author: RAILEY, C. BLAIR, J.

text:
    TWENTIETH CENTURY MACHINERY COMPANY v. EXCELSIOR SPRINGS MINERAL WATER & BOTTLING COMPANY, Appellant.
    In Banc,
    February 2, 1918.
    1. APPELLATE PRACTICE: Trial by Court: No Instructions. If there was substantial evidence to sustain the finding of the trial court that defendant converted to its own use certain personal property belonging to plaintiff,.in a case tried by the court sitting as a jury and submitted without instructions, that finding is binding upon the appellate court, if the petition stated a cause of action.
    2. CONVERSION: Sales: Retention of Title in Vendor: Notice to Assignee. Where by written contract the title of personal property is retained by the seller until fully paid for, á defendant w.ho purchases from the vendee with notice of the vendor’s ownership is liable to the vendor for its reasonable market value.
    3. -: Right to Possession at Time of: Cause of Action: Tried as If Alleged: Waiver. The vendor sold four pieces of machinery, retaining the title until paid for. Subsequently the agreement was cancelled as to two pieces, and thereafter the property was sold to defendant with notice, and the case was tried on the main question of whether the original agreement was so modified by the simple exclusion of the two pieces as left the vendor the owner of the remaining pieces at the time the defendant purchased fro.m the vendee. The petition did not specifically allege that the vendor was entitled to the possession at the time of the alleged conversion by the defendant. The attention of the trial court was not called to this alleged defect, either during the trial or' specifically in the motion for arrest, but the evidence went in without objection and no instructions were asked. Held, by Graves, C. J., and Woodson and Williams, JJ., that it will not be ruled by the appellate court for the first time that the petition was defective in this respect, but the cause having been tried and disposed of just as it would have been had the petition contained the alleged necessary allegation, and there being substantial evidence to support the finding for the vendor, the judgment will be affirmed. [Distinguishing O’Toole v. Lowenstein, 177 Mo. App. 662.]

      Held, by BLAIR, J., concurring, with whom WALKER, J., concurs, that the point that the petition does not sufficiently allege a cause of action is not presented by the record, and the petition should be held sufficient, in aid of the verdict.

      Held, by BOND, J., dissenting, that the holding in O’Toole v. Lowenstein, 177 Mo. App. 622, was correct.

      Appeal from Clay Circuit Court. — Hon. Franh P. Divelbiss, Judge.
    Affirmed.

      Craven & Moore and Culver é Phillip for appellants.
    (1) An offer met by a counter offer is in law rejected in tolo and there must be evidence that such offer was renewed and accepted before Its terms became binding on the parties making it as a contract. Bronson v. Implement Co., 135 Mo. App. 483; Wire Mfg. Co. v. Broderick, 12 Mo. App- 378; Shickle v. Iron Co., 84 Mo. 161; Cangos v. Mfg. Co., 37 Mo. App. 297; Tufts v. L. S. Sams & Sons, 47 Mo. App. 487; Railway v. Joseph Joseph & Bros. Co., 160 Mo. App. 174; McLean v. G-yen Assn., 61 Mo. App. 55; Mfg. Co. v. Broderick, 61 Mo. App. 378 (2) Where an offer is made, and rejected by the parties to whom it is made, then a performance or partial performance of the thing under negotiation, by either party, does not show either a renewal of the terms of the offer or an acceptance thereof by the party to whom it was made. Sterling & Sons v.Watson & Bennett Co., 159 N. W. (Mich.) 381; Frank v. McGilvray, 107 N. W. (Mich.) 886; Bowen v. Hart, 101 Fed. 376; Davis v. Thomas, 64 Pac. (Colo.) 187; Theuber v. Smith, 64 Atl. (R. I.) 790; Treat v. Ullman, 69 N. Y. S. 974; Sibley Glass Works v. A. S. Barnes Co., 33 N. Y. S. 508, 86 Hun, 374; Jumes v. Iron Co., 53 Me. 20; Van Valkenburg v„ Rogers, 18 Mich. 180. (3) It is elementary that a plaintiff cannot- maintain trover unless he has the right of possession. He may have the legal title to the property; but if the defendant is in the rightful possession of it, trover will not lie. Therefore a petition which. fails to state directly or inferentially that plaintiff is entitled to the possession of the property sued for states no cause of action. We concede that if the petition stated a cause of action defectively, failure to demur or to object to the introduction of testimony would waive the defect. But if the petition states no cause of action at all, as in the case at bar, the defect can be taken advantage of, even in this court, for the first time. 38 Cyc. 2032.

      Richard I. Bruce and Goss & Rooney for respondent.
    (1) The court below was correct in its finding for plaintiff; thereby recognizing that the contract entered into between plaintiff and appellant was severable, and, although the contract of sale was not fully completed on the part of plaintiff, subsequent correspondence confirmed the contract in so far as it was applicable to the machine, the judgment for the value of which was found for plaintiff, and as to the terms of payment. 35 Cyc. 5; Mulchaey v. Dieudenne, 103 Minn. 352; Richards v. Shaw, 67 111. 222; Roberts v. Beatty, 2 Penr. & W. (Pa.) 63; Sanders v. Short, 86 Fed. 225, 30 C. C. A. 462. (2) Appellant made full acceptance of such machinery as was actually shipped as a part of the contract by its use of the same¡ 35 Cyc. 2; Mfg. Co. v. Pastor, 97 N. W. (Wis.) 904; Glass Co. .v. Friedlander, 84 Wis. 53. (3) The court below found, by its judgment, in effect, that plaintiff was entitled to the possession of the machine sued for; and any objection to the failure of the petition to so state should have been raised by demurrer before defendant went into trial, or called to the attention of the court by the motion in arrest of judgment. It is here too late to raise the point for the first time. Merrill v. Mason, 159 Mo. App. 605. (4) This case was cried and was acted upon at all times upon the same theory. There was no change in the attitude at any time and both parties treated the matter as though the question now raised by appellant was in the case throughout the course of the trial. 261 Mo. 558.
   RAILEY, C.

This is an action brought in the cir-r cuit court of Clay County, Missouri, on May 7, 1913, to recover the value of certain personal property belonging to plaintiff and which, it is alleged, was converted by defendant to its own use. The case was tried before the court, without a jury and without instructions. On December 15, 1913, the trial court found the issues in favor of plaintiff, except as to one item of the value of $55, and in due form entered judgment in favor of respondent and against appellant, for $1,143.75, and costs. The cause was duly appealed by defendant to the Kansas City Court of Appeals, where it was duly abstracted and briefed by the respective parties. The Court of Appeals affirmed the judgment of the trial court, in an opinion written by Judge Johnson, in which all the members of the court concurred. The case was certified to this court by the Court of Appeals, on account of a conflict between its ruling and that of the St. Louis Court of Appeals in O’Toole v. Lowenstein, 177 Mo. App. 662.

The opinion of the Kansas City Court of Appeals, as well as the reason for certifying the case to this court, will be found reported in 171 S. W. 944. We deem it unnecessary to set out the opinion of the Court of Appeals herein, but the same may be considered as published supra, in connection with the supplemental suggestions made by us in respect to the case.

I. Was the trial court justified, under the facts presented in the record before us, in finding that defendant was guilty of converting to its own use, in June, 1909, certain machinery belonging to plaintiff, which ^a^er had conditionally sold to the Excelsior Springs Bottling Company, or Henry Ettenson, on March 4, 1909? In passing, it should be kept in mind, that the case was submitted to the court without a jury and without instructions. If there was substantial evidence at the trial sustaining the action of the court in finding for the plaintiff, we are bound by its decision in respect to this matter, unless the alleged failure of the petition to state a good cause of action precludes a recovery upon the part of respondent. [Buford v. Moore, 177 S. W. l. c. (Mo.) 872, and cases cited; Kille v. Gooch, 184 S. W. (Mo.) 1158; Coulson v. La Plant, 196 S. W. (Mo.) l. c. 1146.]

The original agreement between plaintiff and the Excelsior Springs Bottling Company, or Henry Ettenson, dated February 11, 1909, contemplated a sale by plaintiff of four pieces of machinery, of the estimated value of $1800. This agreement was reduced to writing and signed by said parties. It, contained, among, other things, the following:

4‘Party of the first part retains title of the property until fully paid in cash. This agreement is not binding on the party of the first part until approved by its own office at Milwaukee, Wisconsin.”

There was no formal acceptance of the order sent to Ettenson from .plaintiff’s office at Milwaukee. Two of the machines described in the original agreement were not of plaintiff’s manufacture. On March 6, 1909, it wrote Ettenson that it could not furnish the two machines above mentioned.

Upon the cross-examination of M. M. Coakley, by Mr. Moore, counsel for defendant, she testified as follows:

4 4 Q. How did it come the labeler and the Eick washer were not shipped? A. As I recall it, the Excelsior Springs Bottling Company cancelled the order for the Eick washer and the labeler after they placed this contract. . . .
44Q. But at any rate it was agreed on before the articles that you did ship were billed out? A. That we were to accept the cancellation?
44Q. Yes. A. Yes, it vtould not be anything we would probably dispute.”

This testimony, thus brought out by counsel for defendant, was not objected to, nor did defendant’s counsel ask to have it withdrawn after showing that the correspondence between the parties was in writing. We do not. agree with counsel-that any letter was introduced in evidence contradicting this testimony. On the contrary, it is in line with plaintiff’s letter of March 6, 1909, to the Excelsior Springs Bottling Company, wherein the latter had been solicited to accept another machine. The testimony of this witness tends to show that the Excelsior Springs Bottling Company, instead of taking another machine, cancelled the order for the label-er and washer formerly ordered. After this, the soaking machine and rinser were delivered to the Excelsior Springs Bottling Company, or Ettenson, and duly installed in their factory. Plaintiff billed the above machinery to Ettenson for $962.75, and on June 23, 1909, received from the Excelsior Springs Bottling Company, per Ettenson, a letter containing, among other things, the following:

‘ ‘We are just in receipt of your statement for $962.75 which should be $900, as that is our contract price.' . . . We will not pay it until the machine has been tested. . . . We refer you to your contract, which says the money is to be paid after the machinery is installed.” (Italics ours)

The original agreement of February 11., 1909, contains the following:

“Said party of the second part hereby agrees to pay said party of the first part as the purchase price, the sum of one thousand and eight hundred no/100 . . . dollars, F. O. B. factories. Terms: % of this said sum to be paid 30 days after receipt of machines. % — 30 days — and the remaining in 60 days thereafter or 2% spot cash 10 days after installation of machines,” etc.

Taking into consideration the foregoing facts, as well as other circumstances pointed out in the opinion of the Court of Appeals, we are satisfied that the trial court had before it substantial evidence tending to show that both Ettenson and plaintiff understood, from the dealings between them, that the original agreement was modified as to above items, and that the title to said property actually delivered was to remain in plaintiff until paid for by the Excelsior Springs Bottling-Company, or Ettenson. The defendant having bought said property from the Excelsior Springs Bottling Com-party, or Ettenson, with notice of plaintiff’s ownership, became liable to it in this action for the reasonable market value of same.

II. The case has been certified to this court, by the Kansas City Court of Appeals, on account of its ruling being contrary to the decision of the St. Louis Court of Appeals in O’Toole v. Lowenstein, 177 Mo. App. 662. In the latter case it was held that a petition for the conversion of personal property which failed to allege that plaintiff was entitled to-the possession thereof at the time of the alleged conversion, did not state a good cause of action. The ruling of said court, considered as an abstract proposition of law, and without any reference to what occurred at the trial, may be taken as correct, but on the other hand, the parties to the action, in the admission and rejection of testimony in the trial court, may proceed as though the petition contained said averment, in which event,- they will be bound by the course thus pursued.

Defendant, in its original brief filed in the Kansas City Court of Appeals, said:

“Plaintiff recovered on the theory that it had, by contract, retained title to the machinery sold to Henry Ettenson, defendant’s grantor; that Ettenson annexed the machinery to a building which he then deeded to the defendant, and that such deed and defendant’s possession thereunder, constituted a conversion.”

We have held in the preceding proposition, that there was substantial evidence before the trial court to sustain plaintiff’s contention, that it was the owner of the property in controversy until paid for by defendant’s grantor. The question, as to whether the original agreement between the parties was modified by simply excluding two items of machinery, and leaving plaintiff the owner of the remaining items until paid for, was the main question in the case. Although a motion in arrest of judgment was filed in the trial court, on the ground that the petition failed to state a cause of action and because the judgment was erroneous, yet, it nowhere appears that the attention of the trial court was specifically called to the failure of the petition to allege that plaintiff was entitled to the possession of the property at the time of its conversion. No objection toas made to the introduction of plaintiff’s evidence on this account, nor was any instruction submitted on this question. The case was tried in the court below upon the theory that plaintiff either remained the owner of said property up to the time of said conversion, or it parted with its title when the goods were sold and delivered to defendant’s grantor. If the lat-' ter issue had been found in favor of defendant, it would have ended plaintiff’s case. On the other hand, when plaintiff’s continued ownership of said property was sustained by the court, it carried with it the right of possession at the time of its conversion. Under the evidence, if the attention of the trial court had been directed to the alleged defect in the petition, plaintiff would undoubtedly have been entitled to amend its petition so as to have it conform to the proof offered, without objection. Cases may arise, in which a petition is held defective for the first time in the appellate court. This ruling, however, should not be applied in a case of this character, where the evidence goes in without objection, where no instructions are ashed, and where the cause is tried and disposed of, just as it would have been, had the petition contained the foregoing averment. This principle of law is sustained by the following authorities: Sawyer v. Wabash Ry. Co., 156 Mo. l. c. 476-7; Winn v. Railroad, 245 Mo. 406; Tebeau v. Ridge, 261 Mo. l. c. 559-60-1; Shimmin v. C. & S. Mining Co., 187 S. W. (Mo. App.) l. c. 77; Cook v. Kerr, 192 S. W. (Mo. App.) l. c. 468; Sec. 2119, R. S. 1909; secs. 1850-1, R. S. 1909.

Speaking generally, the plaintiff is entitled to recover, if the defendant fails to answer. Yet if the parties go to trial and the case is heard by the court as though an answer had been filed, the plaintiff will not afterwards be permitted to take a judgment by default or for want of answer in the case. The same rule applies, where new matter is pleaded in the answer and no reply is filed, bnt the evidence is heard, and the ease disposed of, as though a reply had been filed.

On the facts disclosed by the record before us, we are of the opinion that the ruling of the Kansas City Court of Appeals on this subject was correct.

III. The conclusions reached by the Kansas City Court of Appeals herein, meet with our approval. The judgment of the trial court is accordingly affirmed.

Brown, G., concurs.

PER CURIAM: — The foregoing opinion of Ratley, C., is adopted as the opinion of Court in Banc.

Graves, G. J., Woodson and Williams, JJ., concur. Blair, J., concurs in separate opinion, in which Walker, J., joins. Bond, J., dissents and concurs in view expressed in O’Toole v. Lowenstein, 177 Mo. App. 662.

BLAIR, J.

(concurring) — I concur in the result. The question discussed in the second paragraph is not, in my opinion, presented by the record. The petition in this ease is substantially the same as that considered in Warnick v. Baker, 42 Mo. App. 439, and should be held sufficient, in aid of the verdict, on the principle announced in that case. Baals v. Stewart, 109 Ind. 371; Kerner v. Boardman, 14 N. Y. Supp. 787, 133 N. Y. 539; and Brickley v. Walker, 68 Wis. 563, support the same conclusion.

Walker, <7., concurs.


source: Caselaw Access Project

author: WHITE, C.

license: Public Domain

text:
    CARRIE KLOCKE, Appellant, v. LOUISE KLOCKE et al.
    Division Two,
    February 16, 1918.
    1. DOWER: Widow of Remainderman Unseized. The widow of a remainderman, who died childless while the life tenant was in possession, has no dower in his remainder. A widow, under Sec. 345, R. S. 1909, has dow.er only in lands of which her husband "was seized” at the time of his death. [Following Van Arb v. Thomas, 163 Mo. 33.]

      2. -: -: Election: Sec. 351, E. S. 1909. A widow cannot elect to take under Section 351, Revised Statutes 1909, unless she has dower under Section 345. The word “absolutely” used in Section 351, declaring that if the.husband die without descendants his widow shall take one-half the real and personal estate “belonging to the husband at the time of his death” subject to debts, does not mean that she is given dower by that section independently of any other statutory provision, but it indicates the character of the estate she takes in case she is entitled to dower and elects to take under that section. That section does not mean that she has dower simply because she elects to take it; it means that she may elect to take a certain portion in case she has dower under Section 345, but she can have dower under no section unless her husband “was seized” at the time of his death. The two sections must be read together; the widow cannot have dower under both; she can elect to take under Section 351 only when she has dower under Section 345.
    Appeal from St. Louis County Circuit Court. — Hon. John W. McElhinney, Judge.
    Affirmed.

      William L. Bohnenkamp for appellant.
    (1) The courts of this State have uniformly been liberal in dealing with the rights of the widow when called in question, whatever section of the statutes or provision of the common law relative thereto may be under consideration. In re Estate of Messersmith, 264 Mo. 619; Keeney v. McVoy, 206 Mo. 70; Lemp v. Lemp, 249 Mo. 314; Howard v. Strode, 242 Mo. 218; Wyatt v. White, 192 Mo. App. 554. It is also now well settled and clearly determined by numerous decisions of this State, that it is the spirit, object, intention and policy of the laws “to place the husband and wife, as nearly as practicable, on an equal footing, so far as his rights as widower, in her estate, and her rights as widow, in his estate, are concerned.” If it be right and proper to construe Section 350 as giving to the husband absolutely subject to debts of his wife, without regard to his being entitled to curtesy, one-half the estate of his widow, then, it is but just, right, and reasonable to so construe Section 351 as giving to the widow one-half the estate of her husband subject to debts, without regard to whether she be entitled to common law dower in his estate or not. If the husband be not required to have curtesy to take one-half his widow’s estate, then the widow should not be required to have and be entitled to common-law dower in her husband’s estate, to take one-half thereof. This would be treating them equally as intended, and Section 353 should not be, and cannot properly be, construed to ■ require and make her rights depend upon anything like common-law dower. This intention and principle has been recognized and applied as shown by the plain decisions. Keeney v. McYoy, 206 Mo. 55; Ferguson v. Gentry, 206 Mo. 189; In re Ferguson Estate, 206 Mo. 203; Waters v. Herboth, 178 Mo. 171. (2) By the express provisions of Sec. 351 f B. S. 1909, this widow, the plaintiff, is entitled to one-half of the real and personal estate belonging to her husband at the time of his death, absolutely, it being wholly immaterial in determining the character of the estate, whether it be called “dower” or not. In fact, the statute neither in said Section 351, nor anywhere else, designates this interest of a widow as “dower.” It is only when referring to her one-third interest in the lands of which her husband died seized, that the statute uses, and applies thereto, the words ‘ ‘ dower ’ ’ and “endowed.” Even Section 353, wherein her right of “election” is provided for, declares that “the widow shall have her election to take her dower as provided in Section 345, or the provisions of Section 351, as therein provided.” Therefore, by the statute itself, said one-half becomes absolutely the property of the widow of which she cannot be divested, except for the payment of the debts of the deceased husband. This interest cannot be “dower.” Section 353 clearly distinguishes between what it considers her “dower” and the interest the widow is entitled to under Section 351. (3) It being undisputed that plaintiff is not entitled to dower in the lands owned by her husband at the date of his death, under Section 345, R. S. 1909, for the reason that he was not seized of an estate of inheritance therein, as required by the statute, it now becomes absolutely necessary to have a proper construction placed by this court upon Sections 351 and 353, R. S. 1909, in connection with Sections 345 and 350 thereof. Under no provision of the statute would this widow be entitled to “dower” (common-law dower) properly speaking, in any property belonging to her said husband at his death. But she is entitled, under a just, proper and reasonable construction of said sections, either by direct command of the statute, or by her election under proper construction thereof, to a share or interest in said estate. It is plain from Section 351 that, without condition, reservation or equivocation, should the husband die without any child, or other descendants, his widow shall be entitled “to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband’s debts.” This right is not in lieu of dower, not dependent upon whether she is entitled to dower, but only upon the fact that she is the widow of deceased and it comes to her at once, subject only to payment of debts of deceased husband.

      George W. Wolff and Clarence L. Wolff for respondents.
    (1) Sections 345, 351, 353-355, R, S. 1909, in the Dower Act, and directly involved in this controversy, are cognate sections, supplementary to each other, and being in pari materia must be considered and construed together, as parts of one whole and complete legislation on the subject. Weindel v. Weindel, 126 Mo. 651; Gantt v. Brown, 238 Mo. 577. (2) Sections 351, 353, and 354 presuppose the existence of the right of dower in the widow, as a condition precedent to her right to elect to take one-half under Section 351. The right of election rests for its statutory basis upon the right of dower. In other words, no dower, no election. This is clearly manifest, from the words used in section 354: "When a widow shall he entitled to dower as provided by Sections 351, 352 and 353,” etc. Stokes v. 0’Fallon, 2 Mo. 29; Griffith v. Walker, '3 Mo. 137; Hamilton v. O’Neil, 9 Mo. 11; Hornsey v. Casey, 21 Mo. 548; Moran v. Stewart, 122 Mo. 297; Moran v. Stewart, 132 Mo. 74-75; Newton v. Newton, 162 Mo. 186; Yon Arb v. Thomas, 163 Mo. 42. The widow’s election-dower provided for in the several sections of the Dower Act is, in effect, nothing more than a "substitute” for her common-law dower. Adams v. Adams, 183 Mo. 396-408; Keeney v. McVoy, 206 Mo. 42; Perry v. Strawbridge, 209 Mo. 630; Newton v. Newton, 162 Mo. 186; Von Arb v. Thomas, 163 Me. 42. (3) The creation of a new and absolute estate in fee in the widower, by the Widower’s Act of 1895 (now Section 350), giving him one-half of his deceased childless wife’s estate, without election on his part, did not necessarily or impliedly create a new or like estate in the widow of a deceased childless husband, but left her dower and election rights intact, unimpaired and unchanged as provided by the several dower sections, and as they have been on the statutes ever since 1825 and 1835. The very purpose of said Widower’s Act of 1895 was to make provision for the husband when he had no curtesy. Perry v. Strawbridge, 209 Mo. 630. It was wholly foreign to the intent of the Legislature in passing said act to make like provision for the wife when she had no dower. If the lawmakers had so intended they would have said so. Hawkins v. Smith, 242 Mo. 701; Nichols v. Hobbs, 197 S. W. 258.
   WHITE, C.

The suit is in partition; the plaintiff claims, under the provisions of Section 351, Revised Statutes 1909, one-half the real and personal estate of her deceased husband, Henry Klocke, who died childless. The defendants are the sisters of the deceased, Henry Klocke.

George Klocke, Henry’s father, died in 1904, leaving a will by which he gave to his widow, Wilhelmina, for life, the real estate in controversy here, with the remainder in fee to Henry Klocke. Henry Klocke died in October, 1913, and his mother, the life tenant, died in March, 1914 The question to be determined is whether Henry’s widow is entitled to take under the provisions of section 351 property in which her husband had a remainder and of which lie was not seized at his death, the solution of the case depending entirely upon statutory construction.

The sections of the statutes involved are all included in Article 16 of Chapter 2, Revised Statutes 1909, entitled, “Dower.”

Section 345 gives the widow dower in all the lands of which her husband “was seized of an estate of inheritance. ’ ’

Section 346 gives the widow the right to transfer her unassigned dower.

Section 350 gives the widower, where the wife shall die without child or other descendants, one-half the real and personal estate belonging to the wife at the time of her death “absolutely, subject to the payment of the wife’s debts.”

The provision of Section 351, under which the claim here is made, is as follows:

! ‘ Sec. 351. When the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled: first, . . . ; second, to one-half the real and personal estate belonging to the husband at the time- of his death, absolutely, subject to the payment of the husband’s debts.”

Section 352 allows the widow to take a child’s part in lieu of dower in the personal and real estate where the husband dies leaving children by a former marriage.

• Under Section 353: “When the husband shall die without a child or other descendant living, capable of inheriting, the widow shall have her election to take her dower, as provided in Section 345, discharged of debts, or the provisions of Section 351, as therein provided.”

Section 354 provides that: “When a widow shall be entitled to dower as provided in the three preceding sections of this chapter” it shall be the duty of the executors or administrators to give notice to the widow requiring her to file a declaration as provided in the next succeeding section.

The next succeeding section, 355, provides the manner in which the widow shall elect and if she fails to elect within fifteen months she would be endowed under Sections 315, 317, and 318.

The precise question presented here was decided against the contention of appellant in the case of Von Arb v. Thomas, 163 Mo. 33. But appellant, with great persistence, insists upon a re-examination of the subject in view of later decisions, which she claims give a more liberal construction in favor of the widow to the several sections of statutes relating to dower. [Keeney v. McVoy, 206 Mo. 42; Ferguson v. Gentry, 206 Mo. 189; In re Ferguson Estate, 206 Mo. 203; In re Estate of Messersmith, 264 Mo. 610.]

The point made by appellant is that Section 351, giving the widow, in case the husband die childless, one-half the real and personal estate “belonging to the husband at the time of his death, absolutely,” subject to the payment of the husband’s debts, must be interpreted to mean literally what the words quoted import without reference to any other section of the statutes, so that the term “belonging to the husband” would include a remainder as well as any other estate, and “absolutely” would mean independent of any other statutory provisions. It is conceded that the plaintiff would not have dower in the real estate in this case under Section 315, because the husband had not been “seized” at the time of his death.

If appellant’s counsel is correct in his interpreta.tion, that the widow is entitled to take under Section 351, absolutely, whether she have dower under Section 315 or not, then she would be entitled to take without election even if she had dower under Section 315. That is to say, she could take under both sections. •

Now, it is manifest that she cannot take under both sections. These sections relating to dower must be construed in pari materia. [Keeney v. McVoy, 206 Mo. l. c. 67.] They are interdependent and relate to each other, and under Section 353 the widow may elect to take her dower as provided in Section 345, discharged of debts, or take under the provisions of Section 351. There would be no such provision • for election if she could take both. The rights under these several sections always are mentioned in the alternative in the cases construing them; she may take one or she may take the other. [Crowl v. Crowl, 195 Mo. 338, l. c. 348; Wash v. Wash, 189 Mo. 352, l. c. 359; Wigley v. Beauchamp, 51 Mo. 544, l. c. 546-7.]

However, it seems to be conceded that the widow could not take under both sections. Then the argument of appellant amounts to this: If the widow have not dower under Section 345, Section 351 must be given a literal meaning uninfluenced by other sections; but if she have dower under section 345, then section 351 must be construed in connection with section 353. That is, the words, “shall be entitled to one-half the real and personal estate belonging to the husband at the time of his death, absolutely,” will signify one thing at one time and another thing at another time. The widow would have one-half his estate without condition if she have no dower under Section 345, and she would have it conditioned upon an election if she have dower under Section 345.

This court in late cases has called the interest which she gets under Section 351 doiver. For instance, in the case of Adams v. Adams, 183 Mo. l. c. 408, Judge Marshall speaking for this court says: “Election-dower, under Section 2939, Revised Statutes 1899 (now 351), is a creature of our statute and differs in many respects from the dower allowed under Section 2933 (now 345). The principal difference is that ordinary dower is one-third of the estate, for life, freed from liability for debts, while election-dower is one-half, absolutely, subject to debts.”

In the case of Keeney v. McVoy, 206 Mo. 42, upon which appellant relies, where this court considered at great length the subject of the widow’s rights in her deceased husband’s property, this Section 351 came incidentally under consideration. In speaking of it Judge Lamm; says on page 55: “Commencing with common-law dower as a basis, the statute gives the widow' certain optional rights to better her condition.” And on the same page: “It has been aptly said that the part taken by the widow under her right of election is her ‘election dower,’ i. e., her dower from choice as distinguished from her dower without choice.”

Thus it is certain that she takes under Section 351 only by election. The term “absolutely” as used in that section refers to the estate she takes independent of other claims. It does not mean that she shall take it absolutely, independent of conditions in taking it. That is to say, when she takes it she takes it absolutely, but she cannot absolutely take it.'

It is argued by appellant that inasmuch as the phrasing of Section 350 and Section 351 are exactly the same they should receive the same interpretation, and it is pointed out that this court has construed Section 350, holding that the husband takes under it independent of any election, whether he is entitled to curtesy or not. But in the case of Perry v. Strawbridge, 209 Mo. 621, opinion by Judge Graves, it was said on page 630 in construing Section 350:

“It is earnestly pressed by counsel that under Section 2938, Revised Statutes 1899 [350], the husband cannot take unless he would have been entitled to curtesy. They contend that Sections 2938 [350] and 2939 [351] are companion sections and inasmuch as we have held under the latter that the wife cannot take unless .she was entitled to dower, we should hold that the husband cannot take unless he was entitled to curtesy. ’ ’

On the same page as the passage quoted the court calls attention in express terms to the reason why the statutes are construed differently; that is, because Section 353 provides hoiv she shall take under Section 351.

Obviously, if that is her election dower and she cannot acquire it except by election, then of course she conld not have it unless she have some, other right between which and this she may elect. The very term “election” or “right of election” implies alternative rights between which the party electing may choose. She could not elect to take under Section 351 unless she had dower under Section 345. The Legislature evidently understood it that way because the language of the section, 354, setting forth how she may elect, starts out with the words: “When a widow shall be entitled to dower, as provided by the three preceding sections [351-2-3] of this chapter.” We see no reason for refusing to follow the ruling in the Yon Arb case. We conclude that the .widow, having no right to dower in. the property under the provisions of Section 345 could acquire no right under Section 351.

The judgment is affirmed.

Boy, C., concurs.

PER CURIAM. — -The foregoing opinion by White, C., is adopted as the opinion of the court.

All the judges concur.


author: ROY, C.

text:
    OTTO F. STIFEL’S UNION BREWING COMPANY, Appellant, v. EDWARD SAXY et ux.
    Division Two,
    February 16, 1918.
    1. ESTATE BY ENTIRETY. The husband and wife take and hold an estate by the entirety, not as separate individuals and by moeities, but as one person, each holding the whole of it. They are neither joint tenants nor tenants in common; but for tlje purpose of holding the title, they are h unit, and upon the death of either the entire estate belongs to the survivor. At no time during their lives is it divisible, or subject to partition or sale for the sole debts of one of them, nor can either sell any interest in it without the consent and joint act of the other.
    2. JUS UXORIS: Husband’s Possession: Married Woman’s Act. The husband, jure uxoris, prior to the Married Woman’s Act of 1889, had the right to the possession of the wife’s lands, including lands held by him and her as estates by the entirety, but those acts took that interest away from him, but did not destroy estates by the entirety. They did not destroy the unity of husband and wife, which is the basis of estates by the entirety, but they were meant to destroy the unity of unequals, which was the basis of the jus mariti, by which the husband, as a marital right, was entitled to the possession and enjoyment of his wife’s lands, unless she had a separate estate therein.
    3. ESTATE BY ENTIRETY: Sale Under Execution. A judgment against the husband alone, in which the wife is not included, cannot in any way affect an estate by the entirety held by them in land and created since the Married Woman’s Acts became effective, nor can an execution thereon affect any supposed separate interest of the husband in the land, for he has no separate interest. The husband, during their joint lives, has no interest in land held by him and his wife as tenants by the entirety that can be sold for his sole debts. [Authorities elaborately reviewed, and Hall v. Stephens, 65 Mo. 670, and Bains v. Bullock, 129 Mo. 117, analyzed and distinguished.]
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Affirmed.

      Henry E. Haas and John A. Gilliam for appellant.
    (1) It is wholly immaterial whether the Theodosia Avenue property was, or was not, purchased with the separate means of the defendant Mary M. Saxy. At the time plaintiff’s debt was contracted the record title of the property stood in the .joint names of Mary M. Saxy and Edward Saxy, her husband, as tenants by the entirety. The general rule is that, a wife who permits her husband to hold the record title to her realty is estopped to assert her title thereto as against one extending credit to the husband in reliance on his apparent ownership. 33 Ann. Cases (1914 C), 1066; Goldberg v. Parker, 87 Conn. 99, 33 Ann. Cases, 1059, with note; Riley v. Yaughan, 116 Mo. 169; McClain v. Abshire, 63 Mo. App. 333; Rieschick v. Klingelhoefer, 91 Mo. App. 430; Cottrell v. Spiess, 23 Mo. App. 35; Million v. Bank, 159 Mo. App. 601; Singer Mfg. Co. v. Stephens, 169 Mo. 1; Balz v. Nelson, 171 Mo. 682; Zehnder v. Stark, 248 Mo. 55; 1 Moore on Fraudulent Conveyances, pp. 372, 404; 14 Am. & Eng. Ency. Law (2 Ed.), 259. (2) The interest of the defendant Edward Saxy, in and to the Theodosia Avenue property, as tenant by the entirety, was subject to sale under execution, but the title of the purchaser was liable to be defeated by the survivorship of the wife. Hall v. Stephens, 65 Mo. 670; Morrow v. Zane, 185 Mo. App. 118; Johnston v. Johnston, 173 Mo. 114; Nold v. Ozenberger, 152 Mo. App. 444; Atkison v. Henry, 80 Mo. 153; Hoffman v. Nolte, 127 Mo. 136.

      John B. Dempsey and Rosier G. Meigs for respondents.
   ROY, C.

The plaintiff seeks herein to subject an alleged interest of defendant Edward Saxy .in real estate standing in the name of his wife, the defendant Mary M. Saxy, to the payment of a judgment debt' due to it from the husband. There was a decree for defendants, and plaintiff has appealed.

On September 3, 1891, certain real estate in St. Louis was conveyed to the defendants, they being then, as now, husband and wife, and taking said property as tenants by the entireties. In 1905, while the property was so held, the husband became indebted to the plaintiff. Thereafter, through an intermediary, the title was placed in the wife alone; and, still later, the property was sold, and the net proceeds were used in the purchase of the real estate now in controversy. The petition alleges that the title to both of said tracts was so placed in the wife alone in fraud of plaintiff’s rights as such creditor, and prays that the husband’s interest in the last mentioned tract be subjected to the payment of plaintiff’s judgment.

The question as to whether an execution against the husband alone can reach any interest of any kind in ProPerty held hy the husband and wife as tenants by the entirety has never been before this court. There are some dicta on the subject, which we will consider after a review of the common law and the decisions of other jurisdictions. The conflicting opinions in the decided cases, and the various reasons given therefor, convince us that no safe conclusion can he reached without a clear perception of what such an estate was at common law, and the effect of the statutes known as the “Married Woman’s Acts” on such estates.

We will 'first endeavor to ascertain what an estate by the entirety was at common law, leaving out of view the effect on such' estate, of .the power of the husband in the right of the wife (jure uxoris ) to dominate iter property. The estate was peculiar (Hall v. Stephens, 65 Mo. 670), and partook, in many respects, of the nature of the marriage relation. Husband and wife took and held it not as separate individuals and by moieties, but as one person, each holding the whole of it. [Stewart on Husband and Wife, sec. 303; 4 Kent, 362.] The English Court of Chancery, in Jupp v. Buckwell, L. R. 39 Ch. Div. 148, quotes Coke and Bracton as saying that in such an estate, “vir et uxor sunt quasi única persona, quia caro una et sanguis unus.” That is a plain statement that they are one person because “they are one flesh and one "blood.”

2 Blackstone (Lewis’s Ed.), p. 182, says:

“And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common; for husband and wife being considered as .one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.”

Warvelle on Real Property, sec. 111, says:

“It differs from the estate of joint-tenancy in that joint tenants take by moieties and at the same time are each' seized of an undivided part of the whole. In the estate by entirety neither tenant is seized of a part, or moiety, but both of them have the entire, estate, and as this involves in itself a physical impossibility in the case of ordinary individuals it necessarily follows that effect can only he given to the grant by regarding both tenants as constituting hut one person. But this, in fact, is just what the law does, and as this unity of person is never recognized save- in the case of husband and wife, the estate by entirety is confined exclusively to persons within the marriage relation.”

There was incident to this estate the right of survivorship. But such survivorship was very different from survivorship in ease of joint tenancy. 2 Blackstone, p. 184, speaking of joint tenancy, says:

“This right of survivorship is called by our ancient authors the jus accrescendi, because the right upon the death of one joint-tenant accumulates and increases to the survivor.”

Warvelle, supra, speaking of tenancy by the entirety, says (Sec. 111);

“Both would therefore he seized of the entire estate; neither could dispose of any part of same without the assent of the other, and upon the death of either the whole estate would remain in the survivor. In this latter respect while the right of survivorship gives to the estate an apparent resemblance to joint tenancy, it yet differs materially from joint tenancy, for the survivor succeeds to the whole not by the right of survivor-ship simply, as is the case with joint-tenants, but by virtue of the grant Avhich vested the entire estate in each grantee, or, in contemplation of law, in one person with a dual body and consciousness.”

Stewart says (Sec. 306): “On the death of either, the other has the whole estate, continuing alone his or her former holding, and not taking by survivorship in the sense that a surviving joint tenant does.”

In Garner v. Jones, 52 Mo. 68, it was said:

“At common law a conveyance in fee to husband and wife, of real estate, created a tenancy by the entirety. But being one person in law, they took the estate as one person. Each being the owner of the entire estate; neither of whom had any separate or joint interest, hut a unity or entirety of the whole. So if either died the estate continued in the survivor, as it had existed before; an undivided unity or entirety. There was no survivorship as in joint tenancies, but a continuance of the estate in the survivor as it originally stood. The only change by death was in the person, not in the estate. Before death they both constituted one person holding the entire estate, and after the death of either the survivor remained as the only holder of tKe estate.”

In Thornton v. Thornton, 3 Randolph (Va.), 179, it is said:' “The husband and wife have the whole from the moment of conveyance to them, and the death of either cannot give the survivor m'ore.” [See also Cole Mfg. Co. v. Collier, 95 Tenn. 115; Kunz v. Kurtz, 8 Del. Ch. l. c. 414.]

There could be no partition of such estate. [Warevelle on Real Prop., sec. 111; Stewart on Husband and Wife, sec. 306; 4 Kent, p. 362; 1 Washburn on Real Prop., sec. 913; Russell v. Russell, 122 Mo. 235.]

Neither could dispose of any interest in the estate without the other. ■ Blackstone’s language^ above cited is: “Neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.” Warvelle, as-above quoted says: “Neither could dispose of any part of the same without the assent of the other.” 4 Kent, 362; says, “Neither of them can alien so as to bind the other. ”

Upon being divorced the parties cease to occupy the relation of tenants by the entirety. The dissolution of the marriage relation dissolves the tenancy by the entirety. [Russell v. Russell, 122 Mo. 235.]

It will be noticed that such an estate was based on the unity of husband and wife, they being considered in all respects as equals so far as that estate was concerned.

We will now consider the estate or right which the husband acquired jure uxoris in the property of the wife, and its effect on the estate by the entirety.

1 Bishop on Laws of Married Women says: “Thus, as we have seen, the wife’s money and chattels in possession pass by the marital right to the husband.”

2 Kent, 130, says: “If the wife, at the time of the marriage, be seized of an estate of inheritance in land, the husband, upon the marriage, becomes seized of the freehold jure uxoris, and he takes the rents and profits during their joint lives.”

Platt on Property Rights of Married Women, sec. 2, says: “The husband was entitled to the use during coverture of all the real estate acquired by the wife before and after marriage.”

Stewart, in his work above cited, Section 146, says:

“At common law a husband holds during coverture in right of his wife, she being merged in him, all her lands in possession, and owns the rents and profits thereof absolutely. This is called his freehold estate jure uxoris; it is often said to be an estate for the joint lives of the husband and wife, but this is a mistake, as it terminates with absolute divorce. It differs from curtesy initiate in that it is a vested estate in possession; while curtesy initiate is a contingent future estate, it is independent of birth of issue, is held in right of the wife, and is not added to or diminished when curtesy initiate arises.” _

And in Section 306, speaking of estates by the] entirety, he says:

“During coverture, the husband has at common law his estate jure uxoris, with the right to the rents and profits; he holds the property subject to his control, use and possession; only this estate for their joint lives can be aliened by him, or taken for his debts, or charged by him with a mechanic’s lien.”

In Hall v. Stephens, 65 Mo. 670, it was said concerning estates by the entirety:

“If, as already seen, the husband and wife became seized in entirety of the undivided one-seventh of the devised premises, the plaintiff is clearly entitled to a corresponding recovery of possession, if the husband had at the time of the sale, any interest therein suscep tibie to execution. The great current of authority affirms such susceptibility; going only so far as this, however, that if the wife survive her husband, she, as such survivor, will • be entitled to the whole. This theory, that the husband is possessed of a vendible interest, has for its basis that the husband, jure mariti, is entitled to the possession and usufruct of the wife’s real estate during marriage, which right suffers no diminution or abatement by reason of his own interest in land whereof both his wife and himself are jointly seized. [Ames v. Norman, 4 Sneed, 692; French v. Mehan, 56 Pa. St. 286; Bennett v. Child, 19 Wis. 362; Freeman, Co.-T. and Par., secs. 73-74; 1 Wash., R. P. (4 Ed.), 672; Bishop, L. M. W. 622; Stoebler v. Knerr, 5 Watts (Pa.), 181.]”

In that case the estate vested prior to the taking' effect of the statute which destroyed the right of the husband to the exclusive possession and control of the land.

The proposition that the husband’s right to control during his life the entire estate held by the entirety was by reason of the jus mariti was announced by the English court in Jupp v. Buckwell, supra; and that case is cited with approval by the Canadian court in Re Wilson and Toronto I. E. Light Co., 20 Ont. 397.

As is said by Stewart, supra, this interest of the husband jure uccoris in the wife’s property is different from the curtesy estate. The one is enjoyed during the' life of the wife, in her right (or wrong) and terminates with her death; the other "is enjoyed in possession only after her death. It, like dower, is held by right of the marriage, but not in right of the spouse.

We thus see that it was the marital right, and it alone, which gave the husband the power to appropriate absolutely the personal chattels of the wife, and gave him a freehold estate for their joint lives in her lands, including those held by them as tenants by the entireties. Independent of that marital right he had no interest in her property that he could himself dispose of or that was vendible under an execution against him alone, except his curtesy estate concerning which we will say nothing further. This freehold estate of the husband in the lands of the wife and in estates held by the entireties was based on the idea of the unity of husband and wife, but a very different kind of unity from that unity of equals above described, The estate of the husband jure uxoris had for its very foundation the idea that husband and wife were one because she was merged in him, and he held the rights of both, and could act for both regardless of her wishes.

We will now consider the effect of the legislation which is spoken of as the “Married Woman’s Acts.” The verbiage of those acts varies in different States, in Canada and in England. Doubtless the results reached in some of the cases are by reason of some peculiar provision of the statute under consideration. For the purposes of this case we shall treat them all as being the same as ours unless some reason to the contrary appears.

In some states the estate by the entirety has been judicially repudiated. [Whittlesey v. Fuller, 11 Conn. 337; Miles v. Fisher, 10 Ohio, 1; Wilson v. Fleming, 13 Ohio, 68; Kerner v. McDonald, 60 Neb. 663.] In two states there are statutes which destroy the rule that a conveyance of land to husband and wife, of itself and without further provision, creates an estate by the entireties. [Bassler v. Rewodlinski, 130 Wis. 26; Wilson v. Wilson, 43 Minn. 398.] In the following states it' is held* that the Married Woman’s Acts have in effect ¿bolished such estates: Donegan v. Donegan, 103 Ala. 488; Robinson, Appellant, 88 Me. 17; Green v. Cannady, 77 S. C. 193; also in England, Jupp v. Buckwell, supra; and in Canada, Griffin v. Patterson, 45 U. C. Q. B. 536, l. c. 554. In others it is held that those acts have made husband and wife tenants in common with right of survivor-ship: Schulz v. Ziegler, 80 N. J. Eq. 199; Hiles v. Fisher, 144 N. Y. 306. Some States hold that such acts have had no effect on the husband’s right in lands held by the entirety. [Pray v. Stebbins, 141 Mass. 219; Morrill v. Morrill, 138 Mich. 112.] In two states it is held that those acts have resulted in depriving the husband’s creditors of the- right to affect the interest of the wife during the existence of the marriage relation; but they intimate that the right of the survivorship of the husband can be sold for his debts. [Cole Mfg. Co. v. Collier, 95 Tenn. 115; Simpson v. Biffle, 63 Ark. 289.]

All those cases which hold that such legislation has destroyed or changed estates by the entirety proceed on the theory that it has destroyed the unity of husband and wife. They overlook the plain facts that such acts are meant to destroy the unity of unequals, the foundation of the jus mariti, and to thereby restore to its full vigor the unity made up of equals, the foundation of the estate by entirety.

The doctrine most numerously supported by the decided oases is best expressed in Diver v. Diver, 56 Pa. St. 106, by Strong, J., who was afterwards a ¡justice of the Supreme Court of the United States. He there says:

“But it is said the Act of 1848, by destroying the the legal unity of the husband and wife, has converted such an estate into a tenancy in common; that is that such a deed conveys a different estate from that which the same deed would have created if made prior to the passage of the act. To this we cannot assent. It mistakes alike the letter and the spirit, of the statute, imputing to it a purpose never intended. The design of the Legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife’s property, by removing it from under the dominion of the husband. To effectuate this object, she was enabled to own, use and enjoy her property, if hers before marriage, as fully after marriage as before. And the act declared that if her property accrued to her after marriage, it should be owned, used and enjoyed by her, as her own separate property, exempt from liability for the debts and engagements of/her husband. All this had in view the enjoyment of that which is hers, not the force and effect of the instrument by which an estate may be granted to her. It has nothing to do with the nature of the estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of property as it finds them, and regulates the enjoyment; that is, the enjoyment of the estate after it has vested in the wife. And the mode of authorized enjoyment is significant. It is to be as her separate property is enjoyed, as property settled to her separate use. The act' therefore no more destroys her union with her husband than does a settlement of property for her separate use. To a certain extent she is enabled, but no more than is necessary, to protect her property after it has been acquired. We have held that she can convey her lands only by joining in a deed with her husband. [Pettit v. Fretz, 9 Casey, 118.] This is a clear recognition of the existing unity of the two. It need not be repeated that no greater effect is to be given to the Act of 1848 than its language and spirit demand. It is a remedial statute, and we construe it so as to suppress the mischief against which it was aimed, but not as altering the common law any further than is necessary to remove that mischief. To hold it as operating upon the deed conveying land to a wife, making such deed assure a different estate from what it would have assured without the act, is to lose sight of the legislative purpose. Were we to do so, it would.become in many cases a means of divesting her of her property, instead of an instrument of protection. In the present ease, if it has converted the estate granted to Diver and his wife into a tenancy in common, it has taken from her her ownership and enjoyment of the entirety during her husband’s life and her right of survivorship to the whole. On this subject, the remarks of Chief Justice Lewis in Stuckey v. Keefe’s Executors, 2 Casey, 401, are worthy of attention.”

That language is a clear and irrefutable statement of the conclusion that the Married Woman’s Acts are not intended to weaken or destroy that unity of husband and wife which treats them as equals, hut that they do destroy that unity of the two which considers the wife as merged in the husband. In other words, the purpose of such acts is to destroy the jus mariti, without affecting, in any other way, the estates granted to the wife alone, or to the husband and wife as tenants by the entirety. That doctrine has been indorsed in Kunz v. Kurtz, 8 Del. Ch. 405; Patton v. Rankin, 68 Ind. 245; Baker v. Stewart, 40 Kan. 442; Masterman v. Masterman, 129 Md. 167; Hood v. Mercer, 150 N. C. 699; Corinth v. Emery, 63 Vt. 505.

Thus we have seen that, at common law, and independently of the jus mariti, neither husband nor wife could, without the concurrence of the other, bind or dispose of any interest in the estate. They could not have partition. On the death of one, the other continued to own the whole estate. There was no increase of the estate as in case of the survivorship of a joint tenant. In Jordan v. Reynolds, 105 Md. 288, it was said:

“To hold the judgment to be a lien at all against the property, and the right of execution suspended during the life of the wife, and to be enforced on the death of the wife, would we think likewise encumber her estate, and be in contravention of the constitutional provision heretofore mentioned, protecting the wife’s property from the husband’s debts.
“It is clear, we think, if the judgment here is declared a lien, but suspended during the life of the wife and not enforceable until her death, if the husband should survive the wife, it will defeat the sale here made, by the husband and wife to the purchaser, and thereby make the wife’s property liable for the debts of her husband. ’ ’

Leaving out of view for the present the decisions of the courts of this State, we conclude that where a judgment and execution thereon are against a husband alone, not including the wife, such judgment and execution cannot affect in any way property held by them by the entirety, nor can it affect any supposed separate interest of the husband therein, for he has no separate interest.

We will now consider the decisions in this State.

In Gibson v. Zimmerman, 12 Mo. 385, it was said: “They are each the owner of the whole, but not of the half. They musk both join in a conveyance, They are both necessary to make one grant-or.” It was also there said: “And it is difficult to assign any good reason why survivorship between husband and wife is prejudicial to the commonwealth, or repugnant to the genius of republics.”

The Legislature, by Section 2878, Revised Statutes 1909, expressly excepts a conveyance to husband and wife from the provision that a conveyance to two or more persons shall be a tenancy in common, unless expressly declared to be a joint tenancy.

In Hall v. Stephens, 65 Mo. 670, above cited, it was said that the power of the husband over land held by him and his wife by the entireties was not affected by the Married Woman’s Acts. The only authority there cited was 4 Sneed (Tenn.), 692. There are three things to be said about Hall v. Stephens: 1, As we have above stated, only two states hold to that opinion, Massachusetts and Michigan. All the other courts of this country and of Canada and England, wherever they have spoken, have held that the Married Woman’s Acts have destroyed the jus mariti in the estates by the entirety. 2, The opinion in Hall v. Stephens was a pure dictum, as the estate there vested before the date of the Married Woman’s Acts. 3, The only case there cited has been repudiated as a dictum by the court of that state. [Cole Mfg. Co. v. Collier, 95 Tenn. l. c. 123.]

The following cases were like Hall v. Stephens in that the estate vested before the statutes affecting the husband’s right went into effect: Atkison v. Henry, 80 Mo. 151; Moses v. Dock Co., 84 Mo. 242; Wilson v. Albert, 89 Mo. 537; Bank v. Fry, 168 Mo. 492. In Johnston v. Johnston, 173 Mo. l. c. 114, attention was called to the fact that Hall v. Stephens, was obiter dictum on the point here involved. In Bains v. Bullock, 129 Mo. 117, it was held that the Married Woman’s Act of 1889, Sees. 6864 and 6869, Revised Statutes 1889, did afféct the wife’s right in the estate by the entirety, and that it enabled the wife, without joining the husband, to sue any person other than the husband for 'the possessipn of the land. That case did not determine what effect the statute had on the rights of the husband and wife as. between themselves. But it does say (l. c. 120):

“But it is also true that the grant vests in each grantee the entire estate. The statute abolishes the legal unity between husband and wife, which gave rise to estates by the entirety, but the estate itself has not been abolished.”

The question here involved was not in issue in that case, and the authorities were not there reviewed. We respectfully submit that if there had bfeen such a review, it would not have been there said that “the statute abolishes the legal unity between husband and wife, which gave rise to the estate by. the entirety.” However, we have no special quarrel with that case. It holds, in effect at least, tha”t such estate still exists, freed by the statute from the jus mariti.

Valliant, J., in Frost v. Frost, 200 Mo. 474, l. c. 483, said:

“Under the facts of the case at bar it is not necessary for us to decide whether or not under our married woman’s statutes the husband has been shorn of the exclusive right to the possession and control of the property held as an estate in entirety; it is sufficient to say, as we do say, that the title in such an estate is as it was at common law; neither husband nor wife has an interest in the property, to the exclusion of the other; each owns the whole while both live and at the death of either the other continues to own the whole, freed from the claim of any one claiming under or through the deceased.”

We hold that, as a result of the Married. Woman’s Acts, the husband, during their joint lives, has no interest in land held as tenants by the entirety that can be sold under execution for the sole debt of the husband.

The decree of the trial court is affirmed.

White, G., concurs.

PER CURIAM: — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


text:
    KANSAS CITY RAILWAYS COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION.
    Division Two,
    February 16, 1918.
    1. PUBLIC SERVICE COMMISSION: Fees. The fees which the Public Service Act authorizes the Commission to charge for the authorization of bonds by a public utility corporation do not come within the classification of fees, paid by the State or by some person, which a public officer is allowed to charge for his individual benefit, but are taxes, payable to the State, go into the State Treasury to the credit of the General Revenue Fund, and are devoted to general public purposes.
    2. -: -: Proviso to Section 57: Refunding Bonds. The proviso to Section 57 of the Public Service Act, Laws 1913, p. 594, prohibiting the Public Service Commission from charging fees when an issue of bonds is made for the purpose of refunding, discharging or retiring existing bonds, refers to the mere formal act of authorizing the renewal or discharge of the corporation’s own existing obligation, not those of another company.
    3. -:--: Reorganization: New Company: Payment of Existing Mortgages. The properties and franchises of several electric light and street railway companies, encumbered by mortgages, had been acquired by a single company, and the city was claiming that these franchises had been forfeited. Receivers of all these properties were appointed by the Federal court, and a plan of reorganization worked out, by which the appellant, a new company, which had obtained a franchise for thirty years, was formed and was to purchase the street railway properties, and another company was to purchase' the electric light properties, at foreclosure sales of the existing mortgages. The appellant company- was to issue bonds, use a part of their proceeds to pay the existing mortgage and the balance for extensions and improvements, and to receive the properties “clear and unincumbered.-’’ It applied to the Public Service Commission for authority to issue the bonds, and after an exhaustive and expensive investigation such authorization was made, and the fees designed by Section 21 of the ■ Public Service Act, Laws 1913, p. 567, were taxed against appellant. Held, that the bonds were not refunding bonds, but those authorized by Section 57 of said act “for the acquisition of property,” and the appellant was properly taxable with such fees.
    Appeal from Cole Circuit Court.- — No». J. O'. Slate, Judge.
    Affirmed.

      Clyde Taylor and Charles A. Stratton for appellant.
    (1) The Public' Service Commission was without authority to make an order requiring this appellant to pay a fee for authorizing an issue of bonds to take up other bonds. Laws 1913, sec. 21, p. 567. (2) This appellant’s obligations were not limited to those which it primarily created, but included those which it assumed. Cone v. Wood, 108 Iowa, 266. (3) Statutes generally should be so construed as to give words and phrases their plain and ordinary and usual meaning. R. S. 1909, sec. 8057. (4) A refunding of a debt is merely' a funding anew, and not the creation of a new debt. In re Pounds Estate, 166 Mo. 419; Manly v. Bd. of Commissioners, 46 Colo. 491. (5) A statute relating to fees or costs should be strictly construed. Ford v. Railway, 29 Mo. App. 616; State ex rel. v. Holladay, 67 Mo. 64; State ex rel. v. Gordon, 245 Mo. 28; Shedd v. Railway Co., 67 Mo. 690; State ex rel. v. Wofford, 116 Mo.- 223; Gammon v. Lafayette Co., 76 Mo. 676; Bank v. Refrigerator Co., 236 Mo. 414; State ex rel. v. Brown, 146 Mo. 406; State ex rel. v. Adams, 172 Mo. 7. (6) “Strict construction of a statute” defined. Lagler v. Railways, 42 Ind. App. 592; Moore v. Tel. Co., 164 Mo. App. 165; Priest, v. Capitain, 236 Mo,. 462.

      Alex Z. Patterson and James D. Lindsay for respondent.
    (1) The bonds upon which the fee or tax in issue was assessed, are reorganization bonds, not refunding bonds. They are within the general enacting terms of Section 21, but they are not within the proviso. Public Service Commission Act, secs. 21, 57, 62, Laws 1913, p. 567 et seq. (2) The proviso in statutes undertaking to limit general provisions, is to be strictly construed. A party claiming an exemption for his benefit under the terms of the proviso must show a clear right to that exemption. 36 Cyc. 1162 ; Brown v. Patterson, 224 Mo. 639; Lewis’s Sutherland on Statutory Construction (2 Ed.), secs. 351," 352; Ex Parte Lusk, 82 Ala. 519; State v. Telephone Co., 104 Minn. 270; Towson v. Den-son, 74 Ark. 302; Clark’s Appeal, 58 Conn. 207. (3) The rule invoked by appellant, and the cases cited, that statutes authorizing the collection of fees are to be strictly construed, will not apply here. That rule was stated in cases where the officer claimed from the State a fee for his individual benefit, or demanded for his individual benefit by virtue of his official relation to the State, a fee from another. In such cases the strict rule is applied for the benefit and protection of the State: The rule is here sought to be applied adversely, against the State. Ford v. Eailway, 20 Mo. App. 616; State ex rel. v. Holladay, 67 Mo. 64; State ex rel. v. Gordon, 245 Mo. 28; Shedd v. Eailway Co., 67 Mo. 690; State ex rel. v. Wofford, 116 Mo. 223; Gammon v. Lafayette Co., 76 Mo. 676; Bank v. Eefrigerator Co., 236 Mo. 414; State ex rel. v. Brown, 146 Mo. 406; State ex rel. v. Adams, 172 Mo. 7.
   WHITE, C.

The' appellant began this proceeding in the circuit court of Cole County to review on certiorari an order of the Public Service Commission, whereby the appellant was required to pay fees to the commission amounting to nearly ten thousand dollars, for services rendered appellant by the Commission in connection with a bond issue of about twenty-eight million dollars. The circuit Court affirmed the order of the Commission and from that judgment appeal is taken.

The fees charged, to which the appellant objects, were authorized, as claimed by respondent, by Section 21 of the Public Service Commission Act, Laws 1913, p. 567. This section provides that the Commission may charge as fees for a certificate authorizing the issuance of bonds, notes, or other evidences of indebtedness, one dollar for each one thousand dollars of the face value of the authorized issue, or fraction thereof, up to one million dollars; and fifty cents for each thousand dollars over one million dollar? and up to ten million dollars; and twenty-five cents for each one thousand dollars over ten million dollars; with a minimum fee in any case of $250. The section then contains this proviso:

“Provided, that no fee shall be charged when such issue, is made for the purpose of guaranteeing, taking over, refunding, discharging or retiring any bond, note or other evidence of indebtedness up to the amount of the issue guaranteed, taken over, refunded, discharged or retired.”

The appellant claims that the order in this case is covered by the proviso and the Commission had no authority to charge such fees;. that the bonds were issued for the purpose of refunding an existing indebtedness of the company. In order to determine the purpose and character of the bonds it will be necessary to consider the facts leading up to the creation of the appellant company.

In 1913 the street railway systems and the electric light and power properties in Kansas City were being-operated by receivers appointed by the Federal court, the order of appointment having been made in June, 1911. At the time of the appointment of the receivers, the Metropolitan Street Railway Company was operating all the properties as the owner, having acquired-them from several different companies and consolidated them into one system. These several properties were subject to separate mortgages, which' had been executed by the several owning companies at different times. The several companies had received franchises from Kansas City under which the properties were being operated by the receivers and all these franchises were soon to expire.

It does not appear at whose instance nor in what kind of a proceeding the receivers were placed in charge of these consolidated properties and the Metropolitan ousted from control, but it does appear that the city claimed the franchises had been forfeited. In the proceeding there were decrees of foreclosure, presumably of the several mortgages, under which all the properties were sold and the appellant herein became the purchaser of all the street railways and other property necessary for their proper operation; while another company, the Kansas City Light & Power Company, became the purchaser of the electric light and power properties which were involved in the litigation.

Before such foreclosures Judge William C. Hook of the Federal Circuit Court, under whose authority the properties were operated by the receivers, formulated a plan for what is termed the “reorganization of the Metropolitan Street Eailway System at Kansas City.” “The plan” was not a court order, but the formulation of an agreement between the parties interested, under which the several properties might be operated for the advantage of the public srevice, and under which the creditors of the several companies might be saved their investments. The plan contained, among other things, provisions as to how anyone who might have “an interest to subserve or protect” might be a party to it. This applied to bondholders, mortgagees, etc., as well as stockholders, and any of these parties could become interested in the new company to be formed. The appellant company then was incorporated. Who the stockholders were does not appear, ■whether they comprised all or a part o.f the original stockholders in the Metropolitan Company, or of the other original companies, or. whether they were bondholders, or strangers. The new company first procured from Kansas City a franchise whereby it could operate its street railways upon the streets for a term of thirty years. This franchise, it appears, was one of the principal assets of the new company, which was presented as security for the loans to be procured thereafter on the property. • The plan provided that as further security for the bonds to be issued $6,300,000 of the surplus earnings should be used for extension and additions to the property. The plan then provided for the issuance by the appellant company of bonds of various grades, amounting in all to about twenty-eight million dollars, secured by mortgage on the appellant’s property, to be purchased under the foreclosure sales above mentioned, with' contemplated extensions, and upon the new franchise. The Kansas City Light & Power Company acquired at the same time and under the same conditions and under the same plan the electric lighting and power properties that previously had belonged to the several companies. The result, as aptly stated by the respondents, was, “the reorganization was the working out of a plan whereby the two distinct and new companies holding distinct properties should emerge out of the corporate ashes of the numerous old companies.” It was only with the Railways Company that the order under consideration here had to do.

The plan of reorganization contemplated the approval of the -Public Service Commission, to which application was made by the appellant for authority to. exercise the rights and privileges granted under the franchise, and for an order "approving the reorganization of the properties, which the new company should control, and permitting the issuance of the securities mentioned. Objection was made to this application by certain citizens of Kansas City, and an exhaustive hearing was-had before the Commission. The report of this proceeding is before us in a voluminous record covering several hundred pages, showing the work which the Commission did in examining all matters touching the organization and the contemplated indebtedness of the new company, before authorizing the issuance of the bonds under consideration. When this work was done and the bonds authorized, the Commission taxed the costs of which the appellant complains here.

The Public Service Commission Act, in Section 57 (Laws 1913, p. 594), provides for -the issuance of bonds by railroad corporations and street railroad corporations after procuring from the Commission an order authorizing such issue. That part of the section relating to it is as follows:

“Sec. 57. Approval of issues of stocks, bonds and other forms of indebtedness. — A common carrier, railroad corporation or street railroad corporation organized or existing, or hereafter incorporated, under or by virtue of the laws of the State of Missouri, may issue stocks, bonds, notes, or other evidences of indebtedness payable at periods of more than twelve months after the date thereof, when necessary for the acquisition of property, the construction, completion, extension, or improvement of its facilities, or for the improvement or maintenance of its service or for the discharge or lawful refunding of its obligations or for the reimbursement of moneys actually expended from income, or from any other moneys in the treasury of the corporation not secured by or obtained from the issue of stocks, bonds, notes, or other evidence of indebtedness of such corporation, within five years next prior to the filing of an application with the commission for the required authorization, for any of the aforesaid purposes except maintenance of service and except replacements in cases where the applicant shall have kept its accounts and vouchers of such expenditure in such manner as to enable the commission to ascertain the amount- of moneys so expended and the purposes for which such expenditure was made.”

The remaining part of the section provides the conditions under which the Commission may and may not authorize the issuance of such bonds and notes, and the restrictions upon its authority.

It will be noticed that the purposes for which a common carrier may be authorized to issue bonds, notes, and other evidences of indebtedness are as follows:

(1) When necessary for the acquisition of property;

(2) For the construction, completion, extension or improvement of its facilities;

(3) For the improvement or maintenance of its service;

(4) For the discharge or lawful refunding of its obligations;

(5) For the reimbursement of moneys actually expended from income, etc.

Section 62 of the ■ act provides that the reorganization of railroad corporations and street railroad eorporations shall be subject to the control of the Commission. This section then says:

“Upon all such reorganizations the amount of capitalization, including therein all stocks and bonds or other evidence of indebtedness, shall be such as is authorized by the commission, which, in making its determination, shall not exceed a fair value of the property involved,” etc.

The appellant claims that the bonds in this case come under the fourth subdivision in Section 57, and were issued by the company for the “refunding of its lawful obligations,” and therefore are within the pro-' viso of Section 21 to the effect that no fee shall be charged for refunding . . . any bonds, notes, etc.

Respondents assert that these are reorganization bonds, and provided for in section 62; that they are .different from and not included in any class mentioned in Section 57.

It is clear that reorganization bonds mentioned in Section 62 might be of some class, possibly all classes, authorized by Section 57. Section 62 does not, in terms, authorize the issuance of any bonds, nor does it seem necessary to imply such authority in view of the specific statement in Section 57. It may be that the bonds mentioned in Section 62 are limited to the classes allowed by Section 57. However, it is not necessary to determine that question for our purpose here, as presently will appear.

Section 21 appears in the general provisions of the Public Service Commission Act, while Sections 57 and 62 appear in the articles relating to common carriers, and Section 57 is the only section under which the Commission can authorize a carrier to issue bonds, unless the authority is implied in Section 62. Section 21 does not authorize the issuance of bonds for any purpose. It relates to fees and to fees only. It cannot enlarge the authority given under Section 57, and the proviso, so far as it refers to that section, reaches only the fourth classification of purposes for which bonds are there authorized. If it covered a wider range than that it would be inoperative.

It is not claimed by the appellant that the bonds here were authorized by Section 62, or were of a different class from any mentioned in Section 57; it stands' squarely on the proposition that they are covered by the fourth subdivision in the latter section.' Therefore, unless the bonds in this case come under the fourth subdivision in Section 57, the cost was properly taxed. Appellant argues that “its obligations,” of the fourth subdivision, refers not only to those which the company itself originally incurred, but also all obligations for which it may have become liable subsequent to their issuance. Counsel use this illustration:

“The matter has been aptly illustrated by the case of the purchaser of real estate encumbered by mortgage. It is not his obligation in the sense that he first placed it in operation, but it is his obligation in every sense of the word when he assumed to pay it and took the property subject to its payment.”

If the appellant had bought all these properties in the manner in which it did, under decrees of the Federal coui’t, and had become a going concern operating the property after assuming an indebtedness which was to remain on the several properties, then the illustration of the appellant would be pertinent. But that is not the case. The appellant did not assume this indebtedness. It purchased the property under decrees of foreclosure of mortgages which secured the indebtedness. The plan, which was stated to be for the protection of creditors, stockholders, the city and the public, provided that in the transfer of the property necessary steps should be taken “to clear the same of all existing mortgages,” and the new company should receive “a clear and- unencumbered title;” it provided, further, that the stockholders should have “no liability except specially undertaken;” that the mortgages authorized by the new company should contain suitable, provisions whereby it might issue bonds “with which to acquire or discharge the claims of holders of mortgage bonds against the old companies.”

All this shows that the appellant acquired its titles to the properties by foreclosure which paid the indebtedness; that the acquisition of the title and the payment of the obligations occurred at one and the same time. It is claimed that the appellants assumed the debts of the several companies when it procured the franchises and accepted the plan of reorganization. It did agree to pay them, but only upon the condition that the plan should go through, and title vest in it, just as it agreed to pay the rest of the purchase money. The assumption, if it can be called so, was merely a step in the process of liquidation. The reorganization, so-called, was for the purpose of purchasing the property, paying the debts and continuing the public service. It never was contemplated that the purchasing company should operate the property and continue the indebtedness. The bonds issued in this case are more aptly described in the first classification in Section 57 of purposes for which they were issued, “for the acquisition of property,” and not for the refunding of the purchasers’ indebtedness. If the appellant already had been operating a street railway as owner and had bought these properties, discharging the debts as part of the purchase price, there would be no question that the transaction would come under the first classification. There seems to be no difference in principle between that and' the deal which took place. The appellant had a valuable franchise to which it added these other -properties by purchase under foreclosure.

The bonds and other debts liquidated by the appellant in the purchase of the several properties were never “its obligation,” whether that expression be given a literal or a liberal interpretation. The proviso in Section 21, which excepts certain classes of debts from this taxation, limited by the terms of Section 57, refers to such as are required in the renewal or discharge of the company’s existing debts where the duties of the Commission in authorizing them wo.nld merely be formal. It could not have been contemplated by the Legislature to disallow compensation to the State for the service of the Commission, where such .service involves the. exhaustive and expensive investigation which was required and performed in this case.

Appellant lays great stress upon the proposition that this statute, Section 21, must be construed strictly against the allowance of fees because strict construction is applied by the courts to statutes relating to fees. But the cases cited are all cases where a public officer charges fees, paid by the State or by some person, for his individual benefit. Here it is not the State which is paying, nor an individual who is receiving, the fees. The fees are payable to the State, and, by the express terms of Section 21, go into the State Treasury to the credit of the General Revenue Fund. It is a tax, the proceeds of which are devoted to general public purposes. Appellant claims its property, the bonds, are exempt from this taxation. Statutory clauses, exempting certain property from the operation of statutes which are general in their application, imposing taxes, are strictly construed in favor of the State. [B. P. O. E. v. Koeln, 262 Mo. 444; State ex rel. v. Johnston, 214 Mo. 656.]

The appellant can invoke no rule of construction which will exempt it from payment to the State of the compensation allowed, for the extraordinary service-rendered by the Commission.

The judgment is affirmed.

Roy, C., concurs.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.