author: GrOODE, J.

text:
    WILLIAM ZOLLIE JONES et al. v. ELIHU PARK, Appellant.
    Division One,
    June 2, 1920.
    1. FOREIGN JUDGMENT: Constructive Notice: Binding Effect on Missouri Citizens: By What Law Construed. Whether the proceedings of 'a Kentucky court construing the will of a resident testator of Kentucky, 'probated in that state, were sufficient to give constructive notice to non-appearing devisees resident in Missouri, is to be determined by the laws of Kentucky, and not by the laws of Missouri.
    2. -: Power of Court: General Common Law Jurisdiction: An- • ciliary Matters. A court of a foreign - state, shown hy its statute to possess general, legal and equitable jurisdiction and to have cognizance of all cases not exclusively delegated to s.ome other tribunal, will be presumed to have Bad jurisdiction of the subject-matter of a suit brought by administrators of a will there probated, for the partition of the -lands belonging to the estate, the appointment of trustees needed to carry out the direction of the will regarding the estates devised, the investment of the.personality in land according to its directions, and for a construction of the will to make clear the duties of the administrators in carrying out the trusts it created.
    3. -: Jurisdiction of Subject-matter: Notice to Parties. Although all the personal and real property whose title would be affected by the judgment of the foreign court was before the court and within its territorial jurisdiction, notice, either actual or constructive, to the parties interested, was essential in order for the judgment to conclude them. But actual notice to non-resident parties is not required. '
    4. -: Constructive Notice: Proof of Statutes and Decisions. To establish jurisdiction of the Kentucky court to adjudicate the rights of Missouri citizens under a Kentucky will, attempted to be brought in by notice by an order of publication, the steps prescribed must have been substantially followed in order to justify a ruling that the notice was effective; and the Kentucky statutes which prescribed the steps to be taken must be put in evidence, in the trial in the Missouri court, of a suit brought to determine what title to Missouri land' bought by the proceeds of the Kentucky estate was acquired by the Missouri legatees and their heirs.
    5. -: -: Mailing Letter: Informing Non-resident of Nature of Action. Where the Kentucky statute required the warning attorney, appointed by the Kentucky court to represent certain nonresident defendants, to inform them of the nature of the action, a statement written and filed by him in which he states he had “written to said non-residents, duly informing them of the pendency of the suit,” does not show substantial compliance with the statute or that he had made any effort to inform them of the nature of the suit. And where the Kentucky statute required the plaintiffs in a suit to state in an affidavit, necessary to be made in order to obtain a warning order to non-residents, the post office nearest their place of residence, a statement by the warning-order attorney that he had written them and received no reply, without any information as to what post office he had addressed the letter, is not a substantial compliance with the statute.
    6. -: — : -: Court Decisions. Where the title to Missouri lands depends upon a Kentucky will and a judgment of a Kentucky court construing that will, decisions of the Kentucky court defining such words as “die without issue” and “die without leaving issue,” used in the will and vital in the construction of the will here, should be put in evidence, since the testator’s dispositions of his property were presumably made with the law of his domicile in mind, and his intentions should be ascertained in the light of that law.

      7. -: -: No Evidence of Statutes and Court Decisions: Remand for New Trial. Where a cause ought to be determined according to' the law of the foreign state, where the will out of which the controversy arises was made and probated, and the will was construed by a court of competent jurisdiction in that state before the proceeds of the estate were invested in real estate in this, in an attempted compliance with its decree, and neither the statutes of said state prescribing the methods of obtaining jurisdiction upon Missouri legatees who did not appear, nor the decisions of its courts defining the meaning of certain vital expressions used in the will, are put in evidence, the case will be remanded, in order that proof of such statutes and decisions may be made.
    8. -: Construction of Will: Law of Domicile. If the testator’s daughter, her only child and her husband were notified according to law to appear in the court of the foreign state in which his will was made and probated, then wherever the money willed to her, to be invested according to limitations contained in the will, was invested, the prior decree of' said court construing the will controlled the title of the investment. And if the notice was ineffective, and the estates taken under the will by her and her after-born child, and her husband after their death, must therefore be ascertained without reference to the decree, still the determination of their estates should be according to the law of the testator’s domicile.
    9. ---: Estoppel. Unless the remainderman was estopped to assert title to the land, her father, who claims through her by inheritence, is- not estopped.
    10. -: -: Joining in Deed: Minor. The fact that a minor daughter joined in a deed by which land devised to - her mother and the heirs of her body, and in case she died without issue, to the mother’s sisters, made fifteen years after a decree construing the will was rendered, was not such recognition of the decree as estopped her to assert title, as against such sisters, to other land acquired by proceeds of the sale through a deed reciting the terms of the decree in a suit of which she did not have notice.
    11. -: -: -: Nothing Done. If parties who assert estoppel have done nothing on the strength of the recognition of a decree of court by others who were not parties thereto, estoppel is not available to them.
    12. -: -: By Deed. A husband who joins his wife in a deed is estopped by recitals therein to claim title through her contrary to the effect of such recitals in the lands so conveyed, but- not in other lands.

      Appeal from Platte Circuit Court. — Hon. Alonso D. Burnes, Judge.
    Reserved and remanded.

      Hajf, Meservey, German S Michaels, Samuel D. New-kirk and Anderson & Carmack for appellant.
    (1) The court erred in admitting in evidence the decree of the Kentucky court construing the will, (a) Because there was no evidence that such court acquired jurisdiction of this defendant or Laura Park or Mary Park, as alleged in the petition. Roach v. Burns, 33 Mo. 319; Sevier v. Roddie, 51 Mo. 580. (b) Because the pretended notice to defendant of such suit by letter was not admissible under the pleadings, and such notice was insufficient and of no effect, both under the laws of Kentucky and the laws of this State. Murdock v. Hillyer, 45 Mo. App. 287; Preist v. Capatain, 236 Mo. 446; ^Stanton v. Thompson, 234 Mo. 7; Davis v. Montgomery, 205 Mo. 271; Schell v. Leland, 45 Mo. 289; Myers v. McRay, '114 Mo. 377; Tourville v.' Wabash Railroad Co., 61 Mo. App. 527. (c) Because the plaintiffs in this suit were not adversary parties in the Kentucky suit to this defendant and those under whom he claimed. McMahen v. Geiger, 73 Mo. 145; State Bank of St. Louis v. Bartle, 114 Mo. 276; O’Rourke v. Lindell Ry. Co., 142 Mo. 343; 23 Cyc. p. 1279. (d) Because the decision of the Kentucky court cannot determine the title to real estate In Missiouri. Applegate v. Smith, 31 Mo. 166. (2) The court erred in failing to find that Mary Park was seized of a vested estate and that Elihu Park is entitled to an undivided three-eights in the land by inheritance. Sec. 583, R. S. 1909; Cross v. Hoch, 149 Mo. 325; Small v. Field, 102 Mo. 104; Brooks v. Brooks, 187 Mo. 476; Griffith v. Witten, 252 Mo. 627; Sevier v. Woodson, 205 Mo. 202; Roth v. Rausehenbusch, 173 Mo. 582; Cornet v. Cornet, 248 Mo. 184; Tindall v. Tindall, 167 Mo. 218; Deacon v. St. Louis Union Trust Co., 271 Mo. 669; Armour v. Frey, 226 Mo. 646; Waddell v. Waddell, 99 Mo. 338; Chew v. Keller, 100 Mo. 362; Youcum v. Siler, 160 Mo. 281. (3) Defendant is not estopped by the recitals in the deeds. Shields v. McClure, 75 Mo. App. 631; Spurlock v. Sproule, 72 Mo. 503; Blodgett v. Perry, 97 Mo. 263; Crockett v. Morrison, 11 Mo. 3; Hempstead v. Easton, 33 Mo. 142. (4) The court erred in admitting in evidence the laws and statutes of Kentucky offered by plaintiffs. Flato v. Mulhall, 72 Mo. 522; Meyer v. McCabe, 73 Mo. 236. (5) The court erred in refusing to hold that the words, “die without issue,” in the codicil, referred only to the death of Laura Park prior to the death of the testator. Dameron v. Lanyon, 234 Mo. 627 ; 40 Cyc. 1712.

      Guy B. Part and A. D. Gresham for respondents.
    (1) As an original proposition, the fair and reasonable construction of the will and codicil, so far as it relates to the interests of Laura Park and her daughter Mary Pa'rk-Thompson, is-that Mary, having predeceased her mother, and Laura having died without issue living', the fee vests in her deceased sisters, or the children of her deceased sisters. R. S. 1909, sec. 2873; Gannon v. Pauk, 200 Mo. 75; Trust Co. v. Kirby, 255 Mo. 416; Collier v. Archer, 258 Mo. 383; Threlkeld v. Threlkeld, 238 Mo. 459; Armour v. Fry, 226 Mo. 646; Gannon v. Al-bright, 183 Mo. 238; Gibson v. Gibson, 239 Mo. 490; Monroe v. Collins, 95 Mo. 33; Haines v. Tolson, 73 Mo. 320; Cox v. Jones, 229 Mo. 53; Sullivan v. Garesche, 229 Mo. 476; Deacon v. Trust Co., 271 Mo. 669. (2) The defendant cannot question the title given by himself, or hold possession of the land in the face of his own deeds. Moss v. Ardrey,'260 Mo. 611; Orchard v. Store Co., 264 Mo. 563; Steel v. Culver, 158 Mo. 136; Herndon v. Yates, 194 S. W. 48. Nor can the consideration be inquired into by parol testimony. Pile v. Bright, 156 Mo. App. 301. (3) Where reliance is placed on a foreign judgment the presumption is that such court had authority to render the judgment in question, and that the necessary jurisdiction was acquired properly. Leiber v. Leiber, 239 Mo. 48; State ex rel. v. Williamson, 57 Mo. 192; Assurance Co. v. Waldron, 238 Mo. 61; Seymour v. Newman, 77 Mo. App. 578. Appellant apparently misconceives the purpose of the warning order under the statutes of Kentucky. The warning order under the statutes of Kentucky is itself the notice to and the service upon nonresidents, just as publication of notice in a newspaper by the court clerk is service of notice to nonresidents under the laws of this State. Under the Kentucky statutes, this warning order is published by the clerk by writing it on the back of the petition, instead of publishing it in a newspaper. Bank of Kentucky v. Hunt’s Heirs, 93 Ky. 75; Hoffman v. B rungs, 83 Ky. 405; Wilson v. Teague, 95 Ky. 47; Irish Bldg. & Loan Assn. v. Clemons, 78 Ky. 82; Brownfield v. Dyer, 7 Bush. 507. As a matter of comity, this court in construing that statute, will follow the rulings from the Supreme Court of Kentucky. Hand-' lin v. Burchett, 270 Mo. 118. (4) Defendant and those under whom he claims having adopted the decree of the Kentucky court construing the will and having acted thereon and in accordance therewith, defendant cannot now question its validity, force or effect. McCune v. Goodwillie, 204 Mo. 306; State ex rel. v. Homer, 164 Mo. App. 354; Cochran v. Thomas, 131 Mo. 277; Gulick v. Huntley, 144 Mo. 249. (5) The title of Laura Park to the Platte County lands was acquired by funds from the sale of the 138 acres deeded to her by the master commissioner, appointed by the court in the Kentucky suit, and by the money distributed to her by the trustee appointed by the court in that suit. Through them, her grantors, she acquires title. One claiming title to land is bound by a decree rendered against his grantor in a former suit, as to all matters of fact and law which were in issue in the former case. Foote v. Clark, 102 Mo. 394. If a party cannot make out a title, but by a deed or other instrument which leads him to a knowledge of another fact, he shall be deemed to have knowledge of that other fact. Loring v. Groomer, 110 Mo. 641; Hagerman v. Sutton, 91 Mo. 533.
   GrOODE, J.

This action was instituted against eight defendants besides the appellant Elihu Park, for the partition of 445.76 acres of land in Platte County, Missouri. As all the other parties submitted to the judgment of the court below, the appellant will be spoken of as the defendant, and as he acquiesced in the judgment in so far as it affected twenty-nine acres of the total number of acres involved, that parcel will be understood as not included, unless specially mentioned, when we speak of the lands affected by the judgment.

Elihu Park was the husband of Laura Park, who died June 6, 1916, owning the lands in suit. They were married in Kentucky, where Mrs. Park resided, November 8, 1871, and immediately thereafter came to Platte County, Missouri, where they lived until 1914. One daughter, Mary Park, was born to them October 4, 1874. She married Stuart Thompson, and died June 4, 1900, in the lifetime of her mother, leaving no children or descendants surviving her. Before her marriage Laura Park was.Laura Ragan (or Regan: the name is spelled boL ways in the record), one of the eight daughters of William Ragan, of Montgomery County, Kentucky, who died in 1881, leaving a last will, which was admitted to probate in the County Court of Montgomery County, December 21, 1881. The will was signed, published and witnessed September 2, 1867; but a codicil was added April 20, 1871. The eight daughters, who were the only children of the testator, were living at the dates of Ü. will and of the codicil; and six of them were then married; but Laura (after November 8, 1871, Laura Park) and Anna Eliza (later Anna E. Burchett, were unmarried. Portions of the will are not relevant to the points involved in the present appeal, except that they show the intention of the testator was to equalize the distribution of his estate among his daughters, and, with that statement o their effect, they will be omitted. The material parts are as follows:

"2nd. It is my will that my children Louisa Patterson, Mary C. Reid, Elizabeth Everett, Willie Benton, Sarah Bridges, Fannie Jones, Laura Ragan, Anna Eliza Ragan, shall have equally all my real and personal estate, but the lands shall belong to them and their children for their own separate use and benefit not subject to the control, debts or liabilities of their said husbands; and the same shall belong exclusively to my said daughters. It is my will that if any of my daughters should die, before or after I do, the portion so coming to my daughter to come to and belong to her child or children. . . .

"I will that my personal estate consisting of money, stock, bank stock, etc., shall be sold by my executors and be equally divided among my heirs, but the same shall be laid out in land by my executors, and the lands so purchased, with said money, shall belong to my daughters and their children for their separate use and benefit, but it is my will if my daughters Laura and Anna Eliza, or either of them are unmarried at my death, their portion of my personal estate shall not be invested in land, but the same put to interest by my executors, who shall manage the same and the interest paid annually to my said daughters, and this with their portion of my real estate (the rent thereof) I deem sufficient for their support, but after my said daughters’ marriage, or before if thev so desire, the said fund shall be vested in land as before named, my executor shall execute this trust, and the land so purchased shall belong to my said daughters exclusively, for their own use and benefit and their children.

"It is my will and desire that if the portion of land that falls to either of my daughters shall not be suitable to their condition, the same may be sold, but the proceeds invested in other lands, and no title pass to said land until the title to the land so purchased shall be vested in my daughters and her children, as aforesaid, i . .

"I hereby appoint and constitute Willis Bridges and N. P. Reid, my sons-in-law the executors of this my las will and testament.

‘‘ Given under my hand and seal this 2nd day of September, 1867.

“William Ragan (Seal). ‘

“Attest.

“Wm. Hoffman. j

“John W. Clay.”

The parts of the codicil which need to be considered are as follows: ■

“I desire to make this additional paper a codicil to the will executed by me on the 2nd day of September, 1867, and in the presence of Wm.- Hoffman and John W Clay. The same to be taken and considered a part of said will.

“1st. My son-in-law Willis Bridges being in extremely poor health and not able to take upon himself the labors of settling np an estate I hereby revoke his appointment as one of my executors, leaving N. P. Reid my sole executor. '

“2nd. My two younger daughters Laura and Anna Eliza Ragan being unmarried should either or both of them die without issue, I hereby will and bequeath her or their share of my estate to the surviving sisters and if any of them be dead, the children of such shall take their mother’s share, under the same limitation and restrictions that the original will conveys their share to them, viz., that it is to be their sole and separate property and not subject to the debts or control of any husban.. they now have or may have hereafter.

“3rd. If I should decide upon dividing my lands out among my children the portion given to each is to be , charged to her at such price as I shall fix upon it' and if any one of my daughters gets more than her share of my estate she is to make the rest equal to her by refunding-sufficient for that purpose. . . .

“Given under my hand and seal this 20th day of April, 1871.

“W. Ragan.

“Attest.

“Wm. Hoffman.

“B. A. Seaver.”

The executor named in the codicil refused to serve and so, on December 24, 1881, W. R. Patterson and W. II. Daugherty were appointed administrators with the will annexed. Said administrators and some of the persons interested as devisees and legatees provided for in the will, or as children of the devisees and legatees, filed a suit in the Circuit Court of Montgomery County, Kentucky, against the other persons interested as devisees and legatees, or as heirs of said legatees and devisees, for a partition of the lands whereof the testator died seized and which he had devised, and for a construction of the will in order to ascertain the interests of the various parties; also for the appointment of trustees to carry out testamentary directions, as far as trustees were required for that purpose.

Laura Park, her husband Elihu Park and her daughter Mary Park, who was unmarried and a minor at the time the suit was filed, were named as defendants. These defendants were neither residents of nor in Kentucky, but were residents of and in Missouri at the time the sub was commenced and there was no personal service of process on them. For that reason defendant Elihu Park asserts the decree rendered in the Kentucky case was not binding upon him or his wife Laura or daughter Mary, and does not affect the title to which he succeeded as the husband of his wife and as the heir of her and of his daughter in the lands sought to be partitioned in this action; but plaintiffs say defendant, his wife and their daughter Mary were made parties by constructive service obtained in accordance with the law of the State of Kentucky. At the foot of the petition in the Kentucky case, was this affidavit:

“State of Kentucky

Bath County

“W. R. Patterson and W. H. Daugherty say the statements of this petition are true.

“W. R. Patterson

“W. H. Daugherty.

“Subscribed and sworn to before me by W. R.

Patterson and W. H. Daugherty, March 14, 1882.

“T. H. Brown, Examiner Bath County, Ky.”

The affiants were the administrators of the will of William Ragan.

On the back of the petition were the following notations :

“William Ragan’s Administrators, etc.

v. Petition in Equity

“Elizabeth Everett etc.

“Filed in office and summons and sixteen copies issued to Montgomery County and summons and two copies issued to Fayette County. Warning Order entered and Atty Apdt. to defend.

“March 16, 1882.

John R. P. Tucker,

“C. M. C. C.

“Montgomery Circuit Court.

“William Ragan’s Administrator, etc. Plaintiffs,

v. Warning Order.

“Elizabeth Everett, etc. ' Defendants,

“The defendants Laura Park, Elihu Park, Mary Park, Fannie Jones, J. H. Jones and W. Z. Jones

‘ ‘are ,

“com

“next

“the

“W. A. Wilson, a regular practicing attorney of this court appointed to defend said non-residents, and he hereby accepts said appointment.

“Given under my hand as Clerk of the Montgomery Circuit Court, March 16, 1882.

“J. R. P. Tucker,

“M. C. C. C.”

This notation follows the last notation supra;

“The order appointing the Warning Order Attorney is mutilated and torn and the above is an exact copy as it now appears from said record now in my office.

“J. H. Blount,

“Clerk Montgomery Circuit Court, Ky.”

There was also an entry of record in the Kentucky case, under date May 25, 1882, that the attorney for the non-residents had filed a statement and was allowed five dollars to be paid and taxed as costs. The statement -of the attorney is as follows:

“The atty. for the non-resident defts. herein, viz.: Laura Park, Elihu Park, Mary Park, Fannie Jones, J. H. Jones and William Z. Jones, states that he has written to said non-residents, duly informing them of the pendency of this suit; that he has received no reply to such communication from said non-residents, or any of them.

“Wherefore he knows of no defense to make to this action and sees no reason why judgment should not be made, and prays the court to protect the interests of said non-residents.

“Wm. A. Wjlson,

“Attorney for Non-residents.”

A guardian ad litem was appointed for all the minor defendants, including Mary Park, and the order recited that they all had been duly summoned in this action. Said guardian ad litem answered denying knowledge of the truth or falsity of the allegations of the petition, admitting those beneficial to his clients and denying those that were prejudicial.

The portion of the decree material to the matter in hand is as follows: «

“It is not the duty of the administrators to sell any of the land, which may be allotted to any of the devisees out of the testator’s real estate, or to reinvest the proceeds in other lands, should the portion or portions allotted to any of the testator’s children be not suitable to their condition or should they desire it sold and reinvested as provided by the will, but this court has power and will appoint a trustee or commissioner for that purpose, who will be required to' be sworn and to execute bond with good security to faithfully discharge his duties. . . . Six of the testator’s children, viz. Louisa Patterson, Mary C. Reid, Sarah Bridges, Elizabeth Everett, Willie Benton and Fannie Jones, by the will take a separate estate for life in their respective shares in the testator’s estate and testator’s grandchildren by said children take a vested remainder in fee in their respective mother’s share subject to her said life estate. Two .oí the testator’s children, viz: Laura Park and Anna Ragan, take a separate estate for life in their respective shares in the testator’s estate, with the remainder in fee to the respective issue should they leave any, but if either dies without leaving issue, her share of testator’s estate passes to her surviving sisters in fee, or if any of them be dead, the children of. such take their mother’s share in fee.”

On June 5, 1882, a little more than a month after the decree and at the same term of the Kentucky court, William Mitchell was appointed trustee for Laura Park, to collect her share of the personalty from the administrator of the estate and to reinvest the same in real estate “with the title taken to said Laura Park for her separate and exclusive use, free from the control of her husband for and during her natural life and at her death the remainder in fee to her child or children; but in the event of the death of said Laura Park without having issue, then the title, to her share shall pass to her surviving sisters in fee, or if any of them be dead, the children of such to take their mother’s share in fee — said trustee will report his acts to this court in writing with a certified copy of such deed or deed as he may obtain in making such instrument” (sic). (Our italics.)

On December 14, 1882, at the November term of the Montgomery County (Kentucky) Circuit Court, final judgment in partition was rendered, confirming the report of the commissioners theretofore appointed, which report was that day filed, and showed the lands of William Ragan’s estate had been divided by the commissioners among the devisees according to the decree of the court. The court in its final judgment confirming said report, made slight changes in it to equalize the interests of the various devisees, and directed John Jay Comelison, who had been appointed master commissioner, to “execute deeds of partition conveying all the right, title and interest of the parties herein, legal and equitable, in accordance with the will of the testator as herein construed, for the respective lots as assigned ¡r , set in the report of division to the parties thereto entitled.’’The said master commissioner thereupon produced such deeds and they were acknowledged in open court, examined, approved and indorsed by the court and ordered to be recorded. The deed to Laura Park conveyed a parcel containing one hundred and thirty-eight- acres of land, which had been set apart to her by the commissioners in partition, as her share of her father’s real estate, and contained a habendum clause different from the provision in the order appointing Mitchell trustee, in that the land was to be held by Laura Park “for her sole and separate use and as her separate estate for and during her said life, not subject to the debts of her present or any future husband, with remainder in fee to the issue of her body, if she have any, but if she dies without leaving issue, the remainder in fee to pass to her surviving sisters, or if any of them be dead, the children of such to take their mother’s share in fee. ’ ’ (Our italics.) (The order appointing Mitchell said, “without having issue”).

The same land so conveyed to Laura Park, was conveyed by her, and- Elihu Park, her husband, and their daughter Mary (then Mary Thompson) and her husband Stuart Thompson, and H. B. Kinsolving, the trustee, selected by Laura Park to act under the will of her father, to Anna E. Burchett, formerly Anna E. Ragan, the daughter whose interest in the lands depended, as did Laura Park’s, on the codicil to their father’s will. This conveyance was dated December 31, 1897, and contained the same habendum clause as the one contained in the deed from the master in chancery to Laura Park. With the proceeds of this land and of Laura Park’s interest in the personal estate of her father, William Ragan, the land involved in the action at bar was purchased, except the aforesaid twenty-nine acres; and Elihu Parks says, except ninety-one acres more, for which he claims he paid part of the purchase price.

All but one or two of the deeds (which followed the language of the. order appointing Mitchell) conveying to Laura Park the lands involved in the present case, that were acquired from different vendors, contain this recital: “The consideration paid for this deed is part of a trust fund arising from the will of William Ragan, late of Montgomery County, Kentucky, who was the father of Laura Park, and said land by the terms of said will, is her separate estate for life, with remainder in fee to her issue, should there be any;' but if she dies with - out leaving issue, to vest in her surviving sisters in fee, or if any of them be dead, the children of such to take their mother’s share in fee.” (All italics ours.)

One of the deeds was made by the defendant, Elihu Park, directly to his wife Laura. It conveyed one hundred and sixty acres of land, recited a consideration of live thousand dollars and contained a habendum clause including the words ‘ ‘ without leaving issue, ’ ’ immediately following- the description of the land conveyed.

Another of the deeds, conveying land in Missouri to Laura Park (namely the deed wherein Oscar Wells was grantor) contained a habendum clause in this language: “To have and to hold the premises aforesaid with all and singular the rights, privileges, appurtenances and immunities thereunto belonging or in anywise appertaining unto the said party of the second part as her exclusive,' separate estate, free from any debts or interest or control-of her present or any future husband, for life, with remainder in-fee to-her issue,- if any survive her; if not-then to her sisters surviving her and the children of such as may be dead, forever.”

The court below in its decree in the present case, ascertained the.respective interests in the lands in controversy of the various parties to the action, but those findings need not be given except as they concern the rights of Elihu Park. Putting aside the ruling regarding his interest in the aforesaid twenty-nine acres, about which there is no controversy, the court found the remaining 416.76 acres, at the death of Laura Park, descended to and became the property of the various plaintiffs and defendants according to their respective interests as found by the court; except that the defendants.Elihu Park'and Stuart Thompson, the surviving husband of Mary Park, who, as said, was the daughter of Elihu and Laura Park, were decreed to have no right, title or interest in said 416.76 acres or any part thereof.

In rendering this judgment the court below gave effect to the decree of the Montgomery County (Kentucky) Circuit Court, construing the will and ordering partition of the lands of Williams Ragan’s estate, and held the Parks, husband, wife and daughter, were bound by said decree. Defendant, contending the decree was not binding on them, claims to own an individed three-eighths in fee simple in the 416.76 acres, upon the following theory: that Laura Park took a fife estate under the will of her father, with a vested remainder in her daughter Mary, after the birth of the latter. Mary Park married Stuart Thompson and died leaving him surviving; said Stuart under the law of Missouri inherited one-half of the interest of Mary Park in the lands in controversy; Laura Park, her mother, inherited one-fourth, and defendant Elihu Park the other one-fourth. At the death of the mother, defendant inherited one-half of her interest; that is, one-eighth, which, plus the one-fourth or two-eighths he had inherited from his daughter, vested in him an undivided'three-eighths. He also claims that as there was issue bom of his marriage with Laura Park, he is entitled to- an estate by the curtesy in the undivided one-eighth of Laura Park’s interest, which passed to her collateral heirs.

This appeal was taken by him from the judgment.

Other facts will be stated, if necessary, in the course of the opinion.

Junsdiction. We stated the facts in this case in full, for the purpose of disposing of the appeal on the merits. To do so it would be necessary to decide whether or not defendant, his wife and daughter, were affected by the de0£ Kentucky court, ascertaining- and defining the interests of the wife and daughter under the will of William Ragan; an inquiry the answer to which depends on the sufficiency of the steps taken to give constructive notice to the Missouri defendants of the pendency of the suit. Whether the proceedings to give notice were adequate for that purpose is a matter controlled by the law of Kentucky and not by that of Missouri. [13 Ency. Law (2 Ed.), p. 991; Monroe v. Douglas, 4 Sandf. Ch. (N. Y.) 126; Hunt v. Mayfield, 2 Stewart, (Ala.) 124; Cassidy v. Leitch, 2 Abb. N. Cas. 315.]

The Circuit Court of Montgomery County was shown by a statute of Kentucky, which was put in evidence, to possess general, legal and equitable jurisdiction-and to have cognizance of all cases not exclusively delegated to some other tribunal. [R. S. Ky. 1883, art. 8, sec. l.j This being so, it will be presumed to have had jurisdiction of the subject-matter of the suit brought by the administrators of the will of WURam Ragan for partition of the lands belonging to his estate, the appointment o' trustees needed to cárry out the directions of the will regarding the estates devised to the daughters, the investment of the personalty in land, and for a construction of the will to make clear the duties of the admin' trator in carrying out the trusts the testator had created, [Butcher v. Brownsville Bank, 2 Kan. 70; Specklemeyer v. Dailey, 23 Neb. 101; Leach v. Linde, 70 Hun, (N. Y.) 145; 13 Ency. Law (2 Ed.), p. 997 and citations in notes.] All the property, both real and personal (the res), title to which would be affected by the judgment in the suit, was before the court and in its territorial jurisdiction; but notice, either actual or constructive, to the parties interested, was essential to conclude them by a decree concerning their titles. [2 Freeman, Judgments (4 Ed.), secs. 556, 557, 611; Monroe v. Douglas, supra; Windsor v. McVeigh, 93 U. S. 279; Bradstreet v. Ins. Co., 3 Sumner, 594; Hassall v. Wilcox, 130 U. S. 493.] This rule has been applied in suits to partition lands when some of the owners were non-residents of. the states where the lands lay and the suits were brought. [Kreiger v. Sonne, 151 Ky. 739; Mason v. Messenger & May, 17 Iowa, 261, 270;] But though notice is required, actual notice is not. [Cases supra.]

“^ooi The plaintiff introduced in evidence certain sections of the Kentucky statutes to show constructive notice of the suit in the Montgomery Circuit Court was given to the three Park defendants therein; and plaintiffs have cited in their brief certain decisions of the Court of Appeals of Kentucky construing the statutes providing for a warning order to non-residents; construing also the appointment of an attorney “to make diligent efforts to inform” said defendants “by mail concerning the pendency and nature of the action against” them, as one of the statutory provisions reads. This method of notifying non-residents of litigation to which they were parties, took the place in Kentucky, at the time of the suit in Montgomery County, of notice by an order of publication, and the steps prescribed must have been followed substantially for the notice to be effective. [Carr’s Admr. v. Carr, 92 Ky. 552] Sections 57, 58 and 59 of Bullitt’s Code of 1883, were proved; but Section 60, which the Kentucky decisions hold fixes and determines the moment when jurisdiction is completely acquired by following the steps prescribed to notify a non-resident, was not proved. Nor were any of the decisions of the Kentucky Court of Appeals, which have adjudicated the effect of said statute, put in evidence, or their doctrines otherwise proved; and no stipulation was made that the relevant law of Kentucky might be noticed without proof of it. The question of whether there was notice to the Missouri defendants of the suit, if it shouiu be decided without the aid of the omitted Kentucky law, would be answered in the negative.

The statement filed by the warning attorney of what had been done did not show he had made diligent efforts to inform the Missouri defendants by mail of the pendency of the action, or that he had made any effort to inform them of its nature; but merely said he had written to them of the pendency of the suit and had received no reply. Nor did the statement say where he had addressed his letter, though Section 58 of Bullitt’s Code provided that, in the affidavit required to be made by the plaintiffs in a suit in order to obtain a warning order, should be stated the post office nearest the place where said defendants resided; no doubt for the purpose of having tin warning-order attorney communicate with them by correspondence addressed to that post office. Other sections of the Kentucky statutes bearing upon when the Monigomery court acquired jurisdiction of the Missouri defendants. so as to bind them by its decree, and the decisions construing those statutes, were they before us, might show'jurisdiction had been obtained so far as to make the decree good against attack in this collateral action. As to that we cannot decide in the condition of the present record.

Decisions Domicile Not only is the record deficient in the evidence needed to pass upon the question of jurisdiction, but no statute of Kentucky or other evidence of the law prevailing there, was put in evidence to elucidate, per- * % ? jl chance, the meaning of the words “die without issue,” and “die without leaving issue;” yet the effect of William Ragan’s will and of the Kentucky decree construing it, may depend on the meaning of said words as defined in the law of that state. This controversy ought to be determined by said law; for the testamentary dispositions made by William Ragan, presumably, were made with the law of his domicile in mind and his inter.tions should he ascertained in the light of it. [Ford v. Ford, 70 Wis. 19, 5 Am. St. Rep. 117; Staigg v. Atkinson, 144 Mass. 564.] Although we would he justified, perhaps, in deciding the case according to our own law, we have concluded to remand it to.the court below for a retrial, in order that the parties, if they desire, may make proof of any Kentucky statute or decisions which bear upon the questions involved.

The plaintiffs say Laura Park took by her father’s will, either a life estate, or at most a defeasible fee which terminated when she died without leaving surviving issue ; that therefore, regardless of the decree of the Montgomery Circuit Court, at Laura Park’s death, her daughter having pre-deceased her, the limitation over in the codicil to her surviving sisters and the heirs of any sister who was dead, took effect. We are cited to several Missouri cases supposed to support that proposition. We will not undertake to decide whether they do or not, but again say the matter should be determined by Kentucky law. The property disposed of by the will in favor of Laura Park was land and personal property directed to be invested in land for her when she married, or before, if she desired. This was an imperative direction and left the executors, or whosoever should execute the testamentary trust, no discretion. It was a conversion of the personal assets into land; at least upon Laura Park’s marriage. And in fact the personalty actually was invested in land. If she, her daughter'and husband were notified constructively of the Kentucky suit, then wheroever the proceeds of the property willed to her were invested, the decree in the suit controlled the title to the investment. [Monroe v. Douglas, 4 Sandf. Ch. (N. Y.) 126.] But even if the decree waá not binding, and the estates taken by her and her daughter under the will must be ascertained without reference to it, the determination as said above, should be according to the law of ttr testator’s domicile.

Estoppel - The proposition is asserted that defendant is es-topped to deny the Kentucky decree is controlling as to his interest in the lands in controversy, even if the notice attempted to be given therein to him, his wife and daughter was not effective. If that position is well taken, the decree ought to be given effect regardless of the question of notice. Whether or not it is well taken, turns on what was done by Mary Park subsequently to the decree, although plaintiffs say it turns, too, on what defendant and his wife Laura did. We have shown, in stating the facts of the case, that two-eighths of the title claimed by defendant is as a direct heir of his daughter Mary and one-eighth is as the heir of his wife, to one-half of a two-eighths interest alleged to have been inherited by his wife from their daughter. He also claims an estate by the curtesy in the other one-eighth interest his wife is alleged to have inherited from the daughter. Therefore the entire estate claimed by defendant is derived, either immediately or mediately, from Mary Park; and unless said Mary was estopped herself to deny'the binding force of the Kentucky decree as regards her estate in the lands involved in this action, the defendant is not estopped by reason of privity with her — is not estopped to claim partly by direct inheritance from her and partly from his wife, who had inherited from her. The fact relied upon to raise an estoppel is the sale and conveyance of the 138 acres of Kentucky land conveyed to Laura Park by John Cornelison, master commissioner, as the portion of the lands of the estate of William Ragan allotted to Laura Park by the commissioners appointed to make partition among the devisees of said testator. This land was sold to Anna E. Burchett and conveyed to her by a deed executed by H. B. Kinsolving, the trustee appointed to execute, for Laura Park, the power conferred in William Ragan’s will to dispose of the land devised to any of his daughters, if it became unsuited to her condition in life, and to reinvest the proceeds iu other land. Elihu, Laura and Mary Park, (then Mary Thompson) and her husband Stuart Thompson, joined with the' trustee Kinsolving in the execution of the deed to Anna E. Burchett. The land was conveyed fifteen years after the date of the Kentucky decree. Mary Park was a minor when the decree was rendered. Assuming that Mary Park was not notified of the suit by the warning order and hence was not bound by the decree, then, if there was no estoppel to prevent her from asserting her interest-in her grandfather’s estate, defendant stands in the same position in that regard, as he himself did nothing except to sign .said deed to enable his -wife to pass her title, [Gill v. Fauntleroy’s Heirs, 8 B. Mon. 177.] We hold the fact that Mary Park joined in the deed conveying the Kentucky lands did not estop her (as against the other devisees in the will) to deny that the decree defining her mother’s interest and her interest, determined her interest in the Missouri lands purchased with the proceeds of her mother’s portion of the property, real and personal, of William Ragan’s estate. When Mary Park signed said deed, probably she knew of the decree; but the act relied on was too slight and remote a recognition of the decree, if a recognition at all, to raise an estoppel. Moreover, it nowhere appears anything was done by the parties who claim against defendant in the present case, or those under whom said parties claim, on the strength of Mary Park having joined in said deed, which, would be prejudicial to the present claimants against Elihu Park were it not held Mary Park, and defendant Elihu, in asserting a title derived from her, were estopped to dispute she was bound by the decree. [State v. Laies, 52 Mo. 396.] If she was not constructively a party to the Kentucky suit, then her title and interest in the land in controversy here, should be ascertained by an independent construction of the will, but, as said above, according to the law of the testator’s domicile.

The case of McCune v. Goodwillie, cited by plaintiffs, is not apposite; for there the court held an Ohio judgment determined the rights of the parties to the suit in Missouri lands, because; if some of the parties had not been brought before the Ohio court (and really it was held they had been) they had all made partition among; themselves in pursuance of the Ohio decree (204 Mo. 306, 336). There was no partition among the devisees of William Ragan to carry out the the findings of the Kentucky decree; but only a sale of Laura Park’s land to Anna E. Burchett.

Possibly defendant is estopped by the recitals in the conveyance he made to his wife of some parcels of the «lands involved in this action, to assert an interest in those parcels, contrary to the effect of his recitals; but this question, as well as what the effect is, should be reserved for decision after the Kentucky law is proved, as the'force of some of the recitals turns on that law.

The judgment is reversed and the cause remanded.

All concur except Woodson, J., absent.


source: Caselaw Access Project

author: GRAVES, J,,

license: Public Domain

text:
    HERVEY H. SEDBERRY v. WILLIAM GWYNN.
    Division One,
    June 2, 1920.
    1. RECEIVER: Appointment: Matters Considered. On an appeal from an order refusing to set aside tbe appointment of a receiver, whéther tbe prior judgment in tbe suit to restrain defendant from selling to any other than plaintiff certain vulcanizers, and for an accounting, be considered final or interlocutory, it and the pleadings are competent upon the issues involved; but the facts which superinduced such judgment are not for review.
    2. APPEAL: No Formal Assignments: Points: Receiver. Although there is no formal assignment of errors, if under the heading of “Points and Authorities” there are specific charges that the court erred in the appointment of the receiver, and that is the only assignment that could properly be made, the appeal will not be dismissed for failure to comply with the rules.
    3. RECEIVER: In Aid of Injunction: Illegal Appointment. Where plaintiff sought and obtained (1st) the specific performance of an alleged contract between him and defendant for the sale of patented vulcanizers, (2nd) injunctive relief and (3rd) an order for an accounting, the accounting to be had before a referee, and no where in the pleadings are the business and property of the defendant sought to be placed in the hands of the court, but the ' pleadings and judgment show that defendant had a business of his own, separate and distinct from that of plaintiff, the court has no power, upon plaintiff’s subsequent motion, to appoint a receiver to take charge of the.assets and operate the business of defendant, for the manufacture and sale of said vulcanizers. Such appointment cannot be made (1st) because the statutes furnish ample powers for the enforcement of the court’s judgment restraining sales to others and requiring an accounting, and (2nd) because the property ordered to be turned over to the receiver is not involved in the litigation.
    Appeal from St. Louis City Circuit Court. — Hon. Victor H. Falkenhainer, Judge.
    Reversed (with directions.)

      J. D. Johnson for appellant.
    (1) The contract in suit was violative of Secs. 10398, 10299,10301, R. S. 1909, and amendments thereto; therefore, no suit could he legally maintained thereon. Sprague v. Rooney, 104 Mo. 349; Haggerty v. Storage Co., 143 Mo. 238; Kitchen v. Greenbaum, 61 Mo. 110; Downing v. Ringer, 7 Mo. 586. The interlocutory decree adjudging specific performance of said contract was likewise violative of said sections of the statutes; therefore, the lower court erred in making said order appointing a receiver and in overruling appellant’s motion to revoke the same. See: Pope-Turnbow v. Bedford, 147 Mo. App. 697; State ex inf. v. Lumber Co., 260 Mo. 212; Bank v. Glass Co., "243 Mo. 411; State ex inf. v. Standard Oil Co., 218 Mo. 382; Finek v. Granite Co.,-187 Mo. 244; State ex inf. v. Armour, 173 Mo. 382; State ex inf. v. Insurance Co., 152 Mo. 42; State ex rel. v. People’s Ice Co., 246 Mo. 221. The fact that said contract and decree dealt in part with a patented article does not in any way alter or avoid the operation and effect of said sections of the Missouri statutes. See: Boston Store Co. v. American Graph. Co., 246 U. S. 8, 62 Law Ed 551. (2) The lower court had no power to appoint a receiver, as it did in this instance, for the purpose of executing the interlocutory decree for specific performance of the contract in suit. Price v. Bankers’ Trust Co., 178 S. W. Rep. 749'; Blades v. Mercantile Co., 154 Mo. App. 353; 37 Cyc. 23; R. S. 1909, secs. 3881 and 2122. (3) The lower court had no jurisdiction over appellant’s property and business empowering it to legally appoint a receiver to take possession and operate the same as provided .in said order. Miller v. Perkins, 154 Mo. 638; State v. Ross, 122 Mo. 461; Price v. Bankers’ Trust Co., 178 S. W. 749. (4) In view of the fact that plaintiff under the provisions of said contract has the right to at any time terminate said contract as well as said decree,' the lower court had no jurisdiction in equity to decree specific performance of the contract, nor to make said order appointing a receiver. Marble v. Ripley, 71 U. S. 339; Taussig v. Corbin, 142 Fed. 666; Pullman Car Co. v. Railroad Co., 11 Fed. 625; Staunton v. Singleton,'47 L. R. A. 334; Federal Oil Co. v. Oil Co., 112 Fed. 376; Federal Oil Co. v. Western Oil Co., 121 Fed. 674; Sturgis v. Galindo, 59 Cal. 28; Fry on Spec. Performance, sec. 460, 461, 468. (5) Plaintiff had a complete and adequate remedy at law for the recovery of damages occasioned to him by the alleged breach of the contract in suit. Wilt v. Hammond, 178 Mo. App. 418; Young v. Tilley, 190 S. W. 95. Therefore, the lower court had no jurisdiction in equity to decree the specific performance of said contract, nor to make the order appointing a receiver. Koeurek v. Matychowiak, 185 S. W. 740; Houtz v. Hell-may, 228 Mo: 671; Marble Co. v. Ripley, 77 U. S. 339; 6 Pom. Eq. Jur. 748; 36 Cyc. 554, 556. (6) Neither the petition in the main case, nor plaintiff’s petition or application on which said order appointing a receiver was made, states facts sufficient to authorize the making of said order. The order was therefore invalid. Pullis v. Pullis, 157 Mo. 565; Cantwell v. Lead Co., 199 Mo. 42. (7) Said order appointing a receiver is contrary to and violative of Sec. 30, Art. II, Mo. Constitution, in that, if enforced, it would deprive appellant of his property and of liberty to conduct his business without the unlawful interference of others. Jones v. Yore, 142 Mo. 44.

      D’Arcy £ Neun and Rippey £ Kingslcmd for respondent.
    (1) The only question involved on this appeal is as to whether the order appointing the receiver was' providently granted under the facts set out in the application of plaintiff for appointment of a receiver. Abramskey v. Abramskey, 261 Mo. 117; Love v. Love, 145 111 App. 150; Naylor v. Sidener, 106 Ind. 179; Iron Hill v. Baker, 33 N. E. 1131. (2) The court had jurisdiction to appoint a receiver, both under the statutes, Secs. 2018, 2122, R. S. 1909, and also on general equitable principles. 1 Clark on Receivers, secs. 191, 192 and cases infra. (3) The case is one of equitable cognizance and the court had jurisdiction to decree specific performance and, as an incident thereto, to grant an accounting and to appoint a receiver, (a) Because the case is within the class involving peculiar subject-matter such as lands, articles covered by patents and copyrights, or other monopolized articles obtainable only from single source. Adams v. Messinger, 147 Mass. 185; Hapgood v. Rosenstock, 23 Fed. 86; Binney v. Annan, 107 Mass. 94; Paris v. Haley, 61 Mo. 453; Secret Service Co. v. Gill, 125 Mo. 140; 36 Cvc. 554; Baumkoff v. Railroad, 205 Mo. 262; St. Davids Parish v. Woods, 24 Ore. 396; 36 Gyc. p. 552, note 68; p. 558, note 27; p. 565, notes 49 and 50; p. 567, note 58; p. 559, note 34. (b) Because an injunction was necessary to enforce the negative covenants of the contract, preventing appellant from selling to other parties, which feature of the case, without more, of itself gives equitable jurisdiction. Pope-Turnbow v. Bedford, 147 Mo. App. 699; Schlitz Brew. Assn. v. Neilsen, 8 L. R. A. (N. S.) 494; Dickerson v. Canal Co., 15 Beav. 260; Huline v. Shreve, 4 N. J. Eq. 116; 3 Pomeroy, Eq. Jur. see. 1342; 2 High, Injunctions, sec. 1142. (c) Because the contract in suit created a confidential relation or trust between appellant and respondent, whereby the appellant became a trustee for the respondent to turn over to him all orders that might be received direct by the appellant. 39 Cyc. 182, note 66; 34 Cyc. 60, note 11; 1 Clark on Injunctions, secs. 127, 195; Pierce v. Finerty, 76 N. H. 48.
   GRAVES, J,,

This is an appeal from an order of the Circuit Court of the City of St. Louis, refusing to vacate a previous order appointing a receiver to take charge of defendant’s business. The pertinent facts are few. March 15, 1918, the plaintiff filed a petition in said circuit court, in which he prayed:

“Wherefore, plaintiff prays judgment that defendant may be decreed to deliver to plaintiff all apparatus, appliances and parts that may be ordered by plaintiff under said contract, and to otherwise fully comply with and -carry out the terms of said contract; that the defendant he enjoined from selling any of said apparatus, appliances or parts thereof to any person or persons other than plaintiff or from disposing of said inventions and patents to any third party, or from otherwise placing it beyond his power to comply with his contract with plaintiff; that defendant be enjoined from enticing away or interfering with or employing plaintiff’s salesman or in any other way interfering with or-injuring plaintiff’s business; that defendant be ordered to account to plaintiff, as provided in said contract, for all sums to which plaintiff is entitled on sales of said goods made by defendant as above set forth and for all other sums of money which may be due to plaintiff under said contract and for all moneys due to plaintiff which defendant has collected; that plaintiff may recover his costs herein, and for such other and further relief as to this Honorable Court may seem proper.”

By the petition it was charged that the defendant was the owner of certain letters-patent from the U. S. Government to use and vend certain vulcanizers, known as the “Gwynn-Bacon Vulcanizers;’’ that plaintiff had a written contract as to the sale of'- the same with defendant, who was manufacturing them; that defendant had declared that said contract was void, and was threatening to sell his business, including his patent, to another, so that plaintiff could not get from him the vulcanizers to carry on his (plaintiff’s) business in the sale thereof; that prior to defendant’s cancellation or ignoring of such contract, plaintiff had orders for goods which could not be filled bv him, but were being filled by defendant with plaintiff’s customers: that the conduct of defendant was destroying plaintiff’s business, which was dependent upon his contract with defendant.

The answer admitted that defendant was doing business under the name of “Gwynn-Bacon Vulcanizer Company,” which was accompanied by specific denials of many things charged in the petition. The answer admitted the execution of the' contract pleaded by plaintiff, but averred that certain provisions therein rendered said contract void, as one in restraint of trade.

Motion was made to strike out portions of the answer, which was sustained, which is duly preserved in a term bill of exceptions. Reply was a general denial. Such is a very general outline of the case made by the pleadings.

On May 19, 1919, a trial of the issues under the pleadings was had, and the court entered the following decree:

“Now on this day come the plaintiff and the defendant, and this cause being called for hearing upon the issues raised under the pleadings herein as to the right of plaintiff to an injunction against, and an accounting by, defendant, and the evidence of both plaintiff and defendant upon said issues having been introduced and heard by the court, and arguments and briefs of counsel for plaintiff and defendant, upon said issues, having been heard and considered by the court, and said issues having been fully submitted to the court for adjudication, the court thereupon finds said issues in favor of the plaintiff and against the defendant.

‘ ‘ The court further finds the facts to be as follows:

“1. That plaintiff and defendant are residents and citizens of the City of St. Louis, State of Missouri, and that defendant William Gwynn has been since on and before the filing of the petition herein, doing business in said city and state under the name and style of OwynnBacon Yulcanizer Company.

“2. That at all times mentioned in the second amended petition herein said defendant was and is the owner of a certain invention relative to pressure-closed electric switches, covered by letters-patent of the United States No. 1015225, dated January 16, 1912, by virtue of which defendant enjoys the exclusive right to make, use and vend appliances or apparatus embodying-said invention; that said invention was and is an essen-. tial feature of commercial appliances known as ‘ Gwynn - Bacon Yulcanizers, ’ and that said vulcanizers cannot be made, used or sold" without the license or consent of said defendant and cannot be procured upon the open market, by reason of the monopoly enjoyed by the defendent by virtue of the ownership by defendant of said invention and letters-patent.

“3. That on November 3, 1916, the defendant being the owner of the exclusive right to make, use and vend vulcanizers of the type referred to, as aforesaid, entered into a contract in writing with plaintiff, for a good and sufficient consideration, which contract was and is a lawful, valid and subsisting contract as to all the terms and conditions thereof between plaintiff and defendant. A copy of said contract is annexed to the original petition herein and marked ‘Exhibit A,’ and is hereby referred to and made a part of this decree. That in and by said contract defendant agrees, among other things, to sell to plaintiff, at the prices and on the terms specified in said.contract, a sufficient number and amount of said vulcanizers, repair parts, and appliances therefor, mentioned in said contract, to fill all orders therefor sent by plaintiff to defendant.

“4. That said contract further provides that upon receipt, of an order for any of the goods covered by said contract, the defendant would promptly execute the same by supplying the required goods, either direct to the purchaser, or to plaintiff, as the latter might direct; that said goods should be boxed in first class condition by the defendant and should be free from defects, thoroughly tested before leaving the factory, and should be guaranteed (in the case of vulcanizers) by the defendant for one year from date of purchase; that all goods should be delivered by the defendant to the transportation company in St. Louis at the expense of the defendant; also that the plaintiff in billing said goods to the consumer might bill under his own name or under the name of any partnership or corporation he might organize, and that he shall have the exclusive right to use, in connection with said billing, the name GwynnBacon Vulcanizer, or of any of the other Gwynn-Bacon products covered by said agreement; also that the defendent should promptly forward to the plaintiff an invoice of all goods shipped, whether shipped to the plaintiff direct, or to the consumer direct.

“5. That said contract further provides that all goods shipped by the defendant, either to the customer or to the plaintiff, during any one calender month, are to be paid for by the plaintiff on the 20th of the succeeding month. That failure of the plaintiff to pay the defendant for any- goods within fifteen days after the 20th of the month following date of shipment, should entitle the defendant to cancel said contract; provided, that the defendant should give plaintiff written notice of said cancellation and the cause thereof within seven days after the expiration of said fifteen-dav period.

“6. That said contract further provides that the defendant shall not during the life of said contract sell or allow any third party to sell, any of the-goods covered by said contract to any party or parties other than the plaintiff; and stipulates that it is the intention of said agreement that all sales to customers of the goods of the defendant are to be made by the plaintiff, whether the orders for said goods are secured by the plaintiff himself, or through agents, or by advertising, or whether said orders come to the defendant, either through his efforts or the efforts of others, or come through the mails or otherwise without solicitation, and that defendant shall promptly transmit to the plaintiff all orders for said goods which may come to him during the life of said agreement for such action thereon as the plaintiff may elect to take.

“7. That said contract further provides that the plaintiff shall purchase from the defendant at the prices and on the terms specified in said contract, during each year of the life of said contract, at least a minimum quanity.of said goods sufficient to make up a total of $5,000 of gross sales of said goods to "the customers of plaintiff during such year at the prices named in said contract.

“8. ■ That said contract further provides that the same should continue in force for one year from its said date, and that if during the first year of said contract the amount of gross sales made by plaintiff should be not less than ten thousand dollars, then said contract should be continued during each of the next succeeding four years; provided that during each of said four years the gross amount of sales made by the plaintiff to customers should not be less than as follows:

“Gross sales, second yeai\ ............. $15,000

Gross sales, third year.................... 20,000

Gross sales, fourth year.............•....... 30,000

Gross sales, fifth year................... 40,000

‘ ‘ That said contract further provides that after the expiration of five years from its said date, it shall continue to remain in force from year to year so long as the gross sales by plaintiff to customers during each year shall be not less than forty thousand dollars.

“9. That said contract further provides that either party shall have the right, at any reasonable time, to inspect and copy the books,' papers and records of the other, whenever such inspection is reasonably necessary or proper to effectuate the objects of said contract.

“10 That said contract further provides that it shall be binding upon the heirs, representatives and assigns of both plaintiff and defendant.

‘ ‘ 11. That immediately upon the making of said contract both plaintiff and defendant entered upon the performance thereof, and have so continued until on or about the 11th day of March, 1918, as hereinafter stated.

“12. That plaintiff invested considerable sums of his own money in the development of said business and has advertised said apparatus, and has established a valuable custom and good will for said goods.

“13. That the gross sales made by plaintiff of goods covered by said contract, during the first year of the life thereof, amounted to over forty thousand dollars ; that plaintiff has in that and in all other respects ■fully complied with all the terms, conditions and agreements in said contract contained and by him to be performed; and still stands ready and willing to comply with and to carry out the terms of said contract.

“14. That oil or about the 11th day of March, 1918, plaintiff received from defendant a notice in writing whereby defendant wrongfully and unlawfully' and without just cause or excuse notified plaintiff that he, the defendant, refused to comply further with the terms of said contract and that he considered said contract terminated.

“15. That defendant did wrongfully and unlawfully and without just cause or excuse, refuse, on said' 11th day of March, 1918, and still refuses to deliver to plaintiff the apparatus and appliances which defendant contracted to deliver under said contract, and refused and ;still refuses to comply with or in any manner to be bound by the terms of said contract although defendant is fully able to perform and carry out said contract.

“16. That defendant prior to and since refusing so to deliver the apparatus called for by said contract, to plaintiff, in violation of said contract, has secretly employed plaintiff’s salesmen and has been and is now, in violation of said contract, selling appliances covered by said contract direct to plaintiff’s customers and others, without transmitting said orders to plaintiff or accounting to plaintiff therefor, thereby securing for himself and for his own profit the result and fruits of plaintiff’s expenditure of money and labor, which plaintiff was induced to expend by reason of said contract with defendant; that defendant is appropriating to himself and destroying plaintiff’s business. That defendant has collected large sums of money on sales made by him of said articles to the customers direct, to which sums plaintiff is entitled, and that defendant now has on hand a large number- of unfilled orders for said articles, for all of which defendant has failed and refused and still fails and refuses to account to plaintiff, but on the contrary has notified plaintiff as aforesaid that defendant will no longer be bound by the terms of said contract.

“17. That plaintiff is wholly unable to obtain any of the apparatus, appliances, or parts covered by said contract from any other source', except from'defendant, by reason of the exclusive monopoly enjoyed by the defendant to make, use or vend said apparatus, appliances and parts.

“18. That by reason of plaintiff’s inability to obtain said apparatus or appliances from said defendant and by reason of the other unlawful and wrongful acts of defendant as above set out, plaintiff has suffered great and irreparable damages and injury and will continue to suffer great and irreparable injury and damage, but the exact amount of which it is impossible to state until an' accounting is had between plaintiff and defendant; that plaintiff has no adequate remedy at law; that the ascertainment of said damage to plaintiff requires a complicated accounting.

“Wherefore, it is ordered, adjudged and decreed by the Court, as follows:

“19. That the plaintiff herein be and he is hereby granted the relief prayed for in his second amended petition herein; and,

“20. That the defendant herein, be and is enjoined and ordered to sell and deliver to plaintiff and to all parties claiming by, through, or under him, in accordance with the terms of said contract of November 1, 1916, all apparatus, appliances and parts which he is called upon to sell and deliver to plaintiff under the terms of said, contract, and to forthwith fully and completely comply with and carry out all the other terms and conditions of said contract; and,

“21. That the defendant herein, his agents, servants or anyone acting through or under him, either directly or indirectly, be and they are hereby enjoined and prohibited from selling any apparatus, appliances or parts covered by said contract, or any of defendant’s rights in the inventions and patent, covering said apparatus, appliances or parts, to any person or persons other than plaintiff, and from doing any act or acts placing it beyond defendant’s power to comply with the said contract; and from in any way interfering with, or injuring plaintiff’s business carried on in accordance with the terms of said contract; and,

“22. That this cause be referred to Greo. P. Haid, Esq., as referee, for an accounting between plaintiff and defendant, and to hear, determine, and report his findings upon all issues of law and fact connected with said accounting, including in his report a statement of all sales made by defendant, subsequent to March 10,'1918, of any of the apparatus, appliances or parts covered or contemplated by said contract of November 1, 1916, and of all transactions and business of the defendant subsequent to March 10, 1918, relating to or connected with any of said apparatus, appliances or parts covered by said contract, and showing also all .amounts to which plaintiff may be entitled by reason of the violation by defendant of plaintiff’s rights under said contract.

“The court retains jurisdiction of this cause pending final judgment herein to be entered subsequent to the filing of the referee’s report.”

Thereafter, on June 26, 1917, the plaintiff filed his motion for the appointment of a receiver for defendant’s business, and on June 28th following, the same was sustained by the following order:

“Now at this date, the above named cause coming on for hearing on the application of the plaintiff, duly verified for an order for the appointment of a receiver herein, come the above named parties, plaintiff and defendant, by their attorneys of record and the evidence of plaintiff and defendant having been introduced, and the arguments of counsel heard by the court, and the court being fully advised in the premises, does find that the facts stated in said application of plaintiff for the appointment of a receiver are true.

“Wherefore, it is by the court ordered, adjudged and decreed that said application of plaintiff for an appointment of a receiver be and is hereby sustained, and the court appoints Edward E. Rudolph of the City of St. Louis, as receiver in the above entitled cause, to take charge of the assets, and to operate the business of the defendant, for the manufacture, sale and disposal of the vulcanizers, repair parts, and materials, covered and contemplated by the contract of November 3, 1916, between plaintiff and defendant, and to carry out and perform the decree of the court entered in this cause on May 19’, 1939, and subject to such further orders as the court may hereinafter enter in this cause. Said receiver shall take charge immediately upon filing bond approved by the court in the sum of five thousand dollars.”

June 30th defendant filed his motion to vacate such order appointing a receiver, which motion was overruled by the trial court, and it is this order overruling the motion to vacate the order appointing a receiver, which is now here for review. The cause was advanced as required by statute, and hence this early hearing thereof. Further details may well be left to the opinion.

Considered I. We have a peculiar situation in this case. It will be noted that the judgment upon the merits of the case is not here. The only thing here is the legal propriety of the appointment of a receiver for defendant’s business. The pleadings and judgment (whether such judgment be either final or merely interlocutory) may be and we think are competent upon the issues here involved, but the facts which superinduced such judgment, under such pleadings, are not here for review. It will be time enough to consider them when the case upon the merits reaches us. We have set out the findings of facts in the case upon the merits, but with the sole view of enabling us to determine the question of the propriety of the court in the appointment of the receiver, and for the further reason that such findings of facts are incorporated in and made a part of the interlocutory decree herein. We say interlocutory decree, because the court has appointed a referee, with full power to hear and report upon certain matters before final judgment could be entered. But to our mind it is really immaterial whether the judgment entered (quoted supra) be called an interlocutory or a final judgment. The sole purpose of it, and of the pleadings in this case, is to enable us to properly pass upon the • propriety (legal) of a receivership in "this case.

ssignmen s. The foregoing is suggested, because it is urged that the appeal should be dismissed, because the appellant has failed to comply with our rule as to assigments of error. In this case there could be but Qne ag£¿gnmeriq 0f error, and that is, that the court erred in refusing to sustain the appellant’s motion to set aside its order appointing a receiver for appellant’s business. There is no formal assignment of error contained in appellant’s brief. It goes from a statement of the case to “Points and Authorities” and then under head of “Brief of the Argument” is the printed argument. In other words the brief contains (1) statement of case, (2) Points and Authorities, and (3) Arguments. But under the head of “Points and Authorities” we have these two (with others) specific statements:

“2. The lower court had no power to appoint a receiver, as it did in this instance, for the purpose of executing the interlocutory decree for specific performance of the contract in suit See: . . .

“3. The lower court had no jurisdiction over appellant’s property and business empowering it to legally appoint a receiver to take possession and operate the same as provided in said order, See: . . .”

Under each of the above are cited cases to which we are referred. Whilst it is better for counsel to make formal assigments of error, we have continuously ruled that, where the “Points and Authorities,” as here, charged specific error to the trial court, such would be considered as a compliance with our rule. With this ruling (and our cases are numerous and well known) we are satisfied. This contention of respondent is therefore overruled. [Collier v. Lead Co., 208 Mo. l. c. 258-9; Wallace v. Libby, 231 Mo. l. c. 344; Mugan v. Wheeler, 241 Mo. l. c. 379.] These cases cover both divisions of this court. Of late our brothers in Division Two have been a little more rigid in the enforcement of Rule 15. [Vahldick v. Vahldick, 264 Mo. 530; Frick v. Ins. Co., 213 S. W. 854.] But neither of those eases, in our judgment, go to the extent respondents would have us go in Ibis case. When in this case the record shows that the court did appoint a receiver, and the brief charges (as here) that the court was without power to appoint such, the assignment of error is sufficient. Our rules should be, and, in most instances, have been, liberally construed.

„ . II. As suggested above we can and do consider the pleadings and judgment upon the merits in determining the legal propriety of the appointment of this receiver. The plaintiff sought, and obtained, (1) specific performanee of Ms allegged contract, (2) injunctive relief, and (3) and order for an accounting as between the parties — the accounting to be had before a referee of the court. No where in these pleadings is the business of the defendant placed or sought to be plaed in the hands of the court, custodia legis The facts pleaded, and the facts found, show that defendant had a business of his own, separate and distinct from that of the plaintiff. Defendant was manufacturing a patented article, and plaintiff, under contract, was selling such article for defendant. Plaintiff’s contract gave him no control of defendant’s business and property. Nor has the judgment so found or decreed. Defendant’s business (as a business enterprise) was not before the court, nor in the charge of the court. Nor can it be said that plaintiff’s business (as a business enterprise) was before the court, or in the hands of the court. The questions before the court were the three which we have set out above. If the plaintiff has a valid subsisting judgment, either (1) for the specific performance of a contract, or (2) for the stated injunctive relief, he has ample legal remedy for the enforcement of the same under our statutes. [Vide, Secs. 2122 and 3881, R. S. 1909.] If he should get specific judgment for money upon the incoming of the referee’s report, an execution would get full results, absent, as here, any charge of fraud or of insolvency.

This case has a state of facts all its own. • Defendant, so far as the record goes, has a thoroughly solvent business, all his own. Personally he may have made a contract which ought to be enforced. And personally he may have threatened things which should have been enjoined. Of these matters our cognizance is limited, in the determination of the one question before us.

' The alleged contract (ordered enforced) does not go to defendant’s business, as a going, solvent business concern, but it only goes to a contract as to the filling of certain orders out of the manufactured stock of this business. The business enterprise of the defendant has never been seized by the strong arm of the law, and placed before the court, save and except as it might be through this receiver. Up to the date of this judgment the business and property of the defendant was not before the court. The defendant was before the court, and its judgment is against defendant, and not against his property. Even the specific performance part of the judgment is personal in character, and does not reach the whole business of defendant, which thé receiver is directed to take charge of by the order before, us. The powers of a court of equity are very broad as to property involved in the litigation, and a receiver therefor may be appointed for divers reasons, but the rule is just as clear that there should be no receiver appointed for property which is not in litigation and thereby before the court. [23 R. C. L. p. 13.]

The manufacturing business of this defendant (as a business and as his property) was.not involved in the suit out of which this receivership grows. So that for the two reasons, (1) the statutes furnish ample powers for the enforcement of the court’s judgment and (2) the property turned over to the receiver by the order was not involved in the litigation, the court erred in not vacating, upon defendant’s motion, the order appointing the receiver.

We shall not discuss the merits of the case, even as they appear before us on the pleadings and judgment. The instant judgment or order should be and is reversed with directions to the circuit court to vacate its order appointing the receiver. The merits of the case will no doubt reach us in due time.

All concur., except Woodson, J., absent.