will. Having discovered the intention of the testator it is the duty of the courts to carry the same into effect. Cross v. Hoeh, 149 Mo. 325; Redman v. Barger, 118 Mo. 568; Turner v. Timberlahe, 53 Mo. 371; Preston v. Brant, 96 Mo. 552; Chew v. Keller, 100 Mo. 362; Roberts v. Crume, 173 Mo. 572. (2) Plaintiffs seek to set aside the will and to avoid the clearly expressed intention and provisions of the testator as to defendants, by asserting the claim that defendants cannot take the real estate devised, by reason of section 8, of article 2, of the Constitution of Missouri, which provides “that no religious corporation can be established in this state, except such as may be created under a general law for the purpose only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages and cemeteries.” It is evident that this constitutional provision is intended merely as an inhibition against the Legislature and courts to prevent religious corporations from being established, except for certain purposes. It is not contended here that the defendant corporations are not properly and legally established and existing by virtue of law. Whether or not these corporations are now transgressing or are about to transgress their legal limitations and powers, cannot be questioned in this proceeding, nor by these plaintiffs. This question cannot be raised in a collateral proceeding, but can be raised only by quo warranto or other direct proceedings by the State. St. George’s Church Society v. Branch, 120 Mo. 226; Church v. Tobbein, 82 Mo. 418; Church v. McGowan, 62 Mo. 279; Cass Go. v. Insurance Oo., 188 Mo. 1; Burnham v. Rogers, 167 Mo. 17. (3) Even though, a proper proceeding should-he instituted by the State to test the right and power of these defendants to accept bequests of the nature involved in this suit, our courts will not interfere, and we submit that the acceptance of such a bequest is not violative of section 8, of article 2, of the Constitution of Missouri. State ex rel. v. Board of Trustees of Westminster College, 175 Mo. 52; Pranta v. Bohemian Union, 164 Mo. 304; Colonization Society v. Hennessy, 11 Mo. App. 555. The Scarritt Bible and Training School is an educa-, tional institution, whose object it is to furnish a complete course of study and instruction by which its students are prepared for missionary work. While it is true that the "Scarritt Bible and Training School is controlled and maintained under the auspices of the Methodist Episcopal Church, South, yet, it does not limit its student body to the members of that church, and in this respect is non-sectarian. (4) Equally untenable is plain tiffs’ contention that defendant “The Board of Trustees of the Methodist Episcopal Church, South,” is without standing in court, because it is a foreign corporation and has not complied with the statute of Missouri, with reference to foreign corporations doing business in this State. There is no evidence in the record that this corporation is doing any business, as that term is used in the statute, in this State, and there is no evidence that said defendant has not complied with the statute, with reference to foreign corporations doing business in this State. The statute, however (Sec. 1315, R. S. 1899), expressly limits its effect to such corporations as “if organized in this State, would organize under article 9, of chapter 12, of the Revised Statutes,” being the article on “Manufacturing and Business Companies.” This statute is, therefore, inapplicable to the corporation in question, which, if organized in this State, ' would be organized 'under article 11, chapter 12, of the Revised Statutes. The Scarritt Bible and Training School, which is duly organized under the laws of this State, is the real beneficiary in the will, and were the “Board of .Trustees” incapacitated to act as trustee, the court would not permit this charitable bequest to fail for want of a proper trustee. Brandon v. Carter, 119 Mo. 572; Webb v. Hayden, 166 Mo. 39.

      Rechoiv & Pufahl and G. II. Skinker for respondents.
    (1) The abstract of record filed by appellants in this court, and served on the respondents, does not comply with the laws of the State and the rules.of this court. 1st. In this, that there is a mere recital of the steps that were taken after the rendition of the judgment. 2nd. As to whether these things were made matters of record or were mere steps taken without any record entry is left to conjecture. Reno v. Fitz Jarrell, 163 Mo. 411; Rousb v. Cunningham, 163 Mo. 173- Burdick v. Security Life Assn., 86 Mo. App. 94; Joco v. Railroad, 94 Mo. App. 570; Jordan v. Railroad, 92 Mo-. App. 82 ;Butier Oo. v. G-raddy, 152 Mo. 441; Nolan v. Johns, 126 Mo. 159'. (2) As no exceptions were saved to any action at the August term, 1904, and no bill of exceptions filed at that term, this court cannot review anything that was done at that term of court, although it may appear from a bill of exceptions filed at a subsequent term that error was committed. R. S. 1889, sec. 728; Simpson v. Scroggins, 182 Mo. 560; Smith v. Bear, 166 Mo. 392; Richards v. Ass’n, 156 Mo. 407; Asphalt Fav. Co. v. Ullman, 137 Mo. 564; State v. Williams, 147 Mo. 14; State v. Taylor, 134 Mo. 136; State v. Ware, 69 Mo. 332; Haehl v. Railroad, 119 Mo. 335; Carpenter v. McDavitt, 53 Mo. App. 393; Ins. Co. v. Rosenhem, 56 Mo. App. 27; Daos v. Bond, 84 Mo. App. 504. (3) The defendants in this case are, under the Constitution and laws of this State, incapable of taking and bolding this real estate. Constitution, art. 2, see. 8; First Baptist Church v. Robbinson, 71 Mo. 326; Catholic Church v. Tobhein, 82 Mo. 424; St. Louis Colonization Ass’n v. Hennessy, 11 Mo. App. 555; In Re McGraws Estate, 111 N. y! 156, 2 L. R. A. 387; 1 Jarman on Wills, 2 E. Perkins Notes, 99; Ferguson v. Hedges, 1 Plarrington, 524; Gardner on Wills, 163. Defendants come within the definition of a religious corporation. 27 Mo. App. 633.
   FOX, J.

This action originated and was tried in the circuit court of Polk county, and is now pending in this court upon appeal from a judgment rendered in favor of plaintiffs. The action was instituted by Rebecca J. Proctor, widow of Asa J. Fender, and the brothers and sisters of said Fender, they being his sole heirs at law. It has for its purpose the construction of certain clauses of the will of said Asa J. Fender, and for partition of the real estate described in the petition.

The defendant, The Board of Trustees of the Methodist Episcopal Church, South, is a corporation organized under the laws of the State of Tennessee. The defendant, The Scarritt Bible and Training School, is a corporation organized and existing under the laws of this State.

By the first clause of the will of Asa J. Fender, he gave all his property, real and personal, to his wife, Rebecca J., to hold during the term of her natural life. By the second clause of his will he devised all his land, houses and tenements, to take effect after the death of his wife, to the defendant, The Board of Trustees of the Methodist Episcopal Church, South, and to their successors in office, to be controlled by said trustees for the use and benefit of the defendant, Scarritt Bible and Training School, under the direction of the General Conference of the Methodist Episcopal Church, South.

After the death of Asa J. Fender, his widow, the plaintiff, Rebecca J., renounced the provisions of the will and elected to take as provided by section 2939, Revised Statutes of 1899. She afterward married one Proctor and thereby lost her right of homestead. It was admitted in the pleadings and upon the trial of this cause, that the plaintiff, Rebecca J. Proctor, owned one-half interest in the real estate described in plaintiffs’ petition. Two issues were contested and tried in the circuit court. One was, whether or not Mrs. Proctor was entitled to an allowance of one hundred dollars for repairs placed upon the property after the death of Pender; the other was, whether or not the other half interest of the property belonged to the brothers and sisters of Asa J. Fender, they being his only heirs at law, or whether under the provisions of the will the defendant, Board of Trustees of the Methodist Episcopal Church, South, took title to said one-half interest fo,r the uses and purposes set out in said will.

We will give the evidence disclosed by the record such attention as may be necessary during the course of the opinion.

OPINION.

I.

The first proposition with which we are confronted, preliminary to the discussion of the legal propositions involved in this case, is the one suggested by respondents, in which the sufficiency of the abstract of the record is challenged. It is insisted that the abstract of the record does not comply with section 813, Revised Statutes 1899, and Rule 11 of this court, for the reason that the entire abstract of the record is not set out.

It is conceded that the record properly discloses the pleadings and the two judgments rendered in the cause. The abstract, which purports to he of the record, then continues in narrative form to show that within four days after rendition of final judgment, and during the term at which said judgment was entered, motions for new trial and in arrest of judgment were filed; that said motions were overruled at the same term and that due exceptions were then and there saved; that during the same term application and affidavit for appeal were filed and appeal duly granted by the circuit court to the Supreme Court; that the appellants were, by the circuit court and at said November term, granted until the third day of April, 1905, to file bill of exceptions; that appellants filed a bond in the circuit court which was duly approved. Following the bill of exceptions appears this entry: “Piled in the office of the clerk of the circuit court of Polk county, Missouri, this 6th day of February, 1905, Luther W. Hyde, Clerk of the Circuit Court.”

Section 813, Revised Statutes, does not require the record entries in full to be set out in the abstract, but does require an abstract of the entire record. As said in the ease of Ricketts v. Hart, 150 Mo. l. c. 68, “But while the record proper must show the filing, it has never been ruled under our statute permitting the bringing of appeals to this court by certificates and abstracts that the record entries must be set out in full. A narrative of the several steps is held sufficient, as the statute contains within itself the means of protecting this court against imposition by false statements of the record.” The abstract before us alleges, “The record of said court further shows that,” and then follow in narrative form various steps which took place from the rendering of final judgment to the granting of the appeal and leave to file bill of exceptions. We think this was a sufficient compliance with the statute in question and the rules of this court.

II.

It is next earnestly insisted by respondents that there is nothing before this court for review except the record proper, for the reason that the evidence applicable to this canse was all taken at the August term, 1904, and that such evidence so taken and the action of the court thereon was not preserved by timely bill of exceptions at the term of the court at which such evidence was taken, and that the bill of exceptions disclosed by the record now before this court is one filed by virtue of an order granting leave to file the same made at the November term, 1904.

It is true, as disclosed by the record, that all the evidence in the cause was taken at the August term, 1904, and the final judgment was not rendered until the November term, 1904. By an examination of the judgment, termed an interlocutory judgment, entered at the August term, 1904, it will be found that none of the issues made by the pleadings were determined at that term. The court simply found the admitted and conceded facts, to-wit: that Asa J. Pender was the owner of the real estate described in the petition and that he died at a certain time, leaving the will in question; that the property was not susceptible to division in kind; that the plaintiff, Rebecca J. Proctor, was the owner of one-half interest therein, and then ordered a sale of the property during that present term of court. The court concludes the judgment in the following language: “It is further considered, ordered and adjudged by the court that the plaintiff, Rebecca J. Proctor, owns one-half of said real estate in fee, and that the interests of the other parties and the question of improvements made by the plaintiff, Rebecca J. Proctor, be and is reserved for trial until after sale of said property.’’ The only issues of any importance then existing between the plaintiffs and defendants were the ownership of the other half interest in the real estate and the right of plaintiffs to recover in this action. The question was whether the devise to the defendant in trust, The Board of Trustees of the Methodist Episcopal Church, South, was void, and if so whether or not such interest descended to the heirs of Asa J. Fender, and whether or not they could recover in this action. Those issues were reserved by the court and it may he said they were taken under advisement until the next term of court. The final judgment entered by the court at its November term, 1904, begins as follows: .“Now at this day this cause coming on for further hearing upon the evidénce taken at the August term of this court.” A report of sale had been filed but neither party filed any exceptions thereto. Therefore, the real issues between the parties and which had been carried over by the court and reserved for further trial were determined at this November term of court. In fact the circuit court did nothing at the August term to which either party did or could except. No point of issue was determined. Ordinarily, exceptions must be written, allowed and filed' during the term, or they will be insufficient to preserve for review the point to which the exception is taken. But as said by Judge MaceablaNe in the case of Kennedy v. Siemers, 120 Mo. l. c. 84: “There are often a number of steps in the proceedings in a cause which require separate determination and interlocutory orders, and each of which has a bearing upon the final judgment. Those steps may be taken at the same or different terms. It is clearly intended by the statute that when one of these steps is ruled adversely to a party he must take and save his exceptions to that ruling at the term at which it was made, or he is bound thereby and cannot have the point reviewed by the appellate court.” In the Kennedy case the trial of the cause progressed to a point where the court determined that an accounting should be taken, made an interlocutory order appointing a reféree and continued the cause. Among other things the order of the court recited: “The court hereby reserves all the questions involved in this suit until after the report of said referee shall come in and until the final hearing of this suit.” The hill of exceptions in the cause was filed after the lapse of several terms. The question at issue was plaintiff’s right to redeem under a deed of trust. The court said: “It will be observed that in this order there was no finding or declaration of the rights of the parties to redeem, and the question was clearly left open until the final hearing, with the rights reserved to either party to introduce additional testimony. There was no ruling to which defendant could have excepted, until the court determined the rights of the parties, and we think the exceptions were taken in time. ’ ’

In the case at bar it appears from the bill of exceptions that all the evidence was taken at the August term, 1904, hut in reserving for trial the only questions at issue until after the sale of the land, and entering up a judgment to which neither party objected, the court made no ruling to which either party could except at the time. The final hearing and judgment determining the only issues between the parties were upon the evidence taken at the August term; but this evidence was considered and the hearing and arguments had at the November term following. As no objection was made to the use of the evidence taken at the last term it is fair to presume that the parties considered the case as taken under advisement by the court.

The case at bar differs from the cases of Simpson v. Scroggins, 182 Mo. 560; Smith v. Baer, 166 Mo. 392, and other like cases, in that, in the latter cases, questions at issue were determined at one term and no exception made until a subsequent term. We are of the opinion that appellants’ exceptions were properly made at the November term, 1904.

III.

This brings ns to the consideration of the nature and character of the defendant corporations. In other words, do they belong to that class of religious corporations which would preclude them.from taking title to the real estate involved in this controversy?

The defendant, Board of Trustees of the Methodist Episcopal Church, South, was incorporated under the laws of the State of Tennessee in November, 1891. We find among the charter provisions of such corporation the following recitation: “The object of said corporation being to hold in trust, for the Methodist Episcopal Church, South, any and all donations, bequests, devises, legacies, and grants of land, personal property, or funds in trust, etc., and such other and like power, as the State had given to such corporations by virtue of an act passed February 27, 1891, and approved March 4, 1891, Chapter 45, entitled, ‘An act to permit religious denominations to appoint trustees to také, hold and accept and administer donations, gifts, .bequests, devises and incorporate the same.’ ” Among the powers given by the charter, were “to purchase and hold, or receive by gift, bequest, or devise, in addition to the personal property owned by the corporation, real estate necessary for the transaction of the corporate business, and also to purchase and accept any real estate in payment of any debt due to the corporation, and sell the same.”

The other defendant, designated in. the charter by the name of the “Scarritt Bible and Training School for Missionaries and other Christian Workers,” was incorporated under article 10 of chapter 42 of the Revised Statutes of 1889. Article 1 of its charter provides : ‘ ‘ The object of this Association is to establish, conduct and maintain in Kansas City, Missouri, a training school for Missionaries and other Christian Workers.” Article 2 provides: “Said training school shall be established, conducted, controlled and maintained under auspices of tbe Woman’s Board of Foreign Missions of tbe Methodist Episcopal Church, South.” Article 5 provides, among other things, that the said corporation should improve certain real estate in Kansas City, which improvements were to be made under the control of the Woman’s Board of Foreign Missions of the Methodist Episcopal Church, South. Also this article provides for enlisting in behalf of the corporation, a corps of advisory members from other evangelical denominations, to have the rights and privileges of members except that of voting; also to formulate for each department of-the school a course of study which missionary candidates were required to pursue, all of which shall be subject to the approval of the Woman’s Board of Foreign Missions.

The foregoing is a sufficient reference to the provisions of the respective charters of the defendant corporations, and sufficiently points out their objects, purposes and powers to enable us to determine the nature and character of such corporations.

As to the first defendant mentioned, The Board of Trustees of the Methodist Episcopal Church, South, in our opinion, it is clear from its charter provisions and the powers bestowed upon it that its primary object and purpose of organization was for religious purposes, and in carrying out such purposes to aid the religious denomination known as the Methodist Episcopal Church, South. But without discussing further for the present the provisions of the respective charters of the two defendant corporation, it is well to ascertain the law applicable to the objects and purposes of corporations of the nature and character now under consideration.

The case of In re St. Louis Institute of Christian Science, 27 Mo. App. 633, was an application for a pro-forma decree of incorporation under article 10 of chapter 42 of the Eevised Statutes. The decree was denied by tbe circuit court on the ground that the incorporation would conflict with the constitutional provision providing “that no religious corporation can he established in this State, except such as may be created under a general law for the purpose only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages and cemeteries.” The action of the circuit court was affirmed by the Court of Appeals. It was held that the purpose of the corporation did not come within the exceptions mentioned in the constitutional provision. Lewis, P. J., who delivered the opinion of the court, among other things, said: “The leading purpose of the intended corporation is the healing of physical and mental diseases. But all the healing is to be accomplished hy the supposed efficacy of a religious tenet. Take away the religious agency, and there is literally nothing left, whereby the corporation may effect its purposes. Religion is its motive power, and quite as essential to all its work, as is money to a banking corporation, or a railway, cars, and locomotives to a railway company. If this does not make it a religious corporation within the constitutional meaning, then nothing short of a church regularly ordained for public worship can come within the constitutional intent.”

Manifestly even giving to the charter provisions of these two defendant corporations their widest scope, neither one of them was organized or established for purely academic purposes, or to impart general education, literature, or the arts and sciences. If they had been they would not be in the constitutional sense religious corporations. There are in this State, a large number of schools and colleges under church control, but these schools propose to impart a general education, and are not established for the sole purpose of educating young men and young women for missionary and religious purposes. They are not religious corporations within the inhibition of the constitutional provision, but they stand upon a footing with Westminster College, as pointed out in the case of State ex rel. v. Board of Trustees, 175 Mo. 53.

In the State of New York, where a corporation was organized to provide buildings by hiring or purchase, to be used as churches for seamen and to provide clergymen to act as missionaries in said churches, it was held to be a corporation organized for religious purposes, within the meaning of a statute providing that bequests to such corporations shall be exempt from the transfer tax. [In re Prall’s Estate, 79 N. Y. Supp. 971.]

The defendant, The Board of Trustees of the Methodist Episcopal Church, South, was incorporated, as indicated by its charter, for the sole purpose of holding in trust, bequests, devises, legacies and grants of land and personal property, for the benefit of the Methodist Episcopal Church, South. This court will take notice of the fact that the Methodist Episcopal Church, South, is a strong and commendable religious denomination, having its churches, ministers and members located in this State, as well as other states of the Union. This defendant was manifestly not incorporated for the purpose of maintaining, supporting or controlling a college or school in which were taught literature, arts and the sciences, and general education, but from an analysis of its charter provisions its sole purpose was to hold and administer property, not for religious purposes generally, but for the benefit of a particular religious denomination. We think there can be no question but that this defendant was, according to the provisions of its charter, a religious corporation, and incorporated for purely religious purposes.

As to the nature and -character of the other defendant corporation, The Scarritt Bible and Training School, a more serious question is presented. The constitutional provision, article 2, section 8, provides that “no religious corporation can be established in this State, except such as may be created under a general law for the purpose only of holding the title to such real estate as may be used for church edifices, parsonages and cemeteries.” Thus we see that a corporation organized for the purpose of holding title to real estate used for a church edifice, a parsonage, or a cemetery, is a religious corporation. But the exception by its very terms implies that corporations organized for broader purposes than those enumerated may be religious corporations, and their establishment in this State, is prohibited. The language of the provisions of the Constitution seems to -inhibit the establishment of any religious corporation. The exception allows such corporations to be established by general law only and for the specific purposes therein enumerated. [Catholic Church v. Tobbein, 82 Mo. 418.]

Directing our attention to the defendant corporation, designated in its charter as “The Scarritt Bible, and Training School for Missionaries and other Christian Workers,” it is sufficient to say that from a most careful examination and consideration of all of- its charter provisions, we have reached the conclusion that such charter provisions disclose that its primary and sole object, in harmony with its name as designated by the charter, was to institute a school in which missionaries and other Christian workers were to be trained. No provision is made for imparting to them a general education, or to advance them in.literature, arts and the sciences, nor is any provision-made for imparting a primary or ' academic education. This school, termed a training school, was to be established, conducted and controlled under the auspices of the Woman’s Board of Foreign Missions of the Methodist Episcopal Church, South. While it is true that provision is made for enlisting in behalf of the school the advice of members of other evangelical denominations, yet this fact would not remove the religions character of the school. The school established need not necessarily be denominational. Power is given to formulate for each department a course of study which missionary candidates shall be required to pursue. The charter, however, provides for issuing diplomas, setting forth the attainments of the candidates and other qualifications for the work in which they desire to enter. The whole scope and import of the charter indicates clearly that the. sole, and only object of the corporation was to establish and maintain a school wherein its students and candidates were fitted for Christian missionary work, and to aid in propagating' the Christian religion. We therefore conclude that the Scarritt Bible and Training School for Missionaries and other Christian Workers, is a religious corporation.

IY.

It is next earnestly insisted by learned counsel for appellant that, under the law and rules of comity existing between the states, the defendant, The Board of Trustees of the Methodist Episcopal Church, South, should not be precluded under the Constitution and laws of this State from taking title to the real estate in controversy. It is sufficient to say upon that proposition that this State recognizes to the fullest extent the doctrine of comity between the states. A foreign corporation may ordinarily .acquire and hold title to real estate located within our boarders upon compliance with the requirements of our laws. In eases where no permit or permission to do business or hold title to real estate is required, then a foreign corporation may come into this State, subject, however, to our statutory and organic law. Yet, manifestly it would be opposed to public policy and against the theory of our government to permit a foreign corporation to take title to real estate located in this State, if domestic corporations of the same character are prohibited by onr statutory or constitutional law from taking title to land under the same circumstances. [Cook on Corporations, sec. 695; State ex rel. v. Cook, 181 Mo. 596.] Hence it follows that the defendant, “The Board of Trustees of the Methodist Episcopal Church, South,” is in no better position to take title to real estate under the will of Asa J. Pender than is the defendant, The Scarritt Bible and Training School.

Having reached the conclusion that neither of the defendant corporations was established for the purpose only of holding title to real estate for church edifices, parsonages or cemeteries, and being as we have herein indicated, religious corporations, it follows that they fall within that class of religious corporations which are prohibited by the Constitution from taking or holding title to real estate for any other purpose; hence our conclusion is that neither of these defendant corporations was capable of taking and holding title to the real estate described in the will of Asa J. Pender in the manner therein attempted to be done.

V.

Appellants in their final contention insist that this proceeding is a collateral attack upon the corporate existence of the defendants, and therefore cannot be maintained. Our attention is directed to the cases of St. George’s Church Society v. Branch, 120 Mo. 226; Church v. Tobbein, 82 Mo. 418; Church v. McGowan, 62 Mo. 279, and other cases. A careful analysis of the rules of law announced in those cases, in our. opinion, will demonstrate that they have no application to the propositions involved in the case at bar. The plaintiffs in this ease do not undertake to make a direct attack upon the corporate existence of the defendants, but they simply urge and insist that as neither of said defendant corporations was legally capable of taking and holding the property described in the will for the purposes and uses therein declared, the attempted devise to the Board of Trustees of the Methodist Episcopal Church, South, never took effect, and the property mentioned descended directly to the heirs of Asa J. Fender.

It will be observed that as between the plaintiffs in this case and the defendants, there is no question of a contract nature, nor is there any question of es-toppel by which the plaintiffs would be precluded from setting up any legal bar to the right of the defendants in taking title to the property as devised. If the question in this case concerned the forfeiture of the charter of either of the defendants there is no question but what the State alone would be the proper party to intervene, but as pointed out above, this is not a question of forfeiture, it is simply a question of title to the property, and if it has not been legally devised or if the defendants were incapable of holding it, then the title necessarily vested in the heirs at law.

In the case of Re Estate of McGraw, decided by the Court of Appeals of New York, volume 2, Lawyers Reports, Annotated, p. 387, the late lamented Mr. Justice Peckham, who was then a member of that court, gave the question under consideration very thorough investigation, and drew a clear and lucid distinction between an attempt to make a collateral attack upon the. existence or powers of a corporation, and the question as to whether a corporation had the power to take by devise, or whether the property descended to the heirs. Among other things, he said: “A devise to a corporation which is forbidden to take does not, therefore, give a title subject to the right, of some superior to claim a forfeiture of the land; but if it be in violation of a statute, I think the devise is void, and the land descends to the heir or residuary de-visee.” If the question at issue in this case grew out of contract relations between the plaintiffs and the defendants, then it is quite clear, under all the authorities, that the plaintiffs could not take advantage of the want of power in defendants to take and hold property or to make contracts.

In the case of DeCamp v. Dobbins, 31 N. J. Eq. 690, Chief Justice Beasley uses this very appropriate language: “Nor can I assent to the other proposition that if, as the contention assumes, this bequest is vio-lative of the law if carried into effect, none but the State can intervene. I find no warrant for such a doctrine, either in the legal principles belonging to the subject or in the adjudications. There can be no doubt that there are cases in which, when a corporation has acquired rights of property to an extent or in a manner unwarranted by its charter, no one but the public can have the right to complain. A grantor making title to a corporation might be estopped from questioning the effect of his own conveyance. So, a mere stranger could not question such a corporate title. But I have not observed any decision that asserts, when a title is created by devise which vests in a corporation, for its own use, a larger quantity of property than the laws authorize, that the heir at law has no right to make objection.”

We have, as herein indicated, given expression to our views upon the leading and controlling legal proposition disclosed by the record, which results in the conclusion that neither of the defendant corporations, under the Constitution of this State, was capable of taking title to the property under and by virtue of the will of Asa J. Fender fox the purposes therein mentioned, and that the plaintiffs, as the only surviving heirs of Asa J. Fender, had the right in this action to raise the question of title to the property as between them and the defendant corporations, and that in doing so they did not infringe upon the right of the sovereign State to question the legality of the defendant’s corporate existence. "With, these conclusions the judgment of the trial court should be affirmed,'and it is so ordered.

All concur.


source: Caselaw Access Project

author: WOODSON, J. Norton, C. J.,

license: Public Domain

text:
    WALTER I. TURNER et al., Appellants, v. WILLIAM HUNTER.
    Division One,
    January 4, 1910.

    1. TAX SALE: In Mass: Subsequent Purchasers. Where the judgment for taxes was valid, a recital in the sheriff’s deed that his grantee was the highest and best bidder for the land and that it was sold to him, is no evidence, as against a subsequent purchaser of said grantee, without notice, that the land was not actually sold by the least legal subdivisions. [Following Shelton v. Franklin, 224 Mo. 342.]
    2. -: Execution. A recital in the tax deed that execution was issued and levied is prima facie true.
    Appeal from Punldin Circuit Court.—Hon. J. L. Fort, Judge.
    Affirmed.

      Shepard & Shepard, S. J. Corbett and Duncan & Bragg for appellants.
    (1)' Sheriffs in selling land under execution should divide the land, when susceptible of division, and sell only so much thereof as was necessary to pay the execution and costs, and while such failure on the part of the sheriff does not make a sale void, yet the sale will he set aside on timely motion to that effect, or on a direct proceeding in equity for that purpose. Yeamann v. Lepp, 167 Mo. 61; State ex rel. v. Elliot, 114 Mo. App. 562; Corrigan v. Schmidt, 126 Mo. 304; Cordon v. Hickman, 96 Mo. 350 ; Roser v. Georgia Loan & Trust Company, 118 Ga. 181; Starr v. Shepard, 108 N. W. 709'; Stark v. Cummings, 56 S. E. 130; Williamson v. White, 28 S. E. (Ga.) 846; Jungk v. Snyder, 78 Pac. 168; French v. Edwards, 13 Wall. 506. (2) The tax deed on its face shows the imperfections in the title, and the subsequent grantee is certainly charged with all matters of record pertaining to the title through which he holds. Corrigan v. Schmidt, supra. (3) The court will understand that the plaintiffs do not claim that the tax sale under the holdings of Missouri, is absolutely void, for, if it were void, then a proceeding in equity would not he necessary, but a collateral proceeding would be sufficient. The contentions of plaintiffs are that the tax sale is voidable and will be set aside by a direct proceeding in equity at any time, unless there has 'been such a change in the standing of the parties as to estop' the plaintiffs from having the sale set aside by reason of laches or other equitable grounds that may have arisen since the date of the sale. The evidence in this case shows that either forty acres of this tract would have sold for $10' an acre at the time it was sold for taxes, and that $10‘ per acre was the reasonable value of the land. Under such circumstances can anyone sa3 that the plaintiffs in this case were not damaged by reason of the land’s being sold in bulk instead of being divided and only enough thereof sold to pay the taxes, interest and costs. (4) Respondent no doubt will claim that the sheriff’s deed is not evidence of the manner in which the land was sold, and therefore defendant is not' chargeable with knowledge of the manner in which the land was sold at the sale by the sheriff. The law of Missouri is entirely different from that contention. Sec. 3210, R. S. 1899'. It has ever been held by this court as well as by the courts of last resort of most of the states, that the recitals' in sheriff’s deeds were evidence of the manner in which the land was sold, and if the land was divided and sold in parcels the deed should recite the necessary facts to show snch subdivision and the amount each subdivision sold for. State ex rel. v. Richardson, 21 Mo. 420; Keene v. Barnes, 29 Mo. 384; Smith v. Williams Cooperage Co., 100 Mo. App. 153; Barnes v. Beardley, 3 L. R. A. 786 ; French v. Edwards, 13 Wall. 506; Martin v. Barber, 140 U. S. 634.

      Oliver & Oliver and John A. Hope for respondent.
    (1) Plaintiffs take the stand in this court that this case is a direct proceeding in equity to set aside the tax sale and cancel the sheriff’s deed through which defendant derives his title. Having assumed this attitude, their case must fail. Their petition is a nullity as a hill in equity, under any form of procedure known to equity practice. Clark v. Covenant Life Ins. Co., 52 Mo. 278; Humphreys v. Atlantic Milling Co., 98 Mo. 542. (a) Where a plaintiff asserts in his petition that he is the owner of the legal title, and it further appears, as is disclosed by the record in this ease, that the defendant is in actual possession of the real estate, equity is without jurisdiction to cancel an alleged cloud on the title. Clark v. Insurance Company, 52 Mo. 272; Keane v. Kyne, 66 Mo*. 218; Thompson v. Newberry, 93 Mo. 25; Davis v. Sloan, 95 Mo. 552; Graves v. Ewert, 99 Mo. 18; McRae v. Gardner, 131 Mo. 606; Mason v. Black, 87 Mo. 346. (b) The allegations in the petition as to the feebleness of plaintiffs’ father, and insanity of two of the plaintiffs, do not constitute any ground in law for annulling the tax deed, especially since the petition does not charge the purchaser or his vendee, Hunter, with notice of such facts. Herd v. Sack, 81 Mo. 616. (c) It is well settled that the failure of a petition to state a cause of action is a question that can be raised for the first time on appeal. McQuitty v. Wilhite, 218 Mo. 591. (2) 1. Sec. 3185, R. S. 1899, which, requires the officer levying an execution to divide the property, if susceptible of subdivision, and sell so much thereof as will be sufficient to satisfy such execution, clothes the officer with discretionary power; this is a power to be exercised by the sheriff, and it is for him to decide whether he should, sell en masse or in subdivisions. Springer v. U. S., 26 L. Ed. (U. S.) 256; Olcutt v. Bynum, 21 L. Ed. (U. S.) 570. 2. Where there is a power and discretion, such as existed in the sheriff when he sold the land in question to Wilks, a court in equity will interpose only on the ground of bad faith or fraud. Jones v. Building Association, 77 Ind. 345; Springer v. U. S., supra; Olcutt v. Bynum, supra; Draper v. Bryson, 17 Mo. 71. 3. And it must be shown that the purchaser had notice of or participated in the irregularity and fraud; this must be made palpably clear. Draper v. Bryson supra; Jones v. Building Association, supra. 4. The statute (see. 3185, supra) does not mean that a sale of a tract of 80 acres, or 160 acres, or 320 acres lying in a contiguous body would be irregular. Such a tract is in itself a subdivision of a section, which is the unit under our system of land surveys. The rule requiring the officer to subdivide land and sell it in parcels applies when he levies the execution on a number of tracts not contiguous, but when he levies on a subdivision of 160 acres lying in one body and sells it as one tract, without subdividing it into four 40-acre or eight 20-acre parcels, he does not violate the rule with respect to sales en masse. Martin v. Cole, 38 Iowa 145 ; Bulkey v. Callahan, 32 Iowa 465; Corbin v. DeWolf, 25 Iowa 128; Brien v. Shaughnessy, 3 Lea (Tenn.) 724. 5. But even if the statute were construed in accordance with plaintiffs ’ contention, that is to say, that the officer is required to divide- and offer the land for sale in forty-acre pieces, it is merely directory, and failure to comply with the direction is a mere irregularity. Rector v. Hartt, 8 Mo. 448; Fine v. St. Louis .Public School, 30 Mo. 173; Bouldin v. Ewart, 03 Mo. 336 ; Hicks v. Perry, 7 Mo. 346; Well shear v. Kelly, 69 Mo. 355; Hays v. Perkins, 109 Mo. 108; Lewis v. "Whitten, 112 Mo. 328; Morrison v. 'Turnbaugh, 192 Mo. 444; Jones v. Building Association, 77 Ind. 343; Howard v. Stevenson, 11 Mo. App. 412; Brien v. Shaughnessy, 3 Lea (Tenn.) 24. 6. Being only an irregularity, the defect comes within the principle to be deduced from all the authorities, which principle is, “that the title of a purchaser not himself in fault cannot be impaired at law nor in equity by showing any mere error or irregularity in the proceedings.” 3 Freeman on Executions (3 Ed.), sec. 339; Jackson v. Bartlett, 8 Johns. 361; Jackson v. Rosevelt, 13 Johns. 97; Boles v. Johnson, 23 Cal. 226; Eliott v. Knott, 14 Md. 121; Draper v. Bryson, supra; Howe v. Stark-weather, 17 Mass. 240; May v. Thomas, 48 Me. 397. (a) The presumption is that, in selling the land, the sheriff did his duty, and sold the land in parcels if the statute so required, and having sold it to Wilks in subdivisions, conveyed it all to him in one deed, (b) This 160 acres was one contiguous body, but; even if it had consisted of two or more separate and distinct tracts not adjacent to each other, it could have been included in one tax deed, and such joinder would not necessarily have raised the presumption that the tracts were sold in gross. Towle v. Plolt, 14 Neb. 227; 1 Cooley on Taxation (3 Ed.), pp. 447-951; Stie-ff v. Hardwell, 35 Fla. 609; Crimean v. Johnson, 23 Colo. 264.

      Note. — Decided December 23, 1909. Motion for rehearing filed. Motion overruled January 4, 1910.

   WOODSON, J.

This suit was instituted in the circuit court of Pemiscot county by the plaintiffs, the heirs at law of Robert B. Turner, deceased, against the defendant, to set aside and have canceled a sheriff’s deed, made to William Wilks, dated September 4,1895, in pursuance to a sale had under a special execution issued on a judgment rendered for taxes due the State for the years 1890 and. 1892. The court found the issues for the defendant, and plaintiffs appealed the cause to this court.

Since counsel for respondent challenge the sufficiency of the allegations of the petition to state a cause of action against him, it becomes necessary to set out the petition in order to determine that question. It is in the following words and figures, to-wit:

‘ ‘ Plaintiffs state that they, except Martha A. Turner, are the legal heirs of Robert B. Turner, deceased; that plaintiff, Martha A. Turner, is the widow of the said Robt. B. Turner.
‘‘Plaintiffs further state that the said Robt. B. Turner was seized and possessed of and had title in fee to the following described real estate, situate, tying and being in the county of Pemiscot, and State of Missouri, to-wit: Northeast quarter of section thirty-three, township eighteen, range thirteen; and had been so possessed of same for a number of years before his death; that R. B. Turner departed this life on the 9th day of September, 1895; that the said R. B. Turner-had been in very feeble health for more than one year before his death, during which time he was wholly incapacitated, both mentally and physically, from attending any business whatever. That the land herein described, at the time of the death of the said R. B. Turner, was all wild;, uncultivated timber lands, in the possession of no person or persons; that none of the plaintiffs herein were aware of the fact that the said R. B. Turner had ever owned this land until about one month prior to the bringing of this suit; that plaintiffs, John Turner and Jim Turner, were, at the time of the death of the said R. B. Turner, of unsound mind, and have been most all of the time up to the bringing of this suit; that plaintiff, Dolly Farmer, was a married woman at the time of the death of R. B. Turner, as aforesaid; and that plaintiffs, Ivy Turner, Ruth Tins-ley and Robt. Martin, were each minors up until a few months before bringing this suit; that plaintiff, Ruth Tinsley, is now a married woman, and was such married woman prior to reacting ter majority.
“Plaintiff states ttat tte tten acting steriff of Pemiscot county sold, on tte 9tt day of September, 1894, all of said land to pay tte taxes for the years 1890 and 1892, or claims to have sold said lands for said purpose; plaintiffs say ttat said sale or pretended sale made of said lands by the sheriff, as aforesaid, should he held void and of no legal effect, for the following reasons:
“First. Because, while said lands were all in one section and lay contiguous, and had been assessed as one tract, or lot, and were susceptible of being divided into at least four subdivisions of forty acres each, either of which subdivisions would have sold for more than enough to have paid all taxes due on all of said lands, wi th interest and costs (said taxes, costs and interest being but- four dollars and fifty cents), and would have left to these plaintiffs three-fourths of said lands clear and unincumbered, the sheriff, wholly unmindful of his duties in the premises, did not offer to sell said land in its smallest legal subdivision, as aforesaid, as the law commands, or in any division whatever, but offered and sold all of said land, at one and the same time, to one and the same bidder, for the sum and price of $40', which, even at .the rate and price per acre the land brought at this sale, the said sheriff sold about nine times the amount necessary to sell in order to pay the amount of taxes, interest and costs against the whole tract, thereby sacrificing all of plaintiffs’ land for the payment of only four dollars and fifty cents in taxes, interest and costs; that all of said land is practically of one character, and of the same value per acre; that none of the plaintiffs, nor no one representing them, was at said sale, and they did not ask the said sheriff to sell said lands in bulk; but had they known of said sale, they would have ordered said land divided, and only so much of same sold as would pay the taxes, interest and costs. . Plaintiffs further state that said land, at the date and time of said sale by the sheriff aforesaid, was reasonably worth $800', or five dollars per acre.
“Plaintiffs further say that-said sheriff’s deed should be held void for the reason that no judgment was ever rendered in the circuit court of Pemiscot county in the case of the State of Missouri to the use of D. D. Harbert, Collector, v. R. B. Turner, creating a hen on said lands; and plaintiffs further say that no trial was ever had of sai'd cause in the said Pem-iscot Circuit Court, and that said cause was never submitted to the court, nor judgment rendered by the court.
“Plaintiffs further state that said sheriff’s deed should be held void and of no effect, for the further reason that no special execution was issued out of the office of the circuit clerk of Pemiscot county authorizing and commanding said sheriff to sell said lands, or any part thereof, and the said sheriff’s acts in the premises in selling, or attempting to sell, said lands were without process or authority, and, therefore, void and of no effect.
“Plaintiffs further state that said sheriff’s deed should be held void for the reason that it fails to show the amount of taxes due for each year for which the land was sold to pay.
“Plaintiffs further state that they, prior to the time of filing this suit, tendered to defendant the amount paid at the sheriff’s sale, aforesaid, for said lands, and the amount paid by defendant, and those under whom he claims as taxes on said lands up to date, together with interest thereon at the rate of six per cent per annum; but defendant has refused to accept same and release said lands to plaintiffs, and that plaintiffs now, in open court, tender to defendant said amounts, as aforesaid.
“Plaintiffs further state that the said sheriff’s deed, as aforesaid, places some apparent title in defendant, which is a cloud upon the title of plaintiffs, and that plaintiffs have no adequate remedy at law by which said cloud can be removed from their title to said lands.
“Wherefore, the premises considered, plaintiffs pray the court to hear, try and determine the right, title and interest of the parties, plaintiff and defendant, in and to said lands, respectively, and to adjudge by its judgment or decree the title, estate and interest of the parties herein severally in and to the afore-men-tioned premises, and that the title conveyed by same, as aforesaid, be canceled and for naught held, and the title conveyed by same, or attempted to be conveyed by said: sheriff’s deed, be declared in these plaintiffs, and for such other and further relief, orders, judgments and decrees as to the court may seem just, meet and proper in the premises, and the plaintiffs ever pray. ’ ’

On a change of venue the case went to the Dunk-lin Circuit Court, where defendant filed an amended answer, which is in no wise challenged, and it will not therefore be necessary to burden this opinion with a copy of it. The reply was a general denial of the new matter stated in the answer.

The following facts are undisputed:

On and for sometime prior to February 14, 1895, the father of appellants was the record owner in fee of the land in controversy, which was wild, unoccupied swamp land. He had failed to pay the state and county taxes for the years 1890 and 1892, and at the March term, 1895, the collector of said county brought suit against him for the back taxes then due and unpaid thereon. Personal service was had upon Turner by summons in the usual manner, as provided by law. A' judgment by default was duly rendered by the circuit court enforcing the State's fien against said land for said back taxes. On September 4, 1895, the sheriff sold said land to satisfy said: lien, and said Wilks became the purchaser thereof. The sheriff executed to Wilks a tax deed, which was in the ordinary form. Said deed was by the latter filed for record on the 28th of October of the same year.

On September 30, 1895, Wilks conveyed said land, by general warranty deed, to Hinton Newton et al., who at the same time executed a deed of trust conveying said land to H. C. Schult, trustee, to secure certain notes given by them to said Wilks for the sum of $1,600, the purchase price of said land. Newton et al. defaulted in the payment of said notes, and the trustee, under the authority of said deed of trust, on July 15, 1899, sold said land at public auction to one F. J. Gordon, and executed to him a trustee’s deed in usual form .conveying to him the land in question. This deed was filed for record on the 3rd day of August, same year. On April 13, .1900, Gordon, by a general warranty deed, in consideration of the sum of $400' paid him, sold and conveyed this land to respondent, who, on April 28, 1900, filed said deed for record. At the time the latter purchased said land he resided in Scott county, and knew nothing whatever about how said lands were sold or offered for sale by the sheriff on the 4th day of September, 1895, except what appeared from the face of that deed.

The evidence introduced on behalf of appellants tended to show that at the time of the service of the summons in the tax suit against their father, he was sick of body and unsound in mind, and incapable of transacting business; and that he died within a' few days after the date of the sale of said land by the sheriff. Their evidence also tended to show that the land at the time it was sold by the sheriff was worth about five dollars an acre.

The evidence of respondent tended to show that at the time the sheriff sold said land, viz., September 4, 1895, and for many years prior and subsequent thereto, it was wild unimproved swamp land, covered with water and was subject to annual inundation from the overflow of the water of the Mississippi River, and was practically worthless. That since respondent became the owner of the land, a levee has been constructed along the west bank of the Mississippi Rivér in the vicinity of the land, and that by the construction of a levee system through that region the lands generally in that section have been reclaimed from the waters and overflows from the Mississippi River. That the cost of constructing and maintaining said levee system was and is being paid for by taxation against the land benefited thereby, which includes the land in question.

The respondent’s evidence also tended to show that Robert B. Turner, the father of appellants, was a man of sound mind and capable of attending to his business .affairs at the time suit was instituted against him to recover the back taxes against said land. That with full knowledge of all of the facts, appellants, without objection, stood by and permitted respondent to improve said land and erect valuable buildings thereon — all aggregating a sum of about fifteen dollars' per acre; and that by means thereof said land has become very valuable.

It is apparent from reading the petition filed in this case, that the pleader was trying to state an equitable cause of action for the cancellation of the tax deed before mentioned, and to remove the cloud cast thereby upon the title to their said real estate. Not only this, counsel for appellants in several places in Ms brief and argument states and insists that said deed is not void but is only voidable, and for that reason he brought tMs direct proceeding asking for its cancellation.

Counsel for respondent contend that the petition does not state facts sufficient to constitute a cause of action, for the reason that it alleges that the sheriff’s deed under which respondent claims title was executed without any judgment having been rendered in the circuit court for the taxes against the land in question, and, further, that the sheriff made the sale and executed the deed without having any execution; in short, that there was no judgment and no execution, and that the sheriff’s sale was not based upon a judgment of a court nor made in pursuance to any process or authority whatever.

If the allegations of the petition are true, that there was no judgment rendered enforcing the lien of the State for the taxes due on the land, then the appellants, at the time of the institution of this suit, were the owners of both the legal and equitable title to the land in controversy, for the reason that the sheriff’s deed, which they ashed to have cancelled, was absolutely null and void, and conveyed no right, title or interest whatever in or to said land, but the title thereto passed to them by inheritance from their father, Robert B. Turner, deceased.

The law of this State has long been settled to the effect that where the defendant claims title to land in suit through a record, and a fatal defect appears upon the face thereof, then there is no' cloud cast thereby on the title of the plaintiffs such as will call for the exercise of the equitable powers of the court. In such case the plaintiff has a complete and perfect remedy at law by ah action of ejectment. [Clark v. Insurance Company, 52 Mo. 272.]

If there was no judgment rendered enforcing the lien of the State for the taxes due upon the land, then that fact would constitute a fatal defect appearing upon the face of the record through which respondent claims within the meaning of the rule of law above announced. [Beedle v. Mead, 81 Mo. 1 c. 303.]

Norton, C. J.,

in the case of Davis v. Sloan, 95 Mo. l. c. 553, stated the rale in the following language: “This is a proceeding in equity to remove a cloud on plaintiff’s title to certain land in the petition described, and to recover possession of the same. On the. trial, judgment was rendered for defendants, from which 'plaintiffs have appealed. It appears from the aver-ments in the petition that the legal title to the land in question was in plaintiffs, and that at the time the hill was filed they were out of possession, and that defendants were in possession. The judgment must be affirmed on the ground that a party claiming the legal title and being out of possession cannot invoke equitable jurisdiction to remove a cloud on such title. [Keane v. Kyne, 66 Mo. 216; Clark v. Insurance Co., 52 Mo. 272; Magwire v. Tyler, 47 Mo. 115; Janney v. Spedden, 38 Mo. 395.] ”

And in the case of Verdin v. City of St. Louis, 131 Mo. l. c. 112, Judge Sherwood said: “This- view is illustrated by many cases in this state and elsewhere ; there are none to the contrary, thus: ‘ The settled rule is, that when a defect appears upon the face of the record through which the opposite party can alone claim title, there is not such a cloud upon the title as to call for the exercise of the equitable powers of the court to remove it. But when such claim appears to be valid upon the face of the record, and the defect can only be made to appear by extrinsic evidence, particularly if that evidence depends upon oral testimony to establish it, it presents a case for invoking the aid of a court of equity to remove it, as a cloud upon the title. . . . But if in the -investigation, in tracing back the title, a defect appears upon the record, then it is evident there is no cloud, for the face of the record furnishes the means of detecting the error and apprising parties of the true state of the title.’ [Clark v. Insurance Co., 52 Mo. l. c. 276, 277.] The doctrine of this case was affirmed in Mason v. Black, 87 Mo. 344. A petition showing that plaintiff’s property has been' levied upon under an execution issued upon a void judgment and asking for an injunction, presents no ground for equitable relief. [Fletcher v. Heth, 10 Mo. App. 594.] A deed void on its face is no cloud on the title. [Johnson v. Cottingham Co., 8 Mo. App. 575.]” To the same effect is the Hannibal & St. Joseph Ry. Co. v. Nortoni, 154 Mo. l. c. 149; and Humphreys v. Milling Co., 98 Mo. l. c. 552.

The ease at bar is a much stronger case in favor of the respondent than are any of those before cited, for in those cases the judgment was only defective, while here, according to the allegations of the petition, -no judgment at all was rendered. We are, therefore, clearly of the opinion that the petition states no cause for equitable relief.

Even though it be conceded that counsel for respondent failed in the trial court to make the objection, that the petition stated no cause of action, yet that failure could avail appellants nothing, for the reason that the failure of the petition to state a cause of action is jurisdictional and may be raised at any stage of the proceedings, even for the first time in this court. Judge Craves, in discussing this question in the case of McQuitty v. Wilhite, 218 Mo. l. c. 591, in speaking for the court, said: “It has long been held that if a petition states no cause of action, such question can be raised here for the first time, and a judgment thereon should be reversed. [Davis v. Jacksonville Southeastern Line, 126 Mo. 69; Hoffman v. McCracken, 168 Mo. l. c. 343.]”

There are two other questions presented by this record — one is the question of estoppel, and the other is the same as that involved in the case of Shelton v. Franklin, now pending in Court in Banc, regarding the recitals contained in the tax deed; but since the conclusion before reached regarding the insufficiency of the petition fully disposes of the case in favor of the respondent, no useful purpose could be served by deciding either of them, for the reasons that the former is an ordinary question of estoppel, involving no new principle; and whatever we might say as to the latter wonld add bnt little, if anything’, to what the members of this division have already written regarding that question in'the Shelton-Franldin case.

Since writing the foregoing opinion this court In Banc has, decided the Shelton-Franldin case before mentioned. We there held the tax deed to he valid. That holding is controlling here, and for the reasons there stated we hold the tax deed here in question valid also.

We are, therefore, of the opinion that the judgment should he affirmed, and it is so ordered.

Valliant, J., concurs in toto; Lamm, P. J., in result ; and Graves, J., concurs for the reasons stated in last paragraph of the opinion.


author: WOODSON, J.

text:
    A. MOORE BERRY, Receiver, v. HORACE E. ROOD et al., Appellants.
    Division One,
    January 4, 1910.
    1. RECEIVERSHIP: Costs: Compensation of Counsel. The court must fix the compensation of the receiver, and that of his counsel, and ordinarily that must he paid out of the assets of the company; and unpaid stock subscriptions are to he considered assets of the company, where creditors gave it credit relying upon the belief that the stock had been fully paid.
    2. -: -: Who Should Pay: Exception to Rule. Those who receive the benefits of the receivership should pay the costs thereof. Where the suit for the appointment of a receiver and for the assessment against the stockholders of the defendant company to such an amount of unpaid stock subscriptions as will yield sufficient assets, was instituted by a creditor company alone and not even for the benefit of other creditors, and it wholly failed in the establishment of its claim, but the court ordered the receiver to hear claims against the bankrupt company, and other creditors appeared and their claims were allowed along at the same time the creditor company’s claim was rejected, the entire costs should not be taxed against the bankrupt company or its stockholders who had not paid their stock subscriptions in full, but a just portion should be taxed against the said creditor company, which by prosecuting its claim made the employment of counsel and much of the expense necessary.
    3>-: Reasonable Compensation. An allowance of $1,000 and expenses to the receiver and of a fee of $5,000 to his counsel, in a receivership which has been pending for fifteen years, and in which there have been three trials and three appeals, is held to be reasonable, under the' evidence and the other circumstances.
    Appeal from St. Louis City Circuit Court. — No». Matt. G. Reynolds, Judge.
    Reversed IN part AND remakded (with directions).

      Da/wson & Garvin for appellants.
    (1) Defendants ought not to be held liable for all the costs of this suit. It will be inequitable and unfair to require defendants to pay all the costs. R. S. 1899, secs. 1549, 1550, 1559; Turner v. Johnson, 95 Mo. 452; Bender v. Zimmerman, 135 Mo. 53; Schawacker v. McLaughlin, 139 Mo. 333; Plant Seed Co. v. Michel Plant & Seed Co., 37 Mo. App. 313. (2) Defendants are not liable for the expenses of the .receivership, nor for the compensation of the special receiver and his attorneys. Defendants are not liable in any case, in Missouri, for such -expenses or compensation, unless such liability is created by statute, and there is no such statute in Missouri. City of St. Louis v. Meintz, 107 Mo. 617; Albers v. Merchants’ Exchange, 138 Mo. 159. (3) Such expenses and compensation have already been allowed in the case of the Providence Jewelry Company v. Ozark Onyx Company, authority therefor being found in Sec. 755, R. S. 1899; and they must be paid out of the fund in that case, or if that is insufficient, the Providence Jewelry Company, the plaintiff in that suit, at whose sole instance and request the special receiver was appointed and directed to bring this suit, may be required to pay them. R. S. 1899, sec. 755; City of St. Louis v. St. Louis Gas Light Co., 87 Mo. 224; Pullis v. Pullis Bros. Iron Co., 90 Mo. App. 250; State ex rel. Gray v. Building Assn., 102 Mo. App. 675; Knickerbocker v. Mc-Kindley, 67 Ill. App. 295; McAurow v. Martin, 183 111. 266; Couper v. Shirley, 75 Fed. 171; Highley v. Dean, 168 Ill. 266; Welch v. Rensliaw, 59 Pac. 968; Richmond v. Irons, 121 U. S. 27. (4) The liability of these defendants as holders of unpaid stock in the Ozark Onyx Company does not extend to the payment of the expenses of the receivership or the compensation of the special receiver or his attorneys. Their liability is limited to the unpaid debts of the corporation and such ordinary court costs as are necessarily incurred in enforcing such liability by motion for execution, and creditors must pay their own attorneys’ fees. Berry v. Rood, 168 Mo. 332; Scovill v. Thayer, 105 U. S. 143. (5) The rule in equity is well established that the party at whose special instance and request a receiver has been appointed will be required to pay the expenses of the receivership, and the compensation of the receiver and his counsel in cases: Where the claim of right upon which he based his right to have a receiver appointed has been adjudged unfounded. City of St. Louis v. St. Louis Gas Light Co., 87 Mo. 224; Pullis v. Pullis Bros. Iron Co., 90 Mo. App. 250; State ex rel. v. Building Assn., 102 Mo. 675; Highley v. Deane, 168 Ill. 266. Or where a receiver was useless or unnecessary. City of St. Louis v. St. Louis Gas Light Co., supra; McAurow v. Martin, 183 Ill. 266; Richmond v. Irons, 121 U. S. 27; Highley v. Deane, 168 Ill. 266. Or where there is no fund out of which he can be paid, or the fund is not sufficient. Knickerbocker v. McKindley, 67 Ill. App. 295; Welch v. Renshaw, 57 Pac. 968. And it is proper to require him to pay such expenses and allowances where the fund is not sufficient, in like manner as when-a receiver has been held to have-been appointed without any probable cause for so doing. Welch v. Renshaw, supra; Alderson on Receivers, p. 868, sec. 632.

      Lee W. Grant for respondent.
    (1) The liability of these defendants for the debt due the Bank of the Republic, the necessity of the receiver’s appointment, the liability of defendants for all the costs, were all settled in the previous appeals. All questions" presented by the record in the former appeal, or which might have been put in issue, have been decided. Sou. Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 175; Dixon v. G-ivan, 75 Mo< 516; Laffon v. Fretwell, 24 Mo. App. 258; Bank v. Taylor, 62 Mo. 338; May v. Crawford, 150 Mo. 524. (2) The receiver is an officer of the court and the court always fixes his compensation. Such compensation must he paid out of the assets of the corporation. Greeley v. Bank, 103 Mo. 212; Stewart v. Boulware, 133 U. S. 78; State ex rel. v. Bldg. & Loan Assn., 102 Mo. App. 675; Alderson on Receivers, p. 833. “It has passed into a legal truism in Missouri that so far as creditors are concerned, unpaid stock subscriptions constitute an asset of the corporation that can be subjected to the payment of the debts of the corporation.” Chrisman-Sawyer Banking Co. v. Independence Mfg. Co., 168 Md. 634; County of Morgan v. Allen, 103 U. S. 498; Cushins v. Pevot, 175 Pa. St. 66.
   WOODSON, J.

This is the third appeal of this cause to this court. The first opinion is reported in the 168 Mo. 316, and the second in 209 Mo. 675.

A detailed statement of the facts of the case is not necessary for the proper determination of the questions involved in this appeal.

Prior to the year 1893 the defendants and otters organized under the laws of this State the Ozark Onyx Company, with a capital stock of $300,000. None of that stun was paid into the treasury of the company in cash, and less than $25,000 thereof was paid in property.

In 1893 the Providence Jewelry Company failed and went into the hands of a receiver, who brought suit against the former company to have a receiver appointed for it. There were no other parties to that suit. A receiver was appointed for the Ozark Company, .and after the tangible property of the company had been administered upon, he was discharged. In the meantime the Providence Company had effected a compromise with its creditors, and its assets had been reconveyed to it, and its assignee discharged'. Thereupon, the P'rovidence Company was substituted as plaintiff against the Ozark Company in lieu of the discharged assignee. It asked and the court, appointed a special receiver for the Ozark Company, with instructions to sue these defendants for the amounts due on their stock.

After giving defendants credit for all sums paid by them in property for their stock in the Ozark Company, it was found that they still owed thereon the sum of $102,279.

The debts of the latter company aggregated about $25,000. The Providence Company claimed that $20,-000 of that sum was due it.

One Leighton was president of both companies; and without permission of the Providence Company, he took $20,000 from it and turned it over to the Ozark Company. He took the latter’s notes for the same and indorsed them over to the former company. These notes constituted the basis of its claim against the Ozark Company. The latter lost the money in its business; and this court held these defendants were not liable therefor to the Providence Company, for tlie reason that Leighton was president of both companies, and, consequently, it did not lend the money to the former company relying upon the faith that its capital stock had been fully paid. This court, however, on the first appeal, held that these defendants were liable for all other indebtedness of the Ozark Company, and such costs as might be taxed against them up to the amount of their unpaid stock.

The receiver was ordered to hear and allow all claims owing by the Ozark Company. He did so and filed his report showing all claims allowed, and disbursements made. This report showed he had no money or funds of any kind left in his hands, leaving nothing to be turned over to his successor.

The receiver was ordered to collect from these defendants the amounts due from them to the corporation for stock held or owned by them but not wholly paid for. An assessment was duly made under the direction of the court for those amounts. The receiver was ordered to sue all stockholders within reach of the process of the courts of this State for the amounts assessed against them, respectively, and was authorized to employ counsel to prosecute said suits. These various suits were brought. Since then the defendants have paid oft two of the largest claims against the company, aggregating something over $4000, but they have been fighting 'the remaining claims, which amounted to less than $300, and the costs of this litigation, including compensation for services performed by the receiver and by his counsel.

One of the questions involved in the second appeal challenged the authority of the circuit court to provide a fund with which to pay the costs of the litigation and the compensation to be paid for services performed by the receiver and his counsel, by assessing the stockholders therefor in advance of a decision of that court determining, first, that they were liable for the same; and, second, the amount thereof.

This court held that while there was an unusual practice, yet it was not without precedent; and under certain circumstances it might be proper procedure; but in this case we also held that there was no occasion to take up that subject before the court in the original cause had decided those questions. For that reason, the judgment was reversed and the cause remanded with directions to the circuit court to proceed with the cause in conformity to the law as therein expressed.

Upon the return of the cause to the circuit court, plaintiff filed a motion asking judgment against defendants in conformity to views of this court.

Evidence was introduced and heard by the court, and it entered a decree against defendants on account of the following unpaid creditors for the following amounts:

F. 0. Sawyer Paper Company .$ 10.99
St. Louis Granite Wall Plaster Company.... 20.43
Koken Iron Works.• 2.56
Moser Express & Messenger Company. 16.50
C. W. Wall, Assignee . 83.70
J. M. & W. F. Robb. 9.30
Which, with interest, aggregate.$260.78

The decree was also against the defendants on account of incidental expenses incurred by the receiver, $184.50; for compensation to the receiver, $1,000; and for services of the receiver’s attorney in this cause, $5,000, and for all the costs.

Prior to the final decree in the court below, there having been a finding of liability in this court against them to the extent necessary to pay the $143.48 aggregate of indebtedness set forth above, the defendants filed their motion to tax the great part of the costs against the plaintiff, which motion was as follows (formal parts omitted):

“Now comes the following’ named ■ defendants, Horace E. Food, Trustin B. Boyd, Lncian E. Blaekmer, Lewis W. Post, John J. Broderick, Joseph D. Bascom, Milton M. McKeen and Charles S. McKeen, and move the court to tax nine-tenths of the costs in this case against the plaintiff and for grounds of said motion assign the following:
“(1) That the plaintiff in this case as receiver is suing in a representative capacity; that is to say, he is suing solely for and on behalf of several alleged creditors of the Ozark Onyx Company, which creditors had separate and distinct causes of action against the Ozark Onyx Company, the aggregate amount of the demands of all the creditors as alleged in the petition being $25,258.55, and the findings and the judgment herein have been in favor of these defendants as to all of said demands except the demands of the following said creditors: F. 0. Sawyer Paper Co., $10.00; St. Louis Granite Wall Plaster Co., $29.43; Koken Iron Works, $2.56; Moser Express and Messenger Co., $16.50; C. W. Wall, assignee, $83.70; J. M. & W. F. Eobb, $9.30; aggregating only $143.48 without interest, and only $246.78 with interest.
“(2) That the plaintiff in this case made fifty-six parties defendants in this action alleging that they were all stockholders in the Ozark Onyx Company and were liable to contribute to the payment of said demands of the alleged creditors and as to certain of said defendants, to-wit, Eugene F. Williams and J. F. Leighton, the plaintiff voluntarily dismissed this action and as to all the other of said defendants except the eight hereinabove first enumerated, the final judgment herein has been in their favor and against the plaintiff.
“(3) Because there were several, separate and distinct issues and parties defendant in this case and as to certain of said issues and parties (as stated above in ground 2) the plaintiff voluntarily dismissed and as to certain others of said defendants and certain of said issues there has been a final judgment herein in favor of said defendants and against the plaintiff.
“(4) Because it is inequitable and unjust to tax all the costs of this action against the defendants filing this motion.
“(5) Because the creditors whom the plaintiff as receiver represents in this action might have proceeded in equity directly against these defendants without the intervention of a receiver, or each of said creditors might have filed separate motions for execution against the alleged stockholders of the Ozark Onyx Company, and the appointment of a receiver was wholly unnecessary to enforce any demands which creditors had against stockholders, or to preserve any assets out of which creditors might he paid.
“(6) Because the receiver, plaintiff herein, was appointed in said original cause at the sole instance of the Providence Jewelry Company for the sole purpose of bringing this action against alleged stockholders of the Ozark Onyx Company upon the wrongful allegation made by said Providence Jewelry Company that it had a large demand against the Ozark Onyx Company which it had the right to call upon the stockholders of said last named company to pay, whereas said allegation was false and the said Providence Jewelry Company’s claim of a demand was wrongfully made and has been so adjudged.”

The court below, on the same day that it sustained plaintiff’s motion for judgment, overruled defendant’s motion to tax part of the costs against plaintiff, and defendants having unsuccessfully moved for a new trial, perfected their appeal to this court.

I. The only questions presented for determination by this appeal are, are the defendants liable, first, for the amounts allowed the receiver and his counsel, as compensation for their services rendered in the cause; and, second, are those amounts reasonable?

There is no question but what the receiver and his counsel are entitled to be paid reasonable compensation for their services; but the real question is, who should pay it — the defendants or the Providence Jewelry Company? The latter insists that the former and the former insist that the latter should pay same. In any event, the defendants contend the Providence Jewelry Company should be required to pay a portion thereof.

Counsel for the company insists that defendants should be required to pay the receiver and counsel for their services, for the reason that such compensation is but a part of the costs in the case; and they having lost the ease, the entire costs thereof should fee taxed against them.

The receiver is an officer of the court, and the court, under the evidence, must fix his compensation, as well as that of his counsel. Their compensation ordinarily must be paid out of the assets of the company. [Greeley v. Bank, 103 Mo. 212; Stuart v. Boulware, 133 U. S. 78; Richmond v. Irons, 121 U. S. 27.]

It is also well settled law in this State that insofar as creditors are concerned, unpaid stock subscriptions are in equity considered assets of the corporation, and that they may be subjected to the payment of the debts of the corporation where creditors gave it credit, relying upon the belief that the stock had been fully paid. [Chrisman-Sawyer Banking Co. v. Independence Mfg. Co., 168 Mo. l. c. 646; Morgan County v. Allen, 103 U. S. l. c. 509; Bernheimer v. Converse, 206 U. S. 517.]

I do not understand counsel for appellants to controvert the general rules before stated, but they insist that, since this suit was instituted by the Providence Jewelry Company alone, and not even for the benefit of other creditors, and having wholly failed to maintain its action against the Ozark Company, those facts distinguish this case from those before mentioned wherein the foregoing rules are announced, and that the court should for that reason tax the cost of the case against it, the losing company, upon the broad ground that it lost its case, and it should as an incident to that loss pay the costs of the case.

,If those were all of the facts of the case, then there would he great force in that contention; hut they are not all of the facts. After the receiver for Jhe Ozark Company was appointed, the court ordered him to hear and allow claims against the corporation, which he proceeded to do; and while the claim of the Providence Company was rejected, and it failed to prove up any sum whetever, yet all of the other creditors of the Ozark Company, in pursuance of the order of the court appeared before the receiver and presented their claim against it for allowance, which were by him allowed. "While the suit was not brought for the benefit of these creditors, yet under the order of the court they came in and availed themselves of its benefit, which was just as effective to them as if it had been originally brought for their benefit.

Those services were valuable and should be paid for, but they were of no actual benefit to the Providence Company, for the reason that it lost out on the presentation of its claim; and for that reason it would ibe unjust to require it to pay for the same. Those who received the benefit should pay for the same.

We are, therefore, of the opinion that all of the costs of those cases should not be taxed against the Providence Company, but, if ascertainable, should be taxed against 'defendants.

This brings us to the question, should the Provi-deuce Company be required to pay a part of the costs, and, if so, what part?

Counsel for appellants contend that the question of taxing costs in such a proceeding as this rests largely in the sound discretion of the court; and in determining who should pay the costs of the litigation, the court should view the entire ease from its inception to its termination, and consider the rights and equities of the parties in the premises; and where substantial issues are found for one party and like issues found for the other, then the costs should be taxed against each as equity and justice demand. In support of that contention counsel cite the following authorities: R. S. 1899, secs. 1549, 1550 and 1559; Turner v. Johnson, 95 Mo. 431; Bender v. Zimmerman, 135 Mo. 53; Schwacker v. McLaughlin, 139 Mo. 333.

Said sections of the statutes read as follows:

* ‘Sec. 1549. When any defendant, in any action, shall plead several matters, any of which shall, upon demurrer joined, be adjudged insufficient, or if a verdict shall be found on any issue in the case for plaintiff, costs shall be given at the discretion of the court.
“Sec. 1550. Where there are several counts in any petition, and any one of them be adjudged insufficient, or a verdict, or any issue joined thereon, shall be found for the defendant, costs shall be awarded at the discretion of the court.
“Sec. 1559. Upon the plaintiff dismissing his suit, or defendant dismissing tbe same for want of prosecution, the defendant shall recover against the plaintiff his costs; and in all other cases it shall be in the discretion of the court to award costs or not, except in those cases in which a different provision is made by law. ’ ’

In the Turner-Johnson case, supra, on page 453, this court, in speaking of this question, through Black, J., said: “As a general rule, where the plaintiff is the prevailing party in a suit in equity, he should recover costs. It was so held in Hawkins v. Nowland, 53 Mo. 328, hut without any consideration of the history of these statutes. Where, however, substantial issues are found for one party and like issues found for the other, the taxation of costs will rest in the discretion of the court, and will not he disturbed unless there has been a clear abuse of that discretion. This discretion is vested in the court when the verdict is for one party on one count o.r defense and for the other party on another count or defense, and there is no reason why the principle should not be applied in equity suits, though there be but one count, there' being distinct issues. Some support is given to this conclusion by what was said in Dupont v. McLaran, 61 Mo. 511. In this case there were many distinct issues, that as to the right to redeem being found for the plaintiff, and those as to the amount of money to be paid, for the defendant. We may, therefore, settle the question upon equitable principles.”

In the case at bar- most of the issues involved in the case were presented by the Providence Company, and practically all of them were decided against its interests. In other words, the great bulk of this litigation was between the Providence Company on the one hand and the Ozark Company upon the other; and the findings and decree of the court were in favor of the latter company; consequently, these defendant stockholders were not interested in that litigation, for the reason they could not be called upon to pay any sum on account of their stock subscriptions to the former company until it had recovered a judgment against the latter company. It would, therefore, be unjust to compel these appellants to pay the costs of that unsuccessful litigation. The Providence Company made those costs for its sole benefit, and equity and justice demand that they should pay them, in so far as they can be ascertained. But since a portion of the issues involved were decided in favor' of other creditors of the Ozark Company, and against these appellants, it is hnt just and equitable that they should pay the costs thereof. However, under the disclosures made by this record, it is impossible to determine just what portion of the costs should he taxed against each party, except a careful reading of the record will show the greater part of the litigation, and especially the last two appeals, was had for the benefit of the Providence Company. So, if we should take that as a basis, which seems fair and just, at least one-half of the costs of this litigation should he taxed against the Providence Company. That, of course, includes one-half of the fees to he paid to the receiver and those allowed to his counsel.

II. The next question presented for determination is, did the court allow an unreasonable sum as compensation for the services performed by the receiver and his counsel?

We think not. This suit has been pending for more than fifteen years. Three trials were had in the circuit court, and three in this court, besides the number of suits brought and prosecuted against the various stockholders for contribution. The matter was submitted to the trial court upon the record before it, and the parol testimony of several competent witnesses who testified in the case as to what such services were reasonably worth.

The court found therefrom that the services of the receiver were worth $1000 and those of his counsel were worth $5000 and rendered judgment for the full amount against the appellants.

In our' opinion one-half of said sums as well as one-half of all other costs of the case should be paid by the Providence Company, and the other half should be paid by the appellants. And it is so ordered. The decree is reversed to that extent and the cause remanded with directions to the circuit court to set aside the decree as to costs and said allowances to the receiver and to his attorneys, and to render a decree in the cause in conformity to the views herein expressed.

All concur.