author: POX, P. J.

text:
    THE STATE v. ARTHUR KOOCK, Appellant.
    Division Two,
    March 19, 1907.
    1. HUNTER’S LICENSE: in County. Under section 54 of the Game and Fish law of 1905 (Laws 1905, p. 158, sec. 54), providing that “it shall be unlawful for any person to hunt in this State outside of the county in which he lives without first obtaining a license permitting him to do so,” the hunter is not required to have a license to hunt in the county in which he resides, and the killing of game birds in the county by a resident person who has no license to hunt is not an offense.
    2. CRIMINAL STATUTES: Construction. No guess work or inferences should be indulged in the interpretation of penal statutes. The uniform rule is that such statutes should be strictly construed and not extended or enlarged by judicial construction so as to embrace offenses or persons not plainly within their terms.
    Transferred from Kansas City Court of Appeals.
    Reversed.

      W. D. Steele for appellant.
    (1) Appellant insists that there is no law in force in this State that requires him to obtain or take out a hunter’s license in order that he may hunt in the county in which he lives and that there is no law prohibiting him from hunting in the county in which he lives without first taking out a license. Neither is there any law fixing a penalty for so doing. Section 54 of the act in question says, “It shall be unlawful for any person after the passage of this act to hunt in this State outside of the county in which he lives without first obtaining a license permitting him or her to do so.” Therefore, by clear implication and by the ordinary rules of construction it is lawful to hunt anywhere in the State except as here prohibited in section 54, that is, except outside of the county in which he lives. (2) Section 61 of the game law provides that “any person who shall hunt in this State without being at the time of said hunting in possession of a license as herein provided, duly issued to him, or her, which license shall cover the period in which he or she shall be hunting, or who shall furnish to- another person a license issued to him or her, shall be 'fined not less than twenty-five nor more than one hundred dollars, and costs of prosecution.” Now section 54 provides that it shall be unlawful for any person to hunt in this State outside of the county in which he lives, without first obtaining a -license. Section 58 provides the manner in which license may be obtained and enumerates those persons entitled to obtain a resident hunters’ license, and further provides that owners and tenants of farm lands may hunt on their lands without any license. Section 21 provides that unless specifically restricted the words “herein or hereof” refer to the whole act. (3) Construing the whole act, is it not the obvious intent of the Legislature that any person may hunt in the county in which he lives without first taking out a license; and, second, that owners and tenants of farm lands may hunt on such lands without a license, and that regardless of where such lands are situated? The words “as herein provided,” used in section 61, must, by virtue of the express provision of section 21, refer back to sections 54 and 58. Another well-settled rule of construction, is that the whole statute must be so construed as to harmonize all its parts, if possible. Following this rule and construing sections 21, 54, 58 and 61 together, we have the following, which is the only construction by which all these sections can be harmonized and is a very reasonable construction, namely: “Any person who shall hunt in this State outside of the county in which he lives without being at the time of said hunting in possession of a hunter’s license shall be fined not less than twenty-five nor more than one hundred dollars, provided that this section shall not apply to owners and tenants of farm lands who may hunt on their own lands without obtaining a license. ’ ’ To put any other construction on the statute would be to render section 54 an absolute nullity, in order that a strained construction may be put on section 61. Further, by giving to those se\eral sections the construction that we have attempted we have followed the rule that a law should be so construed that all words of the statute will have effect. (4) A statute should be so construed that effect will be given to all of its provisions. National Bank of Commerce v. Ripley, 161 Mo. 126. When a literal construction of any section will conflict with any other section of a statute or with the scope and manifest intent of the act, it is the duty of the court if possible to harmonize the various provisions and if necessary depart from a literal construction of one or more sections. State ex rel. v. Heman, 70' Mo'. 441. All parts of a law must be considered in getting at the full significance of any part of it. State ex rel. v. Marion County Court, 128 Mo. 427. Effect must be given if possible to all of its provisions. Riddick v. Walsh, 15 Mo. 519. All the words of a statute must have effect rather than any part should perish by -construction. St. Louis v. Lane, 110 Mo. 254. When it is plain that a particular intention was in the mind of the Legislature, though not precisely expressed, that intention' must govern and control the strict letter of the law. State v. King, 44 Mo. 283. The courts if possible should construe a statute so as to avoid conflict between the various sections. City of Westport ex rel. v. Jackson, 69 Mo. App. 148, This being a criminal statute, it must be construed strictly against the State. State v. Balch, 178 Mo. 392.

      G. G. Kelly, Barnett & Barnett and J. H. Bodes for the State.
    (1) Hunting in the county in which a party resides without taking out a hunting license under the game law constitutes an offense. Section 58 is the section which authorizes a party to take out a license. There is no provision in section 54 for issuing a license. It does not prescribe the party who issues the license nor the qualifications necessary to obtain a license nor the steps necessary to be taken. But who is entitled to a license and what his application must set forth, the fee to be paid, and the party who is authorized to issue it, are all prescribed by section 58. Section 61, in plain, unambiguous and unequivocal language, says that any person who' shall hunt in this State without being at the time of such hunting in possession of a license, as herein provided, duly issued to him or her, shall be fined not less than twenty-five dollars nor more than one hundred dollars. This section is unqualified and prohibits hunting anywhere in the State. Section 58 prescribes who may obtain-a license and how it may be obtained, and section 61 is the section that defines the crime of hunting without a license, and when the question is asked, where is it that a person cannot hunt without a license, section 61 gives the answer and responds, in plain, unambiguous language, that a person shall not hunt in this State, that is, anywhere in the State, without being in possession of a license. It is contended that section 54 of the act authorizes a party to hunt in his own county without a license. The section does not so state:, but simply states that it is unlawful for any person to hunt in the State outside of the county in which he lives without first obtaining a license permitting him to do so. It does prohibit him from hunting outside of his own county without a license, but does not authorize him to hunt in his own. county, or, in other words, it does not contradict or nullify the provisions of section 61, which, in broad terms, prohibits him from hunting in any county, including his own. These three sections, 54, 61, and 58, must all be construed together as one section, and in fact all the other sections relating to this subject must be read into them. It is a familiar rule of construction of statutes that sections and parts of the statutes, in pari materia, are to be treated as if embodied in one section. St. Louis v. Hardware Co., 119 Mo. 45. Let it be understood, once for all, that the license in question is not a county license, but a State license. The party wishing to hunt takes out a license once for all in one county, which permits him to hunt anywhere in the State, and the place where he is to take this license is in his own county. The purpose and function of section 54 is obvious. As there is no provision in the law for a party taking out a license in any county other than his own, it might have been supposed that when a man was outside of his own county, as there was no provision for his taking out a license in the county in which he was a non-resident, that, therefore, he could hunt in such county without any license at all. It might have been supposed that these licenses were mere county licenses and that a man was required to take out a license in his own county, but in no other county,-and, being not required to take out licenses in another county, it would not be wrong to hunt in any other county without a license. But section 54 simply settles this question by stating that, notwithstanding there is no provision for 3 man taking out a license in any other county than his own, yet he cannot hunt in such other county without first taking out a license under section 58 in the county where he resides. We call the court’s especial attention to the difference of the language in section 61 and in section 54 with regard to taking out a license. In section 61 it says that a person shall not hunt in the State without being at the time' of such hunting in possession of a license as herein provided. Mark the words, “without being in possession of a license.” Section 54 does not say that they shall not hunt outside of their county without being in possession of a license, but says that it shall 'be unlawful for a person to hunt in the State outside of the county in which he lives without first obtaining a license permitting him to do so, that is, without first going to his own county and obtaning a license from the clerk there. He must first go to the clerk of his own county and get his license, that is, obtain it, before he can go to another county to hunt. And when section 58 is read into section 54, it merely says that it is unlawful for a person to hunt in this State outside of the county in which he lives without first obtaining a license from the county clerk in the county where he resides. It seems to us nothing can be clearer than this. We call especial attention to the fact that it is not true that section 54 is the paramount section in this act which defines the crime. Section 54 does not define the crime, neither does it provide for the taking out of a license. If we were to stop at section 54 no punishment would be provided for any hunting, and if we were to stop with that section no provision would be made for the taking out of a license. It could not be known who could take out a license, what officer should issue it, nor what fee was to be paid. But the section that does provide for a license, and the only section, is section 58, and the section which defines the crime, and the only section, is section 61, which, in plain, unambiguous terms, says that it is unlawful to hunt in the State of Missouri without taking out a license under the provisions of section 58, and prescribes the penalty for a violation of the section. (2) It is a leading maxim in the interpretation of statutes to reject an interpretation which conflicts with the views of the Legislature apparent in the enactment and leads to such consequences as it would be disrespectful to the Legislature to suppose were designed. Connor v. Railroad, 59 Mo. 285. If the position taken by the opposing counsel is correct, then sections 69 and 70 are simply ridiculous, and to put such a construction upon those sections would be disrespectful to the Legislature. To say that the Legislature meant and intended that a man could go anywhere in his own county and kill as many birds as he saw fit without a license and then could take them to his own home without being in possession of a license would be to simply render the Legislature ridiculous and would be to argue that they intended to do a ridiculous thing. (3) It is another well-recognized rule of construction that if a construction be placed upon a particular part of the act which will make it conflict with other parts, then the courts will labor to find the meaning and construction which will reconcile the apparent hostile and conflicting provisions and will seek a construction that will give some meaning to each and every part of the act, so that it will all stand together and all be effective and so that no part of it will perish by construction. St. Louis v. Lane, 110 Mo-. 254'; Macke v. Byrd, 131 Mo. 682; State ex rel. v. Slover, 126 Mo. 652; Andrew County v. Schell, 135 Mo. 31; State v. Heath, 56 Mo. 231; State v. Hernán, 70 Mo. 441; Cole v. Skrainka, 105' Mo. 303; Cain v. Railroad, 112 Mo. 34; Nat. Bank of Commerce v. Ripley, 161 Mo. 126. The policy of the courts is to seek for a construction which will sustain the law and perpetuate the purpose which was intended by the Legislature. St. Joseph v. Landis, 54 Mo. App. 315. (4) If section 54 means what the defendant in this case claims it does, then it is in conflict, as has been urged, with the provisions of section 61, and especially with the provisions of sections 69 and 70. If it be true that section 54 conflicts with these other sections, then it mnst be disregarded, because it is a familiar rule of construction of statutes that if there be an irreconcilable conflict or repugnance between the provisions of an act, or between the different sections thereof, the last in order will stand and' the others, which cannot stand with them, go to the ground. City of Westport v. Dickson, 69 Mo. Appi. 153; Brown v. Commissioners, 21 Pa. St. 42; Herrington v. Trustee, 10 Wend. 553; 25 Am. and Eng. Ency. Law (1 Ed.), 311. (5) But if there was still any doubt on this question, it would be removed by the proviso in section 58, which reads as follows: “Provided, this section shall not apply to owners and tenants of farm lands who may hunt on their own lands without obtaining a hunting license. ’ ’ Under the maxim, expressio unins est exclusio alterius,” everything else is excluded from the operation of this proviso except what is contained therein, that is, hunting is prohibited everywhere in this State without a license except in the territory described in the proviso. State v. Fisher, 119' Mo. 351; Brockett v. Railroad, 14 Pa. St. 241; Sutherland on Statutory Const., see. 328; Tyson v. Britton, 6 Tex. 222; Roberts v. Tarboro, 41 Tex. 450; United States v. Dickson, 15 Peters 165. We want to impress upon the court the fact that this proviso' is found in section 58, being the section, and the only section, which provides for the taking out of a license by a resident of the State. (6) But we understand that it is contended that these general rules of construction cannot be made applicable to a criminal or penal statute because there is another rule of construction that penal statutes must be strictly construed. We insist, however, that while there is more strictness in construing a penal statute than a mere remedial one, yet the above rules of construction apply in full force to them as well as to other statutes; that in construing penal statutes the courts must try to give a construction that will give meaning to all parts of the act and a meaning which will effectuate the purpose of the act. Black, Int. Stat., p: 288; State v. Sibley, 131 Mo. 525; State v. Woodward, 182 Mo. 391; State v. Tower, 185 Mo. 79.
   POX, P. J.

This cause was certified to this court by the Kansas City Court of Appeals for thei reason that it was in conflict with the decision of the St. Louis Court of Appeals in Ex parte Helton, 117 Mo. App. 609.

The defendant was indicted, tried and' convicted for hunting without a license in the county of Pettis, being the county in which the defendant resided. This prosecution is predicated upon an act of the General Assembly relative to the preservation, propagation and protection of game animals, birds and fish. This cause was submitted to the court sitting as a jury upon the following agreed statement of facts:

“It is hereby agreed and stipulated between the State and the defendant that the following are the facts in this case and that this cause may be submitted to the court and determined without a jury upon this ■agreed statement of facts:

“1. It is agreed that the defendant did on the 31st day of October, 1905, at Pettis county, Missouri, hunt game birds, to-wit, one wild duck, on lands not then and there farm lands owned by defendant and then and there not held by him as a tenant, without him being then and there at the time of such hunting, injuring, killing and1 destroying said' game bird aforesaid in possession of a hunter’s license duly issued to him covering the period in which said hunting was done permitting him to do so and without him having any license whatever authorizing him to hunt in the State of Missouri.

“2. It is further admitted that at the time of said hunting the said Arthur Koock was a resident of Pettis county, Missouri, and that he is now a resident of Pettis county, Missouri, and has been for more than one year last past and has been for more than one year previous to the time of said hunting.”

Upon this statement of facts the court declared the law as follows:

“The court, sitting as a jury, at the request of the prosecution, declares the law to be that if the court, sitting as a jury, shall believe from the evidence beyond a reasonable doubt that the defendant, Arthur Koock, in Pettis county, Missouri, on the 31st day of October, 1905, did hunt wild ducks or did injure, kill or destroy a game bird, to-wit, one wild duck, on lands not then and there farm lands owned by the said Arthur Koock or then and there held by the said Arthur Koock as a tenant, and if the court, sitting as a jury, further finds and believes from the evidence that at the time of such hunting, killing, injuring and destroying of the game bird aforesaid the said Arthur Koock was not then and there in possession of a hunter’s license then and there duly issued to him, the said Arthur Koock, covering the period in which he, the said Arthur Koock, was so hunting, killing, injuring and destroying the game birds aforesaid, then you will find the defendant guilty and assess his punishment at a fine of not less than twenty-five dollars nor more than one hundred dollars, and the fact that the defendant was hunting in the county of which he was a resident, if the court believe he was so hunting in his own county, constitutes no defense to this prosecution.” To which action of the court in giving said instruction the defendant objected and excepted at the time.

Whereupon, the defendant requested the court to give the following instruction:

“The defendant asks the court to declare the law to be that he had a right under the law to hunt in the county in which he resided without taking out a hunter’s license and that for that reason he is not guilty.” Which request was refused, and to the action of the court in refusing to give said instruction the defendant objected and excepted at the time.

The cause being submitted to the court upon the agreed statement- of facts and the instruction given as requested by the State, the court found the issues for the State and found the defendant guilty and assessed bis punishment at a fine of $25. A timely motion for new trial was filed and by the court overruled. Judgment was rendered in conformity to the verdict and from this judgment the defendant prosecuted his appeal to the Kansas City Court of Appeals, and that court, as heretofore indicated, certified the cause to this court, and the record is now before us for consideration.

OPINION.

The instruction given for the State and the one requested by the defendant, which was refused by the court, plainly indicate the only proposition presented to this court for its solution, that is, whether or not the defendant had a right under the provisions of the act, as heretofore indicated, to hunt in the county in which he resided, without taking out a hunter’s license as required by the provisions of the act.

The legal proposition involved in this controversy has received by the Courts of Appeals in St. Louis and Kansas City very careful consideration. When the question was first presented to the St. Louis Court of Appeals it was held that it was essential for any person desiring'to hunt, either in the county in which he resided or in any other county in the State, to procure a license authorizing him to do so. Upon a reconsideration of the question by that court it was expressly ruled that it was not essential for a person who desired to hunt in the county in which he resided to obtain any license authorizing him to do so. [Ex parte Helton, 117 Mo. App. 609.] In the case at bar the Kansas City Court 'of Appeals, by a majority opinion, ruled that the defendant was guilty of a violation of the provisions of the act by hunting in the county in which he resided without taking- out a hunter’s license authorizing him to do so, Ellison, J., dissenting from the views expressed by a majority of that court.

The leading and crucial question presented to the St. Louis and Kansas City Courts of Appeals involved the proper construction of section 54 of the game law (Laws 1905, p. 158), as herein indicated. Section 54 provides that, “It shall he unlawful for any person, after the passage of this act, to hunt in this State outside of the county in which he lives without first obtaining a license permitting him or her to. do so. Such license shall be dated when issued and shall authorize the person named therein to hunt during that year, and then only subject to the regulations and restrictions provided by law.”

The proposition as to the proper construction of the provisions of section 54, in view of other numerous provisions in certain sections of the act, have been ably discussed and exhaustively treated by the St. Louis and Kansas City Courts of Appeals, as well as by Ellison, J., in his dissenting opinion to the views expressed by a majority of the court of the Kansas City Court of Appeals. We have read with a high degree of interest the discussion of this proposition by the Courts of Appeals and have carefully considered the views expressed, as well as the conclusions reached, and it can serve no good purpose either to the Bench or Bar to review in detail the views as expressed by those courts. We shall be contented with announcing our conclusions upon the proposition as disclosed by the record.

One of the leading and cardinal principles in the rules of construction of statutes is to arrive at the intent of the lawmaking power. In onr opinion, after a most careful consideration of all the provisions of the act now under discussion, the Legislature never intended that a hunter’s license should first be obtained in order to authorize a person to hunt in the county in which he resided. No guess work or inferences should be indulged in the interpretation of a penal statute. The uniform rule is that such statutes should be strictly construed and not extended or enlarged by judicial construction so as to embrace offenses and persons not plainly within their terms. [State v. Reid, 125 Mo. 43; State v. Bryant, 90 Mo. 534; Sedgwick on Construction of Statutory Law, 280; Fusz v. Spaunhorst, 67 Mo. 256; Kritzer v. Woodson, 19 Mo. 327; Howell v. Stewart, 54 Mo. 400; United States v. Morris, 14 Peters 464; Bishop on Statutory Crimes (2 Ed.), secs. 196, 227.]

We concur in the result of the conclusions reached by the St. Louis Court of Appeals in Ex parte Helton, supra, in which the same proposition was involved as in the case at bar. We have thus indicated our views upon the legal propositions disclosed by the record, which results in the conclusion that the judgment of the trial court should be reversed and the defendant discharged, and it -is so ordered.

All concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    JAMES GORDON et al., Appellants, v. ALLEN PARK et al.
    Division Two,
    March 19, 1907.
    1. EJECTMENT: Adverse Possession: Peremptory Instruction. Where the answer in ejectment is a general denial and a plea of limitation, and there is some evidence tending to show that defendants and those under whom they claim title to the coal under the land had been in the adverse possession of the coal mine for more than ten consecutive years before the commencement of the suit, the court should not take the case from the jury by giving a peremptory, instruction for plaintiff.
    2. -: -: Coal Mine: Segregation: Limitation. The owner of land in 1859 conveyed an undivided one-half interest in a coal mine to plaintiffs’ ancestor. Held, that that, conveyance operated as a severance, by grant, of the coal from the land overlying it, and the mere possession thereafter of the surface did not carry with it, or extend, such possession to the coal. So that plaintiffs, in whom was the paper title to the coal sued for, were entitled to recover the coal, unless the defendants and those under whom they claim title had been in the actual, open, notorious, exclusive, adverse and hostile possession of the coal mine as such for more than ten years before the institution of the suit.
    3. -: -: Coal in Place: Limitation. Coal in place is land when severed by grant from the surface, and in this State actions in ejectment therefor are barred in ten years when the possession has been actual, adverse, open, hostile, exclusive and continuous. And under the evidence in this case the adverse possession was not continuous, but broken, though from first to last it extended, by periods of three or four years at a time, over more than twenty years.
    4. -:-:-:-: Continuous Adverse Possession. It is not necessary, in order for defendant’s adverse possession to be a bar to plaintiff’s paper title, that work in the coal mine should have been done every day or within the view of the public. But it is necessary that defendant should have continued to exercise acts of possession and ownership over the mine, such as keeping off trespassers, giving permission to persons to take coal therefrom, paying taxes thereon, mining the coal when practicable or advantageous, or leasing the mine to others, or such other acts from which plaintiff must have known or inferred that defendant was claiming the coal.as his own.

      5. -: -: -: -: Instruction. Instructions in ejectment for a coal mine severed by grant from tbe surface, which tell the jury that the defense of adverse possession is sustained if the defendant had ten years’ adverse possession of “the property” described in the petition “and continually claimed to be owners of the land,” are erroneous. The ownership or possession of the land is not the issue.
    6. -: Death of Life Tenant: Assumed at Trial. Where the case was tried on the theory that plaintiffs’ mother who had a life estate in the property sued for was dead, it' must be heard upon the same theory on appeal, whether or not there was any evidence showing her to be dead.
    Appeal from Boone Circuit Court . — Hon. A. H. Waller, Judge.
    Reversed and remanded.

      Webster Gordon for appellants; E. W. Hinton of counsel.
    (1) The court should have directed a verdict for plaintiffs because the- surface and the underlying coal having been severed by grant, the surface owners ’ possession did not carry with it the possession of the coal, and there was no other evidence of continued adverse possession. Manning v. Coal Co., 181 Mo, 359'; Cathie Coal Co. v. Lloyd, 176 111. 275; Caldwell v. Copeland, 37 Pa. St. 427; Armstrong v. Caldwell, 53 Pa. St. 284. (a) The foregoing cases settle the rule that after a severance by grant, possession of the surface is not possession of the underlying mineral and, therefore, no matter how long continued, nor under what claims, it can never work a disseizin. Before a claimant can obtain title to a thing by adverse possession, he must have had the possession; and a surface owner, merely by occupying his farm, has no more possession of another man’s mine beneath it, than he has of an adjoining owner’s land separated by a division fence. Bar-ringer & Adams, Mining Law, pp. 568-9. (b) Disconnected operations, separated by periods of from six to twelve years’ inactivity, when there was no possession of the mine independent of the surface, could not amount to adverse possession, because it lacked the essential elements of continuity, without which the acts amounted simply to trespasses. Armstrong v. Caldwell, 53 Pa. St. 284. The surface owner stands in- no better position than a stranger asserting title to the mine. Railroad v. Baker, 183 Mo. 323; Brown v. Hartford, 173 Mo. 183. (2) The two- instructions for defendants were grossly erroneous and misleading in telling the jury that the defense of adverse possession was made out if defendant' had ten years’ possession of the “property” described in the petition claiming the ownership of “said land.” The jury could have understood nothing else but that the undisputed occupation of the land, under a general claim of ownership, gave title to the coal, whereas-, in point of law, nothing short of continued possession of the coal under specific claim of title to it, could operate to defeat a distinct title acquired by grant. Caldwell v. Copeland, 37 Pa. St. 427; Armstrong v. Caldwell, 53 Pa. St. 284; Manning v. Coal Co., 181 Mo. 359.

      N. T. Gm-try for respondents.
    (1) Plaintiffs cannot possibly recover. There was no proof whatever that the widow of George W. Gordon was dead, or, if. dead, when she died. The law is well established that the plaintiff in an ejectment suit must allege and prove that he was entitled to the possession of the premises sued at the time of the institution of the suit. R. S. 1899, secs. 3053 and 3058; Ford v. French, 72 Mo. 25-2; Nalle v. Thompson, 173 Mo. 6-14; Tyler on- Ejectment, 76. And our authorities also hold that the remainderman cannot institute a suit in ejectment, so long as the life tenant (in this instance the widow), is living. Talbott v. Hamill, 151 Mo. 292. (2) The authorities cited by appellants are not in point, as the evidence in the case at bar is so different from the evidence in said cases.- In the case of Manning v. Coal Co., 181 Mo. 359', the plaintiff was endeavoring to have his title quieted by reason of having been in possession of the surface of the ground for many years, the coal thereunder having been severed by conveyance to the defendant’s grantor. The concluding paragraph of the decision in that case, opinion by Judge Burgess, is as follows: “In the case at bar, there is no pretense that plaintiff was ever in possession of the coal strata underlying the land and independently of the possession of the surface, so that there was no adverse holding of it- by him.” Manning v. Coal Co., 181 Mo. 379. In the ease at bar, the evidence showed that after the civil war, Wm. A. Park opened up this coal mine and had coal mined therefrom for a year or two; that Mr. Park not only claimed the land, but also the coal mine. The evidence further showed that after the death of Wm. A. Park, the curator of his son held possession of said mine, claimed the same and had coal mined therefrom whenever he could get miners. In other words, the evidence wholly fails to show any claim or acts of ownership on the part of appellants; but that the defendant Park, his curator and his father have been in possession of said coal mine and exercising acts of ownership over the same, to the exclusion of all others, ever since a year or two before the death of Wm. A. Park, which the undisputed evidence showed -occurred on May 20', 1874. These acts were as open, visible, adverse, notorious, continued and uninterrupted as it is possible to have them in case the real estate claimed is an underground mine. Hence, the requirements on that subject in the case of Brown v. Hartford, 173 Mo. 191, cited by appellants, have been fully complied with. It is not necessary that the work in a mine shall continue every day, nor every hour in the day, in order to give defendants the benefit of the Statute of Limitations. Neither is it necessary that the work done in a coal .mine shall be done within view of the public, for that would be an impossibility. The peculiar wording of the opinion in the case of Brown v. Hartford, supra, must be considered, if it can be applicable at all, in connection with the peculiar kind of work that can be done in a coal mine. In no mine can the work be continuous, nor open, nor uninterrupted for ten years. Few, if any, coal mines in Missouri will “hold out” and be workable for a period of ten years.' It has never been held that it was necessary for the surface owner to work the surface of the ground every day, or indeed'every year, for a period of ten years, in order to acquire title by adverse possession. But public possession, accompanied by claim of title and the usual acts of ownership for the statutory period, will give such claimant title by adverse possession. Not only did Wm. A. Park open and operate said coal mine for a year or two prior to his death and sell coal therefrom, but the curator for his son continued in such operation at all times'when he’was able to get coal miners; and the royalties received by said curator were entered as charges on his accounts filed with his settlements in the probate court. In view of the claim of said curator, his employment of miners, his collection of the royalty and the publicity of the probate settlement records, when taken in connection with the ownership of the surface, the fence that Wm. A. Park and the curator for his son maintained around the entrance to said mine for a period of twenty-five years, the continued maintenance of said fence by defendant Park for ten years more, and the total failure of any other person to assert any claim or title to said mine', it will be seen that the defense of adverse possession was sustained by substantial evidence. (3) Appellants’ criticism of respondents’instruction is without merit. Even if the last word in said instruction was a verbal error, the jury could not possibly have been misled thereby. When said instruction is read and considered all together, it properly told the jury the law on the subject of the Statutes of Limitations. But respectable authorities hold that mines are land. Catlin v. Lloyd, 176 El. 282; Caldwell v. Copeland, 37 Pa. St. 431.
   BURGESS, J.

This is an action in ejectment, instituted by plaintiff in the circuit court of Boone county, to recover possession of an undivided two-tenths of all the coal underlying certain land in said county owned by defendant Allen Park, which land and a coal mine thereon he had leased to defendant George Melloway. The petition is in the usual form. The defendants filed separate answers, that of defendant Melloway being simply a general denial; but defendant Park’s answer, in addition to denying each and every allegation in the petition, set up and pleaded the Statute of Limitations.

The trial resulted in a verdict and judgment for the defendants, from which judgment plaintiffs appeal.

There is no dispute as to the ownership of the land, but only as to the coal underlying the same. Berkley Estes was the common source of title. It appears from the evidence that on February 25, 1859', he conveyed to Boyle Gordon an undivided half interest in the coal mine in controversy, reciting in the deed that the other half had previously been conveyed to John B. Gordon. By deed, dated March 5,1859, Boyle Gordon conveyed his undivided interest in the mine to George W. Gordon, the father of the plaintiffs. This deed was recorded in the recorder’s office of Boone county March 7,1859. George W. Gordon died in I8601, and by the terms of his will, which was probated July 24, I860, all of his real and personal estate was given to his widow, Ann Eliza Gordon, during her lifetime, and at her death to her children, Irvin Gordon, Irene Gordon, Jennie Gordon, Webster Gordon and James Gordon, the two last named being the plaintiffs in this action. An inventory of all the real and personal estate of said George W. Gordon was made by the executors, Ann Eliza Gordon and James M. Gordon, but there was no mention in said inventory -of any interest of the testator in said coal mine, nor was there any evidence that said George W. Gordon ever used or claimed any interest therein.

The land upon which the coal mine in question is situated was conveyed by Berkley Estes to his son-in-law, William A. Park, by deed executed June 1, 1868, which deed contained no reservation as to the said coal mine. William A. Park died on May 20,1874, leaving a widow, a daughter and an infant son, the latter being Allen Park, defendant in-this suit. By his last will and testament, William A. Park gave this land to his widow, during her lifetime, and to his children at her death. His widow died in 1875, and his daughter died intestate a few years later, never having married. Defendant Allen Park, being a child three years old at the time of his mother’s death, was taken to the home of his uncle, 'William B. Est-es. Mr. Estes qualified as executor of the estate of William A. Park, deceased, and also qualified as guardian and curator of defendant Allen Park, and acted as such guardian and curator until February, 1894. On December 27, 1893, defendant Allen Park became of age, having married a short time prior thereto, and moved to this land, living thereon till March 16, 1901, when he sold it to Sarah E. Hayes. Mrs. Hayes and her husband had this mine worked till they sold the place to defendant George Melloway, on February 2, 1903. The next day Melloway conveyed the land back to Allen Park. In neither of the deeds of conveyance was there mention of any reservation as to the said coal mine. On the day of the last-named conveyance, defendant Park executed a mining lease to said Melloway authorizing him to mine on said land.

It would appear from the evidence that the coal mine in question had been worked only at intervals. Shortly prior to the Civil War George W. Gordon, plaintiffs’ father, and John B. Gordon, the owner of the other half interest in the coal, did some mining on the land, and no further work was done until after 1868, when William A. Park, the purchaser of the land, and one C. H. Gordon, a son of John B. Gordon, operated the mine for two or three years. After the death of William A. Park, no mining appears to have been done until 1878, when William B. Estes, defendant Allen’s curator, rented the mine and collected some eight dollars royalty on the coal mined.

During the years 1889, 1890 and 189-1 there was considerable mining done on the land, the royalty collected by curator Estes amounting to about fifty dollars each year. There was no evidence that any more mining was done until 1901, when the mines were worked by Hayes, and* the work was then discontinued until about a year before the institution of this suit.

The evidence showed that the land on which the coal mine in question is situated was fenced in by William A. Park, and that the fence was maintained by curator Estes, by defendant Park and by Mrs. Hayes respectively; that during all the time Wm. B. Estes acted as curator for defendant Park he claimed the coal mine as the property of his ward, and had the same worked at intervals, as stated. No. demand was ever made by either one of the plaintiffs for possession of said coal mine, and no objection was ever made by either of them to the possession of same by the de¡fendants, until the filing of this suit.

At the close of the evidence the plaintiffs asked the court to instruct the jury that, under the pleadings and the evidence, their verdict must be for the plaintiffs for the possession of two-tenths of all the coal under the surface of the land described in plaintiffs’ petition, which the court refused to do, and plaintiffs duly excepted.

The court, then, at the instance of plaintiffs, and over the objection and exception of defendants, instructed the jury as follows:

“1. The court instructs the jury as plaintiffs and defendant Allen Park claim title from and through Berkley Estes, deceased, to all the coal under the surface of the land described in plaintiffs’ petition, it was sufficient for plaintiffs to show a derivative title from him to said coal, without proving his title further back.

“2. The court instructs the jury that plaintiffs have proved a perfect paper title to twodenths of all the coal under the surface of the land described in plaintiffs ’ petition, to-wit, all that part of the east half of the southwest quarter of section 16, township 48, and range 12, in Boone county, Missouri, north of the Columbia and Cedar Creek Gravel Road, back to Berkley Estes, deceased, and your finding and verdict must be for the plaintiffs for the undivided two-tenths of said coal, unless the jury' believe from the evidence that defendants, or one of them, had had such possession of said coal as is hereinafter explained in the instructions given for plaintiff.

“3. The court instructs the jury before they can find for the defendants, or either of them, on account of having possession of the said coal they must believe from the evidence that defendants, or one of them, or those under whom he or they claim title to said coal, has had the actual, exclusive, continued, peaceable and hostile possession of said coal for ten or more consecutive years prior to the institution of this suit.

“4. The court instructs the jury that the actual, exclusive, continued, peaceable and hostile possession of the surface of the land, by the defendants, or either of them, described in the foregoing instructions, will not carry with it the possession of the coal under the surface of said land, and you should not find for the defendants, or either of them, on that account.”

The court, at the request of defendants, and over the objection and exception of plaintiffs, gave the following instructions:

“1. If the jury believe from the evidence that the defendant Park and those under whom he claims ownership and title, have been in the peaceable, open, notorious, adverse, continued and exclusive possession of the property here in controversy, claiming said property for more than ten years prior to the institution of this suit, the verdict and judgment must be for the defendants.

“2. If the jury believes from the evidence that the defendants, and those under whom they claim title, have been constantly in the open, notorious, adverse, exclusive and continued possession of the property described in the petition, for the period of ten years prior to the institution of this suit, and that the defendants and those under whom they claim title have continually claimed to be the owners of said land during said' ten years, then the jury must find for the defendants.”

The answer was a general denial and a plea of the Statute of Limitations, and there being some evidence tending to show that the defendants, and those under whom they claim title to the coal, had been in the adverse possession thereof for more than ten consecutive years before the commencement of the suit, the court, therefore, did not err in refusing to take the case from the jury. [Benton v. Klein, 42 Mo. 97; Owens v. Rector, 44 Mo. 389.]

When Berkley Estes, on the 26th of February, 1859, conveyed an undivided one-half of the coal mine in question (having- theretofore conveyed the other half to John B. Gordon), that operated as a severance, by grant, of the coal from the land overlying it, and, thereafter, the mere possession of the surface did not carry with it, or extend, such possession to the coal. [Caldwell v. Copeland, 37 Pa. St. 427; Armstrong v. Caldwell, 53 Pa. St. 284; Catlin Coal Co. v. Lloyd, 176 Ill. 275; Williams v. Gibson, 84 Ala. 228; Manning v. Coal Co., 181 Mo. 359.] So that, as the paper title to the coal sued for was in plaintiffs, they were entitled to recover, unless the defendants and those under whom they claim title had been in the actual, open, notorious, exclusive, adverse and hostile possession of the coal mine as such, independent of the possession of the surface, for more than ten years before the institution of this suit. “The surface owner setting up the statute must establish a possession of the mine, as such, independently of his possession of the surface. Such a possession must be actual, notorious, exclusive, continuous, peaceable, and hostile for the statutory period. And in these respects the surface owner is in ma better position than a stranger. . . . Actual possession is taken by the opening of mines and carrying on of mining operations. That possession is continuous if the operations are continuous, or are carried on continuously at such seasons as the nature of the business and the customs of the country permit or require. A cessation of operations in accordance with the custom of the neighborhood, or from necessity occasioned by some natural agency, would not be an interruption of the possession. But there must be something evidencing possession in the interval which connects the operations when resumed with those which have gone before, and to distinguish such possession from a series of repeated acts of trespass.” [Barringer and Adams on the Law of Mines and Mining, p. 569.] In the same work, on page 568, it is said: “In some states and territories special limitations have been imposed by statutes for tbe recovery of mining property, but in tbe absence of such limitations such suits are governed by tbe general statutes relating to actions for tbe recovery of real estate.” [Catlin Coal Co. v. Lloyd, supra.]

In tbis State actions of tbis character are barred in ten years (sec. 4262, R. S. 1899'), when the possession has been actual, adverse, open, hostile', exclusive and continuous; and, within the meaning of this statute, coal in place is land when severed by grant from the surface, as in this case. But in the case at bar the possession by defendants and those under whom they claim does not appear to have been continuous for the period of ten successive years at any one time. Some time between his purchase of the land, in 1868, and his death, in 1874, defendant’s father, William A. Park, and C. H. Gordon, a son of the owner of a half interest in the mine, operated it together for two or three years, after which it was not operated until 1878, when one Johnson, a tenant on the farm, got out a small quantity of coal, upon which he paid defendant Park’s curator a ' royalty of about seven dollars. Then, after a lapse of several years, the mine was operated during part of the years 1889, 1890 and 1891. So that, according to the evidence, there were several breaks in the- continuity of possession, and at no time from the time William A. Park and C. II. Gordon began operating the mine, between 1868 and 1874, was there ten successive years of actual, adverse, open, hostile, exclusive, and continuous possession of the mine by defendants and those under whom they claim, before the commencement of this suit. [Brown v. Hartford, 173 Mo. 183.] It is true, as claimed by defendants, that the evidence fails to show any claim or acts of ownership on the part of the plaintiffs to the coal; but they owned the legal title and could not have made it any stronger by exercising ownership over the coal; and in order to divest them of their title by adverse possession, snch possession must have been continuous and adverse for the requisite number of years. It was not necessary, however, in order to give defendants the benefit of the Statute of Limitations, that work in the mine should have been done every day, or that such work by defendants should have been done within view of the public. “All the authorities agree that the acts of possession must be visible and continuous for the requisite period in order to create the har. [Sedgwick and Wait on Trial of Title to Land, secs. 735, 737.] It is not required that an act of ownership, should be done every day or month or at any definite intervals, but they- should be-of such frequency and character as would at all times apprise the owner ‘that his seizin was interrupted and that his title may be endangered. ’” [Goltermann v. Schiermeyer, 125 Mo. l. c. 302.] To1 prevent a break in the possession of those -claiming possession of the mine, they should have continued to exercise acts of possession and ownership over it, as by keeping off trespassers, giving permission to persons to take coal therefrom, paying taxes thereon, mining the coal when practicable or advantageous, or leasing the mine to others, from all of which plaintiffs must have known or inferred that defendants were claiming the coal as their own.

Defendants’ instructions are erroneous- and misleading in that they told the jury that the defense of adverse possession was sustained if the defendants had ten years’ adverse possession of the property described in the petition, “and continually claimed to be the owners of said land,” when the ownership or possession of the land was not in question.

Defendants contend that there was no proof that the widow of George W. Gordon was dead, or if dead, when she died, and that as she had a life estate in the coal, the plaintiffs could not sue for possession thereof until after her death. But the case was tried upon the theory that Mrs. Gordon was dead at the time of the institution of the shit, and must he heard upon the same theory here. [Walker v. Owen, 79 Mo. 563; Benne v. Miller, 149 Mo. 228; Farrar v. Railroad, 162 Mo. 469.]

For the reasons indicated the judgment is reversed and the cause remanded, to he tried in accordance with this opinion.

All concur.


author: FOX, P. J.

text:
    CORA HAGEMAN v. SOUTHERN ELECTRIC RAILROAD COMPANY and UNITED RAILWAYS COMPANY, Appellants.
    Division Two,
    March 19, 1907.
    1. CORPORATION: Sale of Properties: Liability of Purchaser for Debts: Trust Fund. Where a corporation sells and conveys all its properties of every kind to another corporation and ' that company pays for the properties by paying the stockholders of the selling company a sound sum for each share of stock held by them,' with the understanding and agreement tha,t the directors of the selling company would convey to the purchasing company, without additional charge, all its properties, including its franchise, and that was done, neither the purchasing company nor its stockholders are liable to a subsequent judgment creditor of the selling company, but the money received by the stockholders of the selling company is a trust fund for the payment of its debts, judgments and obligations which were not liens at the time of the transfer.
    2. -: -: -: -: Non-lien Obligations. The doctrine of equity that “the capital and other property of a corporation are to be deemed, as between creditors and stockholders, a trust fund for the payment of debts, and when such property has been divided among its stockholders, leaving debts unpaid, the stockholders are in equity bound to refund,” has no application to a company which purchases, for full value, the properties and franchises of a solvent company, when the purchasing company is called upon to pay the judgment debt of a creditor of the selling company which was not a lien on the properties of the selling company at the time of the transfer — there being no question of the solvency of the selling company, and no claim that it disposed of its properties for the purpose of defrauding its creditors, and there being no pretense of its lack of statutory power to make the transfer, and the transfer not being by dissolution', but by bargain and sale. ,
    Appeal from St. Louis City Circuit Court. — -How. John A. Blevins, Judge.
    Reversed.

      George W. Easley with Boyle ds Priest for appellants.
    (1) The proof offered to show that the United Railways Company assumed to* pay the liabilities of the Southern Electric Company, was not admissible under the pleadings, and, if admitted, cannot be the basis of a decree in this cause. “A party can no more succeed upon a case proved but not alleged than upon a case alleged but not proved.” 1 Beach’s Modern Equity Pr., sec. 99'. Such is the rule firmly established in equity practice in this State. Duncan v. Fisher, 18 Mo. 404; Irwin v. Chiles, 28 Mo. 570*; Mead v. Knox, 12 Mo. 287; Harris v. Railroad, 37 Mo*. 310; Newham v. Kenton, 79 Mo. 382; Christian v. Ins. Co., 143 Mo. 496*; Dougherty v. Adkins’ 81 Mo. 411. And such rule is consistent with all of the American equity practice. Wilson v. Cobb, 28 N. J. Eq. 177; Howell v. Sebring, 14 N. J, Eq. 84; Stevens v. Church, 41 Conn. 370; Doggett v. Sims, 4 S. E. 909; Gorham v. Parsons, 119 111. 299; Midmer v. Midmer, 26 N. J. Eq. 299; Francis v. Bertrand, 26 N. J. Eq. 213; Kelly v. Kelly, 54 Mich. 30; Hunter v. Hunter, 10 W. Ya..264; Elyton, etc., Co. v. Iron City, etc., Works, 20 So. 51; Skimer v. Bailey, 7 Conn. 496; Edwards v. Brightly, 12 Atl. 91; Plawes v. Dobbs, 137 New York 465*. (2) The contention made for the respondent, that the property of the Southern Electric Railroad Company, at the time of its transfer to the United Railways Company, was a trust fund for the payment of the debts of the corporation, including the alleged liability to the respondent, we contend, has no application to this character of case. We are not contending that under certain circumstances the property of a corporation is not a trust fund for the payment of the debts of the company. Our contention is that in this case nothing is either alleged or proven which brings any one of the defendants within that rule. We do not contend that, where the property of a corporation has been divided among its shareholders, without provision being made for the payment of debts, the shareholders who receive that property or that for which it was sold cannot be held liable for the debt. We do not contend that, where the property of a corporation has been sold, leaving valid debts unpaid, and the proceeds of the sale divided among the stockholders of the company, such stockholders are bound in equity to refund and make good to the creditors such debts and liabilities. That does not mean that where one has bought in good faith the stocks and properties of a corporation from its previous stockholders and paid a sound price therefor, and the price paid distributed to the original shareholders, the purchaser of such stocks and properties is responsible to the creditors of the corporation whose stock and properties were so purchased and paid for. The very authorities on which respondent most relies are like the Reinhard case in 114 Mo., and show that it is the original stockholders that must be looked to, the stockholders who divided the price of the stock and property among themselves that must be responsible to the creditors, and not the purchasers. Mo. Lead M. & S. Co. v. Reinhard, 114 Mo. 232; Powell v. Railroad, 42 Mo. 63; Hoard v. Railroad, 123 U. S. 222; Fogg v. Blair, 133 U. S. 534) The decisions quoted by respondent are not antagonistic to the propositions herein advanced; an anlysis will reveal that those in similar cases' which might be cited, as the recent case of Berthold v. Land & Lumber Company, 91 Mo. App'. 240, are based upon equitable doctrines and involve the recognition and enforcement of equitable rights and liabilities. Birge v. Railroad, 100 Mo. App. 465; Fogg v. Blair, supra; Railroad v. Ham, 114 U. S. 594; Hollins v. Brierfield, etc., Co., 150 U. S. 385; Graham v. Railroad, 102 U. S. 148; McDonald v. "Williams, 174 U. S. 403; 1 Thomp. on Corp., sec. 263; Bruff'ett v. Railroad, ’ 25 111. 353; Memphis Water Co. v. Magens, 79 Tenn. 37; Milling Co. v. Com. Co., 128 Mo. 491; Bank v. Packing Co., 138 Mo. 59; Caliban v. Powers, 133 Mo. 498; Schufeldt v. Smith, 131 Mo. 286'; Myers v. Folding Chair Co., 130 Mo. 195.

      Seneca N. é S. C. Taylor and Charles Erd for respondent.
    (1) One who has recovered a judgment in a Federal court may prosecute in a State court a proceeding in equity, to subject to its satisfaction property which cannot be reached under execution. Bush v. Arnold, 50 Mo. App. 8; Chicago Bank v. Sloman, 42 Neb. 350; Bullett v. Taylor, 34 Miss. 743; Brown v. Bates, 10 Ala. 432; Ballon v. Loeb, 78 Wis. 407; Lowell v. Warren, 25 Minn. 9; Wandting v. Straw, 25 W. Ya. 705; • Thompson v. Lee Co., 22 Pa. 206; McConnelly v. Hargraves, 48 Ga. 50; Freeman on Judgments (4 Ed.), sec. 578; 3 Thompson on Cor., sec. 3571. (2) A demand arising ex delicto may be enforced against the stockholders of a corporation under the constitutional provision that dues from a corporation shall' be secured by the individual liability of stockholders. Flinnicker v. Marshall, 28 L. R. A. 404; Rider v. Fritchey, 15 L. R. A. 515; Haywood v. Shreve, 44 N. J. L. 104; 18 Am. and Eng. Ency. Law (2 Ed.), 846. (3) The capital stock and other property of a corporation are in equity, as between creditors and stockholders, deemed to be a trust fund for the payment of the debts and liabilities; and where such property has been divided among the stockholders, leaving debts and liabilities unpaid, the stockholders, are bound in equity to refund. Missouri L. & M. Co. v. Reinhard, 114 Mo. 219; Hernán v. Britton, 88 Mo. 549; Eppright v. Nickerson, 78 Mo. 490; Powell v. Railroad, 42 Mo. 68; Bertholdt v. Lumber Co., 91 Mo. App. 240; Beyer v. Trust Co'., 63 Mo. App. 526; Williams v. Boyce, 38 N. J. Eq. 364; Hastings v. Drew, 76 N. V. 9; Bartlett v. Drew, 57 N. Y. 387; Story, Equity Jurisprudence (13 Ed.), p. 602, sec. 1252; Taylor on Private Corp., secs. 651, 654, 655, 656; 2 Beach on Equity Jurisprudence, secs. 906 and 908 ; 3 Thompson on Private Corp., secs. 2946, 2951; 2 Morawetz on Corporations, see. 780'. (4) Where the assets .of a corporation have been distributed among the stockholders, leaving debts and liabilities due to third parties, they may in equity obtain a decree compelling shareholders to satisfy such claims. This doctrine has never been disputed in Missouri. Missouri L. M. & S. Co. v. Reinhard, 114 Mo. 232; Hernán v. Britton, 88 Mo. 549; Roan v. Winn, 93 Mo. 503; Bertholdt v. Land & Lumber Co., 91 Mo. App>. 240; 1 Cook on Corporations (4 Ed.), sec. 222; 3 Thompson on Private Corporations, sec. 2946. (5) The doctrine is fundamental that a person holding a claim against a corporation, either for liquidated or unliquidated damages, has a lien on the corporation assets prior and superior to a shareholder, and if the shareholder appropriates such assets to his own use, such creditor may have relief in equity, because of such lien. Real Estate Institute v. Collonious, 63 Mo. 295-; Hunter v. U. S., 30 U. S. 173; Good Templars, etc., v. Hnitod Life Ins. Asso., 59 Fed. 220-; Pitch, v. Anthony, 8 Mass. 536; Bowman v. Engine Co., 36 Wis. 207; Stacker v. Yoner, 33 Iowa 177; Gould v. Hayes, 19 Ala. 436; Couch v. Terry, 12 Ala. 225; Andrews v. Murphy, 12 Ga. 431; Martin v. Densford, 3 Blackford (Ind.) 295; Orston v. County, 5 Ky. Law Rep. 686. (6) Where the shareholders, as such, appropriate to- their own use the assets of a corporation with the consent of the board of directors, an action at law by a judgment creditor will not lie against said shareholders, because such assets constitute trust property which can be reached only by a proceeding in equity. Roan v. Winn, 93 Mo. 503; Lackland v. Garesehe, 56 Mo. 267; Powell v. Railroad, 42 Mo. 68; Weil v. Tyler, 38 Mo. 545; Firebaugh v. Stone, 36 Mo. Ill; Reagan v. Railroad, 21 Mo. 30; Beyer v. Trust Co., 63 Mo. App. 527; Bach-man v. Lewis, 27 Mo. App. 81; McLane v. Eastman, 21 Hun 312; Yon v. Grant, 16 Mass. 7; Bartlett v. Drew, 57 N. Y. 587; Osgood v. Laytin, 3 Keys 521. (7) An ordinary business corporation may cease to do business and wind up its affairs, whenever a majority of the shareholders deem this to be advisable; but the franchise conferred upon the shareholders by the State is not extinguished by a mere cessation of business thus brought about. The company still continues to be a corporation in the eye of the law, and may sue and be sued in that capacity. 2 Morawetz on Private Corporations, secs. .1004, 1010, 1035; Bank v. Pahquioque, 14 Wall. 383.
   FOX, P. J.

This is a proceeding in equity, begun in the circuit court of the city of St. Louis, having for its object the subjection of certain dividends accruing on the preferred stock of the United Railways Company, a corporation, which will hereafter be called the United Company, to the payment of a judgment rendered against the Southern Electric Railroad Company, which will hereafter be called the Southern Company, in the circuit court of the United States for the Eastern District of Missouri.

There is hut little, if any, disagreement regarding the facts of the case. The real controversy is one of law rather than one of fact.

There is no point made against the pleadings, and for that reason they will not he noticed.

The facts in the ciase are as follows:

The Southern Company and the United Company were organized and existing under and by virtue of the laws of the State of Missouri, and were at all the times hereinafter mentioned common carriers of passengers for hire, in the city of St. Louis; on and prior to September 16, 1899, the par value of the capital stock of the Southern Company was $1,500,000', and was actually worth $2,000,000 over and above its liabilities; on the 13th of November, 1900, plaintiff brought suit in the United States Circuit Court against the Southern Company to recover damages for personal injuries received by her in the month of November, 1898, caused by the negligence of that company, and on October 6, 1901, she recovered a judgment against it for the sum of $9,500', which was, on appeal to the United States Circuit Court of Appeals, duly affirmed; prior to the institution of this suit an execution was regularly issued on said judgment and returned nulla bona; on or prior to September 16, 1899, the United Company acquired the capital stock of all the street car companies in the city of St. Louis excepting the St. Louis & Suburban Railway Company, twelve in number, in the manner hereinafter stated, and one of'that number was the Southern Company; on September 20, 1899, the latter company, by a deed of grant, bargain and sale, duly executed, conveyed to the United Company all its franchises and tangible property of every kind and description, including all its real, personal and- mixed property, situated in the city and county of St. Louis; the United Company paid to the shareholders the sum of one hundred and forty dollars for each and every share of stock of the Southern Company, with the understanding and agreement with the stockholders and directors of the latter company that it would convey to the former, without additional charge, all its rights, franchises and property of every kind and description, and in pursuance to that agreement the deed before mentioned was executed; on the 20th day of September, 1899, the United Company executed a deed of trust in favor of the St. Louis Trust Company, as trustee, conveying all its property of every kind and description, securing the payment of a bonded indebtedness of that date, issued by the said United Company, in the sum of $28,292,000, said bonds having thirty-five years to run, bearing four per cent interest per annum, payable semiannually in January and July of each year; said Trust Company accepted said trust, and said bonds have been negotiated and are held by others.

Thereafter, on the 30th day of September, 1899', said United Company, as a lessor, by authority of its board of directors, executed a lease in favor of the Transit Company, lessee, which lease was to begin the 1st of October, 1899', and terminate the 1st of April, 1939, and by the terms of said lease all the property above described, so! acquired by the said defendant United Company, including all franchises, rights and privileges, were let and leased to said Transit Company, authorizing and empowering said Transit Company to operate said roads, which lease also included the other street railways in the city of St. Louis acquired by said United Company; by the terms of said lease, the said Transit Company agreed, at its own proper cost and expense, and without deduction from the rent provided for by said lease, to maintain, work, operate, use and run, and keep in public use said demised railways, in the same manner as said United Company, as the owner or lessor thereof, was then or at any time thereafter might be required to do, and to keep' the property in good repair, at its own cost and expense, without any deduction from the rent so to be paid and reserved in said lease; by the terms of said lease, said Transit Company agreed to pay to said United Company a net annual rental of five dollars a share upon all the preferred stock of said United Company then outstanding, or which might thereafter be issued by said United Company, with the consent of the Transit Company, said rental to be paid quarterly on the tenth of January, April, July and October, each and every year, for the period covered by said lease; the first quarterly payment, by the terms of said lease, was required to be made on the 10th day of April, 1900; such payment to be made at the office of the Transit Company in the city of St. Louis, or at the agency of said Transit Company in the city of New York, either or both, as said Transit Company might from time to time determine; by the terms of said lease, said Transit Company was also required to pay said United Company $1,000’ per year, for the purpose of defraying the expenses and maintaining the proper existence of said United Railways Company and said Transit Company also, by the terms of said lease, agreed to pay all taxes and assessments and water rents which might be assessed upon the real estate, personal property, franchises, capital stock, business, rental, income, dividends and indebtedness of said United Company or any of the lines of railway or property leased or operated by it, and said Transit Company also agreed, by the terms of said lease, to pay the interest accrued, and to accrue, as the same became respectively due and payable, on all the bonds that had been issued and outstanding by said United Company or any of the subordinate companies, whose property and franchises said United Company had acquired; among the bonds upon which said Transit Company assumed to pay the interest, a part thereof was issued by the Southern Company, to-wit: 6 per cent bonds, dated May 6th, 1890, due May 1,1915, $336,000; also 5 per cent bonds of date August 1,1896, due August 1,1916', $200',-000, aggregating $536,000 all told. Said lease also provided that the Transit Company should, during the continuance thereof, apply all net surplus earned by it, over and above six per cent annual dividends upon the $20,000,000 of capitalstoek, which the Transit Company was authorized to issue, or so much thereof as might, from time to time, be outstanding, to the betterment, improvement or extension of the property on railway lines, then owned or which might thereafter be acquired by said United Company, defendant, or to the redemption, payment or retirement of the mortgage indebtedness of said United Company, or its subordinate companies.

On or about September 16, 1899:, the United Company increased its capital stock to $15,000,000, of which $20,000,000 was preferred and $25,000,000' was common stock, divided into shares of $100 each, and prior to the institution of this suit the latter company had issued about $9,000,000 of preferred and $18,000,000 of common stock.

The' rental before mentioned was at all times promptly paid — the first installment was paid on April 10, 1900. The said dividends were paid direct to the United Company by the Transit Company, and the former then paid them over to its stockholders.

The Transit Company was also a party defendant. On August 25, 1903, a decree was rendered in the case at bar in favor of the plaintiff and against the Southern Company and the United Company for the sum of $10,730.30, and the decree was in favor of the Transit Company. From this decree the United Company, alone, brought the case to this court by appeal.

OPINION.

I.

The principal question presented by the record in this case for this court’s decision is, do the facts before stated entitle the plaintiff to equitable relief against the United Company?

The plaintiff bases, her right of recovery against the United Company upon the theory that when it acquired the capital stock of the Southern Company and thereafter, for a nominal consideration, acquired all the franchises, money, choses in action, and all other real, personal and mixed property of the latter, it thereby rendered said company insolvent and left it with no property out of which her execution could be satisfied; and that the property so acquired by the United Company was the moneyed value upon which a part of the increase of its capital stock was bottomed, the value of which at the time of the transfer was $2,000,000, and that in equity and good conscience it should be held liable for the payment of the debts and obligations of the Southern Company up to the amount of the $2,000,000 worth of assets received by it. In other words, her contention is, the obligations of tire Southern Company should follow its assets as trust funds into the hands of the United Company. In order to support that contention she invokes the well-known principle of equity, that “it is a favorite doctrine with the courts of equity that the capital stock and other property of a corporation is to be deemed, as between creditors and stockholders, a trust fund for the payment of the debts; and when such property has been divided among the stockholders, leaving debts unpaid, the stockholders are in equity bound to refund.” [Missouri Lead M. & S. Co. v. Reinhard, 114 Mo. l. c. 232; Heman v. Britton, 88 Mo. 549.]

This rule has no application to the facts of this case. It applies to that class of cases where a corporation sells or disposes of all its property and divides the proceeds thereof among its stockholders, without making provision for the payment of its outstanding obligations which existed at the time of the sale or the disposition of its property.

The United Company, the defendant in the case at bar, has not sold or disposed of its property, or distributed the proceeds thereof to its stockholders, but, upon the other hand, the fact is, it purchased the franchises, capital stock, money, choses in action, and all the other real, personal and mixed property of the Southern Company in good faith and paid a sound price therefor, namely, one hundred and forty dollars a share. It does not stand in the same relation to the creditors of the Southern Company that the stockholders of the latter company do. It has no property or money in its possession which it has not paid full value for; while, upon the other hand, those stockholders have in their hands the $2,000,000, the sum the United Company paid them for the franchises, stock and properties of the Southern Company. That money is a trust fund for the payment of the debts and obligations of the Southern Company.

The very cases mainly relied upon by plaintiff in support of her contention hold that the stockholders of the latter company hold the money so paid them, as trustees, for the use and benefit of the creditors of that company. [Heman v. Britton, 88 Mo. 549; Missouri Lead M. & S. Co. v. Reinhard, 114 Mo. l. c. 232; Bertholdt v. Land & Lumber Co., 91 Mo. App. 240-1; Slattery v. St. Louis & N. O. Transportation Co., 91 Mo. l. c. 227.]

II.

At the time the United Company purchased the franchises, stock and properties of the Southern Company, it possessed the following powers, to-wit:

“Seventh. To purchase, lease or acquire by other lawful contract, which shall include the right to purchase the capital stock and bonds of other street railroad companies, and to hold and dispose ,of the same, and to hold, use and operate any street railroad or roads with all and singular its or their franchises and properties of every description belonging to any other street railroad company or corporations.”

Then follows a provision as to the manner of the stockholders authorizing such purchase, to-wit:

“Eighth. To sell, lease or dispose of by any other lawful contract, to any other street railroad company, its railroad rights, franchises, including the right to be a corporation, and all and singular its other properties of every character and description.”

Then follow provisions for the assent of the holders of its capital stock to such sale or lease.. [R. S. 1899, p. 393, sec. 1187, paragraphs 7 and 8.]

Under this statute there can be no doubt as to the legal right and power of the United Company to purchase and hold the franchises and properties of the Southern Company, and it is alleged by the plaintiff: that the former company did on the 19th day of September, 1899, acquire by warranty deed all the property and franchises of the latter, and this brings us to the consideration of the question, is the United Company, under the facts of this case, bound by the law to pay the non-lien obligations of the Southern Company existing at the time of the sale? This court in passing upon a case similar to this, which arose under a similar statute, held, that the “corporation was authorized by the act to transfer and assign by a vote of a majority in interest of the stockholders, all their effects and assets, rights and privileges, .... and upon sneh transfer and acceptance the company was ‘to- cease to have a corporate existence,’ and the road was thenceforth to be styled the ‘West- Branch of the North Missouri Railroad;’ their ‘franchises’ were to become ‘completely vested in the North Missouri Railroad Company.’ . . .

‘ ‘ The deed certainly transferred and conveyed everything that could be transferred or assigned under this act. This was not a mere amalgamation or consolidation of the two corporations into one. By the very terms of the statute and the deed, the first corporation was extinguished — the second only continued to exist. Where several railroad companies were, by virtue of the act of union, ‘merged in and constituted one body corporate,’ under the name of one of them, and all were continued in existence, it was treated as a consolidation. [Railroad v. Howard, 13 How. 333.] An amalgamation implies such a consolidation as to reduce the companies to a common interest. [2 Redf. Rail., 659.] Such was not the case here. One was absolutely extinguished, as was held in a similar case in Railroad v. Hunt, 20 Ind. 463; State ex rel. v. Bailey, 16 Ind. 46.

“ As to what the’effect was upon the corporate franchises, we need not inquire very minutely. It may safely be said that such of then as were personal in their nature, and incapable of being transferred to another, were revoked or surrendered, and were extinguished. There is no question here of the power of the Legislature to pass this act, nor of the power of this corporation to do this thing with the consent of all the stockholders, and, for all the purposes of this case, such consent may be presumed. As to the other corporation, whether any franchises were transferred or not, the act conferred upon that company all the additional franchises and powers that were necessary to enable them to accept this transfer and build the West Branch of the North Missouri Railroad. ...

“The Chariton and Randolph Railroad Company-was not compelled to make this transfer. It was a matter of contract, and it is clear that the conveyance was made upon a valuable consideration, and to a bona fide purchaser. It was authorized by law, and it was effectual to convey the property. [Bruffett v. Railroad, 25 Ill. 356.] By the old common law, it seems, a dissolution of the corporation extinguished the' debts; but courts of equity in such case will consider the property and effects as a trust fund for the payment of creditors and for the shareholders, into whosesoever hands they may come, subject to such a trust. [Ang. Corp. sec. 779a.] A corporation cannot give away the effects belonging to it, to the prejudice of creditors. [Goodwin v. McGehee, 15 Ala. 232; 2 Redf. Rail., 624.] A court of equity will follow the trust fund into the hands of other than bona fide creditors cmd purchasers. [Curran v. Arkansas, 15 How. 307; Bacon v. Robertson, 18 How. 480; Hightower v. Thornton, 8 Ga. 503.] There was no averment and no proof that this defendant held this property .otherwise than as a bona fide purchaser for a valuable consideration. The judgment of the court below did not proceed upon any equity of this nature, upon the theory that the debtor coporation still existed under the corporate name of the defendant, and that the property which belonged to it was subject to his demand in this suit. According to the view we have taken of the case, this proceeding was entirely erroneous.

“Judgment reversed and petition dismissed.” [Powell v. Railroad, 42 Mo. l. c. 67.]

Discussing this same question, the Supreme Court of the United States uses this language: “We do not question the general doctrine invoked by the appellant, that the property of a railroad company is a trust fund for the payment of its debts, but do not perceive any place for its application here. That doctrine only means that the property must first be appropriated to the payment of the debts of the company before any portion of it can be distributed to the stockholders; it does not mean that the property is so> affected by the indebtedness of the company that it cannot be sold, transferred, or mortgaged to a bona fide purchaser for a valuable consideration, except subject to the liability of being appropriated to pay that indebtedness. Such a doctrine has no existence.” [Fogg v. Blair, 133 U. S. l. c. 541.]

The same court in discussing simple contract creditors of corporations whose claims had not been reduced to judgment, used this language:

“A party may deal with a corporation in respect to its property in the same manner as with an individual owner, and with no greater danger of being held to have received into his possession property burdened with a trust or lien. The officers of a corporation act in a fiduciary capacity in respect to its property in their hands, and may be called to an account for fraud or sometimes even mere mismanagement in respect thereto; but as between itself and its creditors the corporation is simply a debtor, and does not hold its property in trust, or. subject to a lien in their favor, in any other sense than does an individual debtor. That is certainly the general rule, and if there be any exceptions thereto they are not presented by any of the facts in this case. Neither tbe insolvency of the corporation, nor the execution of an illegal trust deed, nor the failure to collect in full all stock subscriptions, nor all together, give to these simple contract creditors any lien upon the property of the corporation, nor charge any direct trust thereon.” [Hollins v. Brierfield Coal & Iron Co., 150 U. S. l. c. 385; McDonald v. Williams, 174 U. S. 403.]

The Supreme Court of Illinois used this language in the discussion of this question: “Had such a sale been made, tbe property thus transferred would have thereby become released from the payment of the debts, not a prior lien; nor would the future earnings of the road, made by such a purchaser, be liable to the payment of such debts. In case this company had become insolvent, and legally transferred its charter, rights, franchises, privileges and property, and the purchasers become again incorporated, the new company would not be liable for the unpaid debts of the old organization.” [Bruffett v. Railroad, 25 Ill. l. c. 356; 1 Thompson on Corp., sec. 263.]

In the Wabash case, the Supreme Court of the United States said: “It was contended that the property of the Toledo and Wabash Railway Company was a trust fund for all its creditors, and that upon the consolidation the Toledo, Wabash and Western Railway Company took the property of the Toledo and Wabash Railway Company charged with the payment of all its debts. The property of a corporation is doubtless a trust fund for the payment of its debts, in the sense that when the corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation, as in that of a natural person, that any conveyance of property to the debtor, without authority of law, and in fraud of existing creditors, is void as against them.” [Railroad v. Ham, 114 U. S. l. c. 594.] To the same effect are the following cases: Milling Co. v. Commission Co., 128 Mo. 491-495; Atlas National Bank v. Moran Packing Co., 138 Mo. 59; Calihan v. Powers, 133 Mo. 481-498; Schufeldt v. Smith, 131 Mo. l. c. 286; Meyer v. Folding Chair Co., 130 Mo. 195.]

We have been unable to find a single case supporting the trust fund theory, except where the corporation was insolvent, or where it had disposed of its property for the purpose of defrauding its creditors, or where a dissolution of the corporation had taken place and the assets placed in the hands of a trustee for the payment of the debts, etc., or where it had no power or authority whatever to malm the sale or transfer of its property.

In the case at bar there is no pretense that the Southern Company was in solvent, or that a dissolution had taken place, or that it disposed of its property for the purpose of defrauding its creditors, or that it had no power to make the sale of its franchises and effects to the United Company.

The Southern Company, by the statute before quoted, was authorized to sell, transfer and assign by a vote of a majority in interest of the stockholders all its franchises, rights, privileges- and properties to the United Company, and the same statute empowered the latter company .to purchase said properties. The deed from the former to the United Company transferred and conveyed everything that could be transferred and assigned under that statute, which included all its franchises, money, choses in action, and all other real, personal and mixed property, for which it paid the stockholders of the Southern Company the sum of $2,000,000. It could not have paid it to anyone else, because no one else owned it. It was not owing to the Southern Company because the United Company had purchased the company, and a payment made to it would have been no payment at all. That would simply have been transferring the money from one till of the United Company to another, which, we dare say, would have been willingly paid by the right hand and gladly received by the left, and we apprehend that stockholders of the former would have entered1 a vigorous protest against such a payment. Nor could payment have been made to plaintiff and other persons who had similar claims against the company, because that company’s liability to plaintiff at that time had not been established by the judg'ment of the court. So, it must necessarily follow that when the United Company, in good faith, for a full and adequate consideration, purchased the Southern Company with all its properties, it acquired a good title thereto, free and clear of all claims and demands of whatever nature, which were not hens on the property at the time of the sale and transfer, and, as plaintiff’s claim was not a lien on the property at that time, it must follow that she is not entitled to any relief in this case.

There are several other minor points made and discussed in the able briefs of both plaintiff and defendant, but they will not be noticed, as what has already been said fully disposes of the case on its merits.

The judgment of the circuit court should be reversed, and it is so ordered.

All concur.