author: BLAIR, J.

text:
    GEORGE T. KIRK, Administrator, v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    June 1, 1915.
    NEGLIGENCE: Action By Administrator. Where the decedent, negligently killed by defendant’s train, was survived by neither wife nor children, and there is neither allegation nor evidence that he was survived by any one competent to take under him under the laws of descent, a judgment for damages in favor of his administrator, in an action brought under section 5425, Revised Statutes 1909, cannot stand. [Following and approving Troll v. Gaslight Co., 182 Mo. App. 600.]
    Appeal from Randolph Circuit Court. — lion. A. E. Waller, Judge. .
    Reversed {with directions).

      J. L. Minnis and Robertson & Robertson for appellant.

      (1) There was no evidence that the decedent left any next of kin, and therefore there could be no recovery. Hegberg v. Railroad, 164 Mo. App. 514; Johnson, Admr., v. Mining Co., 171 Mo. App. 134; Troll v. Gaslight Co., 182 Mo. App. 600. (2) It was incumbent upon the plaintiff to prove that the decedent left' heirs direct or collateral, who would be entitled to the decedent’s real and personal property, under the laws of descent and distribution. It cannot be presumed that a person dying leaves heirs capable of inheriting. It seems readily apparent that a suit by the administrator, under section 5425, is as the trustee of an express trust, and that the beneficiaries are those entitled to take by the laws of descent and distribution.The statute requires a distribution according’ to such laws, and under the decisions of this court (Boyd v. Railroad, 249 Mo. 110) damages are a penalty and for pecuniary loss. This court has never in any reported case applied the statute as being anything but a penal and compensatory statute for the benefit of some definite person, the damages to be gauged by the loss of the benecifiary. If there can be no distribution because of lack of beneficiaries, it seems apparent that there can be no recovery, because there being no one to take the amount of recovery, then no right tó' ré-‘ cover exists. Actio personalis mortuir cum persona is the common-law rule and this statute must be strictly construed with no extension of its terms beyond the limitations therein prescribed. Barker v. Railroad, 91 Mo. 86; Clark v. Railroad, 219 Mo. 538, 539; Casey v. Transit Co., 205 Mo. 721.

      Aubrey B. Hammett for respondent.
    We allege in our petition “that by virtue of the provisions of section 2864, Revised Statutes 1899, and amendments thereto, this plaintiff is entitled to recover against the defendant, as a penalty, to be distributed according to tbe law of descent and distribution the sum of not less than two and more than ten thousand dollars for the killing of deceased as aforesaid.” It is admitted in appellant’s abstract that deceased had no children, natural born or adopted. This admission, with the proof of death of the wife at the same instant Allen Wilcox was killed, that Allen Wilcox was of mature years, and the appointment of plaintiff as administrator, brings plaintiff within the fourth provision of the section 5425. We only need to read the fourth clause of Sec. 332, E. S. 1909, to conclude that it is not incumbent upon plaintiff to prove those in existence who would come under that section, because it is next to impossible, if not quite so, to imagine a case where the amount recovered could not be distributed thereunder. Besides, the Damage Act has nothing to do with this distribution, it only undertakes to say that it shall be governed by the law of descents, and does not say-there must be in existence next of kin to the deceased. There is good reason for that, too. Under the ruling of this court In Banc in the recent case of Boyd v. Railroad, the-recovery in a case like the one at bar could only be as a penalty, there being no one who suffered any pecuniary loss; therefore, no compensatory recovery; the award of a penalty could only be for the purpose of punishing the negligence and this negligence should not go unpunished because the deceased whose life was taken by reason of such negligence left ho next of kin to receive the award. Furthermore it is presumed that a person dying leaves heirs capable of inheriting and that presumption can only be overcome by proof. 14 Cyc. 99; 22 Am. & Eng. Ency. Law (2 Ed.), 1291; Daudt v. Music, 9 Mo. App. 169; In re Taylor, 20 N. Y. Supp, 960; In re Clark, 116 N. Y. Supp. 101; Harvey v. Thornton, 199 111. 217.
   BLAIR, J.

Respondent instituted this action in the Randolph Circuit Court to recover damages for the death of his intestate, Allen Wilcox, who was struck and killed by one of appellant’s trains on a street crossing in the village of Renick, Missouri. There was a verdict for appellant, which the trial court set aside on the ground that it had erred in giving and refusing instructions. This appeal is from that order.

Appellant contends (1) there was no error committed against respondent in the trial, and (2) that there was a total failure of evidence in several respects, and that, on both of these grounds, the order granting the new trial should be reversed and the trial court directed to reinstate the verdict and enter judgment thereon.

A number of questions are presented by the briefs, but there is one which is determinative of the case, and it alone need be considered.

The action is brought under section 5425, Revised Statutes 1909, and it was admitted on the trial that decedent left neither wife nor children. There was neither allegation nor evidence that he was survived by any one competent to take under him under the law of descents in this State. In view of this condition of the record, appellant contends that no case was made out and that its demurrer to the evidence should have been sustained.

The question thus presented has been decided (since this appeal was taken) by .the St. Louis Court of Appeals. [Troll v. Gas Light Co., 182 Mo. App. 600.] The question arose in that case upon a demurrer to the petition, but the principle announced is applicable here. The authorities are collated and discussed and an examination of the opinion satisfies us that the correct conclusion was reached.

The thoroughness of the discussion by Allen, J., and our approval of what is said by him, render unnecessary a detailed consideration of the question presented.

The order granting the new trial is reversed with directions to reinstate the verdict and render judgment thereon.

All concur.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    LESAN ADVERTISING COMPANY v. BEN T. CASTLEMAN, Appellant.
    Division One,
    June 1, 1915.
    1. SPOLIATION OF CAUSE O.F ACTION. A mere allegation in a motion to quash verified by affidavit, filed after appeal in the circuit court, that the justice officiating, wantonly and unlawfully, mutilated the statement of the cause of action filed by the plaintiff before him, by drawing an inked pen through certain words, is not sufficient to authorize the court to sustain said motion, since it does not reveal whether the alteration was made in exercise of the right of amendment broadly granted by the statute.
    2. JURISDICTION: Appearance and Appeal. The jurisdiction of both courts over the person of defendant is made complete by his appearance in the court of the justice of the peace, and by his taking an appeal from a judgment rendered against him by the justice and thereby voluntarily going to the circuit court and by his general appearance in the circuit court.
    3. FINDING OF FACTS: Voluntarily Made By Judge: Appeal. A voluntary statement in writing by the trial judge of the facts which led him to his decision in the case, uncalled for by either party, whether embodied in the text of the judgment or in a separate writing and filed in the case, cannot be substituted by either party for the evidence as a test of the correctness of the judgment; and where the evidence is not preserved in a bill of exceptions, a judgment cannot on appeal be reversed on the sole ground that the facts stated in such voluntary statement were not sufficient to authorize the judgment.
    Appeal from St. Louis City Circuit Court. — Hon. W. B. Homer, Judge.
    Affirmed.

      Ben T. Castleman pro se.

      Robert W. Hall for respondent.
   BROWN, C.

This cause is certified to this court upon a division of opinion by the St. Louis Court of Appeals. It was instituted March 23, 1909, before Anthony A. O’PIallaron, a justice of the peace for the city of St. Louis, before whom it resulted in a judgment for the plaintiff, from which an appeal was taken to the circuit court for the city of St. Louis, in which the following transcript, duly certified, was in due course filed:

“Anthony A. O’Hallaron, Justice of the Peace, Fifth District, St. Louis, Mo.

“Suit on account filed. Demand, $84.50 and interest.

“Summons issued to constable Samuel J. Young, March 23, 1909, returnable April 7, 1909', at six o ’clock a. m.

“Summons returned duly served by constable Samuel J. Young, this 7th day of Apiil, 1909, six a. m.

“Cause continued by consent to April 8, 19091, six a. m., and further to April 16, 1909, six a. m., and further for plaintiff to May 3, .1909, six a. m. Now, on said day and hour set for trial comes plaintiff, and, by attorney, comes also defendant; the evidence being submitted and concluded, the justice finds for plaintiff and against defendant Ben T. Castleman, doing business as Jewel Vibrator Company, in the sum of ninety-eight dollars. It is, therefore, adjudged by the justice that plaintiff recover of defendant Ben T. Castleman, doing business as Jewel Vibrator Company, the sum of ninety-eight dollars and costs of suit.

“Now, on May 7th comes Ben T. Castleman, and files his affidavit and bond with the United States Fidelity & Casualty Company as surety for an appeal.

“Bond approved, appeal granted and all the original papers in this case are sent to the circuit court, St. Louis, Mo., for further adjudication. ’ ’

On November 3,1909, the following motion, verified by defendant’s affidavit, was filed in the circuit court:

“Now comes defendant herein, Ben T. Castleman, and appearing solely for the purposes of this motion, states that at no time did he enter an appearance in the justice court except special as attorney pro se, to object to the jurisdiction of the court and the regularity of the proceedings; and at no time consented to any continuance or to the proceedings therein had;'that on the day of and prior to the rendition of judgment in the justice court, the justice officiating, mutilated, wantonly and unlawfully, the statement of the cause of action filed by the plaintiff herein, in'this, that said justice of the peace, Anthony A. O ’Hallaron, drew an inked pen twice through the words, TO ACCOUNT STATED AND; wherefore, this court is without jurisdiction; wherefore, and for the following reasons, defendant prays the writ of summons may be quashed and the cause dismissed:

“First. Because there was no cause of action stated against defendant.

“Second. Because the petition, as filed, purported to base the action on a stated account (which is upon contract — express assumpsit); and the summons recites the complaint is founded upon An account filed,’ whereas, in truth, the account filed was only an exhibit.

‘ Third. Because no writ of summons ever issued upon the complaint filed.

“Fourth. Because there was never any service on defendant.

“Fifth. Because there was never any judgment rendered upon any cause of action.

“Sixth. Because the purported cause of action imperfectly and inartificially stated, was stricken out before the trial by tbe justice; judgment being thereupon rendered upon the exhibit, a legally impossible theory, and this court is, therefore, without any jurisdiction to try and adjudicate as to either.

“Seventh. Because there is no such an entity as the plaintiff purports to be in existence in the State of Missouri, doing business; and that there is a nonresident corporate entity of this name, which is not authorized to do business in this State, and is not authorized to sue either upon any cause of action herein, nor in any court of this State.

‘‘ Eight. Because the justice court had no equitable jurisdiction to investigate and open an account, admitted to be closed, and the circuit court has none on appeal.

“Beñ T. Castleman.”

The motion was heard on the 19th of the same • month, and being read without other evidence, was overruled by the court, and defendant excepted and filed his bill of exceptions. He then filed an answer which, omitting the caption, is as follows:

“Now comes defendant Ben T. Castleman, and, saving all just exceptions' taken heretofore herein, for defense to the complaint of plaintiff, denies that he is now or ever has been a member of any entity known as the Jewel Vibrator Company; and denies that he has engaged in any business other than the practice of law; and avers that the non-traversable matter set up in the caption of the petition is not true in fact; and, further answering, he sets up and specially pleads the Statute of Frauds, and asks to go hence without day, and recover his costs in this-behalf expended.

“Ben T. Castleman, pro se.”

A jury being waived, the cause was tried by the court and judgment rendered June 20, 1910, as follows : ‘ ‘ Trial by court, judgment for plaintiff, against defendant and United States Fidelity & Guaranty Company, surety, for $90.82 and costs. Court’s finding filed.” The finding filed at the time of the rendition of the judgment is, omitting caption, as follows:

“In June or July, 1906, defendant called upon plaintiff company and requested it to make certain drawings of a vibrator which the defendant proposed to manufacture through a company which he was then planning to form, under the name of the Jewel Vibrator Company. He furnished it the vibrator, with the request that certain drawings should be made of the same for the purpose of using reproductions thereof in the advertising matter to be afterwards prepared. No arrangement was made as to the price to be paid for said drawings. The drawings, five in number, were prepared by the plaintiff and were exhibited to the defendant and he made no objection to the same, but requested plaintiff to retain them, which plaintiff did, the defendant stating that he was not ready to proceed further with the advertising in which the drawing would be used. • The reasonable cost of making said drawings, or the value of the work in the making of same, was $84.50.

“W. B. Homer, Judge.”

The defendant filed a motion in arrest of judgment, and for judgment non obstante veredicto, which, omitting caption, is as follows:

“Now comes defendant, and moves the court to arrest the judgment herein and render judgment for ■defendant non obstante veredicto, for the following reasons:

“First. Because the record discloses a lack of jurisdiction.

“Second. Because there was no cause of action stated against defendant.

“Third. Because the findings are not within tbe issues.

“Fourth. Because the findings discloses no agreement to become liable, and no facts upon which any liability of defendant can be founded.

“Fifth. Because both the statement of account filed and the findings of fact show the order for chattels to be made was in the name of and for a corporation to be formed, as principal, and the judgment imposes a liability on defendant, who acted only as agent, is not supported by the facts, and which, as a matter of law, did not before exist; and the finding the value of the work is not within the issues and no recovery can be had therefor.

“Sixth. Because the court had no jurisdiction of the equitable remedy in account and accounting.

“Ben T. Castleman, pro se.”

This being overruled, the defendant appealed to the St. Louis Court of Appeals, which, by a divided eourt, reversed the judgment and remanded the cause.

■No bill of exceptions other than the term bill filed to preserve the exception to the overruling of the motion to quash the writ and dismiss the suit, was either made or filed, nor was there any motion for a new trial.

I. The first ground assigned as reversible error by the appellant is without merit. It seems to be founded on an alleged spoliation of the original claim filed with the justice as the beginning of the suit. The appellant charges that the justice, before rendering judgment, wantonly and unlawfully mutilated the statement filed by plaintiff by drawing “an inked pen twice through the words TO ACCOUNT STATED AND!. ’ ’ The appellant’s verified motion to dismiss on this ground, which is the only evidence of the wanton act, is silent as to the circumstances and cause of this spoliation. It does not favor us with information as to whether or not the appellant was present at the time it was perpetrated, or whether it was done i-n the exercise of the right of amendment, so broadly granted by section 7466, Revised Statutes 1909. [Turner v. Railroad, 76 Mo. 261; Williams v. Sanders, 69 Mo. App. 608; Boeker v. Crescent Co., 101 Mo. App. 429; Burden v. Hornsby, 50 Mo. 238.] This liberality applies also to the process. [Martin v. Castle, 18,2 Mo. 216, 230, and cases cited.] There is nothing in the motion tending to indicate any impropriety in the act, which was clearly within the right of the justice.

The jurisdiction of the person of appellaixt was complete by his appearance in the justice’s court at the trial; by taking the appeal, and thereby going voluntarily into the circuit court (Boulware v. Railroad, 79 Mo. 494; R. S. 1909, sec. 7568) and by his general appearance in the circuit court.

II. The judges of the St. Louis Court- of Appeals were divided in opinion as to whether this record presents the question of the correctness of the judgment upon the facts. No evidence is preserved, nor was any motion for a new trial made. There is no bill of exceptions relating to any matter connected with the trial, but ^ reeor{^. gQ far ag j-j- relates to this question, consists of a paper filed with the rendition of the judgment, and designated, “Court’s Finding.” The writing of the words “Court’s finding filed” at the conclusion of the minute of the judgment is the only mention it received in the record.

A majority of the judges of the Court of Appeals were of the opinion that this paper amounted to a compliance with the terms of section 1972, Revised-Statutes 1909, and, as “conclusions of facts found” by the court under that section, was a part of the record proper, and must, by its terms, authorize the judgment entered. They held that the facts stated in it were not sufficient to authorize the judgment, and accordingly reversed and remanded the cause. It is plain that if this position is not well taken, both as to the nature of the paper as being a compliance with the statute and its legal effect as a part of the record-proper, it is not before us, for, if we consider it as a mere declaration of law, it is not brought into the record by bill of exceptions.

Beynolds, Presiding Judge, differed from his brethren. In a very full and carefully considered dissenting opinion filed, 165 Mo. App. l. c. 584, he held, in substance, with a liberal citation of Missouri authorities which we think fully sustained him, that a finding of facts by the court so far as it serves any purpose in our procedure, is a creature of the statute, to be employed only upon request of one of the parties to the suit, and for the statutory purpose of enabling the parties to except to the decisions of the court upon the questions of law and equity arising in the case; and that a voluntary statement of the judge, uncalled for by either party, of the considerations of fact which led him to his decision, whether embodied in the text of the judgment or in a separate writing, cannot be substituted by either party for the evidence as a test of the correctness of the judgment. The learned Presiding Judge deemed the decision of the court contrary to numerous decisions of this court and of the St. Louis and Kansas City Courts of Appeals which he mentioned, and the cause was accordingly transferred to this court.

We have come to the conclusion that upon the question last mentioned the opinion of the learned dissenting judge is right, and that his opinion contains a correct statement of the law. In support of this view we could add nothing to what has been said by him, and we refer to his dissenting opinion for an expression of our own views upon the subject.

We do not think there is anything in this record by which we can judge of the correctness of the judgment appealed from. We think that the Court of Appeals, in reversing the judgment of the trial court on the ground that the facts stated in the finding to which we have referred are not sufficient of themselves to support it, committed error, and its judgment is accordingly reversed, and the judgment of the circuit court for the city of St. Louis is affirmed. Bailey, G., concurs.

PER CURIAM.

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


author: RAILE'Y, C. PER CURIAM:

text:
    THE STATE ex rel. TEARE, Collector of Holt County, v. THOMAS C. DUNGAN, Appellant.
    Division One,
    June 1, 1915.
    1. TAXATION: Assessment: Lists: Made From Prior Books: In-formalities. The list required by the statute to be furnished by the assessor to the taxpayer is for the assessor’s use in making up his books, and not for the benefit of the taxpayer. If the assessor fails to furnish a blank to the taxpayer upon which to list his property, and instead of doing so makes out his tax book from the description and valuation of lands as shown by the book for the previous year, the assessment is not void, nor the taxpayer relieved from the duty of paying the tax according to such informal assessment. Such matters are informalities, which by statute do not render the assessment invalid.
    2. -: -: No Appeal. Where the taxpayer has notice of the valuations placed upon his lands by the assessor, for instance, if he has been informed that the valuations and^.assessments have been made from the assessor’s books of the previous year, and does-not appeal to the county board of equalization, the assessment and valuation as shown by the duly certified assessor’s book are conclusive upon him.
    3. --: -: Changed By County Clerk. A voluntary change by the county clerk of the valuations of property as shown by the assessor’s book, whether done as an illegal spoliation of the book or as a wilful felony, is absolutely void, and in no way affects the validity and conclusiveness of said assessor’s book, and the validity of the tax with which the lands are charged is to be determined as if such alterations had never been made.

      4. —=-: -: -: Subsequent Procedure: Directory. A valid assessment of lands is jurisdictional, and all subsequent proceedings are directory and not jurisdictional; and the statute provides a remedy by which any illegal changes by the county clerk in the valuations as found in the properly returned assessor’s books, or any other irregularities or errors made after the return of said book, may be cured by the appearance of the taxpayer before the county board of equalization or the county court or city council.
    Appeal from Holt Circuit Court. — Ho». W. C. Ellison, Judge.
    Affirmed.

      T. G. Dung cm pro se.

    (1) The court erred in making its finding for the plaintiff and rendering its judgment and decree for the plaintiff. No assessment was made of said lands as required by law. To recover there must be a legal assessment or there can be no delinquent taxes. State ex rel. v. Scott, 96 Mo. 72; State v. Spencer, 114 Mo. 574. The action of the assessor having been without notice to. defendant is void. Abbott v. Lindenbower, 42 Mo. 162; Thomas v. Chapin, 116 Mo. 396; R. S. 1899, sec. 9146; Sec. 11350, R. S. 1909; State ex rel. v. Fullerton, 143 Mo. 682; State ex rel. v. Voselsang, 183 Mo. Í7; State ex rel. v. Railroad, 114 Mo. 11; State ex rel. v. Tregenheim, 114 Mo. 574. (2) The court erred in assuming to act as and for the revenue officers of Holt county, for it made an assessment of its own, fixing valuations, the same as that fixed by the forgery of the assessor’s book by the county clerk, (a) There was no assessment thereof made by the assessor of Holt county in any of the methods prescribed by law. (b) The court assumed to act as a board of equalization in raising the valuation, if valuation it can be called, of defendant’s land from that appearing first on the assessor’s, book, and without notice to defendant in any way. (3) If there was any assessment made of defendant’s lands or any valuation fixed thereon it was done by the assessor’s clerk and such valuation was that appearing on the previous year’s assessor’s book, as such clerk informed defendant that such valuation had been so entered, and defendant had the right to consider and believe it would so remain unless he had notice from the assessor or board of equalization that such assessment and valuation had been or would be changed. No such notice was given or had by defendant. He is presumed to have been satisfied with such assessment and valuation. Cooley on Taxation, 266-268-; Mining Co. v. Neptune, 19' Mo. App. 438; Butler v. Supervisors, 20 Mich. 22; Sioux Ry. Co. v. Washington Co., 3 Neb. 3043. If the board can not change such assessment so judicially made, by the return of the assessor, without notice to the taxpayer, how can such board with full knowledge of a change made and a forgery of tha assessor’s book increasing defendant’s land valuation,, by the county clerk, its own secretary, by silent acquiescence do indirectly what it cannot do directly? The effect is the same to the taxpayer as it illegally deprives him of his rights and attempts without process of law, to take his property. Mining Co. v. Neptune, 19 Mo. App. 443. (4) The assessment of lands is not. made until the assessor enters the lands or list into the-assessor’s book. State ex rel. v. Reed & Sutton, 159' Mo. 85. While the defendant might have had notice-of assessment as shown by the return of the assessor’s-, book and ample means for redress for any unauthorized action of the assessor by an appeal, no opportunity was-, afforded him to know of any change or increase made-by the county clerk and ratified by the board of equalization. State ex rel. v. Springer, 134 Mo. 224; State' ex rel. v. Stamm, 165 Mo. 73; Black v. McG-onigle, 103 Mo. 133; State ex rel. v. Baker, 170 Mo. 195; State.ex rel. v. Carr, 178 Mo. 235.

      Don M. Hunt for respondent.
    (1) There was a valid assessment. State ex rel. v. Cunningham, 153 Mo. 642; State ex rel. v. Casey, 210 Mo. 253; State ex rel. v. Reed, 159 Mo. 83; State ex rel. v. Carr, 178 Mo. 233; State ex rel. v. Bank, 120 Mo. 161; Sec. 11385, R. S. 1909. (2) The defendant took no appeal from the assessment to the hoard of equalization, therefore he has forfeited his right to object to the valuation placed on the property. Dean v. Todd, 22 Mo. 90; State ex rel. v. Hoyt, 123 Mo. 356; State ex rel. v. Bank, 320 Mo. 175. (3) All other acts with regard to the tax levy being legal the unauthorized’ and unlawful acts of an officer cannot prevent the collection of the amount of tax which is due. State ex rel. v. Carr, 178 Mo. 234; State ex rel. v. Bank, 120 Mo. 173. (4) If a valid assessment is shown, its entry upon the tax book and the failure of the property owner to pay it when due, a good cause of action is made out, and all other requirements and proceedings are mere formalities and intended to facilitate’ the collection of the taxes. State ex rel. v. Wilson, 216 Mo. 287; Rock-land v. Ulmer, 84 Me. 503; State'ex rel. v. Carr, 17.8 Mo. 239.
   RAILE'Y, C.

On March 10, 1911, plaintiff, as collector of Holt county, Missouri, sued defendant to recover one hundred and forty-four dollars and fifteen cents, the aggregate amount of taxes, interest, penalties and costs alleged to be due on six tracts of land, belonging to defendant and located in said county. Said taxes are charged to have been delinquent upon each of said tracts for the year 1906. The petition alleges the election and qualification of said Teare as collector of said county; that defendant was the owner of each of said six tracts of land, which are separately described in the petition; that all of said land was liable for taxation, etc., for each of the years mentioned; that the assessor of said county was duly elected and qualified; that he listed and assessed the value for taxation of said tracts of land separately; that he made an assessor’s hook for said county as required hy law, for each of the years for which said lands were so listed and assessed for taxation, which said hook contained a complete list of all the taxable property of said county; that he entered in the parts known as the Land List and the Real Estate Book, in numerical order, each of said tracts of land; that he did, on or before January 20th next following each of said years, in which each of said assessments was made, and after the first day of June, next preceding, for each of the said years, for which said assessments were made respectively, make out and return to the county court of said county a fair copy of the assessor ’s book, made as aforesaid, duly verified by his affidavit annexed thereto, as required by law; that said assessments and valuations for each of said years were duly abstracted by the county clerk of said county and laid before the then State Board of Equalization, as the law required; that said assessments and valuations for each of said years were duly equalized by said Board of Equalization; .that said equalized assessments and valuations were duly certified to the county clerk aforesaid, who thereupon, for each of said years, furnished one copy to the then assessor of said county; that another copy was laid before the County Board of Equalization of said county; that the County Board of Equalization aforesaid, did at the time and in the manner required by law, for each of said years, equalize and adjust said valuations and assessments, did give due and lawful notice to all persons interested therein that said board would meet at the time and place prescribed by law, to hear appeals from said valuations and assessments of said assessor on account of its action in raising and equalizing assessments and valuations, and did all other things in this connection required by law; that each of said books was thereafter corrected, adjusted and the valuation duly extended as so equalized by and in accordance with the decisions of the State Board of Equalization and said County Board of Equalization; that after such final valuations, adjustments and assessments so made as aforesaid, and by virtue of the laws of Missouri, the duly elected, qualified and acting officers and agents of said state and county, having full authority so to do, as required by law, did by orders of record fixing the rates thereof, within the limits required by law, levy upon said real estate as so listed, valued, assessed and adjusted, in due proportion to its true valuation as so listed, valued, assessed and adjusted, certain state, county, school and other taxes on the separate tracts of - said real estate for the years, and in favor of the several funds, for the purposes, and to the amounts in the aggregate of $126.47, as shown by a tax bill, duly authenticated by certificate of the county collector, and attached to said petition.

Other allegations follow, but as the sufficiency of the petition is not questioned, and as the case was tried upon an agreed statement of facts, we do not deem it necessary to set out any further synopsis of the petition.

The answer denied the material allegations of petition, and contained other averments tending to ■show that the law was not complied with in the making of said assessment, etc.

AGREED STATEMENT OE EACTS.

The case was tried in the court below upon the • following agreed statement of facts:

“It is agreed that the folio-wing facts are true in the said cause:

“That the plaintiff was at the time of the institution of this said action and now is the duly elected, qualified and acting collector of Holt county, Missouri, and that Don M. Hunt is his duly appointed attorney; that the defendant was, on the 1st day of June, 1906, and now is the owner of the lands set out and described in said plaintiff’s petition and tax bill, in fee simple; that William Fitzmaurice was on the said 1st day of January, 1906, and for the two years thereafter the duly elected and acting county assessor of Holt county, Missouri, and that Frank Graham was his deputy and also city assessor for the city of Oregon, Missouri; that neither said county assessor nor his deputies ever at any time made or took any list of defendant’s said real estate, nor did they or either of them ever visit the place of business or home of said defendant to take any lists of property or make any assessment list; that said defendant while at the courthouse or on the streets of Oregon, Missouri, was handed a blank assessment list by the assessor for the listing of his property, but the assessor at no time called at defendant’s home or place of business to list his property or take or receive lists made by defendant; that no such list of • said real property was ever requested, made, taken, received, demanded or filed except as hereinafter stated; that the said assessor and his deputies prepared and made the assessor’s books for the year 1906, as had been done for many years before and ever since, by copying the previous year’s, 1905’s, assessor’s books and descriptions and valuations and without regard to any lists taken or assessments made by them and in that manner the lands of defendant sued upon were entered in said assessor’s book for 1906; that about the middle of January, 1906, the said county assessor met defendant upon the street and asked him about the assessment and to bring in his list in the afternoon on that day to the courthouse, as his assessment book for that year was being made up, which defendant did, and tendered same to the deputy in charge who declined to receive it and informed defendant that his property had been entered upon the assessor’s book several weeks before, the same as for the previous year, and that the list would be of no use and such list was not delivered; that some time after this suit was brought defendant ascertained that an alleged pretended list of personal property, same as for year before and en-, dorsed ‘by permission,’ and setting out and describing no lands, had been deposited without date, and an. alleged pretended list was likewise given in to city of Oregon, Missouri, and had also been deposited without date in the county clerk’s office with the regular list, of said assessor; that the assessor’s book was properly verified and returned to the county court on the 18th day of January, 1906, with the said lands of this defendant set out therein with such valuations as appeared upon the assessor’s books for the year 1905,, the first four tracts in the name of T. 0. Dungan and the last two tracts in the names .of Dungan and Steven-, son; that the county clerk made a copy of said assessor’s book for the collector with such names, description and valuations, preparatory to extending the taxes thereon by his then deputy, but that afterwards said county clerk, E. A. Welty, without any authority of law and' wilfully, and illegally and feloniously changed and forged the said assessor book and the. copy thereof made for the use of the collector by erasing and changing the valuation of each and every tract, of defendant’s said lands sued upon and described, in plaintiff’s petition and in the certified tax bill-filed, herein as follows:

“Tract one from $800 to $1000.

‘ ‘ Tract two from $800 to $1000.

'.“Tract three from $2000 to $2200.

“Tract four from $2300 to $2600.

“Tract five from $500 to $600.

“Tract six from $650 to $750’.

“That the said changed and forged assessor’s hook, and the changed copy thereof made for the use. Of the collector was by said clerk passed to the Board of Equalization to be passed upon and equalized; that the said assessor and his deputies and clerks, as well as the county court and the clerk thereof and his deputies and clerks and the county surveyor and the prosecuting attorney of said Holt county, as well as numerous citizens, each and all well knew of the erroneous and fraudulent entries upon the said assessor’s book, and of the forgeries and changes of the said land assessment, but the board and officers and members thereof neglected, failed and refused to restore or rechange the same or to properly correct said assessment or to have same corrected and entered, but passed over the same, and that the county court knowingly and by its order of record instructed and ordered an assessment on such changed and forged assessments and valuations and instructed said county clerk to complete and extend the State, county, school and road taxes against said lands and on the valuations aforesaid, so changed and forged as aforesaid, and cause said collector’s books based on said assessment and valuatibns to be turned over to the county collector; that no notice, was given at any time to the defendant of the assessment of his land or of the valuation of his Said lands or the changes made by such' clerk on said assessor’s book or of the changes so allowed to stand by said board of equalization and the county court or of the said pretended lists filed as aforesaid.

“That defendant refused to pay the said taxes so assessed on such changed valuations and same were returned delinquent and entered upon the back tax books of said county; that the former collector, George Seeman, and his attorney, H. T. Alkire, failed and refused to bring suit for the collection of said taxes appearing upon the said books on account of such Imown facts, but turned over same to the present collector and his attorney.

“It is hereby agreed by and between the attorneys for both the plaintiff and the defendant that the court is to decide on the. said case and render judgment thereon and in doing so is to take the above agreed statement of facts as the facts in the case.

“In witness whereof we have hereunto set. our hands this 30th day of August, 1911.

“Don M. Hunt,

Attorney for the Plaintiff.

“T. C. Dunsan,

Defendant.”

On September 8, 1911, the trial court (leaving off ' the caption and description of said land) entered of record the following judgment:

“Now here at this time this cause being submitted to the court on an agreed statement of facts filed, the court after hearing the testimony offered and being fully advised of the premises, doth find, that the several tracts of land hereinafter described, situated in Holt county, Missouri, and belonging to. the said defendant, were subject to taxation for the years hereinafter set out; that the same was duly as-, sessed and .the taxes legally levied thereon to the amount, for the various funds, and for the years hereinafter named. That all of the said amounts with interest thereon as follows, to-wit, on taxes for the year 1906 at the rate of one per cent per month from the ' first day of January, 1907, respectively, to the 1st day of March, 1907, and at the rate of ten per cent per annum thereafter is still due the State of Missouri and remaining unpaid on said real estate;

‘ ‘ That the following is a description of said lands together with the taxes, interest, collector’s commission, county clerk’s costs and attorneys’ fees thereon, together with the different years for which taxes are due and unpaid and the amounts thereof against each) tract respectively, to-wit:” (Heim follows a description of the six tracts of land).

‘ ‘ The court further finds that the aggregate amount of taxes and interest due is one hundred and twenty-six dollars and ninety cents, and that the same together with the costs of this action, taxed at the sum of $8.50, is a.charge and lien in favor of the State of Missouri and against the real estate above described.

“Wherefore, it is adjudged, decreed and ordered by the court that the plaintiff recover of and from the defendant a special judgment for the sum of one hundred and twenty-six dollars and ninety cents, together with the costs of this suit, and that the lien of the State be foreclosed and enforced against said real estate above described for the amount of taxes, interest and cost due, on each tract respectively, as set forth in this judgment, and that said real estate, or so much thereof as maybe necessary to satisfy this judgment, interest and cost be sold, and that a special fieri facias issue therefor.”

Defendant filed motions for new trial and in arrest of judgment in due time. Both motions were overruled, and the cause brought to this court in proper form and stands for review here upon the agreed statement of facts and the judgment entered below on-said facts.

I. It is contended by appellant, that the assessment of his land for the year 1906 was void, and that by reason thereof he should be relieved from the payment of the delinquent faxes assessed for said year.

It appears from the agreed statement of facts that neither the county assessor nor his deputies made or took any list of defendant’s real estate, nor did either ever visit the place of business or home of said defendant to take any lists of property or make any assessment list. It is- admitted that defendant, while at the courthouse or on the streets of Oregon, Missouri, was handed a blank assessment list by the' assessor for the listing of Ms property, but no such list of real property was ever requested, made, taken, received, demanded or filed except as hereinafter stated.

It is admitted that the assessor and his deputies prepared and made the assessor’s books for the year 1906, as had been done for many years before and ever since, by copying the previous year’s, 1905’s, assessor’s books, descriptions and valuations, without regard to any lists taken or assessments made by them, and in that manner the lands of defendant sued upon were entered in said assessor’s book for 1906.

It is admitted that about the middle of January, 1906, said county assessor met defendant upon the street, asked him about the assessment, and requested him to bring in his list in the afternoon of that day to the courthouse, as his assessor’s book for that year was being made up. Defendant thereupon tendered to the deputy in charge his list, but the latter declined to receive it, and informed defendant that his property had been entered upon the assessor’s book several weeks before, the same as for the previous year, and that the list would be of no use and such list was not delivered.

It is further admitted that the assessor’s book was properly verified and returned to the county court on the 18th day of January, 1906,- with the said lands of this defendant set out therein, with such valuations as appeared upon the assessor’s books for the year 1905, the first four tracts in the name of T. C. Dungan and the last two tracts in the names of Dungan and Stevenson.

It is admitted that the county clerk made a copy of said assessor’s book for the collector, with such names, description and valuations, preparatory to extending the taxes thereon by his then deputy, but that afterwards said county clerk, E. A. Welty, changed and forged the assessor’s book by erasing and changing the valuation of each and every tract of defendant’s said lands, “sued upon and described in plaintiff’s petition and in the certified tax bill filed herein. ’ ’

It is admitted that defendant’s said lands were increased in valuation by said clerk, in excess of the value fixed by assessor, to the amount of $1100.

It is not claimed by defendant in this proceeding that his land was misdescribed, nor that the valuation placed thereon by the assessor was unreasonable or excessive. On the contrary, it is manifest from the record that defendant and the assessor were both satisfied with what had been done, in respect to the valuation placed by the assessor upon said lands, as shown by his assessor’s book and the copy of same heretofore mentioned. No appeal was taken, or attempted to be taken, from the assessment made by the assessor. Defendant was informed as to the assessment thus made, and up to this point evinced no disposition to evade, or refuse to pay, the taxes which might thereafter be lawfully imposed, based upon the assessment of the assessor aforesaid.

Upon the foregoing facts, can the assessment made by the county assessor in respect to defendant’s said lands be sustained? We are of the opinion that under the provisions of our statute's, and the decisions of this court construing same, the assessment and valuation made by the assessor as to defendant’s lands are valid. [Sec. 9179, R. S. 1899, now See. 11383, R. Sr 1909; State ex rel. v. Wilson, 216 Mo. l. c. 287, and cases cited; State ex rel. v. Casey, 210 Mo. l. c. 252-3; State ex rel. v. Birch, 186 Mo. l. c. 214; State ex rel. v. Carr, 178 Mo. l. c. 237-8-9; State ex rel. v. Reed & Sutton, 159 Mo. l. c. 85; State ex rel. v. Phillips, 137 Mo. l. c. 264; State ex rel. v. Bank of Neosho, 120 Mo. 172-3;. State ex rel. Miller v. Hutchinson, 116 Mo. l. c. 402;. Thomas v. Chapin, 116 Mo. l. c. 398-9; State ex rel. Watson v. Harper, 83 Mo. 670.]

Section 9179, Revised Statutes 1899 (Section 11383, Revised Statutes 1909), reads as follows:

“No assessment of property or charges for taxes thereon shall be considered illegal on account of any informality in making the assessment, or in the tax lists, or on account of the assessments not being made or completed within the time required by law. ’ ’

In State ex rel. v. Wilson, 216 Mo. l. c. 287, Wood-son, J., speaking for this Division,'in which all the judges concurred, said:

“Under these sections this court has many times held that when an assessor makes out his assessor’s books, jurisdiction attaches and the rest of the proceedings are only directory. . . . Mere informalities in making assessments of property or charges for taxes thereon, or in the tax lists, or on account of the assessments not being made or completed in the time required by law, and any informality in making the back tax book, should not affect its validity,' and were not defenses in an action to collect back taxes . . .

“The broad principle announced and underlying all of these cases is, that when a valid assessment is shown, its entry upon the tax book and the. failure of the property owner to pay it when due, a good cause of action is made out, and that all other requirements and proceedings are mere formalities and intended to assist and facilitate the collection of the taxes, and are not intended to be stumbling blocks and hindrances thrown in the way of a speedy collection of them. ’ ’

In State ex rel. v. Casey, 210 Mo. l. c. 252-3, Burgess, J., held as follows:

“While it is true that neither the original nor amended return to the writ of certiorari shows a compliance with this statute, it is quite evident that the lists thereby required to be made out are solely for the convenience of the assessor, enabling him to make his assessments with the more expedition and accuracy; and as his failure to comply with the statute in no way prejudiced the taxpayer, such' failure does not, in our opinion, invalidate the assessment in question.”

In State ex rel. v. Carr, 178 Mo. l. c. 231, it appears that: “The assessor only copied the lot from the assessor’s hook for the previous years without doing anything- further whatever toward making an assessment of the lot in question.” Judge Marshall, in an able opinion in behalf of the Court in Banc, in which all the judges concurred, said:

“It thus appears that the crucial question here is, whether a failure of an assessor to make out a list of the property to assess, in case the taxpayer fails to return such list when required, makes the whole assessment void.

“It is one of the cardinal rules for the construction of statutes, that the spirit and purpose of the enactment is an invaluable guide to the meaning thereof, for the letter of the law often killeth, while its spirit maketh alive.

‘ The sole purpose of the law in requiring the taxpayer to make out and return to the assessor a list of his property, is to aid the assessor in discovering all of the taxable property, to the end that it may be assessed and made to bear its proper proportion of the expenses of government. Such list made by the taxpayer and the valuation placed by the taxpayer on his property is not conclusive on the assessor. [State ex rel. v. Reed, 159 Mo. 77.] If the assessor discovers other property of the taxpayer which he failed to list, or which was omitted from taxation, it is his duty to assess it, even if it is discovered years afterwards. [Secs. 9176 and 9177, R. S. 1899.]

“The list made out by the taxpayer is not required to be returned by the assessor to the county court, but only a fair copy of the assessor’s books is required to be so returned. [Sec. 9188, R. S. 1899.]

“It follows that if the list to be made by the taxpayer is solely for the use of the assessor and not for the benefit of the taxpayer, and if the assessor has power to assess other property omitted from the list by the taxpayer, then the failure of the assessor to make out a list in the event the taxpayer fails to do so, in nowise prejudices the rights of the taxpayer, and therefore section 9148 must be deemed merely directory and not mandatory, and the failure of the assessor to make out such list does not affect the validity of the assessment. ’ ’

After considering several sections of our statute uppn the subject under consideration, Marshall, J., said: “Moreover, such lists whether made by the taxpayer or by the assessor are only memoranda for the personal use of the assessor in making up the assessment book. They are not evidence in a suit for the collection of the taxes assessed.”

• We do not deem it necessary to pursue this subject further. The other authorities cited are in line with those quoted above, and conclusively establish the validity of the assessment made by the assessor of said county in respect to defendant’s lands.

II. It appears from the agreed statement of facts “that the assessor’s book was properly verified and returned to the county court on the 18th ^ day of January, 1906, with the said lands of this defendant set out therein with such valuations as appeared upon the assessor’s books for the year 1905.”

The defendant had full notice of what had been done towards assessing his lands from the book of 1905. If not satisfied with such proceeding, he had the-right to appeal from the action -of said assessor.

Sections 9190, 9191 and 9192, Revised Statutes. 1899. (Secs. 11394-5-6, R. S. 1909), read as follows:

“Sec. 11394. Every person who thinks himself aggrieved by the assessment of his property may appeal, and every appeal shall be in writing, and verified by affidavit, and shall state specially the grounds of the appeal and the matter or thing complained of, and no-other matter shall be considered by the board.

“Sec. 11395. If from any canse a session of the eounty board of equalization cannot be had on the day named in this chapter, the clerk of the county court shall take to his assistance any two justices of the peace of the county, and hold a court of appeals, giving notice thereof by written or printed handbills, put up in at least six public places in the county, not less than ten days prior to the day fixed for holding such court.

“Sec. 11396. The court shall hear and determine, all appeals in a summary way, and shall correct and adjust the assessor’s book accordingly.”

In State ex rel. v. Reed & Sutton, 159 Mo. l. c. 85, Burgess, J., in referring to the appeal sections, said: .

“When a copy of this book is filed with the county, clerk, it imparts notice to everybody of its contents, and section 7572, Eevised Statutes 1889, provides for an appeal from any assessment by any person who feels himself aggrieved thereby, to the county court of the county whose duty it is to hear and determine the appeal in a summary way and to correct and ad-, just the assessor’s books if error has been committed in the assessment. ’ ’

The above ruling was sustained by the Court in Bane.

In State ex rel. v. Hoyt, 123 Mo. l. c. 356, Maceajrlane, J., said:

“When a taxpayer neglects or refuses to furnish a list of his property to the assessor, it becomes the duty of the assessor to make the assessment ‘on his own. view, or on the best information he can obtain. ’ If the owner thinks injustice has been done by the assessor, he has the right to appeal to the board of equalization and have his wrongs remedied. It has been held that the action of the assessor under the revenue law is judicial, and when the jurisdiction to assess the property exists, his valuation, unless appealed from, is .■conclusive upon the one liable for the taxes. [Ins., Co. v. Charles, 47 Mo. 462, and cases cited; Railroad v. Maguire, 49 Mo. 482.] ”

It is conceded that the assessor returned a .correct list of defendant’s lands. No claim is made in either the record or briefs, that the valuation placed upon said lands by the assessor, was either unreasonable or unjust. The lands of defendant as entered, and the valuation placed thereon by the assessor in his book, are conclusive against defendant, on the record presented here.

III. The assessment of defendant’s lands by the assessor having been shown to be valid, the illegal and unauthorized spoliation of the entries in the book by the county clerk, in increasing the valuation ** ' u placed upon defendant’s land eleven hun¿re(j ¿0]2ars over that returned by the assessor, was, and is, absolutely void, and did not alter or disturb the assessment made by the assessor as aforesaid. This necessarily follows for two reasons: (a) because no such power is conferred by law upon the clerk of the county court, and (b) because the assessment having been legally made, and no appeal taken from the action of the assessor in respect to the assessment of defendant’s lands, no other officer had any right to disturb the same unless authorized so to do by law. No such power having been conferred upon the county clerk, his act in changing the assessment was a nullity, and the case should be disposed of as though it had never occurred.

IY. The assessment of defendant’s lands having-been held to be valid, and the attempted changes of the assessment made by the county clerk having been held to be void, all other proceedings in reference to the levy and collection of said tax are merely directory.

In State ex rel. v. Wilson, 216 Mo. l. c. 287, we said: “Under these sections this court has many times held that when an assessor makes out his assessor’s hooks, jurisdiction attaches and the rest of the proceedings are only directory. ’ ’

In State ex rel. v. Bank of Neosho, 120 Mo. l. c. 172-3, Sherwood, J., in behalf of Division Two, said:

“It is complained that the assessor failed to make out and return a copy of his book of the personal property as required by section 6718, but that he returned only the original assessor’s book which was used for the equalization and extension of taxes by the county clerk. In relation to these matters it may be said, that they are not jurisdictional facts; jurisdiction had already attached in the hands of the assessor when he made out his assessment books, and therefore his subsequent omission to make out a copy or copies of the same, etc., would not defeat the previously acquired jurisdiction, but such omission would be healed by the curative powers of sections 6710 and 6858, Revised Statutes 1879; the rule being that where jurisdiction has attached in favor of the assessor, then the residue of the proceedings may generally be regarded as directory and within the domain of statutes which provide against mere irregularities and. omissions.”

If the County Board of Equalization, and the members of the county court, knew that the county clerk had illegally attempted to raise the valuation of real estate upon the assessor’s book of said county, and said board or court without notice to defendant permitted ■ the valuation to remain placed upon said assessor’s book by the county clerk, and said attempted increased valuation was being used as a basis for levying the taxes on defendant’s lands, then defendant should have appeared before the county court and sought to have the alleged error corrected.

Section 9197, Revised Statutes 1899 (Sec. 11399, R. S. 1909) provides that:

“The county court of each county may hear and determine allegations of erroneous assessment, or mistakes or defects in descriptions of lands, at any term of said court before the taxes shall be paid, on application of any person or persons who shall, by affidavit, show good cause for not having attended the county board of equalization or court of appeals for the purpose of correcting such errors or defects or mistakes .... Valuations placed on property by the assessor or the board of equalization shall not be deemed tq be erroneous assessments under this section.”

Section 11492, Revised Statutes 1909, provides that :

“In all cases where the county court, or assessment board, or any city council or assessment board, shall have assessed and levied taxes, general or special, on any real estate, according to law, whether the same be delinquent or otherwise, and until the same are paid and collected, with all costs, interest and penalties thereon, the city council of any city and the county court of any county shall have- the full power to correct any errors which may appear in connection therewith, whether of valuation, subject to the provisions of the Constitution of this State, or of description, or ownership, double assessment, omission from the assessment list or books, or otherwise, and to make such valuations, assessment and levy conform in all respects to the facts and requirements of the law. Any description or designation of property for assessment purposes by which it may be indentified or located shall be a sufficient and valid description or designation.”

This suit was not commenced until the 10th day of March, 1911. It does not appear from the record that defendant ever made the slightest effort to have his assessment corrected, after it was changed by the county clerk, so as to correspond with the valuation placed upon said lands by tbe assessor. Nor does it appear that he ever made any tender of tbe taxes wbicb were legally collectible, if based on tbe valution made by the assessor.

Tbe agreed statement of facts is vague and indefinite as to what action tbe county court or county board of equalization actually took, in proceeding with tbe tax levy after tbe copy of tbe assessor’s book was filed with tbe county clerk, and tbe valuations illegally changed thereon by said clerk. If an improper valuation of defendant’s lands was considered in determining tbe rate of taxation provided for in section 9280, Revised Statutes 1899 (See. 11420, R. S. 1909), defendant should have applied to tbe county court as provided by law, and sought to have that tribunal correct tbe error, if one was made. As aptly said by Burgess, J., in State ex rel. v. Seahorn, 139 Mo. l. c. 610, after quoting from Rockland v. Ulmer, 84 Me. 503: “All taxation is burdensome, yet it is the duty of every citizen to bear bis portion of tbe burden, and no taxpayer should be permitted to escape doing so, upon a mere technicality wbicb in no way materially affects bis rights.” [Also see State ex rel. v. Carr, 178 Mo. l. c. 239.]

It is not claimed by defendant that bis lands were wrongfully described, or assessed too high by tbe assessor. He made no effort to appeal from the assessment as made by tbe assessor, and was presumably satisfied therewith. He has shown no disposition to bear any portion of tbe burden sustained by others, but on tbe contrary, in his motion for a new trial, complains óf tbe action of tbe trial court for computing tbe amount of taxes, due, in rendering its judgment, presumably upon tbe valuation returned by tbe assessor, instead of tbe assessment as' fixed by tbe board of equalization, and tbe amount of taxes as extended by tbe county clerk under tbe order of tbe county court.

The back tax bill attached to the petition, as a basis of recovery, is duly certified as required by law, and makes a prima-facie case. The agreed statement of facts refers to the petition and said tax bill attached thereto, as being on file in the cause. The trial court had before it the petition, said tax bill and the agreed statement of facts. The conclusion reached by said court is sustained by the record, and its judgment is accordingly affirmed.

Brown, G., concurs, understanding that the judgment is computed at the amount of the levy for that year upon the valuation returned by the assessor.

PER CURIAM:

The foregoing opinion of Railey, C., is adopted as the opinion of the court.

Graves, P. J., and Woodson, J., concur; Blair, J., concurs in result; Bond, J., concurs with the modification endorsed by Brown, G.


author: BOND, J.

text:
    HENRY W. WHITING v. ENTERPRISE LAND & SHEEP COMPANY and I. C. VAN NOY.
    Division One,
    June 1, 1915.
    1. SPECIFIC PERFORMANCE: Shares of Corporate Stock. The buyer has a right to sue in equity for the specific performance of a contract to deliver shares of corporate stock when the shares contracted for have no market value, or are difficult to obtain elsewhere, or there is some reasonable cause for the delivery of the particular shares arising out of the relation they bear to the control of the corporation. In all such cases an action at law for damages is inadequate, and complete relief can only be had in equity.
    2. -: Issuance of Shares Bought: Transfer on Books. A court of equity, in case of the wrongful refusal of the officers of a private corporation, will compel them to issue to a buyer, in lieu of shares bought by him from a stockholder, .other shares in his own name; and if the shares the buyer contracted for have been delivered to him, he is entitled to a formal transfer on the books of the company showing himself to be their owner.
    3. EQUITY: Decree: Within Scope of Pleadings. No relief or decree in equity can transcend the cause of action stated in the pleadings. Any relief consistent with them is obtainable upon sufficient proof when there is a prayer for general relief; but beyond that the decree can not go. If unpleaded grounds- of . relief are disclosed during the progress of the trial, a timely application for an amended or supplemental petition should be allowed; but without such amendment, such evidence cannot be made the basis of a decree.
    4. SPECIFIC PERFORMANCE: Excessive Decree: Conveying Lands. Where there is no allegation in the pleadings making it the duty of defendant to convey lands to plaintiff, the court cannot adjudge defendant to convey them.
    Appeal from Shannon Circuit Court. — Eon. W. N~ Evans, Judge.
    Reversed and remanded.

      F. D. Glore and J. B. Daniel for appellant.
    (1) The petition fails to state sufficient facts to constitute a cause of action. Appellant’s objection to the introduction of any evidence should have been sustained. Secret Service Co. v. Mfg. Co., 125 Mo. 156; Davis v. R. E. Co., 115 Mo. App. 338; Coal & Iron Co. v. Long, 231 Mo. 605; Wendover v. Baker, 121 Mo. 290;. Mastín v. Haley, 61 Mo. 200; McCall v. Atchley, 256 Mo. 54. (2) To sustain a decree for specific performance of a contract, it must be shown that plaintiff complied with all the requirements of the contract on his behalf, or in good faith offered and was able to-do so. Secret Service Co. v. Mfg. Co., 125 Mo. 140; Curtis v. Sexton, 142 Mo. App. 179; Snyder v. Betker, 159 Mo. App. 325. (3) If plaintiff recovers at all, he must recover on the contract sued upon. Norris v..Letchworth, 140 Mo. App. 19; Walker v. Bonhannan, 243 Mo. 119; Cement Co. v. Ullaman, 159 Mo. App. 251; Koons v. Oar Co., 203 Mo. 227. (4) The judgment is not responsive to the pleading. Spindle v. Hyde, 247 Mo. 51; Wolz v. Venard, 253 Mo. 86; Davidson v. Real Estate & Inv. Co., 249 Mo. 474; Pomeroy v. Fullerton, 131 Mo. 592. (5) There is no equity in the petition. Plaintiff had a complete and adequate remedy at law. Withers v. Bank, 67 Mo. App. 118; Hathaway v. Foey, 40 Mo. 541. (6) The court should have sustained the motion in arrest of judgment. Neither the pleadings nor the evidence are sufficient to support it.

      Robert T. Herrick for respondent.
    (1) Objection made for the first time at the trial, that the petition does not state facts sufficient to constitute a cause of action, will not be sustained, unless the petition is so fatally defective that a motion in arrest would lie. Sackman v. Sackman, 145 Mo. 576. (2) The petition states a cause of action, as courts of equity will compel the officers of corporations to register the stock of the corporation in the name of the real owner. Senn v. Premium & Mercantile Co., 115 Mo. App. 695 ; Helm v. Swiggett, 12 Ind. 194;. State ex rel. v. Smith, 48 Yt. 266; 2'Thompson on Corp., sec. 2303. (3) No stock of a corporation being on the market, so that its value can be proven, specific performance of contract to sell and deliver such stock will be decreed. Wood v. Home Tel. Co., 223 Mo. 550; Dennison v. Keasby, 200 Mo. 408 ; Baumhoff v. Railroad, 205 Mo. 248; Montgomery v. Hundley, 205 Mo. 153; Hogan v. Bank, 182 Mo. 335. (4) The decree of the lower court was responsive to the issues made by the pleadings. A court of equity,' when it once acquires jurisdiction, will go on and administer complete justice as between the parties, over the subject-matter in issue between them. In such case, where- it has jurisdiction of the subject-matter, it will retain its grasp of the res, and, in order to avoid circuity' of action, it will go on and do complete justice. Harrison v. Craven, 188 Mo. 590'; Hogan v. Bank, 182 Mo. 319; Fowles v. Bentley, 135 Mo. App. 417. (5) Respondent having tendered full compliance with all the terms of the contract on the day and at the place where it was to be performed, and also on different occasions afterwards, and having offered full performance of said contract in his petition, has met all the requirements demanded in a court of equity to obtain equitable relief upon'his part. Ruffle v. Bid. & L. Assn., 158 Mo. 613; Tourgen v. Chesney, 186 Mo. 540.
    STATEMENT. '
    The plaintiff sued the defendant to specifically enforce the following agreement:
    Agreement.
    This agreement entered into this 5th day of September, 1911, by and between I. C. Van Noy, hereinafter called the seller, and Henry W. Whiting, hereinafter known as the buyer:
    Witnesseth: The buyer hereby agrees to purchase from
    ' the seller all his interest in and to 57,700 shares of the capital stock of the Enterprise Land & Sheep Company, of Kansas City, Missouri, at and for the sum of $26,136, to be paid as follows:
    $20,000 by note of ordinary form, payable on or before five years from date;
    $6,000 by 6,000 shares of the capital stock in said company, at the par value of $1 per share.
    The buyer agrees to pay the interest on the Goettel notes to date of consummation of this deal, and seller to reimburse, the buyer in the sum equal to the difference between said interest and $1136.
    The buyer hereby agrees to immediately begin investigation of the title to the land owned by said company (16,249. acres in Carter, Reynolds and Wayne counties, Missouri), and to close the deal within thirty days from the date hereof, provided the title is a reasonably saleable one, or can be made good in a reasonable time, and at a reasonable expense; the buyer further, agreeing that upon his acceptance of said title, the seller shall be released from all personal responsibility on account of same.
    The seller here agrees to pay off all indebtedness now owing by said company, except said interest accrued to Goettel

      as aforesaid, and excepting the balance due on the said land, or which may become due.
    In Witness Whereof, we have hereunto set our hands this day and year aforesaid.
    Seller: I. C. Van Not,
    Buyer: Henrt W. Whiting.
    The petitioner alleges the legal effect of the above contract, and also that the defendant, I. O. Van Noy, delivered to him the 57,700' shares of stock and that he is the owner thereof; that no transfer has been made on the books of the defendant company; that the abstract of title to the lands referred to in said agreement has been delivered to plaintiff, who, after examining the same, was ready within thirty days to close the trade provided the title was a reasonably saleable one, or could be made good in a reasonable time and at a reasonable expense.
    That plaintiff notified the said I. C. Van Noy that he was ready to carry out his contract upon compliance therewith by the 'latter; that the lands referred to in the contract had been previously owned by one. Goettel, a citizen of Pennsylvania, who had executed a deed to the defendant corporation and placed it in escrow to be delivered on the payment of $17,000, which payment was made on October 17, 1911, and the deed was recorded on October 31, 1911, in the counties of Carter, Reynolds and Wayne, where the .said land was situated. That thereafter the vendee, the defendant company, made a conveyance without authority of its board of directors of said land to H. C. Koehler, to secure him a sum of money not exceeding $17,000. That said deed could only operate, if at all, as an equitable mortgage to secure the money loaned "thereon by said Koehler.
    The petition prays that this deed be annulled or treated as an equitable mortgage. That defendant Van Noy be required to specifically perform his contract, •or to cause the transfer of the shares of stock to be made to plaintiff on the books of the defendant company. That Koehler be restrained from disposing of the lands deeded to him by the defendant corporation, and for general relief.
    The defendants’ answer admitted the incorporation of one of the defendants and the execution of the contract exhibited with the petition, and that the lands conveyed to the corporate defendant were theretofore owned by one Goettel, and that his deed and that placed in escrow had been since delivered and recorded, together with the deed of trust given by the •defendant corporation to secure the unpaid purchase ■money for said land, admitting that thereafter said defendant corporation conveyed the land to said Koehler, and that no meeting of its board of directors authorized that conveyance.
    The answer denied the remaining allegations of the petition and averred plaintiff’s remedy was at law. The reply took issue.
    On the trial defendant Koehler filed a disclaimer of any cause.
    The court rendered a decree, to-wit:
    “The court doth order, adjudge and decree that within sixty days from this date, defendant, I. C. Yan .Noy, convey or caused to be conveyed the same or as good a title as such company had September 5,1911, to the sixteen thousand, two hundred forty-nine acres of land described in the petition of plaintiff filed herein to the Enterprise Land & Sheep Company, a corporation, and one of the defendants in this cause, and that said company or I. C. Yan Noy, defendant in this cause, deliver, if he or it has not already done so, fifty-seven thousand seven hundred shares of the capital stock of said company (defendant corporation) in valid form, at which time the plaintiff is hereby ordered, adjudged and decreed to assign and deliver to the said defendant I. C. Yan Noy six thousand shares of the capital stock of said company (defendant corporation) and execute and deliver his (plaintiff’s) note to said. 1. C. Yan Noy for twenty thousand dollars payable on- or before five years after the date thereof.
    “The court doth further order, adjudge and decree that at the time the said defendant I. C. Van Noy delivers the shares of stock above named to plaintiff,, he, the plaintiff, shall then and there pay to said I. C.Van Noy in cash the sum of forty-three thousand dollars with interest thereon from this date, to-wit, Sep7¡ tember 14, 1912, at the rate of eight per cent pen annum. *
    “The land described in plaintiff’s petition and, above referred to is described as follows, to-wit r, [description omitted].
    “The court doth further order, adjudge and de-r; cree that plaintiff have and recover of and from defendants (except defendant H. C. Koehler) his costs laid out and expended in this cause, and that execution issue therefor.” ■>
    Defendant duly appealed.
   OPINION.

BOND, J.

(After stating the facts as above.) — No., question can exist as to the right to sue in equity for. the specific performance to deliver shares of stock,, whenever it is shown that the shares contracted for, have no market value, or are difficult to obtain else-, where, or there is some reasonable cause for the delivery of the particular shares arising out of the relation they bear to the control of the corporation. In all, such cases the action for damages at law is wholly, inadequate and complete relief can only be had in. equity., [Hagan v. Bank, 182 Mo. l. c. 335; O’Neill v. Webb, 78 Mo. App. 1; Wood v. Telephone Co., 223 Mo. l. c. 550; Baumhoff v. Railroad, 205 Mo. l. c. 262; Montgomery v. Hundley, 205 Mo. l. c. 153; Dennison, v. Keasby, 200 Mo. 408.]

Nor can there he any doubt that a court of equity in case of wrongful refusal of the officers of the private corporation will compel them to issue to a buyer, in lien of shares bought by him from a shareholder, other shares in his own name. [Senn v. Mercantile Company, 115 Mo. App. 685, and cases cited.]

It is clear therefore that if the allegations of plaintiff’s petition brought it within the scope of these principles, it stated a cause of action for relief in equity. A careful consideration of the averments of the petition which have been summarized in the statement shows that it makes no complaint of the failure to deliver the number of shares of stock for which, plaintiff contracted. On that point the petition uses the following language:

“Third: Plaintiff further states that after the execution of said contract, and in compliance with same, the defendant I. C. Van Noy, did deliver to the plaintiff 57,700 shares of the capital stock of said defendant Enterprise Land & Sheep Company; and said stock is now in the possession and under the control of the plaintiff, and plaintiff is now the owner and holder of the same. ’ ’

This eliminates from the petition any ground of equitable relief based on a refusal to deliver .the shares, and as to that left the plaintiff only entitled in any event to a formal transfer on the books of the defendant showing him to be the owner of the shares.

Neither should the decree of the learned trial court have adjudged under the present petition that the defendant I. C. Van Noy should convey the lands described therein to the defendant corporation. There are no allegations in the present petition which makes that his duty. Whether I. C. Van Noy by virtue of his acts and doing in the acquisition of title to said lands has fraudulently secured to himself the entire assets of the corporation while bearing the fiduciary relation to it and in charge of its affairs as its president is not set forth by any allegation or charges contained in the pleadings in this case, nor was any amendatory or supplemental petition filed after the adduction of evidence touching the conduct or methods employed by I. C. Van Noy in the obtention of title to the lands in question, so as to make such evidence the basis of the decree rendered. The rule in equity is the same as at law, that no relief or redress can transcend the causes of action stated in the pleadings. In equity suits any relief consistent with the pleadings is obtainable upon sufficient proof when there is a prayer for general relief. [Phillips v. Jackson, 240 Mo. l. c. 336, and cases cited; McLure v. Bank, 252 Mo. l. c. 520.] But beyond that the court is not permitted to go. [Wilson v. Wilson, 255 Mo. l. c. 537-8.]

If unpleaded grounds of equitable relief were disclosed during the progress of the trial, an application for an amendatory or supplemental petition would have been timely. [Newham v. Kenton, 79 Mo. l. c. 387.]

In the case at bar no such request was made and no such action taken. It is evident that the decree of the chancellor in so far as it directs the conveyance by I. C. Yan Noy of the lands in controversy to the defendant corporation is based wholly on matters outside the scope of any allegations stated in plaintiff’s petition. It must therefore be reversed and the cause remanded to be proceeded with in a manner not inconsistent with this opinion. It is so ordered. All concur.