author: BOND, J. PER CURIAM.- BROWN, J.

text:
    JANE E. PRIEST et al., Appellants, v. ABRAHAM McFARLAND et al.
    In Banc,
    December 1, 1914.
    1. WILL: Power of Disposition: Limitation Over. Where a life estate is expressly or impliedly created by will or deed, with which is coupled a power of disposition by the life tenant and a remainder in fee to others, the limitation over will take full effect upon the death of the life tenant, unless the power of disposition has been exercised by her in strict accordance with the terms in which it was bestowed. So much of the property as the life tenant has not attempted to dispose of, upon her death vests in fee in the remaindermen named.
    2. -: -: Reservation of Life Estate. The testator devised all his property to his wife, “to be held, owned and enjoyed by her during her natural life with full power to sell and ■ dispose of the same or any part thereof absolutely and at her own discretion and with full power to give a good and perfect title upon sale or other disposition of any or all of my said property” and further provided that “at the death of my said wife whatever of my property or its proceeds may remain undisposed of by my said wife, shall descend to and be divided between my said children.” The wife conveyed the land in suit to two of said children for an expressed consideiation of $6000, reserving to herself a life estate, and providing that the fee should vest in them at her death. They went into possession and accounted to her for rent until her death. Held, by a majority of the judges, that the deed should be upheld; that the life tenant could dispose of the fee, and reserve to herself a life estate in the property; though a majority do not agree that she had power to give away the property, but there being evidence that the consideration- named was actually paid a majority hold that -the judgment of the trial chancellor should be affirmed.
    3. -; -: Testamentary Deed. A deed which expressly reserves a life estate in the grantor, and conveys" at the same time, by words of present import, a vested remainder in the property to the grantees, is not a mere attempt to convey the title by an instrument in the nature of a last will and testament, but is in legal effect a present conveyance of a fixed right, namely, a vested title in fee.
    Appeal from Lincoln Circuit Court. — Eon. James D. Barnett, Judge.
    Affirmed.

      Ben E. Eulse for appellants.
    (1) The evidence as to declarations by Harriet McFarland concerning the consideration for the deed in controversy is res inter alios acta as to these plaintiffs, and is not competent as against them. They do not claim in privity with the declarant. Its admission was error. Brown v. Patterson, 224 Mo. 639; Howell v. Sherwood, 242 Mo. 540; Davis v. Green, 102 Mo. 183; Spradling v. Conway, 51 Mo. 54. (2) A power to convey the fee given to a tenant for life is a power appendant, and the estate conveyed by the execution of the power must arise partly at least out of the estate for life. A conveyance of the remainder to take effect on the expiration of the life estate is not a valid execution of the power. Parwell on Powers (2 Ed.), p. 9; 2 Washburn on Real Prop, (star)', p. 304; 1 Sugden on Powers, p. 107; Garland v. Smith, 164 Mo. 1; Taussig v. Reel, 134 Mo. 544; McFall v. Kirkpatrick, 236 111. 281. (3) By the terms of the deed in controversy Mrs. McFarland was to have the land during her life, and it then provided, “and at and after my death then in consideration of the said sum of six thousand dollars, so paid to and received by me as aforesaid, this deed shall become absolute and fully vest the title in fee in said second parties.” Such an instrument is not a conveyance, but a mere attempted testamentary disposition of the property, and void. Murphy v. Gabbert, 166 Mo. 596; Miller v. Holt, 68 Mo. 584; Aldridge v. Aldridge, 202 Mo. 565; Givens v. Ott, 222 Mo. 411; Terry v. Glover, 235 Mo. 544; Pinkham v. Pinkham, 55 Neb. 729; Barnes v. Stephens, 107 Ga. 436; Dye v. Dye, 108 Ga. 741; Wynn v. Wynn, 112 Ga. 214; Massey v. Huntingdon, 118 111. 80; Wilenou v. Handlon, 207 111. 104; Castor v. Jones, 86 Ind. 289; Matter v. Longer, 108 Iowa, 34. (4) There was no valuable consideration for the deed. It was a mere gift, if anything, and void as an execution of the power. Garland v. Smith, 164 Mo. 1; Scheidt v. Crecelius, 94 Mo. 322. (5) The defendants were the agents of their mother, and had absolute charge and control of her business and lived in the same house with her as one family, they furnishing her out of her own property such pin money and other things as her limited necessities required. The law presumes, in the absence of a showing to the contrary that the deed made by her to them was the result of undue influence on their part over her. Street v. Gass, 62 Mo. 229; Plall v. Knappenberger, 97 Mo. 511; Kincer v. Kincer, 246 Mo. 419; Mowry v. Norman, 223 Mo. 463; Ennis'v. Burnham, 159 Mo. 518; Marlin v. Baker, 135 Mo. 504; Kirschner v. Kirschner, 113 Mo. 297; Grundmann v. Wilde, 164 S. W. 200; Wendling v. Bowden, 252 Mo. 647; Gibson v. Shull, 251 Mo. 480.

      E. W. Nelson, George A. Mahan, Albert R. Smith, Dulcmy Mahan and O. H. Avery for respondents.
    (1) There was no error in the admission of testimony as to the declarations of Harriet McFarland. The testimony was admissible on various grounds, (a) Mrs. McFarland was executrix of the Walter McFarland estate. Plaintiffs’ attack upon her deed involves more than its mere execution. All her acts relative to and culminating in the execution of the deed are res gestae, (b) Plaintiffs at the trial, attempted to show confidential relations between her and the defendants and they still charge undue influence. This charge calls for an investigation of the dealings between Mrs. McFarland and the defendants, (c) The whole series of facts out of which this controversy arose is res mter aUos acta. All dealings of Mrs. McFarland and the defendants relative thereto are therefore logically and necessarily relevant, (d) Again, the consideration of her deed was called in question and her declarations tending to show a consideration are competent as admissions in favor of these defendants whose position in the transaction was antagonistic to that of Mrs. McFarland. Eckert v. Triplett, 17 Am. Rep. 735; State' to use v. Mason, 112 Mo. 374; Johnson v. Ice Co., 143 Mo. App. 453; Kingsbury v. Joseph, 94 Mo. App. 298; Davis v. Calvert, 25 Am. Dec. 296; 16 Cyc. 1037; 1 Ency. Evid., p. 569, note 26; Jones on Evidence (2 Ed.), sep. 253, note 11; 1 Greenleaf on Evidence, sec. 113; Mechem, Law of Agency, secs. 714-15. (2) By the terms of her husband’s will Harriet McFarland had full power to sell and dispose of the real estate or any part thereof absolutely and at her own discretion and full power to give a good and perfect title upon such sale or other disposition of any or all of the property. Grace v. Perry, 197 Mo. 550; Worden v. Perry, 197 Mo. 569; Boyer -v. Allen, 76 Mo. 498; Underwood v. Cave, 176 Mo. 18; Griffin v. Nickolas, 224 Mo. 291; Devein v. Hooss, 237 Mo. 35; Tisdale v. Prather, 210 Mo. 409. (3) This conveyance is not a testamentary disposition of the property but is a good and valid deed. O’Day v. Meadows, 194 Mo. 616; Christ v. Kuehne, 172 Mo. 118; Sneathen v.'Sneathen, 104 Mo. 209; Terry v. Glover, 235 Mo. 551; Johnson, Admr., v. Johnson, 32 Ala. 640; Ferris v. Neville, 89 Am. St. 495, note; Wilson v. Carrico, 49 Am. St. 213; Sharp v. Hall, 86 Ala. 110; McDaniels v. Johns, 45 Miss. 641; Dozier v. Tolson, 180 Mo. 546. The deed conveys a present vested interest and is not testamentary simply because the absolute enjoyment of the estate passed is postponed until the death of the grantor. Adams v. Broughton, 13 Ala. 731; Thompson v. Johnson, 19 Ala. 59; Stewart v. Sherman, 5 Conn. 317; Cummings v. Cummings, 3 Ga. 460; Spencer v. Robbins, 106 Ind. 480; Bowler v. Bowler, 176 111. 571; Hinson v. Baily, 73 Iowa, 544; Ward v. Ward, 104 Ky. 857; Exum v. Canty, 34 Miss. 569; Hileman v. Bonslaugh, 53 Am. Dec. 474. The mere fact that the grantor reserves in the deed the possession, use, enjoyment, or profits during life does not make the the instrument a will. It is, notwithstanding this reservation, a good and a valid deed. Hally v. Burkam, 59 Ala. 349; Abney v. Moore, 106 La. 131; Bunch v.. Nicks, 50 Ark. 367; Moye v. Kittrell, 29 Ga. 677; Youngblood v. Youngblood, 74 Ga. 614; Goff v. Davenport, 96 Ga. 423; Cates v. Cates, 135 Ind. 272; Saunders v. Saunders, 88 N. W. 329; Love v. Blauw, 61 Kan. 496; Hart v. Rust, 46 Tex. 556; Beebe v. McKenzie, 19 Ore. 296; Wynn v. Wynn, 112 Ga. 214. (4) There is abundant evidence showing a valuable and sufficient consideration for the deed, besides the consideration $6000 recited in the deed is prima-facie evidence that the amount was paid in some way by the defendants. McCartney v. Finnell, 106 Mo. 445; Burkholder v. Henderson, 78 Mo. App. 287; Co.oper v. Deal, 114 Mo. 527: Taylor v. Crockett, 123 Mo. 300; Eystra v. Capelle, 61 Mo. 578; Binkel v. Lubke, 246 Mo. 377.
    STATEMENT.
    This action to quiet title to two hundred and twenty acres of land was begun in 1907. The plaintiffs are some of the children and grandchildren of Walter McFarland who died in 1871, the owner of the land sued for and considerable other lands, after making- a will whereby his wife was made sole executrix. After giving one dollar each to seven of his children, and directing a payment of live hundred dollars each to his two remaining children, the will contains the following clauses.
    “4th. I give, devise and bequeath all the rest and remainder of my property, real, personal, mixed and of whatever kind to my beloved wife, Harriet McFarland, to be held, owned and enjoyed by her during her natural life with full power to sell and dispose of the same or any part thereof absolutely and at her own discretion and with full power to give a good and perfect title upon sale or other disposition of any or all of mjr said property, hereby expressing the fullest confidence in my said wife in the management and control of my estate and of her carrying into execution fully all my desires in regard to it.
    “5th. It is my will and desire that in the final distribution of my estate all my said children shall be made equal in the amounts which they shall receive therefrom., and that at the death of my said wife whatever of my property or its proceeds may remain undisposed of by my said wife, shall descend to and be divided between my said children in such proportions as will make the amounts which each of my said children shall receive from my estate to be equal in all respects excepting the sum of five hundred dollars to be paid as aforesaid to each of my said children, Mercy C. Glasscock and William H. McFarland, making the whole amounts to he received by them respectively from my estate to be five hundred dollars in excess of the shares of the others of my said children. ’ ’
    The wife qualified as executrix and took charge of the personal estate amounting to $3931, and administered it. She also managed the real estate of about 720 acres of land.
    In 1883, she executed a warranty deed to defendants (two of her children) purporting to convey to them 220 acres whereon the family residence stood, for $6000 cash, but reserving to herself a life estate and providing that the fee should vest in said grantees at and after her death.
    The evidence tends to show that the grantees (defendants) paid off a deed of trust on the land in the sum of $2100 and certain indebtedness against their father’s estate of about $3800; that they took possession of the property and accounted to their mother for its rents and provided her with support and maintenance until her death in 1906. After her death the real estate, except that mentioned in the deed to defendants, was vested in fee in the heirs of her husband. Some of these, the present plaintiffs, brought this action to set aside the deedjmade by the life tenant to the defendants.
    After a hearing before the circuit court sitting as a chancellor, the petition was dismissed and plaintiffs duly perfected their appeal to this court.
   OPINION.

I.

BOND, J.

(After stating the facts as above).— There is no proposition better settled than that where a life estate is expressly or impliedly created by will or deed, coupled with a superadded power of disposition in the life tenant and a remainder in fee, if that power is not exercised, the limitation over take full effect unless the power to dispose given to the life tenant has been exercised according to the strict terms in which it was bestowed. [Grace v. Perry, 197 Mo. l. c. 562, and cases cited; Armour v. Frey, 226 Mo. l. c. 669; Burnet v. Burnet, 244 Mo. l. c. 505; Tallent v. Fitzpatrick, 253 Mo. l. c. 15.]

In the case in hand there was no attempt on the part of the tenant of the life estate to dispose of the 720 acres devised in the will of her husband except as to the portion thereof consisting of 220 acres constituting the home place. The residue, consisting of 500 acres, upon the death of the life tenant vested in fee in the nine children of the testator or their descendants as remaindermen under the will. Hence, the solitary question on this appeal is whether the deed of the life tenant to defendants cut off the rights of these remaindermen to the property described?

The clause of the will under which the deed made to defendants recites it was made, contains apt terms investing Harriet McFarland, the wife of the testator, with an estate for life in all of his land. The power given to her to alienate is couched in the following language: “With full power to sell and dispose of the same or any part thereof absolutely and at her own discretion and with full power to give a good and perfect title upon the sale or other disposition of any or all of my said property.” The will then recites the full confidence of the husband in the wife and in the next paragraph expresses his desire in the final disposition of his estate that the children shall share alike except that two of them shall receive a bonus of $500', not to be accounted for. But his wishes in this or any other respect, were necessarily subject to the action of his wife under the terms of the will investing her with power to dispose of the property in which she was given a life estate. Those terms clearly and unmistakably show that she had “full power” of disposition and that she was also given “full power to give a good and perfect title upon sale or other disposition of any or all of my said property,” and that these powers were exerciseable “absolutely and at her own discretion.” It is perfectly evident in considering these terms that during her lifetime there was no restriction placed upon the manner, mode or object for which the wife might dispose of the property. She was not restricted to a sale for a moneyed price, for the deed gave her “full power” to make a “perfect title by any other disposition,” at her discretion, of the property devised. Neither was she restricted to a sale of the entire estate including the remainder given her. There is nothing in the language of the will which permits such a view, nor would it be logical to say that she might dispose of the entire estate, but in so doing could not reserve to herself a life estate. For the power to convey the whole title necessarily carries the power to dispose of any part or parcel of such title, upon the axiom that the whole is the sum of all its parts, and hence, the power to transfer the whole necessarily includes the power to transfer any and all of its component parts. Undoubtedly the established law in this State is that the donee of a power, such as the one in review, can only exercise it in strict and exact compliance with the terms in which it is given. But the language of the will in this case expressly gave the life tenant the power to make a sale or “other disposition” of the property during her life. And while it may be conceded that these terms would not invest her' with a power to have disposed of the property by will, yet their necessary significance did give her power to sell or otherwise dispose of the lands by a deed in praesenti. No.w this is what she did under the testimony in this case and in strict execution of the power given to her by the testator. Whether she got the full price of the land, as to which there was conflicting evidence, is immaterial to the efficacy of the conveyance by her within the scope of the power granted by the will. For as is shown she was authorized in selling or disposing to act “absolutely and at her own discretion,” which implies ex vi termini that the power to dispose was not dependent on the amount of the consideration. In other words, the testator made her his alter ego as to the method or mode of disposition of the property devised by any form of alienation other than a will.

Our conclusion is that the deed to the defendants was a valid execution of the superadded power of disposal given to the life tenant by the terms of the will.

II. "We are wholly unable to concur with the learned counsel for appellant that the deed to the defendants was not a present conveyance, but was a mere attempt to convey the title by an instrument in the nature of the last will and testament. In Terry v. Glover, 235 Mo. l. c. 552, the rule is correctly stated that an instrument to be valid as a deed must be one of present conveyance. In that case the deed contained no words of present conveyance. Neither was it ever delivered, but it did contain this express recital, ‘ ‘ This deed not to go into effect until after the death of the said George Glover.” Beyond doubt such an instrument shows on its face that it was a mere attempt to make the will without the statutory requirements and therefore void. Exactly the same recital was contained in the deed under review in Givens v. Ott, 222 Mo. l. c. 411, and also in the case of Murphy v. Gabbert, 166 Mo. l. c. 601.

In the case of Miller v. Holt, 68 Mo. 584, the instrument was in form a will, it was never delivered and the contention of the grantees that it was in legal effect a deed in praesenti, was necessarily overruled. None of these cases (cited by appellant) sustain the claim that the deed now under review was void as a testamentary disposition of the property and therefore not within the limits of the power delegated under the will, nor in compliance with the statutory power to make wills. This instrument expressly reserves a life estate in the grantor and conveys at the same time, by words of present import, a vested remainder in the property to the grantees. It does not provide, as in the cases cited, that the conveyance made shall not be operative as its terms express. It merely recites that “at and after my death then, etc., this deed shall become absolute and fully vest the title in fee in said second parties” (italics ours), which is what would necessarily follow as a matter of law from the fact that the deed reserved a present life estate in the grantor. With a life estate expressly retained the “title in fee” could not fully vest in the grantees until the expiration of the precedent estate. Being vested remaindermen, the grantees had a “present fixed right of future enjoyment” (4 Kent’s Comm. [14 Ed.], 203), and when the life estate lapsed became the owners in fee. It is evident that the effect of this language, in the deed was simply to recite a legal consequence of the status of vested remainder-men. The delivery of this deed and its record when made and the provision therein for a life estate in the grantor also tends to show her intent that the conveyance should be, as it purported to be, a present one. [Sneathen v. Sneathen, 104 Mo. l. c. 209; O’Day v. Meadows, 194 Mo. l. c. 617-8-9.] A will is ambulatory and revocable by the maker; a deed, although the enjoyment of the estate may be postponed, when once fully executed, can only be revoked by a stipulation reserved therein.

The deed in this case contained terms of present conveyance of the remainder. It was duly signed, acknowledged, delivered and recorded, and contained no other recital as to the vesting of the.fee than one in accordance with the principles of law applicable to the nature of the instrument; It was therefore an irrevocable contract of present conveyance, binding on the parties according’ to its terms, and it was neither in form nor essence a testamentary disposition, as defined by the law of the State.

It follows that the judgment herein is affirmed.

PER CURIAM.-

The foregoing opinion of Bond, J., in Division No. One, is adopted as the opinion of the Court in Banc.

'Woodson, Walker and Bond, JJ., concur; Brown, J., concurs in the result in a separate opinion. Lamm, G. J., Graves and Baris, JJ., dissent.

CONCURRING OPINION.

BROWN, J.

I concur in the opinion of my brother Bond in so far as it holds that, under the power conferred by the will of Walter McFarland, Sr., the widow was fully authorized to sell less than a fee simple title in said testator’s lands, and that her deed to Abraham McFarland and Walter McFarland, Jr., passed a vested remainder to those parties and was in form legal and valid. [Dewein v. Hooss, 237 Mo. 23.]

I am, however, convinced that the widow was not authorized by the will to give away the land of the testator. The evidence is conflicting as to whether there was a consideration paid by Abraham and Walter McFarland, Jr., for the deed which they received from the widow, and not finding said evidence sufficient to warrant us in overturning the judgment of the circuit court, I concur in the result of the majority opinion affirming said judgment.


source: Caselaw Access Project

author: BLfAIR, C. PEE CIJEIAM.

license: Public Domain

text:
    I. J. RINGOLSKY, Appellant, v. THE MAUD L. MINING COMPANY et al.
    In Banc,
    December 1, 1914.
    1. CORPORATIONS: Formation: Partnership Relation Between Organizers: Must be Established by Proof. Promoters of a corporation are not prima-facie partners. Their partnership must be established by proof.
    2. -: -:--: -: Evidence. Where R, T, and G, with others, formed a corporation, each putting in mining property and taking in return stock and bonds of the corporation, evidence held not to show that R and T were partners.
    3. -: -: Promoters: Secret Profits. T, G, and G’s associates owned four mines. In May, 1905, the plaintiff and M. I. bought an interest in two of the mines, and on July 9, 1905, G offered to sell his interest and that of his associates to the plaintiff and T for $257,000. They, agreed to buy, and a week later the plaintiff, with T and M. I., drew up a contract providing for the formation of a corporation to take over the mines, M. I. to advance $50,000 and to hold stock as security until G was fully paid, the plaintiff and T to transfer to the corporation all their interest in the mines. T was to receive one-half, and the plaintiff and M. I. each one-fourth of the issued stock. In August, 1905, the plaintiff, G, and M. I., with M. I.’s associates, Bendet Isaacs, Adolph Eliasberg and the two Rosenwassers, entered into an agreement to form the corporation with a capital stock of 2,500,000 shares, par value $1 each. / M. I., the Rosenwassers, and Eliasberg were to pay G an additional $50,000, and for the $100,000 total thus paid they were to receive $1,000,000 in bonds and 500,000 shares of stock in the new corporation. Bendet Isaacs was to pay $33,333.33 into the treasury and receive the same amount,in bonds and 166,666 shares of stock, the stock to be taken out of the holdings of the plaintiff and T. For the additional $157,000 due him G agreed to take $100,000 in bonds, a vendor’s lien for $57,000 and 100,000 shares of stock, the bonds to be the first paid by the company and the earnings to be applied to paying off the vendor’s lien. T did not sign this agreement, and when in September, 1905, ■ he made several objections to its consummation in that form certain concessions were made to him, and finally G told him he believed the stock he (T) would get would be worth as much as his (G’s) bonds, and agreed to let him, at any time he might wish, take a part of the bonds in exchange for a proportionate share of T’s stock. With this understanding between them, undisclosed to the others, the agreement was closed substantially on the contract basis. Afterwards there was drawn and signed a declaration of trust, wherein it was declared that G and T jointly owned the stock and bonds acquired by each. Later both G and T disposed of all their stock and bonds to another corporation. Held, in plaintiff’s suit for secret profits alleged to have accrued to T by reason of his undisclosed agreement with G, that there can be no recovery, even assuming that T was a promoter and that the plaintiff has the right to sue on behalf of the company after parting with his stock.
    Appeal from Jasper Circuit Court. — Hon. Joseph D. Perkins, Judge.
    Affirmed.

      Neio & Krauthoff and McReynolds & Halliburton for appellant.
    (1) The arrangement between Tobias and Ringolsxy, outlined in the contract of July 10, 1905, created a partnership between the parties named. This being true, Tobias could not, at the expense of Ringolsky, make any contract with Gundling whereby Gundling, the owner of the property being purchased by the partnership, should pay to Tobias, a member of the partnership, a part of the purchase price received by Gundling. Whatever Tobias did thus receive from Gundling would belong, in equity, one-half to Ringolsky. Pomeroy v. Benton, 57 Mo. 544, 77 Mo. 64; Whitney v. Dewey, 158 Fed. 391; Filbrun v. Ivers, 92 Mo. 388; Burgess v. Dierling, 113 Mo. App. 383; 30 Cyc. 419, 438; 38 Century Dig. 783, 784 and authorities cited; Flower v. Barnekoff, 20 Ore. 132, 11 L. R. A. 149; Tyler v. Waddingham, 58 Conn. 375, 8 L. R. A. 657, and note; 22 Am. & Elig. Ency. Law, p. 114. Even if the relation between Ringolsky and Tobias was not technically that one of a partnership, the principle contended for applies to all instances where persons are jointly associated in a common enterprise. Trust & G-uar. Co. v. Hambleton, 34 Md. 456, 40 L. R. A. 216; E’erguson v. Gooch, 94 Ya. 1, 40 L. R. A. 234; Kimberly v. Arms, 129 IT. S. 528; Williamson v. Monroe, 101 Fed. 322; 2 Bates on Partnership, sec. 790; 15 Decennial Digest, pp. 1118, 1119, Partnership, sec. 97; Pratt v. Frazer, 129 S. W. (Ark.) 1088; Davenport v. Bank, 128 S. W. (Ky.) 88; White v. Jouett, 144 S. W. (Ky.) 59. (2) If it be contended that the original relationship existing between Tobias and Ringolsky, that of a partnership or joint association in a common venture, was changed by reason of the transactions had in New York in the latter part of September, 1905, then the result follows that at the time and place named Tobias was the promoter of a corporation and could not, at the expense of the corporation, make a secret profit for his own benefit out of any transaction he had with Gundling. In other words, eight men were sitting in a room engaged in the promotion of a corporation. All eight were directors of the corporation. Four of the eight were interested in selling the property to the corporation. One of the four selling, objected to the terms of the sale. Thereupon, another of the four selling, took the former out of the room and made an agreement with the former whereby the first named director was given an interest in that which the second named director was receiving from the corporation in which both of them were directors. In the law of promoters, it was required that when Glundling and Tobias left the room and made the agreement which both of them admit was made, Tobias, should have returned to the room and advised his associates of the concession that Gundling was willing to make, and such concession so made inured to the benefit of the corporation as a whole and not to Tobias as an individual. Land Co. v. Case, 104 Mo. 578; See-horn v. Hall, 130 Mo. 261; Land & Imp. Co. v. Webster, 75 Mo. App. 465; 10 Cyc. 274; Yeiser v. Board & Paper Co., 107 Fed. 340, 52 L. R. A. 727; Dickerman v. Trust Co., 176 U. S>. 203; Telegraph Co. v. Lotscher, 127 Iowa, 383; C. M. & S. Co. v. Bigelow, 203 Mass. 159; 2 Cook on Corporations (6 Ed.), sec. 643; 1 Clark & Marshall on Priv. Corp., sec. 110; 1 Meckem on Modern Corporations, sec. 377; 1 Thompson on Corporations (1 Ed.), see. 457. (3) By a declaration of trust executed in April, 1906, and by the agreement made by Gundling with Tobias in New York in September, 1905, Gundling made of himself a trustee, in his own wrong, and held in trust either for the corporation or the partnership, as the case may be, the profit which Tobias was seeking to gain in the stock and bonds in the possession of Gundling. Howell v. Howell, 15 Wis. 55; Shaler v. Trowbridge, 28 N. J. Eq. 595; Partridge v. Wells, 30 N., J. Eq. 178; Renfrow v. Pearce, 68 111. 126; Forney v. Adams, 74 Mo. 138; Croughton v. Forrest, 17 Mo. 131; Ackley v. Stachlein, 56 Mo. 561; Blake v. Bank, 219 Mo. 644; Price v. Hunt, 59 Mo. 258; Evans v. Gibson, 29 Mo. 223; Koch v. Branch, 44 Mo. 542.

      Henry Russell Platt and Spencer, Grayston & Spencer for respondents.
   BLfAIR, C.

Plaintiff: appeals from a judgment for defendants in a suit to recover secret profits alleged to have been realized by defendant Tobias in connection with the sale of mines to a corporation, the defendant Red Top Zinc & Smelting Company. Upon grounds hereafter stated other defendants are alleged to have become liable. The mining properties involved were the Maud L., the Cumberland, the Ada B., and the Oronogo, all in Jasper county.

In 1905 defendants Tobias and Gundling each owned a one-half interest in the first two, and Tobias owned one-fifth and Gundling and certain associates owned four-fifths of the others. In May or June, 1905, plaintiff and Moe A. Isaacs jointly purchased a one-fifteenth interest in the Maud L. and Cumberland, To-bias and Gundling each retaining’ a seven-fifteenths interest therein. In May, 1905, these latter applied to plaintiff for a loan. Plaintiff proposed to form a corporation to take over the properties and borrow $30,000, plaintiff offering to accept the corporation’s note for $5000 and one-fourth of the capital stock for his services in securing the loan, urging that his connections were such that his name would give great prestige to the enterprise. This suggestion was not adopted. Gundling concluded to sell his interests and, July 9, 1905, offered them to Tobias and plaintiff for $257,000, plaintiff to receive $33,000 additional for his compensation in negotiating the sale. Plaintiff and Tobias agreed to buy and a week later visited New York and they and Moe Isaacs drew up a contract providing for the formation of a corporation to take over the mines. Isaacs agreed to advance the company $50,000, holding the stock as security untií Gundling was fully paid, plaintiff to perform all legal services and Tobias to transfer to the corporation his interests in the mines. It was agreed that Gundling should be paid $257,000 for his interests and those of his associates in the Ada B. and Oronogo and that Tobias should receive one-half and plaintiff and Isaacs, each, one-fourth of the issued stock.

Previous to the execution of this contract plaintiff and Tobias signed an agreement and executed certain notes to secure Isaacs from loss in case he signed the contract, and to secure him for money advanced if he concluded not to sign it.

Plaintiff and Tobias returned to Missouri, and Gundling expressed no dissatisfaction with the con- . templated arrangement. It did not modify the terms of the contract of July 10, 1905, in so far as it concerned Gundling.

Moe A. Isaacs and Ms associates sent an expert to Missouri who examined the mines and reported thereon. His expenses were subsequently paid by plaintiff and Tobias. Concerning this plaintiff wrote To-bias: “I note everything you say and every senti-' ment and feeling expressed by you I coincide with and have felt myself. I think it was an outrageous proceeding to send an expert to Joplin at our expense at a cost of $1000, and when I see Moe he will find that things will have to be entirely changed or I will end the contract in New York. I am tired of the imposition and the entire situation.” In the same letter, dated July 28, 1905, plaintiff wrote: “I will see that we have an opportunity to discuss everything before I undertake to make any changes in the agreements we made. ’ ’

Installments falling due under the contract of July 10,1905, aggregating $50,000, were paid Gundiing, Moe A. Isaacs and his New York associates advancing the money.

About the last of August, 1905, plaintiff and Gundling visited New York. Associated with Moe A. Isaacs were Bendet Isaacs, Adolph Eliasberg, Morris Rosenwasser and Harry Rosenwasser, and these and plaintiff and Gundling entered into an agreement August 29, 1905, which recited the fact that Gundling' had contracted to sell the properties to plaintiff and Tobias for $257,000; that all the parties (including Tobias) had become interested in financing the properties; that Gundling had been paid $50,000, furnished by Moe A. Isaacs, the Rosenwassers and Eliasberg; that it was then agreed plaintiff was to form a corporation, the Red Top Zinc & Smelting Co., with a capital stock of $2,500,000, par value of shares $1 each; that each of the four mines involved was to be incorporated, the stock to be held by the Red Top, etc., Company,- and thex'efore it was agreed that:

Moe Isaacs, the Eosenwassers and Eliasberg were to pay Gundling an additional $50,000, and for the $100,000 paid were to receive $100,000 in bonds and 500,000 shares of stock of the new company. Bendet Isaacs was to pay $33,333.33 into the company’s treasury and receive $33,333.33 in bonds and 166,666 shares of stock, this stock to be given out of the holdings of plaintiff and Tobias.

Seven thousand and five hundred dollars in cash was to be paid by the company to Moe A. Isaacs for the money he had invested in the mines; 500,000 shares of stock to remain in the treasury.

For the additional $157,000 due him Gundling agreed to take $100,000 in bonds and a vendor’s lien for $57,000 and 100,000 shares of stock, the bonds to be the first paid by the company, and Gundling to take $57,000 from the earnings to pay off the vendor’s lien.

The new company was to issue bonds for $233,000, bearing 7% interest; no dividends to be paid until bonds were paid, and the $57,000 secured by vendor’s lien to be paid in advance of payment of the bonds; the new company to own a one-half interest in the Galena mines. There were other provisions which need not be set out.

This agreement was signed by all the persons named above except Tobias, who was not present. Plaintiff wired Tobias stating the salient features of the new agreement and closing: “Wire if you can make contract embodying these terms generally.” The following day the plaintiff received a telegram from Tobias asking if working capital would be furnished. Without further authority plaintiff signed the name of Elias Tobias to the agreement. Plaintiff did not see Tobias again until another meeting was had in New York in the latter part of September, and there is no evidence Tobias ratified plaintiff’s action in signing the agreement for him. On September 15th Tobias wrote plaintiff objecting to certain features of the agreement, particularly to the inclusion of the Galena property and to the fact that the dividends he was to get were to he small and postponed for some time. In this letter he neither said he would nor that he would not accept the agreement as made, modified in the particulars mentioned. He complained he was “doing more than his part in the transaction.”

At the meeting in New York, September 29 and 30, 1905, Tobias made several objections to the written agreement. Pie demanded that the Galena mine be left out, that a note of his to Moe A. Isaacs be paid by the new company, objected to giving up part of his stock to Bendet Isaacs and to Gundling and complained he was putting in unencumbered interests and getting only encumbered interests. He indicated he would not go further with the matter. It was finally agreed the Galena property should be omitted and that the company should pay the $2500 note. This left the matter of the transfer of part of Tobias’s stock to Bendet Isaacs and Gundling. The negotiations seem to have been conducted at a series of conferences in which sometimes all and at times only two or three participated. Gundling had been paid $50,000 in cash and had paid this out. He became worried lest the position Tobias took would result in the abandonment of the whole undertaking, in which event he would have to repay the $50,000, which he was not in a position to do. Gundling finally took Tobias aside and told him the situation he would be in if the matter was dropped and stated he believed that if it was closed up the stock Tobias would get would be worth as much as the bonds he (Gundling) would get, and offered to permit Tobias to take a part of the bonds in exchange for a proportionate part of the stock Tobias would get. With the understanding he could do this if he desired, Tobias agreed to go on with the business. The matter was then closed up, practically on the contract basis, except insofar as the concessions to' Tobias modified it. Nothing was said to the others, so far as the evidence shows, by Tobias or Gundling about the agreement they had made.

The net result was that the new company secured the full title to the four mines, subject to a vendor’s lien for $57,000 and a deed of trust securing bonds amounting to $233,333, and had $23,300 in the treasury. Gundling received $100,000 in cash, $100,000 in bonds and 100,000 shares of stock. Tobias received 822,224 shares of stock and plaintiff 411,220 shares. Moe A. Isaacs, Bendet Isaacs and Eliasberg each received $33,333 in bonds and 166,666 shares of stock, and the two Eosenwassers.received, jointly, a like portion, in accord with the contract. Subsequently Moe A. Isaacs negotiated the sale to Gundling of the $66,666 in bonds held by the Eosenwassers and Eliasberg, retaining $3000 of them for his trouble. With these Gundling also acquired the stock of the vendors, amounting to 333,220 shares. These bonds were discounted $10,000, and Gundling procured the money to buy by borrowing a large sum from one Werner, using the $57,000 vendor’s lien as collateral.

About March, 1906, Gundling conceived the idea that plaintiff and Moe A. Isaacs were scheming for control of the company. April 6,1906, there was drawn and signed a “declaration of trust,” wherein it was stated Gundling and Tobias jointly owned the $163,000 in bonds and 433,224 shares of stock Gundling had acquired and the 822,224 shares of stock issued to To-bias. This declaration was actually drawn, signed, and acknowledged April 6, 1906, but was dated August 5, 1905, for the purpose of indicating that Tobias became responsible for his one-half of certain indebtedness incurred by Gundling in connection-with the various transactions prior to the actual execution of the instrument.

For one thing Gundling had paid out about $135,-000 in buying out his associates in the Ada B and Oronogo mines, and, it seems, to liquidate certain indebtedness of these properties. Other facts will be referred to in the opinion.

Plaintiff contends (1) that he and Tobias were partners, or, if not, (2) that he and Tobias and Gundling were promoters, and that on either theory the judgment is wrong.

In the view taken of the case it is unnecessary to discuss the question whether plaintiff can sue on the first theory in his individual capacity and on the second in a representative capacity in the same case and on a petition containing a single count. [Turner v. Markham, 155 Cal. l. c. 569, 570.]

The actual basis of plaintiff’s claim is that To-bias’s stock was worth less than the stock, bonds and vendor’s lien given Gundling and, consequently, the agreement between the two resulted in a profit to To-bias for which he must account either to plaintiff as his partner or to the corporation as one of its promoters. It is contended Gundling is liable by reason of having parted with Tobias’s stock and bonds after notice of plaintiff’s claim, and the Oronogo Circle is liable as a purchaser with notice. The other corporations are made defendants because their property may be affected and the other individual defendants are the remaining incorporators of the Red Top Zinc & Smelting Company.

I. “Partnership is a matter of contract. A man cannot be made a partner against his will, by accident or the conduct of others. He must agree to be a partner, or, as to outsiders, hold himself out as a partner to those who have trusted him as such.” [Freeman v. Bloomfield, 43 Mo. l. c. 392.] There was np general partnership between plaintiff and Tobias (Whitehill v. Shickle, 43 Mo. 537) and, even if it be assumed they were promoters, primafacie no partnership between them existed. [10 Cyc. 271, 272.] The burden is still on plaintiff to make out the fact of partnership by evidence.

If this was a partnership venture, it is pertinent to inquire when the relation began. There is nothing' in the agreement Tobias, plaintiff and Isaacs signed constituting a partnership. ■ Plaintiff was to form a corporation and get stock for his services. Tobias was to receive stock for his property he put in. Neither was to receive any part of the share of the other. Plaintiff was not of the opinion he had any right to bind Tobias when he wired him asking whether he could agree to the contract of August 29, 1905. Iiis 'testimony indicates he signed Tobias’s name to the agreement solely because he inferred from Tobias’s reply telegram that permission was intended to be given, an inference it is not now contended can properly be drawn from that telegram.

Tobias repudiated portions, at least, of the contract of August 29, 1905. There is no evidence any claim was then made by plaintiff or any one else that Tobias was bound by plaintiff’s act in signing his name to- that contract. Nor does plaintiff now suggest that Tobias is or ever was interested in the stock he, plaintiff, received or the $10,000 he got for it.

True, plaintiff testified Tobias was his partner and Tobias testified the contrary.

The trial court did not find a partnership existed, and, on the evidence, we are not disposed to criticise the view it took.

II. It is contended Tobias was one of the promoters of the company formed; that his relation to his associates was consequently of a fiduciary character and that his agreement with bundling was violative of his obligation arising out of that relation; in that, it is asserted, bundling’s stock, bonds and vendor’s lien were worth more than the stock offered Tobias, and that (bundling, therefore, received, under that agreement, less than the other six incorporators had contracted to give for his interests; that Tobias got the difference and that this constituted a secret profit for which he should account and for which Grundling is' chargeable on the theory that he had Tobias’s interest in his possession with knowledge of the trust and, having parted with it, is liable for the amount of the profit Tobias is declared to have realized.

Let it be assumed that Tobias was in fact a promoter of the company and that the interest he took under the agreement with Grundling was of greater value than the 822,224 shares of stock offered in the' first place for his interest in the properties. Further, let the question of plaintiff’s right to sue on behalf of the company, after having parted with his stock, be waived.

The contract of August 29, 1905, modifying the contract Tobias signed July 17,1905, was never signed by Tobias, nor did he ratify plaintiff’s act in signing for him. That contract fixed the value of Gundling’s interest at $257,000 and provided for paying him $100,000 in' money, $100,000 in bonds, $57,000 by vendor’s lien and for the issuance to him of 100,000 shares ($1 per share, par value) of stock for his interest. Plaintiff contracted to accept 411,000 shares of stock for his services. Tobias (all the others had agreed) was to receive 822,224 shares of stock for his interests in the properties. The five other than plaintiff, Tobias and Gundling were to receive bonds equaling in amount the cash each advanced and, in addition, five shares of stock for each dollar thereof. For this stock they paid nothing. The stock represented the equity in the properties. There was neither intent to sell nor sale of stock to third persons. There were no subscribers save the eight. Plaintiff’s compensa-, tion was represented by the stock issued to him and represented a fixed portion of the equity in the properties being acquired by the corporation at the prices stated in tlie contract. The bonuses in stock issued to Moe A. and Bendet Isaacs, the two Rosenwassers and Eliasberg were likewise issued .on the basis of the equity resulting from encumbering the properties for $290,000. Tbe six incorporators other than Tobias and Gundling received the exact amount of stock they contracted for and it represented the exact portion of the identical equity they had contracted it should represent.

The agreement between Tobias and Gundling did not affect the value of the stock of the six others in the smallest fraction. The contention made assumes, in fact, that if Gundling’s interests had been acquired for less and the value of the equity had been thereby proportionately increased, the amount of the bonds being reduced, the six named would have been awarded the same proportion of the equity, plaintiff for services and the others for stock bonuses. That is an assumption, in effect, that the six had some claim outside the contract itself. That is not true in fact or in law. So far as concerns the question before us, they contracted for designated portions of an equity the contract described and each of the six received that for which he contracted. Neither can claim more. The agreement between Gundling and Tobias neither decreased nor increased the value of the equity, and, consequently, did not affect the other six.

There is no pretense there was any misrepresentation of the value of the properties. The evidence strongly tends to show that Tobias’s unencumbered interests were worth as much as Gunclling’s actual interests (associates owning part of two mines) and, therefore, that Tobias neither gained nor lost by his agreement with Gundling, as Gundling asserted when the agreement was made. The present owner of the stock is defending in this case and none of the original incorporators have any right to complain, even had they not all parted with their stock. Neither can the company, or plaintiff in its behalf, complain of the transaction. [Old Dominion Copper Co. v. Lewishon, 210 U. S. 206; Milwaukee Cold Storage Co. v. Dexter, 99 Wis. 215.]

This is not a case in which promoters have deceived their fellow incorporators or subsequent subscribers by misrepresenting or concealing the price of property delivered to a corporation they were forming. There is ho evidence Gundling would'have accepted a dollar less than the $257,000 he contracted for or that he would have made the agreement he made with Tobias except upon the theory that Tobias’s stock equaled the value of what he, Gundling, was receiving — a view the evidence tends strongly to support when the outstanding interests Gundling was obligated to acquire and Tobias’s assumption of one-half of this burden are considered.

The $63,000 in bonds and the stock accompanying them properly went into the declaration of trust as the substitute for the $57,000 vendor’s lien which was first included but had been used by Gundling to acquire them.

III. The trial court did not, apparently, give great weight to the document whereby Isaacs at plaintiff’s instance agreed to extend Gundling’s notes for $68,000 in consideration that he recognize certain rights of plaintiff. When plaintiff amplified this, in writing, to provide that Gundling should turn over one-half of Tobias’s stock and bonds in his hands, plaintiff promptly refused to agree. When the document mentioned was signed, plaintiff Was and for months had been Gundling’s attorney, employed to oppose claims Tobias was making in connection with the declaration of trust and which Gundling thought were inequitable and unjustifiable under that instrument. Plaintiff, several months after being engaged by Gundling as his attorney in this matter, advised Gundling that Tobias could not recover anything but that he, plaintiff, could, as Tobias was his partner, and advised Gundling to turn over to him Tobias’s stock and bonds. This Gundling and another of his lawyers testified he refused to agree to do. The trial court evidently believed then instead of believing plaintiff and Isaacs, and the record does not persuade us the trial court was wrong in this. The alleged “confession” of Gundling, in July, 1906, that Tobias had kept him informed of plaintiff’s doings in connection with his transactions in the east, has little of substance in it, was explained by Gundling as relating to matters after September, 1905, and on plaintiff’s construction of it is inconsistent with his denial of all knowledge of the declaration of trust until November, 1906. Further it is of little consequence unless plaintiff and Tobias were partners, a fact not made out on this record. The judgment is affirmed.

Brown, G., concurs.

PEE CIJEIAM.

This case coming into Banc from Division on a dissent, on rehearing the opinion of Blair, 0., is adopted as the opinion of the court.

Wood-son, Graves, Brown, Walker, and Baris, JJ., concur; Lamm, G. J., and Bond, J., dissent.


author: LAMM, C. J.

text:
    THE STATE ex rel. GEORGE N. WARDE, MATHEW KIELY, THADDEUS STEPHENS, WILLIAM RIPPLE, GRAND AVENUE BANK, and NORTHWESTERN BANK OF ST. LOUIS v. EUGENE McQUILLIN, Judge of Circuit Court, and CHARLES ALBRECHT and J. WALTER STAGE, Members and Trustees of St. Louis Lodge No. 3, Loyal Order of Moose, and ST. LOUIS LODGE NO. 3, LOYAL ORDER OF MOOSE.
    In Banc,
    December 1, 1914.
    1. PROHIBITION: Motion for Judgment. A motion by relators in prohibition, for judgment on the pleadings, filed after the coming in of the return, is a challenge, in legal effect, to the legal sufficiency of respondents’ return.
    2. -: When Writ Will Go. A writ of prohibition will only go to keep an inferior court within the orbit of its jurisdiction. It is an extraordinary writ, and no recourse must be had to it except where ordinary remedies are unavailing.
    3. -: -: How Lack of Jurisdiction May Appear. Lack of jurisdiction may exist with reference to subject-matter generally (example, the class to which the case belongs) or with reference to the parties to the suit, or to excess of jurisdiction in the concrete case.
    4. -: -: Discretion. The mere power to grant a writ of prohibition is not of so much importance in determining whether or not it shall go as is the question of the discretion of the court which is asked to issue it. Such discretion is always to be reckoned with and steadily applied with judicial circumspection.
    5. -: -:--: Crowded Docket. In the congested state of its docket, the Supreme Court will wisely exercise a sound discretion in refusing to draw to itself jurisdiction in the first instance on prohibition to determine the merits of controversies lodged in circuit courts, except on a clear showing of a lack of jurisdiction as a matter of law as distinguished from matter of fact, and that ordinary remedies by appeal, error or certiorari are absent.

      6. -: -: Injunction. The circuit court has jurisdiction oC the subject-matter of issuing a temporary injunction to restrain a forcible and continuous trespass upon the property of a corporate lodge by the officers of the supreme organization and others, and the confiscation of its lodge furniture and money in bank, to he followed by a permanent one or by a dissolution thereof, on the application of equitable principles to the facts ascertained on final hearing, on answer or motion to dissolve; and having jurisdiction of the parties, the presence of those things is an insurmountable barrier to the issuance of a writ of prohibition before there has been any demurrer or answer, or motion to dissolve, unless, in some way, the court is proceeding in excess of that jurisdiction.
    7. -:--: -: Cause of Action. The contention that the bill for injunction did not state facts sufficient to constitute a cause of action will not authorize prohibition, where the bill is either demurrable and no demurrer has been filed, or is subject to a motion to make more definite and certain and no such motion has been filed; for, in such cases, the Supreme Court is bound to assume that, if the trial court is given an opportunity to rule on the demurrer or motion, it will rule correctly, and it will not anticipate its ruling, or permit prohibition to he used to permit correction, in advance of its anticipated erroneous rulings.
    8. -: -:--: Insufficient Pleadings. On prohibition the determinative question is not the sufficiency of the pleading in the trial court, where pleadings are amendable, but it is one of jurisdiction of the parties and. subject-matter, or excess of jurisdiction; and if jurisdiction be present, and is kept within its proper channels, prohibition cannot go.
    Prohibition.
    Writ denied.

      O. J. Mudcl for relators.
    (1) The supreme lodge in taking possession of the property of the subordinate lodge through its agents, as it did, was within its rights, was proceeding regularly as prescribed by the laws of the order, and the law of the land will not intervene at this juncture to arrest such possession and give the property back to the subordinate lodge. State ex rel. v.' Grand Lodge, 8 Mo. App. 154; Colman v. Supreme Lodge, 18 Mo. App. 189; Mulroy v. Knights of Honor, 28 Mo. App. 463; Crutcher v. Order of R. W. Cond., 151 Mo. App. 622. (2) Injunction is not the right remedy or a lawful procedure by which to test the right of possession of property, and even if the possession of the Supreme Lodge were wrong or unwarranted by the law of the land, the issuance of the writ in such a case is a usurpation and an invasion of constitutional right of trial by jury. R. S-. 1909, secs. 2534, 2515, Constitution, Mo., art. 11, sec. 28; 1 High on Injunctions, secs. 360, 699, 715; 22 Cyc. 826, 828-9; Smith v. Jameson, 91 Mo. 13; Owen v. Ford, 49 Mo. 436; Gildersleeve v. Overstolz, 97 Mo. App. 303; Powell, v. Canaday, 95 Mo. App. 713; State ex rel. v. Wood, 155 Mo. 445; Boeclder v. Railroad, 10 Mo. App. 448; Carlin v. Wolff, 154 Mo. 539; Davis v. Hartwig, 195 Mo. 380; Brier v. Bank, 225 Mo. 683. (3) Insolvency of a defendant will not convert an action at law into one in equity. 22 Cyc. 838-9. (4) The facts alleged in the petition do not warrant an injunction to restrain defendants from withdrawing funds from the Northwestern Bank. Real Estate Co. v. City, 169 Mo. 234; 22 Cyc. 924-5-6; McKinzie v. Mathews, 59 Mo. 99; Worthington v. Lee, 61 Md. 530; Mallincrodt v. Nemnich, 169 Mo. 388. (5) If on the pleadings the law did not warrant a writ of injunction, the alternative writ, of prohibition should be made absolute. State ex rel. v. Sale, 188 Mo. 493; State ex rel. v. Wood, 155 Mo. 425.

      Milton B. Rosenheim and Jesse L. England for respondents.
    (1) The action of the supreme lodge, through relators herein, in declaring a forfeiture of all the property, real and personal, of the respondents, without preferring charges against the local lodge and its members or in any manner giving the local lodge and its members an opportunity to be heard in defense of their property rights, deprived the said local lodge and its members of their property rights without due process of law, and was in plain violation of the Constitution of the State and of the United States. Such action is the embodiment of a legal wrong and will warrant injunctive relief. Austin v. Searing, 16 N. Y. 112; Wicks v. Monihan, 130 N. Y. 237; Turner v. Stewart, 78 Mo. 481; R. S. 1909, sec. 2534; Const. Mo., art. 2, sec. 30; Bauer v. Samson Lodge, 102 Ind. 269. (2) The petition and return set out in relators’ application fully show that property rights are involved and that one of the issues made is the right to possession to certain real and personal property, said property being claimed by two factions of a fraternal beneficiary association. Injunction has always been held to be the proper remedy in such cases. High on Injunctions, sec. 305; Full-bright v. Higginbotham, 133 Mo. 676; Prickett v. Wells, 117 Mo. 502; Boyle v. Roberts, 222 Mo. 613; Bacon’s Benefit Societies and Life Ins., sec. 68. (3) A court of equity has jurisdiction to prevent repeated and continuous trespass, and this, regardless of whether the trespasser is solvent or insolvent. The petition in this case expressly alleges that the defendants are trespassers on the real property of the plaintiff corporation, and that such trespass is continuous and repeated. Turner v. Stewart, 78 Mo. 481; Sills v. Goodyear, 80 Mo. App. 132; Beach on Injunctions, sec. 1135; State ex rel. v. Gravel Road Co., 116 Mo. App. 175; Hobart Lee Tie Co. v. Stone, 135 Mo. App. 456. (4) If the court nisi had jurisdiction of the class of cases to which the proceedings sought to be prohibited belongs, and acquires jurisdiction of the subject-matter, the mere matter of defects in the petition or complaint by which the proceeding was inaugurated, will not authorize the issuance of a writ of prohibition. Hence the question of whether the petition states a cause of action, as relators contend that it does not, is not a matter to be inquired into by writ of prohibition, but rather by appeal, writ of error or certiorari. State ex rel. v. Stobie, 194 Mo. 52; State ex rel. v. Railroad, 100 Mo. 61; Schubach v. Donald, 179 Mo. 182; High on Extraordinary Rem. (3 Ed.), sec. 767a; State ex rel. v. Lucas, 236 Mo. 18.
   LAMM, C. J.

Original proceeding by prohibition.

Defendants in an injunction suit pending in a division (to-wit, respondent MeQuillin’s of the St. Louis Circuit Court, as relators, apply here by petition on August 14, 1914, for a writ prohibiting that court from proceeding further, and made the plaintiffs in said injunction suit parties respondent with Judge Mc-Quillin. Presently, on that application, a preliminary rule issues in vacation to show -cause. Presently, respondents make return showing such cause as they had why our preliminary rule should not be made permanent. Thereupon relators file a motion for judgment on the pleadings. Thereby they insist that the preliminary rule should, as a matter of law, ripen into a permanent writ on the admissions and facts shown by the pleadings. Thereupon (without any evidence on, or determination of, controverted facts) the case is submitted on briefs and oral argument.

Under such circumstances, the motion for judgment on the pleadings is a challenge, in legal effect, to the legal sufficiency of respondents’ return. Hence it is from admissions and allegations of that return, we must get the facts, if at all. [State ex rel. v. Shields, Judge, 237 Mo. 333-4.] Attending thereto, the case is this:

In July, 1914', respondents Albrecht and Stage, as members and trustees of St. Louis Lodge No. 3, Loyal Order of Moose, joining with them a domestic corporation, designated as “St. Louis Lodge No. 3, Loyal Order of Moose,” as plaintiffs, brought suit in the St. Louis Circuit Court against relators in the instant case, to-wit, Warde, Kiely, Stephens, Eipple and the two named banks, the life of the bill being injunctive relief. Verified by affidavit, the substance and theory of the bill were that St. Louis Lodge No. 3, Loyal Order of Moose, hereinafter called “local lodge,” is organized under the laws of this State as a domestic corporation having a fraternal, beneficiary character; that as such domestic corporation it owns valuable real estate in the city of St. Louis, improved by a clubhouse and outbuildings, said clubhouse containing billiard, pool, library and lounging rooms, bowling alleys, “and other social features” to be “enjoyed” by the members of said corporation, which latter has a paid up membership of over 2100 souls in good standing, and certain named officers, among them three trustees (to-wit, Albrecht, Stage and Teasdale, the latter refusing to join as plaintiff); that while the title to the real estate is vested in the local lodge, the care, control and custody of the personal property are in the named trustees, who have “sole jurisdiction” to invest the lodge moneys, handle trust funds, pay bills and control the lodge property, the majority of said trustees having power to act. This local lodge had $2700 deposited in the two banks, joined below as defendants and here as relators. The “furnishings” in the club house were of the value of $7500. We infer that the foregoing bank deposits are covered by the term “surplus money of the lodge” including ‘ ‘ sick benefits ’ ’ and ‘ ‘ funeral expense funds, ’ ’ and it was the duty of the said trustees as need called to invest said funds. Having further alleged that the money and personal property aforesaid are the property of the members of the local lodge, the bill goes on to aver that the said domestic corporation, the local lodge, had also received a “charter” from the “Supreme Lodge of the World, Loyal Order of Moose,” a voluntary association of persons, authorizing it (said local lodge) to conduct such lodge in accordance with a ritual and form of government adopted by the supreme lodge; that on the 22d day of July, 1914, said supreme lodge, acting through defendant Warde (relator here) summarily, and without just cause or excuse, revoked the charter it had granted the domestic corporation, and thereupon proceeded to confiscate and take possession of its property, declaring the same to be forfeited to the supreme lodge; that thereupon said Warde, himself a non-resident of the State of Missouri, joining with him Stephens, Kiely, Ripple, relators here, and other persons unknown, by trespass wrongfully gained control of the clubhouse and the property of the local lodge, and by continuing their trespass with force and arms without warrant of law are holding possession and are denying to the members of said local lodge access to said premises, and using armed force in that behalf; that said trespassers are insolvent; that two of them, Warde and Stephens, have wrongfully appropriated some of said funds in said banks and are about to appropriate and unless restrained will appropriate the rest of them, so as aforesaid the sole and absolute property of the members of the local lodge. The bill avers, furthermore, that by such trespassing and force members of the local lodge are and will be deprived of their rights of ingress and egress to the lodge property; that the act of confiscation by the supreme lodge through Warde was arbitrary and capricious and that the greater part of the members of the supreme lodge are not residents of the State; that there is no redress for such wrongful acts except through a court of equity.

The bill was filed, as said, (1) on behalf of the local lodge, (2) the controlling majority of the board of trustees, who sued not only as such but as members of the local lodge, and (3) on behalf of any other members who care to join and share the burdens and privileges arising therefrom. It prays for a temporary injunction enjoining defendants from trespassing upon the property and interfering with the entrance thereto of any of the members of the local lodge and from assuming control or taking jurisdiction of any of the moneys aforesaid, or of the personal property, and restraining said banks from paying over to defendants any such moneys.

Thereupon, on due assignment to his division, Judge McQuillin issued an order citing defendants to. show cause why a temporary injunction should not issue. Thereupon defendants, other than the banks (who stood mute below) came in and attempted to show cause why no preliminary injunction should issue. They filed no demurrer or answer to the bill, but they filed a paper called a “return,” and verified this by affidavit. . This “return” did not challenge the sufficiency of the bill as a pleading, neither specially nor generally, because of not stating facts sufficient to constitute a cause of action, but in substance it averred (this by way or in the nature of a denial) that the supreme lodge was a corporation under the laws of Indiana with power to sue and to be impleaded as such. It then set forth, broadly, the purposes of the Indiana corporation as fraternal, benevolent, charitable and educational, to assist needy members and their families and their widows and orphans, to encourage patriotism and obedience to the laws of their country, tolerance in religion, etc., etc.; that the supreme lodge organized the named local lodge and granted it a charter in the terms provided by the constitution and laws of the supreme lodge for the government of local lodges. It then goes on to make certain admissions as to the ownership of the real property and the control of the personal property by the board of trustees of the local lodge, but avers that the local lodge was at all times subject to the jurisdiction and bound by the laws of the supreme lodge; admits Warde has taken possession and holds possession and is using “whatever forces are necessary to repel invasions and to protect their said possession.” It then sets forth certain sections of articles six, twenty-six, sixteen and ten of the laws and constitution of the supreme lodge, providing for the revocation and suspension of the charters of a local lodge whenever in “the opinion” of the supreme dictator (an officer of the supreme lodge) the “conditions warrant it,” and showing that in case of such suspension or revocation the property of the local lodge is forfeited to the supreme lodge, and that said dictator or some member authorized by him is required to take possession of the property.

As further justification and excuse of the conduct of Warde and those he joined with himself in making and continuing the alleged trespasses, they by way of said “return” went on to aver that the “dictator,” under his authority as such, revoked the charter of the local lodge “in due course” and on such revocation authorized Warde to take possession of the property of the local lodge, and he did take possession and now holds it, with all such properties, moneys, etc., as the properties of the supreme lodge, and was so in such possession before the bill was filed; that the local lodge has no existence because of such forfeiture and confiscation and none of its members have any right to the possession, custody or control of any of said property; that there is a “supreme forum” provided by the constitution and laws of the supreme lodge, to-wit, a “court” authorized to hear and determine disputes between the supreme and local lodges or between any lodge and its members; that this supreme forum on “appeal” has jurisdiction of the controversy we have outlined, but that plaintiffs have taken no such appeal, wherefore it is the duty of defendants to hold the property subject to the direction of the supreme forum and of the supreme lodge; that the supreme lodge is not insolvent and now by its agents offers to enter its appearance and accept service if plaintiffs elect to sue out summons against it.

Such in brief is the showing made below to Chancellor McQuillin, in chambers, we assume, and before the return term, before answer, or demurrer.

Presently he issued a temporary injunction, conditioned on the filing of a $10,000 bond, restraining defendants until further order of the court from trespassing on the property in question or interfering with the entrance of the members of the local lodge and from disposing of or assuming control over the moneys of the local lodge, or of the property belonging to the lodge, or withdrawing such moneys from the banks named. The injunction bond was presently filed, and the order granting a temporary injunction was served upon defendants prior to the filing of the petition in this court in the instant case for prohibition.

The return in the instant case shows not only the foregoing facts, but it goes on to challenge the validity of those provisions of the by-laws and constitution of supreme lodge under which relators here (defendants below) sought to justify the confiscation, forfeiture and forcible seizure by trespass and retention by continuing trespasses and force of arms of the property of the local lodge and the personal property of the 2100 members thereof, alleging that the confiscation was contrary to law and without due process of law; that the act of taking possession was an unlawful act, a trespass pure hnd simple, as was the forcible denial of access to the clubhouse and property by the members of the local lodge, for which grievances, it is alleged, there was no proper and adequate remedy at law, and which trespasses defendants below (relators here) threatened to repeat and continue; that respondent Mc-Quillin had jurisdiction of the persons of defendants and of the class of cases to which this controversy belongs, to-wit, the subject-matter, and that a writ of prohibition ought not to issu.e against him, thereby allowing prohibition to take the place and effect of appeal, error or certiorari; that equity has jurisdiction also to avoid a multiplicity of suits, and because of the insolvency of the trespassers, and because two factions of a fraternal beneficiary association are claiming the real and personal property; and that, therefore, respondent MeQuillin did not exceed his power as judge in taking jurisdiction, etc.

It is on such a record we are called on to adjudge whether our permanent writ shall go prohibiting Judge MeQuillin from entertaining further jurisdiction of the injunction suit. We have come to the conclusion our preliminary rule, improvidently made, stands to be quashed, and that a permanent writ must be denied; because:

(a) As a foreword it is not amiss to repeat some propositions often announced, but sometimes blinked, to-wit:

(1) in the first place, a writ of prohibition will only go to keep an inferior court within the orbit of its jurisdiction. It is an extraordinary writ and no recourse must be had to it except where ordinary remedies are unavailing — the maxim being that in law we have recourse to what is extraordinary when the ordinary fails. (Recurrendum est ad, etc.)

(2) In the second place, lack of jurisdiction may exist with reference to subject-matter generally (e. g., the class to which the case belongs) or it may exist with reference to the parties to the suit, or it may exist with reference to excess of jurisdiction in the concrete case itself.

(3) In the third place, the mere power to grant a writ of prohibition (or other extraordinary writ, barring quo warranto at the instance of the Attorney-General) is not of so much importance in determining the question of writ or no writ as is the question of the discretion of this court when it is called upon to exercise the power. The right and settled doctrine is that such discretion exists to be always reckoned with and steadily applied with wise circumspection.

(4) In the fourth place, from that right doctrine, another flows as a corollary, to-wit, that in the congested state of our docket.in appealed cases this court will wisely exercise a sound discretion in refusing to draw to itself jurisdiction in the first instance on prohibition to determine the merits of controversies lodged in circuit courts, except ón a clear showing of lack of jurisdiction as a matter of law as distinguished from matter of fact, and that ordinary remedies by appeal, error or certiorari are absent.

If authority be needful or useful to sustain one or the other of those primary and basic propositions, such authority will be found in the pronouncements of one or the other of the following cases (some in one and some in the other): State ex rel. v. Shelton, 238 Mo. l. c. 292 et seq.; State ex rel. v. Sale, 188 Mo. l. c. 496 et seq.; State ex rel. v. Stobie, 194 Mo. l. c. 52; State ex rel. v. Lucas, 236 Mo. l. c. 32; State ex rel. v. Shields, 237 Mo. l. c. 334 et seq.; State ex rel. v. Robinson, 257 Mo. 584 (vide closing remarks of opinion by Brown, J.); State ex rel. v. Kansas City Gas Co., 254 Mo. l. c. 531; State ex rel. v. Tracy, 237 Mo. 109.

It is in the light of the foregoing guiding propositions this case must be ruled, if it is "to be disposed of secundum regulam.

(b) We shall assume on the record here that it goes without even saying that the circuit court had jurisdiction of (1) the parties and (2) the subject-matter, to-wit, the issuing of a temporary injunction, to be followed by. a permanent one or by its dissolution on the application of equity principles to the facts ascertained on final hearing, in term, on answer or on motion to dissolve, or on joint hearing on both. Now, ac-' cording to all good doctrine, the presence of jurisdiction in those prime essentials is an insurmountable barrier to the issuance of our writ of prohibition, unless, perad.ven.ture, the circuit court was swelling its jurisdiction in the case beyond its prescribed channel, even as a stream by excess of water bursts its banks now and then. [Vide cases, supra.]

(c) With so much determined, we confront the question of an excess of jurisdiction in the concrete case. Attend to that view of it.

It is argued by learned counsel for relators that the bill for injunction did not state facts sufficient to constitute a cause of action in divers particulars, hence prohibition lies. We will not cumber this opinion by enumerating them, for they one and all may be grouped together and held to amount to one, namely, either the bill was demurrable, or was subject to a motion to make more definite and certain what was obscurely alleged or only inferentially charged.

As to that we say: The sufficiency of the petition was not challenged by demurrer below. The court, so far as we can see, made no ruling on its sufficiency. Plow it might rule in due course is hidden in the womb of the future, and is discoverable only by the event, barring the occult vision of a seer, which latter we utterly disavow as a judicial attribute. It has been held in some cases, on the facts present in those cases, that if the sufficiency of the petition has been challenged in the circuit court and ruled adversely to demurrant so that it was settled once for all that the trial court entertained an erroneous view in excess of its jurisdiction and was g'oing to put it in force, the remedy by prohibition might be invoked. But, on such facts as we are now dealing with, there is a better doctrine applicable to this extraordinary remedy, one finding abundant place in our decisions, to the effect that the circuit court does not lose jurisdiction by mere error in ruling on a demurrer or otherwise when such error is eorrectible on appeal or writ of error. We need not pursue that line of thought because the record we are dealing with is no such record. In this case we are, in effect, asked to anticipate the ruling of the judge on the sufficiency of the hill, or on the facts, correct imaginary errors in his future rulings, and take over jurisdiction to ourselves, not only on the sufficiency of the hill, hut on the merits, as an intermediate step arresting the evolution of a case pending below. That we ought not to do this is, we think, well within the doctrine and reasoning of a line of cases. [State ex rel. v. McQuillin, 256 Mo. l. c. 702 et seq.; State ex rel. v. McQuillin, 260 Mo. l. c. 176.] Says Bond, J., speaking acceptably for us all in the latter case: “We must assume that the said court will conduct the proceedings before it according to correct principles of law and equity, and, if the hearing should disclose no matter for which relief could be given,. it will be denied or vice versa.” To the same purpose are the rationale and judgments in State ex rel. v. Scarritt, 128 Mo. l. c. 338; Schubach v. McDonald, 179 Mo. l. c. 182; State ex rel. v. Southern Ry. Co., 100 Mo. l. c. 60 et seq.; State ex rel. v. Gill, Judge, 137 Mo. 681; State ex rel. v. Gates, 190 Mo. l. c. 553 et seq.; State ex rel. v. Stobie, 194 Mo. l. c. 52; State ex rel. v. McQuillin, 256 Mo. l. c. 702 et seq.

On prohibition the determinative question here is not one of mere pleading below, where pleadings are amendable (and often need amendment). It rises to the dignity of one of jurisdiction in the strictest sense. In that view of it, in the Sehubach-McDonald case, supra, are pertinent observations, viz.:

‘ ‘ The matter, therefore, compresses itself into the question whether or not a basic subject-matter, over which a court of equity has jurisdiction, was presented to the circuit court for adjudication by the injunction suits. That is, whethér a matter was presented which that court has power to deal with, and not whether such a matter was inartificially or defectively presented. In other words, the question is one of jurisdiction and not of pleading, for if the court had jurisdiction over the subject-matter, it had the power to decide whether the pleadings are or were not properly drawn, and also to decide whether or not the plaintiff was entitled to the relief sought. If a court has the power to act, its jurisdiction is in nowise impaired by the consideration whether it acted in accordance with the law or erroneously. Given the jurisdiction, all else is a mere matter of error, to be corrected on appeal. Or, further illustrated, if the court has jurisdiction over the subject-matter, it has the power to decide whether the petition does or does not state a cause of action, and the mere failure of a petition to state a cause of action or the defective statement of a good cause of action, in no way affects the jurisdiction of the court.” So, in State ex rel. v. Scarritt, supra:

“The writ cannot rightly be employed to compel a judicial officer, having full jurisdiction over the parties and a cause, to steer his official course by the judgment of some other judge, or to substitute the opinion of another court for his own in dealing with topics committed by the law to his decision. [In re N. Y., etc., Steamship Co. (1895), 155 U. S. 523.]”

The questions learnedly discussed by counsel pro and con not only on the merits but on the sufficiency of the bill were all for disposition below in the first instance, and not for disposition here by a side stroke on prohibition. "We have purposely avoided discussing them, so that we may not put the trial chancellor in leading strings when on some interlocutory step or on final hearing when all the facts are in, he comes to decide this or that one of them.

The premises considered, the preliminary rule is quashed and the permanent writ denied. It is so ordered.

All concur but Woodson, J., who dissents.