text:
    HENRY J. REMMERS, Appellant, v. FREDERICK J. REMMERS, OTTO KULAGE, JOSEPH KULAGE and COLLEGE HILL PRESS BRICK WORKS.
    Division Two,
    March 30, 1909.
    1. CONSPIRACY: Civil Action. The mere fact that a conspiracy existed between, defendants cannot be made the subject of a civil action. In addition there must be stated a concrete cause of action.
    2. FRAUD AND DECEIT: Necesary Elements. To state a cause of action for deceit it is essential to aver that the representations made by defendants were false and known by them to be false, and that they were made with the intention of deceiving plaintiff, and that plaintiff was deceived thereby, and that relying upon them he was induced to act to his injury.
    3. ACTION AT LAW: Contradiction of Written Contracts. In an action at law seeking to recover damages for the breach of a contemporaneous oral agreement, a petition which seeks to contradict the written contracts but does not seek to alter or vary or reform them, does not state a cause of action.
    4. CONVERSION: Bankruptcy: Party Plaintiff. Where a trus- • tee in bankruptcy has been appointed who has charge of the bankrupt’s estate, the proper plaintiff to recover personal property of the bankrupt alleged to have been converted by defendants, is the trustee, and not the bankrupt.

      5. BANKRUPTCY: Cheated- Out of -Property. Where the bankrupt. was, prior to bankruptcy, cheated or defrauded by defendants out or certain property or property rights, a cause of action for such tort can be maintained only by the trustee in bankruptcy. Torts affecting property are assignable.
    6. SLANDER: Cause of Action. A petition.to state a cause of action for libel or slander should contain a definite statement of the damaging and offensive language. A general allegation that defendants injured plaintiff’s business by seeking to prevent the sale of brick manufactured by him, and by circulating false and hurtful reports reflecting upon his integrity, his good name and his business standing, does not state a cause of action.
    7. DAMAGES: No Cause of Action. Plaintiff alleged that he was the owner of stock in certain corporations worth $47,500; that Frederick, Otto and Joseph were the owners of the majority of the stock of the defendant brick company and its directors and officers; that said company owned a plant for the manufacture of brick, which was out of repair, and to put it in repair would require a large expenditure of money; that defendants were desirous of leasing said plant to him, and acting principally through Otto, induced plaintiff, by promise of financial aid, to become the lessee of said plant for ten years at $5,000 a year; that said lease was in writing, and that he accepted said lease upon a mutual verbal agreement that plaintiff should pledge or hypothecate his stock with Otto to secure an immediate advancement of $8,000 and future advancements to the amount of $.30,000 to make needed repairs in the plant; that he was to have the privilege of repaying said advancements at any time with interest; that he assigned the stock in writing to Otto without condition, but that it was mutually understood at the time that said assignment was a pledge'; that said verbal agreements, though believed and relied upon by him, were not made' by defendants in good faith, but wefe a part- of a conspiracy entered into by them to cheat and defraud him out of his stock and to injure him in his good name, and business standing, and to get possession of the brick plant after he had put the same in repair, and after he had used $5,000 of the $8,000 to pay one year’s rent and the balance and other moneys in repairing said plant and before he discovered defendants did not intend to keep their agreement to advance him other money; that defendants repudiated said pledge; that Otto appropriated said stock to his own use; and that in pursuance of said plan to cheat and defraud him they circulated reports reflecting upon his integrity and damaging to his business standing and good name, and induced certain creditors to have him declared a bankrupt in the Federal court, all to his damage in the sum of $75,000, for which he asks judgment. The lease contract and the -written assignment of the stock are set out in the petition. Held, that the petition does not state a good cause of action on . any theory.
    Appeal from St. Louis City Circuit Court. — So». Daniel G. Taylor, Judge.
    Affirmed.

      Benj. J. Klene for appellant.
    (1) The third ground of demurrer is ‘ ‘ that plaintiff in his petition attempted to state a number of alleged causes of action in one count. ’ ’ To this we reply: 1. That the petition states but a single cause, and that a good one, against defendants. Ross v. Mineral Land Co., 162 Mo. 331; Mosby v. Commission Co., 91 Mo. App. 507; McManus v. Lee, 43 Mo. 206; State v. "Walker, 98 Mo. 104. 2. But if this were not so, the demurrer is not well taken for the reason that this is not the proper manner of raising the point. Where causes of action which might have been properly joined in separate counts are improperly blended in one count, the remedy is not by demurrer, but by motion to require the pleader to elect which of the causes of action he will stand on. Fadley v. Smith, 23 Mo. Ap-p. 92; Ziedeman v. Molasky, 118 Mo. App. 106; Otis v. Bank, 35 Mo. 128; State to use v. Davis, 35 Mo. 406; Childs v. Railroad, 117 Mo. 414; Ziegenhein v. Tittman, 103 Mo. 553; Wilson v. Railroad, 67 Mo. App. 443; Lane v. Dowd, 172 Mo. 167; Bliss on Code PL (3 Ed.), 412. (2) The second ground of demurrer raises the point that the petition does not state facts sufficient to constitute a cause of action. 1. On this we, join issue, and assert with all confidence that a single good cause of action is stated in this petition. Ross v. Mineral Land Co., 162 Mo. 331; Mosby v. Commission Co., 91 Mo. App. 507; McManus v. Lee, 43 Mo. 206; State v. Walker, 98 Mo. 104. 2. Specific acts done to effectuate the conspiracy may he set forth and are not to he considered as constituting several causes of action, although they may he different in their particular character, were done at different times, and defendants do not claim to he interested in, or benefited by, each of them, or in the same degree as to any of them. 8 Cyc. 676, note 55. (3) The first ground of demurrer challenges the legal capacity of plaintiff to maintain this cause of action, because of the allegation that defendants caused him to be adjudged a bankrupt, claiming that the right of action, if any, is in his trustee in bankruptcy. On this we join issue, and reply: (a) “If the trustee has any power over a subject, it must be found in the bankruptcy act.” In re Becher Bros., 15 Am. B. Rep. 229; Brandenberger on Bank,, p. 689', sec. 2. (b) As the title to the cause of action asserted by defendants to be in his trustee, must be derived through the National Bankruptcy Act, we will not on this branch of the subject be aided by what may be or may not be assignable, or pass to the personal representatives of a dead man, by the law of this or any other State. Cleland v. Anderson, 11 Am. Bk. Rep. 605. (c) In the trial court, defendants asserted that the title to the cause of action was cast upon the trustee by either the 5th or 6th subdivision of section 70a of the National Bankruptcy Act, which are as follows: 5. “Property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him.” 6. “Rights of action arising upon contracts, or from the unlawful detention of or injury to his property.” (d) The fifth subdivision may be dismissed with the statement that the cause of action set forth in the petition is not property. In subdivision six causes of action are made a class by themslves, and hence indicate that Congress did not include them under the term property. Cleland v. Anderson, 11 Am. B. Rep. 605. (e) The right of action — cause of action contained in the petition did not: (a) Arise upon contract. Cleland v. Anderson (Neb.), 11 Am. Bk. Rep. 604; Cleland v. Anderson (Neb.), 101 Am. Bk. Rep. 441; 66 Neb. 252; 92 N. W. 306; 96 N. W. 1075. (6) Nor from the unlawful taking or detention of or injury to plaintiff’s property. Cleland v. Anderson (Neb.), 10 Am. Bk. Rep. 441; In re Haensel, 1 Am. Bk. Rep. 288; Crockett v. Jewett, 2 Ben. IT. S. 514; In re Doherty, 135 Fed. 432; Held v. New York, 83 App'. Div. 509'.

      Robert L. McLaran for respondents.
    (1) A conspiracy cannot be made the subject of a civil action unless something is done which, without the conspiracy, would give a right of action. Cooley on Torts (2 Ed.), p. 143; Hunt v. Simonds, 19 Mo. 583; Alexander v. Relfe, 9 Mo. App. 133; Nations v. Pulse, 175 Mo. 86; Hutchins v. Hutchins, 7 Hill 107; Parker v. Huntington, 2 Gray 127; Lavarty v. Yanardsdale, 65 Pa. St. 509; Collins v. Cronin, 117 Pa. St. 45; Kimball v. Harmann, 34 Md. 407; Garring v. Frazer, 76 Me. 37; Commercial Assur. Co. v. Shoemaker (Neb.), 88 N. W. 156. (2.) The existence of a conspiracy is only material in that it gives the injured persons a remedy against parties not otherwise connected with the wrong. Cooley on Torts (2 Ed.), p. 144; authorities, supra. (3) Any cause of action which plaintiff may have had of the kind attempted to be stated in this petition is vested in his trustee in bankruptcy. U. S. Bankruptcy Law, sec. 70', clauses 5 and 6; Hyde v. Tufts, 45 N. Y. Super. Ct. (Jones & Spencer) 56. (a) Because any such right of action could have been assigned by plaintiff, and, in case of his death, would have descended to his personal representatives. Jewett v. Weaver, 10 Mo. 234; Smith v. Ken-nett, 18 Mo. 154; Melton v. Smith, 65 Mo. 315; Snyder v. Railroad, 86 Mo. 613; Doering v. Kinamore, 86 Mo. 588; Dean v. Chandler, 44 Mo. App. 338. . (&) Because any actionable injury of the kind claimed to have been suffered by plaintiff was an injury to his property, within the meaning of that term as used in the bankruptcy act. ITyde v. Tufts, supra; Lawrence v. Hennessy, 165 Mo. 670'; Bailey v. People, 190 111. 28; Booth v. People, 186 111. 43; Státe v. Chapman, 69 N. J. L. 464; Ex parte Steinman, 95 Pa. 220. (4) In order to state a cause of action sounding in tort for false representations and promises, a petition must set forth: That defendant made representations of specific present facts; that said representations .were false, and so known to be by defendants; that such representations were made with the intention of deceiving plaintiff; that plaintiff was deceived thereby, and, in reliance thereon, acted to his injury. Furthermore, the representations must be specifically set forth. .Burnham v. Boyd, 167 Mo. 185; Nagel v. Railroad, 167 Mo. 89; Goodson v. Goodson,- 140 Mo. 206; Bank v. Rohrer, 138 Mo. 369; Clough v. Holden, 115 Mo. 336; Hoester v. Sammelwan, 101 Mo. 619; Butts v. Long, 94 Mo. App. 687.
   FOX, J.

This cause was brought to this court by appeal on the part of the plaintiff from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to plaintiff’s amended petition. The petition, to which the demurrer was interposed, was as follows:

“Plaintiff states that at the times herein stated, the College Hill Press Brick Works was a corporation, organized under the laws of the State of Missouri; that at said times the Carthage Marble and White Lime Company was likewise a corporation organized under the laws of the State of Missouri; that plaintiff was on or about the 19th day of July, 1902, the owner of twenty-nine shares of the capital stock of the said Carthage Marble and White Lime Company, of the par value of one hundred dollars per share, and that said stock was, at that time, of the actual value of, to-wit, $35;000; that at said times the Goesse & Remmers Building and Contracting Company was likewise a corporation organized under the laws of the State of Missouri; that on or about the 19th day of July, 1902, plaintiff was the owner of fifty shares of the capital stock of said Goesse & Remmers Building and Contracting Company, of the par value of one hundred dollars per share, and that said stock was at that time of an actual value of, to-wit, $12,500; that on and prior to the 19th day of July, 1902, the defendants, Remmers and Otto and Joseph J. Kulage, were the owners of more than fifty-one per cent of the capital stock of said College Hill Press Brick Works; that at that time said persons controlled said corporation, and ácted as its officers and directors; that at said times said company owned a plant and grounds for the manufacture of bricks, located in the vicinity of College avenue and Broadway in the city of St. Louis; that' said plant had been unused for several years and was in bad repair, and to put same in condition for the manufacture of bricks would require the expenditure of large sums of money, that the grounds surrounding the plant, valuable only for the clay they contained, were covered with debris, requiring the expenditure of large sums of money for its removal; that on and prior to the 19th day of July, 1902, defendants were desirous and anxious to have the defendant, the College Hill Press Brick Works, to lease the said brick manufacturing plant and appurtenances to plaintiff, who at the time was inexperienced in the manufacture of bricks; that being so desirous to lease said brick manufacturing plant and appurtenances to plaintiff, defendants, acting principally through defendant, Otto Kulage, induced plaintiff by promise of financial assistance in repairing, maintaining and operating said plant, and by tbe representation that large profits conld be made in tbe manufacture of bricks and tbe sale thereof, to become the lessee of said brick manufacturing plant and appurtenances ; that said lease was in words and figures as follows, to-wit:
“ ‘This indenture made this 19th day of July, 1902, by and between the College Hill Press Brick Works, a corporation, party of the first part, and Henry J. Remmers, party of the second part, both parties residing and doing business in the city of St. Louis, Missouri, Witnesseth: That the party of the first part, for and in consideration of the covenants and agreements, hereinafter mentioned to be kept and performed by the said party of the second part, has this day demised and leased to the said party of the second part, all of- the premises, machinery, tools and appliances used in connection with brick making, situate, lying and being in the city of St. Louis, and State of Missouri, known and described as follows, to-wit: Beginning at the southeast corner of City Block 3386, being the northwest corner of Bellview street and Linton avenue, and continuing on the north line of Linton avenue, crossing Yon Phul and Zealand streets, to alley in City Block 3388, thence along the eastern line of said alley to the southern line of said alley crossing said' Zealand and Yon Phul streets to said Bellview street, then along the western line of said Bellview street, to the point of beginning. Also all the machinery, tools, appliances and fixtures of every nature and description, and in condition as said machinery, tools, appliances and fixtures as may be this present day on said premises.
“ ‘To have and to hold the above said described premises with all the privileges and appurtenances belonging to the same, unto the said party of the second part, from this the 19th day of July, 1902, to the 19th day of July, 1912.
“ ‘And the said party of the second part, in consideration of the leasing of said premises as aforesaid, does covenant and agree .with the said party of the first part, to pay the said party of the first part, as rent for said premises, the sum of fifty thousand dollars in the following manner, to-wit: Five thousand dollars to-day, and forty-five thousand dollars divided into nine good, satisfactory and negotiable notes of five thousand dollars each, to mature and become payable on -the first day of March, 1904, 1905, 1906, 1907, 1908, 1909, 1910, 1911 and 1912. It is further agreed that at the expiration of such term of ten years, this lease may be extended for a further period of one year, at the same rental, namely, five thousand dollars per annum, payable by said second party to said first party. And it is further agreed by said party of the second part, that neither he nor his legal representatives will take any ground or clay lower than the established adjoining street grades, from said premises, nor will permit nor allow others to do so, nor will underlet said premises or any part thereof, or assign this lease, without the written assent of the said party of the first part had and obtained thereto; that he will put into repair, and at all times during the term of this lease, at his own expense, maintain and repair the kilns 'and boilers and press building, and aforesaid machinery, tools, appliances and fixtures on said premises; that „the said party of the second part will peaceably deliver all of aforesaid premises, machinery, etc., up to said party of the first part, its heirs, executors, administrators and assigns at the termination of this lease, or at the option of said party of the first part, whenever said party of the second part fails to pay the said notes, or rent when due, or to keep or perform any other of the covenants and agreements heretofore stated.
“ ‘ In witness whereof, the said parties have hereunto in the city of St. Louis, Missouri, and to duplicate copies hereof, set their hands the day and year first above written.’
“Plaintiff says that he accepted said lease upon verbal conditions mutually agreed to between the parties at the time, as follows: That the plaintiff should hypothecate or pledge his said fifty shares of stock in the G-oesse & Remmers Building and Contracting Company, and his twenty-nine shares of stock in the Carthage Marble & White Lime Conxpany, with the defendant, Otto Kulage, which as the defendants well knew at the time was substantially all the property possessed by plaintiff, to secure an advancement of eight thousand dollars then made to plaintiff by said Kulage, as well as further advancements, to an aggregate of $30,000, which said Kulage then and there agreed to make as needed by plaintiff in the repair, maintenance and operation of said plant. And it was also mutually agreed that the plaintiff should have the privilege of repaying the sums so advanced and to be advanced, at any time with legal interest, until all said advancements were paid, and that said Kulage should hold said stock until all said advancements were repaid, and not present the certificates representing the same to the issuing corporation for transfer on its books; that, thereupon, relying on the promises and agreements aforesaid, and in consideration thereof, plaintiff indorsed the blank power of attorney on the back of each of the certificates representing said stock, and at the same time executed a memorandum in writing, as follows, to-wit:
“ ‘St. Louis, Mo., July 19, 1902. This is to certify that I have sold to Otto Kulage the following shares of stock, namely, 29 shares of the Carthage Marble & White Lime Company; 50 shares of the Goesse & Remmers Building and Contracting Company, and ' that I authorize and hereby request the transfer of said shares of stock-to said Otto Knlage on the books of said corporation.’
“Plaintiff says that it was mutually understood and agreed between plaintiff and defendants, at the time, that while said memorandum was in form a certificate purporting to represent by its terms an absolute sale of said property, it was in fact mutually understood and agreed between plaintiff and said Kulage, at the time, that said transfer was only to be a pledge or hypothecation of said shares as security for the $8,000 then advanced and loaned to plaintiff by defendants, and was intended as well to secure other advancements that should be made to plaintiff from time to time as needed, as hereinbefore alleged, and to the extent hereinbefore stated.
“Plaintiff says that the execution and delivery by defendants to plaintiff of-said lease; the said advancement of eight thousand dollars, on said stock, and the promise of other advancements, as needed to plaintiff by defendants, although believed by the plaintiff at the time to be made in good faith by the defendants, were not in fact made in good faith by the defendants or either of them, but were on the contrary a part of a plan, scheme and conspiracy entered into between the defendants to cheat and defraud plaintiff, and to deprive him. of his said stocks and other property, and to injure him in his good name, fame and reputation, and in his business, and to secure for themselves the possession of said brick manufacturing plant and appurtenances, after plaintiff should have put the same in repair and condition for the manufacture of bricks,
“Plaintiff says that relying upon said promises of the defendants to make other and additional advancements as aforesaid, as provided in the agreement aforesaid, he paid the defendant, the College Hill .Press Brick Works, $5,000' in full of the first year’s rental of said plant' and appurtenances, as provided in the lease aforesaid, and entered into possession of said property under said lease, and expended large sums in necessary .repairs and alterations, and began the manufacture of bricks before the defendants refused to advance, as agreed, other sums, and before he discovered that the defendants did not propose to keep their agreements with him, and make said other advancements; that about that time defendants, instead of acknowledging a pledge of said stock under the terms and conditions in said agreement provided, and as herein stated, repudiated the same and claimed ownership of said stocks; plaintiff also discovered about that time, that while defendants represented at and before the making and delivery of said lease that there was sufficient clay on said grounds to last ten years in the manufacture of bricks therefrom, and as provided in said lease, there was in reality only clay sufficient to last for about four years.
“Plaintiff further says that the defendants instead of keeping their said agreement to make the advancements as aforesaid, and relied on by plaintiff as aforesaid, never after the 19>th day of July, 1902, made any other advancements to plaintiff under said agreement or otherwise; plaintiff charges that secretly and known only to themselves and without knowledge thereof by plaintiff, defendants never purposed or intended to keep their said agreement to make advancements other than said $8,000 and plaintiff charges that they made said advancement of $8,000 for the purpose of getting possession of plaintiff’s said stocks and the said plant after plaintiff should have put the same in order and condition for the manufacture of bricks, and for the further evil purpose and intent of injuring plaintiff in his good name, fame and reputation, and for the purpose of driving him out of business and away from the city of St. Louis, all of which as well as the other evil purposes and acts as herein alleged, were a part of a plan, scheme and conspiracy entered into between tbe defendants, for tbe purpose of cheating and defrauding plaintiff out of his said stocks, and of the investment of the funds secured by the pledge aforesaid, and other funds contributed and used by plaintiff in said business, as well as the dividends and earnings of said stocks.
“The plaintiff says that in pursuance of said plan, scheme and conspiracy to cheat and defraud plaintiff, although plaintiff fully kept and performed all the terms of said agreement required by him to be kept or performed, as well as the terms of the said lease, the defendants set about in pursuance of said plan, scheme and conspiracy systematically to undermine plaintiff in his business, reputation and credit, by seeking to prevent sales of brick by him, by circulating false and untruthful reports reflecting on his integrity, and by soliciting creditors of plaintiff whom he was unable to pay because of the default and refusal of defendants in failing to make the advancements as provided in the agreement as hereinbefore set forth, to bring against plaintiff an involuntary proceeding in bankruptcy in the District Court of the United States for the Eastern District of Missouri; that they did induce certain creditors of plaintiff to join certain of the defendants to bring such proceedings, and as a result on or about the 25th day of April, 1903, plaintiff was on the petition of said parties by said court,- adjudged a bankrupt, by reason of all of which plaintiff has been injured in his good name, fame and reputation, has been humiliated and mortified, and has suffered great pain of body and mind, was rendered for the space of about one year almost a mental and physical wreck, and during that time was unable to follow any useful occupation, and plaintiff was ruined financially and in his business reputation and standing in the community, and that he has lost said stocks and the money invested by him in said brick business; and plaintiff has also lost his profits on the brick manufactured by him, as well as the dividends on said stock, all to his damage in the sum of seventy-five thousand dollars and for his costs he prays judgment.”

To this petition the defendants'interposed a demurrer, which was as follows:

“Now come the above named defendants, by their attorney, and demur to the amended petition filed by plaintiff, and for cause of demurrer state:
“First: That it appears upon the face of the petition that plaintiff has not the legal capacity to prosecute this action, for the reason that he has been adjudged a bankrupt under the laws of the United States, since the alleged happening of the matters and things in said petition mentioned and set forth.,,
“Second: That said petition does not state facts sufficient to constitute a cause of action against these defendants or any or either of them.
“Third: That plaintiff in his said petition has attempted to state a number of alleged causes of action in one count.”

On the 4th day of December, 1905, at the December term of said circuit court, this demurrer was sustained, and the plaintiff declining to plead further, final judgment was rendered upon the demurrer. From this judgment the plaintiff prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The legal propositions disclosed by the record in this cause rest within a very narrow compass, that' is, does the action of the cqurt in sustaining the demurrer to the petition interposed by the defendants constitute such error as would warrant this court in reversing the judgment in this cause?

We have reproduced in full the petition of the plaintiff, as well as the demurrer interposed by the defendants. Exhaustive briefs by learned counsel for appellant, as well as the respondents, are presented to us, in which numerous authorities are cited in support of the respective contentions of the parties to this litigation. It can serve no good purpose to burden this opinion with a review of the numerous authorities cited by counsel. We have carefully analyzed each and every allegation embraced in the petition and have fully considered all of the authorities applicable to the legal propositions confronting us, that is, whether or or not the petition in this cause states sufficient facts to constitute a cause of action. After a most careful consideration of the proposition presented to our consideration we have reached the conclusion that the petition in this cause does not state facts sufficient to constitute a cause of action upon which the plaintiff in this action has any right of recovery. While it is true that this petition alleges that there was a conspiracy between the defendants, and this allegation of conspiracy is repeated at different places in the petition, yet the law is well settled that the mere fact of a conspiracy cannot be made the subject of a civil action.

Mr. Cooley, in his standard work on Torts (2 Ed.), page 143, thus correctly states the rule: ‘ ‘ The general rule is that a conspiracy cannot be made the subject of a civil action unless something is done which, without the conspiracy, would give a right of action.” Continuing the discussion of that subject Mr. Cooley says: “The. significance of the conspiracy consists, therefore, in this: That it gives the persons injured a remedy against parties not otherwise connected with the wrong. It is also significant as constituting matter of aggravation, and as such tending to increase the plaintiff’s recovery.” Hence, it follows that the repeated allegations of conspiracy between these defendants have but little significance, unless in addition there is stated a.concrete cause of action.

After making the formal allegations identifying the defendants, it is then alleged that “the defendants, Remmers and Otto and Joseph J. Knlage, were the owners of more than 51 per cent of the capital stock of said College Hill Press Brick Works; that at that time said persons controlled said corporation, and acted as its officers and directors; that at said time said company owned a plant and grounds for the manufacture of hricks, located in the vicinity of College avenue and Broadway in the city of St. Louis; that said plant had been unused for several years and was in bad repair, and to put .same in condition for the manufacture of bricks would require the expenditure of large sums of money; that the grounds surrounding the plant, valuable only for the clay they contained, were covered with debris, requiring the expenditure of large sums of money for its removal; that on and prior to the 19th day of July, 1902, defendants were desirous and anxious to have the defendant, the College Hill Press Brick Works, to lease the said brick manufacturing plant and appurtenances to plaintiff, who at the time was inexperienced in the manufacture of bricks; that being so desirous to lease said brick manufacturing plant and appurtenances to plaintiff,. defendants, acting principally through the defendant, Otto Kulage, induced plaintiff by promise of financial assistance in repairing, maintaining and operating said plant, and by the representation that large profits could be made in the manufacture of brick and the sale thereof, to become the lessee of said brick manufacturing plant and appurtenances.” Then follows the contract of ■ lease.

Clearly these allegations do not state any cause of action. It is not sought by the allegations of such promises and representations, iwhich the plaintiff avers induced him to become the lessee of said brick manufacturing plant, to annul or cancel the contract of lease as entered into between the parties, and if such allegations are made for the purpose of stating a cause of action for deceit they fall far short of meeting the requirements of. the law upon that subject. It is essential to state a cause of action of that character to aver that such representations were false and so known to be by the defendant, and that such representations were made with the intention of deceiving plaintiff, and that plaintiff was deceived thereby, and relying upon such promises and representations he. was induced to act to his injury.

The petition then proceeds to state that “the plaintiff accepted said lease upon verbal conditions mutually agreed to between the parties at the time, that is, that the plaintiff should hypothecate or pledge his said fifty shares of stock in the Gloesse & Remmers Building and Contracting Company, and his twenty-nine shares of stock in the Carthage Marble & White Lime Company, with the defendant, Otto Kulage, which as the defendants well knew at the time was substantially all the property possessed by plaintiff, to secure an advancement of eight thousand dollars then made to plaintiff by said Kulage, as well as future advancements, to an aggregate of $30,000, which said Kulage then and there agreed to make as needed by plaintiff in the repair, maintenance and operation of said plant. And it was also mutually agreed that the plaintiff should have the privilege of repaying the sums so advanced and to be advanced, at any time with legal interest, until all said advancements were repaid, and that said Kulage should hold said stock until all said advancements were repaid, and not present the certificates representing the same to the issuing corporation for transfer on its books.” Then follows the allegation in the petition that it was by relying upon the promises and agreements as heretofore indicated, and in consideration thereof, that plaintiff executed the absolute bill of sale to the stock heretofore mentioned. It was further alleged in the petition that it was “mutually understood and agreed between the plaintiff and defendants, at the time, that while' said memorandum of the sale of said stock was in form a certificate purporting to represent by its terms an absolute sale of said property, it was in fact mutually understood and agreed between the plaintiff and said ■Kulage, at the time, that said transfer was only to be a pledge or hypothecation of said shares as security for the $8,000 then advanced and loaned to plaintiff by defendants, and was intended as well to secure other advancements that should be made to plaintiff from time to time as needed, as hereinbefore alleged, and to the extent hereinbefore stated.”

Manifestly these allegations undertake to contradict the terms not only of the written lease but of the written memorandum by which certain shares of stock were sold by plaintiff to the defendants. Clearly whatever the nature of this action may be, when the petition is considered in its entirety, it manifestly undertakes to state a cause of action at law. This being true, clearly the plaintiff cannot be permitted to seek the contradiction of the terms of the written instrument heretofore indicated in that character of action. It is conceded by learned counsel for plaintiff that this is not an equitable proceeding for the purpose of reforming either the lease or the bill of sale as heretofore' referred to. It nowhere appears from the allegations in the petition that plaintiff seeks to redeem the stock, and manifestly there is no breach of contract declared upon.

Counsel for appellant, in support of the foregoing allegation, direct our attention to the case of Culp & Co. v. Powell, 68 Mo. App. 238. An examination of that case will demonstrate that it falls far short of maintaining the contention of the appellant in this case. The well-settled rule which forbids the introduction of oral agreements prior to or contemporaneous with a written agreement, whereby the terms of the latter are varied, altered or contradicted, is fully recognized in that case; however, on the other hand the rule is announced, which is equally well settled, that you may show that a written agreement never had any legal existence by reason of the fact that it was fraudulently accomplished, and in contemplation of law was no agreement at all. But that is not this case. The allegations now under discussion do not pretend to say that there was no agreement at all, but it is sought to vary, alter and contradict the terms of the agreement as heretofore mentioned. In'other words, it is sought by these allegations in a pure action at law to reform written instruments and have them conform to certain verbal agreements which plaintiff alleges were made in addition to the written agreements. But aside from all this, the petition shows upon its face that there has been appointed a trustee in bankruptcy who has charge of the estate of the plaintiff, and if the allegation now under consideration means anything, that is,, that the defendants fraudulently obtained the stock heretofore referred to, belonging to the plaintiff, and if it is sought by these allegations to recover this stock or damages for the conversion of it, or for the wrongfully procuring of it, clearly the trustee in bankruptcy is the only proper party plaintiff, and the present plaintiff is in no position to seek a recovery upon that ground.

Finally counsel for appellant insist that this petition states a cause of action for a conspiracy to defraud and injure plaintiff’s reputation. In other words, the contention of the plaintiff is thus briefly stated by his counsel: “It is therefore respectfully submitted that the said petition states against the defendants a case of combination and conspiracy by means of the various matters alleged to defraud plaintiff and injure him in his good name, fame and reputation, against which he must have the relief prayed.”

In the consideration of this insistence by appellant it is well to keep in view the allegations in the petition concerning' the particular cause of action plaintiff insists is embraced in his petition. The first allegation to which our attention is directed is: “Plaintiff says that the execution and delivery by defendants to plaintiff of said lease; the said advancement of eight thousand dollars, on said stocks, and the promise • of other advancements, as needed, to plaintiff by defendants, although believed by the plaintiff at the time to be made in good faith- by the defendants, were not in fact made in good faith by the defendants or either of them, but were on the contrary a part of the plan, scheme and conspiracy entered into between defendants to cheat and defraud plaintiff, and to deprive, him of his said stocks and other property, and to injure him in his good name, fame and reputation, and in his business, and to secure for themselves the possession of said brick manufacturing plant and appurtenances, after plaintiff should have put the same in repair and condition for the manufacture of brick.”

Treating of the allegations in this petition wherein it is alleged that there wns a conspiracy entered into between the defendants to cheat and defraud plaintiff, it is sufficient to say that those allegations cannot have any reference to anything else other than to cheat and defraud plaintiff out of some of his property or property rights, and so far as a statement of a cause of action to cheat and defraud the plaintiff is concerned, obviously that cause of action could only be maintained by the trustee in bankruptcy. In other words, if the plaintiff has been cheated or defrauded out of certain property, such cause of action rests with the trustee in bankruptcy.

The rule of the common law that no cause of action in tort, whether to person or property, could be assigned, has been very much relaxed, and the distinction is now marked between rights of action for tort affecting the person or family relations, and those affecting property.

In the case of Snyder v. Railroad, 86 Mo. 613, this court reviewed the authorities and expressly ruled that all causes of action arising in tort may be assigned which would survive to the personal representative, and in that case the court approvingly quoted from Mr. Pomeroy in his work on Remedies and Remedial Rights (sec. 147), wherein it was said: “It is now the general American doctrine that all causes of action arising from torts to property, real or personal — injuries to the estate by which its value is diminished, do survive and go to the executor or administrator as assets in his hands. As a consequence, such things in action, although based upon a tort, are assignable. ’ ’

Our attention is next directed to the following allegations in plaintiff’s petition: “Plaintiff further says that the defendants instead of keeping their said agreement to make the advancements as aforesaid, and relied on by plaintiff as aforesaid, never after the 19th day of July, 1902, madé any other advancements to plaintiff under said agreement or otherwise; plaintiff charges that secretly and known only to themselves and without knowledge thereof by plaintiff, defendants never purposed or intended to keep their said agreement to make advancements other than said $8,000, and plaintiff charges that they made said advancement of $8,000 for the purpose of getting possession of plaintiff’s said stocks, and the said plant after plaintiff should have put the same in order and condition for the manufacture of brick, and for the further evil purpose and intent of injuring plaintiff in his good name, fame and reputation, and' for the purpose of driving him out of business and away from the city of St. Louis, all of which as well as the other evil purposes and acts as herein alleged, were a part of a plan, scheme and conspiracy entered into between the defendants, for the purpose of cheating and defrauding plaintiff out of his said stocks, and of the investment of the funds secured by the pledge aforesaid, and other funds contributed and used by plaintiff in said business, as well as the dividends and earnings on said stocks.”

It is sufficient to say of these allegations that what was said respecting similar allegations to which attention has been directed, is equally applicable to these particular allegations. It will be observed that the plaintiff says that the defendants made the advancement of eight thousand dollars for the purpose of getting possession of plaintiff’s said stocks, and the said plant after plaintiff should have put the same in order and condition for the manufacture of brick, and for the further evil purpose and intent of injuring plaintiff in his good name, fame and reputation, and for the purpose of driving him out of business and away from the city of St. Louis, all of which as well as the other evil purposes and acts as herein alleged, were a part of a plan, scheme and conspiracy entered into between the defendants, for the purpose of cheating and defrauding plaintiff out of his said stocks, and of the investment of the funds secured by the pledge aforesaid, and other funds contributed and used by plaintiff in said business, as well as the dividends and earnings on said stocks.

It will be noted that in the allegations now under consideration, in their final analysis, plaintiff expressly alleges that all of the acts as herein alleged were a part of a plan, scheme and conspiracy entered into between the defendants, for the purpose of cheating and defrauding plaintiff out of his said stocks, and of the investment of the funds secured by the pledge aforesaid, and other funds contributed and used by plaintiff in said business, as well as the dividends on said stocks. In this allegation we have marshaled all the acts and allegations of evil purposes on the part of these defendánts in which it is charged that those acts were done for the purpose of cheating and defrauding plaintiff out of certain funds, and other funds contributed' and used by plaintiff in said business. Obviously, plaintiff, whose estate is now in the hands of a trustee in bankruptcy, is in no position to maintain the cause of action which is sought to be alleged by these allegations. By these allegations plaintiff' sums up all of the acts of the defendants and alleges that those acts were committed for the purpose of cheating’ and defrauding’ him out of certain property. If the defendants should by false and fraudulent promises and representations have secured any property or property rights of the plaintiff the trustee in bankruptcy has full power to remedy such wrongs and recover such property as was fraudulently obtained or for any injury that has been done the property rights of the plaintiff.

Finally, plaintiff alleges that the defendants by “this conspiracy set about in pursuance of said plan, scheme and conspiracy systematically to undermine plaintiff in his business, reputation and credit, by seeking to prevent sales of brick by him, by circulating false and untruthful reports reflecting on his integrity, and by soliciting creditors of plaintiff whom he was unable to pay because of the default and refusal of defendants in failing to make the advancements as provided in the agreement as hereinbefore set forth, to bring against plaintiff an involuntary proceeding in bankruptcy in the District Court of the United States for the Eastern District of Missouri.” It is sufficient to say of this allegation that if it is sought by it to state a cause of action for slander against the person or the business of the plaintiff, it is entirely insufficient. If the defendants sought to injure the business of the plaintiff by seeking to prevent sales of brick by him, by circulating false and untruthful reports reflecting upon Ms integrity, then clearly there should he a definite statement made as to what the reports were and what was said. Clearly it will not be seriously contended that a mere general allegation as in the petition in this case that the defendants injured the business of the plaintiff by seeking to prevent sales of brick by him, by circulating false and untruthful reports reflecting upon his integrity, would be sufficient to constitute a good cause of action. The offensive language, as well- as the reports charged to have been false and the acts of the defendants, under the- well-settled rules of law should be distinctly averred. The allegations of this petition now under consideration fall far short of constituting a cause of action for slander or libel of the person or business of the plaintiff.

We see no necessity for pursuing this subject further. We have carefully analyzed all of the allegations in the petition and have considered them in every phase to which they may be applicable, and we see no escape from the conclusion that there is no well-defined or concrete cause of action stated by the plaintiff.

We have examined the authorities to which our attention was directed by learned counsel for appellant, and it is sufficient to say that an examination of them fails to disclose that they are in any way in conflict with the conclusions as herein reached.

The trial court correctly and properly sustained the demurrer interposed by the defendant, and its judgment upon such demurrer should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    WILLIAM R. SWEARINGIN, Appellant, v. WILLIAM A. SWEARINGIN et al.
    Division Two,
    March 30, 1909.
    EJECTMENT: Outstanding Title. An attempt to establish an outstanding title upon pure hearsay that a former owner of the land had executed a deed of trust upon a part of the land to secure a debt which remains unpaid, where no deed of trust was offered in evidence, and it is not shown what amount is secured, nor when executed, nor when the debt was due, is • utterly groundless and the judgment in favor of a defendant, based upon such evidence, in the face of a clear record title in plaintiff, will be reversed.
    Appeal from Douglas Circuit Court. — Roto. John T. Moore, Judge.
    Reversed.

      Bukhhead & Clarke for appellant.
    If the outstanding title would defeat plaintiff as to part of the land it would do so as to all of it, and if plaintiff was entitled to recover at all, he certainly was entitled to recover all the land. From the conclusion there is no escape. The finding was simply a pandering to both sides. It is the recognized law in this State that a mortgage of real estate is merely a security for a debt, and so remains even after conditions are broken. Until there is a sale under the mortgage, the mortgagor is the beneficial owner. Logan v. Railroad, 43 Mo. App. 71. Until default in the payment of the debt or interest, or the breach of some other condition contained in the mortgage, the mortgagee is not entitled to the possession. Kennedy v. Dodson, 44 Mo. App. 552; Brown v. Hawkins, 54 Mo. App. 75. If the mortgage debt was barred by the Statute of Limitations, then, under Sec. 4272, R. S. 189i9, Reynolds’ heirs had no title and conveyed none.
   GANTT, P. J.

This is an action of ejectment in statutory form, in the circuit court of Douglas county, to recover the possession of the west half of the northeast quarter and northwest quarter of southeast quarter of section 23, township 27, range 18, in Douglas county, Missouri. The defendant, Samuel Bookout, in his answer, admitted his possession of all the lands in the petition described as the tenant of McDonald Swearingin and further said not. Defendant W. A. Swearingin in his answer disclaimed ownership or possession of any of said lands. The cause was tried to the court without a jury and judgment was rendered for plaintiff for the northwest of the southeast quarter of section 23, township 27, range 18, except the northeast quarter of the said northwest quarter of the southeast quarter of said section, and judgment for the defendants as to the west half of the northeast quarter of said section 23. Prom the judgment in favor of defendants, the plaintiff, after unsuccessful motions for a new trial and in arrest, appealed to this court.

Part of the eighty acres in controversy was originally purchased directly from the United States and the other portion was selected and proved up as a homestead prior to 1874. By mesne conveyances the title vested in W. A. Swearingin.

On November 29, 1889, J. A. G. Reynolds conveyed the west half, northeast quarter, section 23, township 27, range 18, to William A. Swearingin in satisfaction of deeds of trust held by him thereon. The verbal testimony established that William A. Swearingin had been in possession, exercising ownership over said lands for more than twenty years; that Samuel Bookout was the son-in-law and tenant of William A. Swearingin, and was in possession of this tract at the commencement of this action. William A. Swearingin’s title passed by foreclosure of deed of trust executed by him to Andrew Swearingin, and by deed of Andrew to William R. Swearingin in July, 1905. It -would seem that on the trial the defendant Bookout attempted to establish an outstanding title in McDonald Swearingin, a son of William A. Swearingin.

To establish this outstanding title the defendant Bookont offered M. C. Reynolds as a witness, who testified that “he was a son of J. A. Gr. Reynolds; that his father held four trust deeds against this land, together with a lot of other lands, and in a settlement of the consideration of said trust deeds, as he understood it, W. A. Swearingin still owed his father about one hundred dollars and his father refused to release one of the trust deeds until the one hundred dollars was settled and W. A. Swearingin has never settled the one hundred dollars to his knowledge. He and the other heir's some time ago made a quitclaim deed to the land in question to McDonald Swearingin for which he was to pay one hundred dollars.”

On cross examination, this witness stated that neither J. A. Gr. Reynolds nor his heirs nor any one of them ever had possession of this land, and had never paid any taxes on it. It is obvious that if plaintiff was entitled to recover any of this land, he was entitled to recover all of it. The defendant Book-out does not deny plaintiff’s right to possession. He merely says he is in possession as the tenant of McDonald Swearingin.

While plaintiff of course must recover upon the strength of his own title, and not the weakness of defendant’s title, when he established by one and the same evidence his title to a part of the land, it is inconceivable that the court should adjudge him title to a part and deny him title to the remainder.

The attempt to establish an outstanding title in McDonald Swearingin was utterly groundless. It was based upon pure hearsay that a deed of trust executed by W. A. Swearingin in favor of J. A. G. Reynolds was unsatisfied. No such deed of trust was offered in evidence. It [was not shown when, if ever, it was executed, nor what amount it secured, nor when the debt was due. The witness did not pretend to know whether any part of the debts once owed by William A. Swearingin to J. A. Gf. Reynolds remained unpaid.

J. A. Gr. Reynolds was never in possession of the land, nor were his heirs. Obviously as far as the record shows, J. A. O. Reynolds had no title which he or his heirs could convey to McDonald Swearingin. In the face of the quitclaim acknowledging full satisfaction of the only deeds of trust which were shown to have existed, this very flimsy, hearsay testimony amounted to no substantial evidence of an outstanding title in McDonald Swearingin. But, as already said, if it was good enough to defeat plaintiff’s recovery of a part of the land, it was good as to all.

The judgment was inconsistent and illogical and in the face of the title as shown by the various deeds in evidence, and it is accordingly reversed as to that part which gave judgment for defendant.

Burgess and Fox, JJ., concur.


text:
    ALICE E. SEGER v. GEORGE O. ABINGTON et al., Appellants.
    Division Two,
    March 30, 1909.
    EJECTMENT: Erroneous Verdict: Appeal Without Merit. The evidence showed that the rental value of the 15 -acres of land was from $2 to $3.50 per acre, and the verdict for plaintiff recited “that the value of the monthly rents and profits is nothing — improvements equal rents and profits.” It is conceded that the verdict was erroneous as to plaintiff and the court in accepting it confirmed the error; hut no harm has come to defendants from that error, and the only harm that can come to them is the anticipated one that it may he pleaded as res adjudicata in a subsequent suit by them for the value of their improvements. Held, that plaintiff is not responsible for the error, and to reverse the judgment upon defendants’ appeal and involve the parties in another trial for the small amount involved would be a travesty upon justice.
    Appeal from Butler Circuit Court . — Hon. J. G. Sheppard, Judge.
    Affirmed.

      Abington & Phillips for appellants.
    The verdict of the jury and judgment based thereon attempting to settle the question of the value of the improvements made by defendants in- good faith was erroneous and should have been set aside. Henderson v. Langley, 76 Mo. 226; McClannahan v. Smith, 76 Mo. 428; Russell y. Defrance, 39 Mo. 506; Malone v. Stretch, 69 Mo. 25; Railroad v.- Shortridge, 86 Mo.-665; Koch v. Hawkins, 40 Mo. App. 684; Pierce v. Rollins, 60 Mo. App. 497;' Tice v. Flemming, 173 Mo. 57; Bristol v. Thompson, 204 Mo. 369.

      David W. Hill for respondent.
    '(1) If any error was committed, as a result of the informal verdict, it was committed against respondent and in favor of appellants, of which appellants cannot complain. Sec. 865, R. S. 1899; McGuire v. Nugent, 103 Mo. 172; Logan v. JTield, 192 Mo. 70; School District v. Holmes, 53 Mo. App. 472. (2) This •court will not reverse any judgment when it is clear that a retrial would cost more than the amount in-® volved. Porter v. Harrison, 52 Mo. 524.
   GANTT, P. J.

This is an appeal from the Butler Circuit Court, in an ejectment suit, for an undivided two-ninths of lot one of the northeast quarter of the southeast quarter of section 33, township 22, range 5, in Butler county, and for one hundred dollars damages for the withholding, and two dollars monthly rents and profits from the rendition of the judgment.

The' answer admitted possession and denied all other allegations of the petition.

The cause rwas tried to a jury and resulted in a verdict for plaintiff for possession and one dollar damages, and judgment accordingly. The verdict was in these words: “We, the jury, find the issues in this case for plaintiff, that she is entitled to an undivided two-ninths of the land described in the petition and assess her damages at one dollar and that the value of the monthly rents and profits is nothing — improvements equal rents and profits. William Ferguson, Foreman. ’

The only error assigned for reversal of the judgment is that portion of the verdict which finds “improvements equal rents and profits.” It is agreed that the matter of improvements, if any, was not involved either in the pleadings, evidence, instructions of the court or argument of counsel. The evidence tended to establish that there are about fifteen acres of the land in cultivation and its rental value was from $2 to $3.50 per acre per year.

It is obvious that in failing to fix the value of the monthly rents and profits to which plaintiff was entitled the jury committed error against the plaintiff, and the court in accepting the verdict in that form confirmed the error against plaintiff. It is not contended that any harm has occurred to defendants in this case from this informal finding, but defendants anticipate that it may be pleaded as res judicata in a subsequent suit by them for the value of their improvements on said land.

To reverse this judgment and tax the costs of this appeal against the plaintiff for this informality in the verdict, for which she is in no manner whatever responsible, would be a travesty upon justice and our administration of law, and involve these parties in another trial which, would cost them more than the amount involved. The only error in the record is one against the plaintiff and of that the defendants cannot complain.

There is no merit in this appeal and the judgment is affirmed.

Burgess and Fox, JJ., concur.


author: BURGESS, J.

text:
    T. COLE POWELL and J. H. POWELL v. L. B. POWELL, J. R. BREWER and J. J. WILLIAMS, Appellants.
    Division Two,
    March 30, 1909.
    1. VENDOR’S LIEN: Assignment: Agreement to Collect: Revocation. The owner of land sold it by warranty deed, reserving therein a vendor’s lien. The purchase price not being paid, the vendor, by written instrument, assigned said vendor’s lien, without consideration, to his sons, the plaintiffs, and afterwards stated to them that he thought he had given to them more than their share, and that they should collect the money, retain twenty per cent for their expenses, and divide the proceeds between themselves, and the assignment was placed in the hands of attorneys preparatory to bringing suit. Thereafter the same vendor made another written assignment to another son, a defendant, and also a quitclaim deed for a valuable consideration, and with notice, and this son represented to the attorneys that his father had directed him to call for the former assignment, and when it was delivered to him, he sold about one-half his interests in the lands to the other two defendants, and all brought suit on the vendor’s lien for the deferred unpaid purchase money, obtained judgment, and at the sheriff’s sale one of the other two bought the lands, but paid to the sheriff only the costs. These two defendants testified that they knew" nothing of the prior assignment until after they had bought an interest in the subsequent one. Held, that if the first assignment to plaintiffs were simply a contract to collect it was revocable at any time, and was revoked by the subsequent assignment and quitclaim deed; but there is evidence that it was an executed assignment without condition, and the chancellor’s finding that it was such will not be disturbed. Held, also, that the court properly vested in the prior assignees all the right, title and interest of the subsequent assignees in the former judgment.

      2. -: -: Innocent Subsequent Assignee. An assignee in a subsequent assignment, with notice of a prior valid assignment, does not buy in good faith, and takes nothing by such assignment.
    3. -: Suit by Subsequent Assignee: Knowledge of Former Assignee: Estoppel. The fact that the first assignees of the vendor’s lien knew of a subsequent assignment to defendants, but made no claim to the lands or any interest therein until after these subsequent assignees had obtained judgment against the vendee on his contract of purchase, does not estop them from seeking to appropriate said judgment to their own use. Not being parties to that suit, they did not cause the subsequent assignees to change their position, and did not in any way mislead them.
    4. -: New Suit. Where.the subsequent assignees of a vendor’s lien, under an invalid assignment, with notice of the prior assignment, seized upon and sold the land for the payment of the vendee’s debt, the prior 'assignees under a valid assignment are not required to assert their rights against the land in a new and different suit against the vendee, but they may appropriate the judgment in favor of the subsequent assignees against the vendee.
    5. -: -: Appropriation of Judgment: Setting Aside Deed: Projecting Title Into Prior Assignee: Subrogation. Where the subsequent assignee of a vendor’s lien, with notice of a prior assignment, also obtains a quit-claim deed from the vendor, brings suit against the vendee for the amount of his debt, and obtains judgment, the court, in a suit by the prior assignee, to divest out of the subsequent assignee all his right, title and interest in that judgment and to vest the same in plaintiff, may set aside that quit-claim deed, and may give the prior assignee the full benefit of that judgment, and in doing so it does not project the title obtained by the subsequent assignee into the prior assignee, but simply holds the quit-claim deed for naught, and being a court of equity it exercises its powers to do complete justice and grant full relief. The question is not one of either legal or conventional subrogation.
    6. -: -: -: Necessary Parties: Subsequent Purchasers From Vendee. And the prior assignee’s right to appropriate the judgment against the vendee and his grantee, in the suit brought against them by the subsequent invalid assignees, is not affected by the fact that such vendee and subsequent grantee are not made parties. It is of no consequence to the vendee or his grantee who has the right to collect the judgment on the vendor’s lien.

      Appeal from Dunklin Circuit Court. — Non. .J. L. Fort, Judge.
    Affirmed.

      J. R. Brewer and W. S. C. Walker for appellants.
    (1) The assignment of T. Cole Powell, Jr., and J. H. Powell by T. C. Powell, Sr., was merely for collection, and was therefore revocable, and was revoked. Bnrke v. Priest, 50 Mo. App. 310; Creen v. Cole, 103 Mo.' 70. (2) There was and is no warrant in law for the attempted subrogation of respondents herein to the rights of appellants herein, in and to the judgment obtained by appellants against Canaday. Subrogation is the substitution of one person in place of another, whether as a creditor or as the possessor of any other rightful claim, so that he is substituted to the rights of the other in relation to the debt or claim, and its rights, remedies or securities. 27 Am. and Eng." Ency. Law (2 Ed.), 202; Leavitt v. Railroad, 90 Me. 160; Jackson Co. v. Mutual Ins. Co., 139 Mass. 508. Subrogation is either legal, that is, given by law, or it arises out of conventions or contracts. Legal subrogation is allowed only in cases where the person advancing money to pay the debt of a third person stands in the situation of a surety, or is compelled to pay the debt to protect his own right. Conventional subrogation results from an agreement made either with the debtor or creditor that the person paying shall be subrogated. 27 Am. and Eng. Ency. Law (2.Ed.), 202; Bank v. Thompson, 61 N. J. E. 193.

      C. G. Shepard and Sam J. Corbett for respondents.
    (1) The first contention of appellants is that “the transaction between T. Cole Powell, Sr., and T. Cole Powell, Jr., and J. H. Powell, with reference to the contract involving the vendor’s lien amounted only to an agreement to have them collect said cause of action, and might he revoked, especially Where no time limit had been agreed upon for them to hold said claim for collection.” The above proposition is appellants’ present theory of the case, and if the facts conformed to that theory, then we admit that their contention of right to revoke would be correct, but respondents most earnestly insist that the evidence in this case is all the other way. (2) The third contention of appellants is that “respondents herein knew of that purchase, and made no claim to the lands or any interest therein until after appellants herein had obtained the judgment against Canady, on the contract. And now seek to appropriate that judgment to their own use.” We take it that appellants mean to say that respondents have been guilty of such laches as to bar their right of recovery. In this we think learned counsel for appellants is wholly in error. The fact is, both T. C. Powell and J. H. Powell claimed to be the owner of this vendor’s lien at the trial between these defendants and J. W. Canady. Then the defense that a claim is stale is purely an equitable one, and unless there is some natural justice back of it, a court of equity will not entertain it. Bucher v. Hohl, 199 Mo. 320; Haarstick v. Gabriel, 200 Mo. 237; St. Louis Deposit & S. Bank Co. v. Kennett Est., 101 Mo. App. 370. (3) Appellants’ fourth contention is that “if respondents have any title to, or interest in, that contract, or any right thereunder, they should assert them against the land in a suit against Canady and the others interested in. said lands.” These appellants had seized upon and sold this very land for the payment of this very debt; then why should Canady be harrassed further, or these respondents attempt the useless thing of trying to recover these lands until this proceeding was set aside? To remedy just such frauds as this is one of the main objects of a court of equity. Wadding-ton v. Lane, 100' S. W. 1139’; Fitzpatrick v. Stevens, lié Mo. App. 497. (4) Courts of equity delight to do complete justice — they do not take two bites at one cherry. Harrison v. Craven, 188 Mo. 590; Hagan' v. Bank, 182 Mo. 319; Baker v. McDanniels, 178 Mo. 447; Evans v. Railroad, 64 Mo. 462.
   BURGESS, J.

This is a proceeding in equity, instituted in the circuit court of Pemiscot county, for the purpose mainly of divesting out of the defendants all of their right, title and interest in and to a certain judgment previously rendered in said circuit court, and investing the same in plaintiffs herein. Upon application for change of venue, the cause was transferred to the circuit court of Dunklin county, where trial was had and a decree entered in favor of plaintiffs, from which decree the defendants have prosecuted this appeal.

The facts developed at the trial of the cause are as follows:

T. C. Powell, father of plaintiffs T. Cole and J. H. Powell, and of defendant L. B. Powell, was owner of several large tracts of wild timber land in Pemiscot county, Missouri, and resided in Tennessee, just across the river from the city of Caruthersville, Pemiscot county, in which city lived his said three sons. On the 6th day of May, 1896, he and one J. W. Canady entered into a contract, in the nature of a warranty deed, by which he conveyed to said Canady lands owned by him in Pemiscot county, and described as the west half 'of section 13, all of section 14 except the" north half of the northeast quarter, the north half of section 23, the east half of the southeast quarter of section 12, the northwest quarter of section 12, the north half of the northeast quarter of section 12, all of section 15, all in township 17 north, of range 12 east; retaining in said conveyance a vendor’s lien on said lands for the purchase price of five dollars per acre. Canady paid five hundred dollars of the purchase price, and went into possession of the lands, and began cutting and removing the timber thereon.' He made some o fcher small payments to Powell, also paying some back taxes, and failed to make further payments.

In the latter part of the year 1900' T. C. Powell made an assignment of said vendor’s lien to his sons, J. H. and T. Cole Powell, and delivered same to Dinning & Bragg, attorneys, in the city of Caruthersville, stating to them that said contract and vendor’s lien had been assigned by him to the said parties, and that T. Cole Powell would arrange about making bond for suit if suit should be found necessary. Later, T. Cole Powell called on said attorneys, and suggested that suit should not be brought at that time. It also appears that T. Cole Powell, at that time or later, took the paper out of the. possession of said attorneys, went to the office of C. B. Farris, another attorney of the city of Caruthersville, and consulted him about the matter of bringing suit to enforce the lien, and Mr. Farris having informed him that' he could Mot undertake to bring suit for him for the reason that the interests of other clients of his would be affected thereby, he returned the paper to attorneys Dinning & Bragg, Mr. Farris testified that he examined the contract and vendor’s lien at the time, that his recollection was that the assignment was in the ordinary form and that the same was properly acknowledged.

On February 13, 1902, defendant L. B. Powell, who was known as Bunk Powell, procured from his father, T. C. Powell, a written assignment of all his right, title and interest in and to the contract and vendor’s lien which had previously been assigned by T. C. Powell to the plaintiffs, and at the same time procured from him a quitclaim deed to all the lands mentioned in said contract. As to this transaction the testimony of A. P. Campbell and his wife, who were living at the time with T. C. Powell, was to the following effect: Bunk Powell came to see the old man two or three times for the purpose of purchasing this contract and vendor’s lien from him. The old man explained to him that he had already assigned the contract and lien to his sons, J. H. and T. Cole Powell, and that he could not assign the same to him except subject to their approval, or unless he could procure the paper from them. To this Bunk replied, ‘ ‘ All right; I can get it from them myself. ’ ’ Campbell drew up the assignment and deed, and his understanding was that Bunk was to pay the old man $2,250 as consideration therefor, but he did not know 'whether he ever paid that sum. He did know, however, that Bunk afterwards gave the old man some horses, mules and old wagons. On being asked if he was present when the papers were signed and delivered to Bunk by his father, witness Campbell replied, “No, sir; tire old man was very ill at the' time this trade was made, and Bunk rode off to get a notary — drove off in a run nearly — and he got back there, and they got it signed up some time that night.” In the course of a conversation between Campbell and Bunk a few weeks after the trade was consummated Bunk informed witness that J. R. Brewer and J. J. Williams, defendants herein, were interested with him in the trade, and remarked, “I am out nothing; Mr. Williams puts up.so much money and Mr. Brewer does the lawing, and I get one-half of what we get out of it.” Campbell had a conversation also with T. C. Powell after the assignment to Bunk, and the old man remarked that Bunk was buying against chances, and that if he did not get the papers from the other parties, he was out. Mrs. Annie Campbell, wife of witness A. F. Campbell, testified that at the time the deal'was made the old man told Bunk Powell that he would assign the lien to him if he would obtain from T. Cole and J. H. Powell their interest in it. She copied the written assignment to Bunk Powell in a book at T. C. Powell’s house. Other testimony showed that after the death of T. C. Powell, which occurred in August, 1903, Bunk Powell had charge of all his books and papers, and that before this trial the leaves of the book containing said copy of the assignment had been torn out.

With reference to the transaction with his father, Bunk Powell testified that he paid his father, as consideration for the assignment to him of the lien, $500 in cash, also delivered to him six horses, one mule, a log wagon outfit, a road wagon, and paid $104 on a note owing by him. In all, he paid him $1,550, or its equivalent. He further testified that it was his understanding that the assignment to Cole and J. H. Powell was merely for the purpose of collecting the debt secured by the lien, and that they were to get ten per cent of the amount collected; that after the assignment to him, J. H. Powell wrote him a letter in which he offered to sell him his interest in the contract and lien for $500. This letter, however, was not produced by the witness.

Upon procuring said assignment from his father, Bunk Powell went to the office of Dinning & Bragg and stated that he had made a trade with his father and that his father sent him for the contract and vendor’s lien which had been assigned to T. Cole and J. H. Powell, whereupon he was given possession of the papers. Thereafter, on April 4, 1902, he transferred and assigned to his codefendants, J. R. Brewer and J. J. Williams, for a consideration of $2,000, a forty-eighty-third interest in the debt and vendor’s lien assigned to him. Suit was then instituted by the defendants in the Pemiscot Circuit Court to enforce the vendor’s lien against the lands in question, said- suit being styled “L. B. Powell, J. R. Brewer and J. J. Williams vs. J. W. Canady and William Hunter.” Trial was had on the 1st day of August, 1903, and judgment in the sum of $16,275.50 rendered in favor of the plaintiffs, defendants herein, which judgment was declared to he a lien upon said lands and the lands ordered sold, in obedience to which order the sheriff of Pemiscot county, -at the next term of said court, sold the lands to satisfy said judgment, J. R. Brewer becoming the purchaser thereof for himself and codefendants; but he paid to the sheriff only a sum sufficient to pay the costs of suit and the sheriff’s, fee for selling, the balance of the purchase price being1 credited on the judgment. It appears that after Canady purchased the land from T. C. Powell, as above mentioned, he sold the west half of section 13, in township 17, range 12, to Wm. Hunter, one of the parties defendant in said suit, who appealed from the judgment in said cause as affecting the said west half of section 13, claimed to be owned by him. This half section was, therefore, not sold at the foreclosure sale, but all the balance of the land was sold by the sheriff and bought in by J. R. Brewer, and the same was held by him for himself and his codefendants at the time of the trial of this cause.

Defendant J. R. Brewer testified that he had no knowledge that T. Cole and J. H. Powell had any interest in the property or lien until after the 4th day of April, 1902, when the forty-eighty-third interest in the lien was purchased by himself and Williams; and Williams, in his own behalf, testified to the same effect. ¡

Samuel J. Corbett, an attorney, testified for plaintiffs that in the fall of 1901 or spring of 1902 he had' a conversation with defendant Brewer with reference-to some trouble which Brewer had had with Canady respecting the land in controversy, during the course-of which conversation Brewer said that in order to-get even with Canady he would get Bunk Powell to> buy the contract and vendor’s lien from old man Powell, and he would then break Canady up-that witness remarked, “That will do you no good, because the contract lias already been assigned to Bad and Cole Powell,” whereupon Brewer said that didn’t make any difference, as they had never paid a thing for it. Brewer, on the witness stand, denied that he had ever had any conversation with witness Corbett such as related by him.

A transcript of the testimony of T. Cole Powell and J. H. Powell taken in the case of L. B. Powell, J. E. Brewer and J. J. Williams vs.. J. W. Canady and Wm. Hunter, wherein they appeared as witnesses, was introduced in evidence in this case by the defendants. This showed that J. H. Powell, while being examined touching his interest in the vendor’s lien in question, testified as follows:

“Q. What did you and your brother Cole pay for this — anything? A. No, sir. Q. What were you to pay for it? A. We were just simply to take it and collect it, and we were to get twenty per cent. Q. You never attempted to collect it? A. The reason We didn’t, he asked us to wait.”

T. Cole Powell’s testimony, as shown by said transcript, was as follows:

“Q. You never paid T. C. Powell anything on this? A. No, sir. Q. You simply was to get part for collection? A. He didn’t say what, just handed it over for value received. Q. You didn’t pay anything, and wasn’t to get anything except what you get out? A. That part was not explained to me. Q. You simply was to collect for part of it? A. Nothing was said about that.”

As explaining his testimony aforesaid, J. H. Powell testified at the trial of this cause as follows:

“Q. You testified in the case of L. B. Powell et al. vs. Canady et al., in Pemiscot county? A. Yes, sir.
“Q. I will ask you if your testimony in that case relative to holding this contract for collection or otherwise — did you testify relative to that? A. Yes, sir; I think that is the way the deposition read.
“Q. Now, state fully what you meant at that time? A. "When the paper was given to us, or assigned to us, it was a present, and afterwards father complained that he was doing too much for us, and then insisted we keep it for collection.
“Q. "Was T. Cole Powell, your brother, present at any time during the conversation with your father in which the matter of that assignment was brought up? A. No, sir, I don’t think he was,
“Q. I will ask you what you was to receive out of this matter? A. He said at first that he gave it to us, and the last time we talked about it he agreed he would pay us twenty per cent for collecting it— for attorney’s fees and trouble — and would divide the balance equally with me and Cole.
“Q. Your father first maade a straight-out assignment to you and your brother, and it became your property? A. Yes, sir.
“Q. And afterwards, feeling that he had given you quite a little sum, when the amount was collected he thought you ought to give him something back out of it? A. Yes, sir.
“Q. I will ask you if T. Cole Powell ever consented to this agreement you speak of between your father and you? A. No, sir.
“Q. He knew nothing of it? A. No, sir.”

After hearing all the evidence, it was adjudged and decreed by the court that the quitclaim deed from T. C. Powell to L. B. Powell be cancelled, set aside and for naught held, and that all of the right, title, interest and claim of whatsoever kind or nature of the defendants in and to the lands in controversy be divested out of them and invested in the plaintiffs; also that all the right, title and interest of the defendants in and to the judgment rendered in their favor and against J. "W. Canady and "William Hunter by the circuit court of Pemiscot county, on the 28th day of November, 1903, be divested out of them and invested in tbe plaintiffs in this cause. Tbe defendants duly filed motion to set aside the finding, judgment and decree of tbe court, and to grant them a new trial, also a motion in arrest of judgment, both of wbicb motions having been overruled, defendants appealed to this court.

Defendants ’ first insistence is that tbe transaction between T. C. Powell and bis sons, T. Cole Powell and J. H. Powell, with reference to tbe contract involving tbe vendor’s lien, amounted to nothing more than an agreement to have them collect said cause of action, and that said agreement could have been revoked at any time, there having been no stipulation as to tbe length of time they might bold said claim for collection. If tbe facts in evidence supported that theory of tbe case, then, as plaintiffs .concede, tbe contention as to tbe right to revoke would have been correct, but plaintiffs insist that tbe evidence not only does not support such contention but is all tbe other way. Tbe chancellor’s finding on this issue was in favor of tbe plaintiffs, and bis finding was well supported by. tbe evidence.

Tbe nest contention of defendants is that defendant L. B. Powell bought said contract in good faith, and sold to defendants Brewer and Williams in good faith, and that they became tbe owners of all tbe interest of T. C. Powell in tbe contract. Tbe evidence, we think, clearly shows that L. B. Powell was not a purchaser in good faith. He himself testified that be learned of tbe claim of T. Cole Powell and J. H. Powell before tbe deed to him was signed and acknowledged, at wbicb time be paid bis father four hundred dollars, having previously paid him one hundred dollars on tbe' contract; that before tbe transaction was consummated be told Brewer of tbe claim of T. Cole and J. H. Powell, and that Brewer advised him to go ahead and make tbe deal. It is, therefore, clear that be was not an innocent purchaser, and that he paid the money to T. C. Powell with full knowledge of the plaintiffs’ claim. While L. B. Powell testified that T. Cole Powell told him they were only holding the vendor’s lien for collection, he admitted, on cross-examination, that T. Cole Powell did not say that, hut that he simply said, “There is nothing in it.” The testimony of A. P. Campbell, Annie Campbell, C. E. Bragg and S. J. Corbett all goes to show that the purchase was not made in g;ood faith, or without notice of plaintiffs’ claim. It plainly appears that T. C. Powell, having previously assigned all his right, title and interest in and to said vendor’s lien to J. H. and T. Cole Powell, had no interest to assign to L. B. Powell, and it must needs be that nothing passed by such assignment.

It is also claimed by defendants that the plaintiffs knew of the purchase, but made no claim to the lands or any interest therein until after the defendants had obtained the judgment against Canady on the contract, and that they now seek to appropriate that judgment to their own use. This, if anything, is a plea of estoppel; but there is no element of estoppel in the ease. While T. Cole Powell and J. H. Powell claimed to be the owners of.this vendor’s lien at the trial between these defendants and J. W. Canady, they were not parties to that suit, did not cause the defendants to change their position, and did not in any way mislead them.

Defendants also contend, that, “If respondents have any title to or interest in that contract, or any rights thereunder, they should assert them against the land in a suit against Canady and the others interested in said lands.” In view of the"fact that defendants had already seized upon and sold this land for the payment of this same debt, we are unable to appreciate the force or merit, or even the plausibility, of such contention. To say the least, the manner of the attempt on the part of the defendants to obtain the title to this land is not to be commended. In the case of Waddington v. Lane, 202 Mo. 387, wherein the facts were very similar to those in the case at bar, the court divested the title to the property in dispute out of the party obtaining the same through fraud, and vested the title in the party justly entitled thereto, just as was done by the trial court in this case.

Defendants further insist that, “If the court had any power to set aside the deed from T. C. Powell to L. B. Powell, it could not undertake to project the title over and into T. Cole Powell and J. H. Powell, as they never claimed to have any deed; that if the court had any power to hold that defendants herein should not have obtained judgment against Canady and others, it did not have any power to transfer that judgment, improperly obtained, to T. Cole Powell and J. H. Powell, and that if it had the power to ascertain and decree that T. Cole Powell and J. H. Powell were the lawful owners of the contract with Canady, that is all that it could decide.” As to the first proposition, the defendants are evidently mistaken. The court did not hold that plaintiffs derived any title by or through the quitclaim deed from T. C. Powell to L. B. Powell, but that deed was by the decree of the court set aside and for naught held, and the court gave the plaintiffs the full benefit of the judgment theretofore obtained by defendants herein in their suit against Canady et al., in doing which it acted within the jurisdiction and bounds of a court of equity. In Baker v. McDaniel, 178 Mo. l. c. 474, Judge Fox, speaking for the court, said: “The rule that a court of equity, after once acquiring jurisdiction of a cause, will do complete justice and grant full relief, means that the court, keeping in view the purpose of the action, will reach out and adjust all equities necessary to give force and effect to the decree and remedy the evil sought to be corrected by tbe action.” In the case of Evans v. Railroad, 64 Mo. l. c. 462, the conrt said: ££A conrt of equity, owing to the flexibility of its powers, is not confined to a single method of affording redress, but will, as just seen, adopt that method of administering relief as will, without circuity of action, compel the party in default to do equity. ’ ’

Another insistence of defendants is that the circuit court had not power or jurisdiction to render this judgment, and could not have, unless and until the administrator of J. W. Canady, and the heirs of J. W. Canady, as well as William Hunter, were made parties to the suit. We cannot admit this contention. Canady and Hunter had each had his day in court, trial of the issues was had, with all parties represented, and Hunter appealed from the judgment rendered against him. Neither Canady’s nor Hunter’s interests were affected by this litigation. The cause of action against Canady and Hunter which the defendants, through fraud, procured from T. C. Powell, and upon which they obtained judgment against Canady and Hunter, was plaintiffs’ cause of action; and inasmuch as defendants have already brought suit upon that cause of action, and obtained judgment against Canady and Hunter, it would be an act of injustice as to the latter to set aside all the proceedings and put them to the additional and unnecessary expense of defending a new suit instituted against them by the plaintiffs, when such can be avoided, and complete justice done, now that all the necessary parties are before the court, by divesting the judgment obtained by these defendants out of them, and vesting said judgment in these plaintiffs, for whom, as it were, they hold it in trust. It is of no consequence to Canady or Hunter who has the right to enforce and collect this judgment. So far as this record discloses, neither of them has any interest in this litigation, nor are they, or either of them, here complaining. Besides, if the defendants believed it necessary, they could have made Canady and Hunter parties to this action, which, however, they did not choose to do.

Defendants further say, “There was and is no warrant in law for the attempted subrogation of respondents to the rights of appellants herein in and to the judgment obtained by appellants against Canady.” What we have already said is a sufficient answer to the proposition here intended to be stated. This is not a question or matter of either legal or conventional subrogation, nor was the case tried upon any such theory, nor does the word “subrogation” occur anywhere in the court’s decree.

The findings of the court were in accordance with the evidence, and the decree is eminently right and just. The judgment is affirmed.

All concur.