author: HIGJBEE, J.

text:
    THE STATE ex rel. GREAT AMERICAN HOME SAVINGS INSTITUTION et al. v. JOHN A. LEE, Supervisor of Building & Loan Associations.
    In Banc,
    July 8, 1921.
    1. HOME-BUILDING ASSOCIATION: Right to Certificate: Grounds of Denial. An unincorporated association organized in compliance with and according to the terms of Section 10263, Revised Statutes 1919, declaring that “the provisions of Article X, Chapter 90, Revised Statutes 1919, shall not be applicable to any .unincorporated association of individuals formed for the purpose of accumulating a fund or funds to be used for the purpose of enabling the contributors of such fund, or their assigns, to secure a loan or loans for the purpose of acquiring a dwelling house or farm or other income-producing property or discharging a mortgage or other encumbrance thereon; Provided, however, that no such association shall commence business in this State until it shall first submit to the Supervisor of Building and Loan Associations a detailed statement of its plan for doing business and a copy of the contracts proposed to be issued, and procure from him a certificate authorizing it to do business,” is entitled to a certificate authorizing it to do business in this State, and said certificate cannot be denied on the ground that such association is a limited partnership, or on the ground that it is subject to the chapter on corporations and cannot do business without being incorporated, or on the ground that not being incorporated it has no legal entity or artificial personality and cannot take title to or act as trustee of a loan and trust fund. Nor can a certificate be denied on the ground that no steps have been taken to accumulate a fund, for no such steps can be taken until authority to do business has been obtained. Nor can it be denied on the ground that the trust certificates are assignable and trustees become and cease to be trustees by the mere purchase and sale of trust certificates, without any right in the creators and beneficiaries to object, for the right to sell is incident to ownership. Said Section 10263 is a valid statute.
    2. PLEADING: Conclusion. A mere plea in the answer that plaintiff has failed to comply with any of the provisions of the statutes relating to partnerships is simply the averment of a legal conclusion and raises no issue of fact, and is to be treated as no allegation at all.
    3. HOME-BUILDING ASSOCIATION: Right to Certificate: Pleading: Partnership. A farm-home-building association, organized in pursuance to the statute (Sec. 10263, R. S. 1919), cannot at the same time be a partnership, a corporation, a bond-investment company, a joint-stock company and a lottery. Pleas that such an association is a partnership, a joint-stock company or a bond-investment company are inconsistent and self-destructive.
    4. --: Contract Inter Sese. It is competent for the members of a farm-home-building association organized under the statute, to contract as to their liability to each other and among themselves.
    5. -: Corporation. The contention that a farm-home-building association must be incorporated before it can do business, and that the power to sue and be sued, to sell, acquire and convey property, to do business as a legal entity, is a sovereign grant -of power possessed only by corporations and that such association is therefore subject to the statute relating to corporations, is ■ answered in the negative by the statute authorizing it to organize and do business upon compliance with the conditions it prescribes.
    6. -: -: Constitutional Provision. Nor is such farm-home-building association made a corporation by the provision of the Constitution declaring that- “the term ‘corporation,’ as used in this article, shall be construed to include all joint-stock companies or associations having powers or privileges not possessed by individuals or partnerships.” Such provision does not convert joint-stock companies or voluntary associations into corporations, or require them to incorporate as a condition entitling them to do business.
    7. -: Bond-Investment Company. A home-building association, organized in pursuance to the statute (Sec. 10263, R. S. 1919), is not a bond-investment company, for the reason that it is not a corporation, and does not seek to do a bond-investment business within the meaning of the statutes regulating such companies.

      8, -- — : Reasonableness of Contract. Courts have no power to pass upon the reasonableness of the terms of a contract adopted by the parties. Whether the plan of a farm-home-building association is financially sound, and whether its trustees and the beneficiaries under its contracts will equitably share in the profits, being matters of contract, are not questions for a court to determine.
    9. -: Name: Similarity to Existing Corporation. There is no such similarity between the name “Great American Home Savings Institution” and the name of an existing corporation known as “American Home Building and Loan Association,” domiciled in the same city, as is calculated to mislead the public, and consequently the Supervisor of Building and Loan Associations was not justified, on account of similarity of names, in refusing the first named association a certificate to do business in this State.
    10. -: Inspection and Supervision: Constitutionality of Statute: Raised by Stranger. The statute (Sec. 10263, R. S. 1919) provides that an association organized under it shall “be subject to the supervision and examination” of the Supervisor of Building and Loan Associations, “similar, in so far as applicable, to his supervision and examination of building and loan associations,” and thereby it adopts and incorporates into itself the statute fixing a fee of twenty-five cents for each $1000 of assets shown by the report of a building and loan association, and by necessary implication entitles the supervisor to the fees appertaining to such supervision and examination. But aside from that, a mere friend of the court, who is not a party to the suit, cannot be heard to call in question the constitutionality of the statute, and to contend that it allows an association organized under it to be licensed, supervised and examined without cost to such association and to impose the expense thereof upon building and loan associations, and that the statute thereby denies the equal protection of the law-guaranteed by the Fourteenth Amendment. Laws enacted by the Legislature are presumed to be constitutional, and their validity can be questioned only by persons whose rights are impaired by it and who are parties to the action.
    11. —:-: Well-Being of State: Constitutionality of Statute. Section 10263, Revised Statutes 1919, authorizing unincorporated associations to do business in this State, does not violate Section 5 of Article 12 of the Constitution forbidding corporations to conduct their business in such a manner as to infringe the general well-being of the State, since such statute has no reference to corporations. But aside from that, said statute does not permit associations organized under it to conduct their business in such a manner as to infringe the general well-being of the State.

      12. -: Lotteries. Section 10263, Revised Statutes 1919, does not permit lotteries to do business in this State, and a simple reading of it excludes the idea that the unincorporated associations which may be organized under it are lotteries.
    13. -: Title of Act: Class Legislation. The title of the Act of 1919 (Sec. 10263, R. S. 1919) is not defective, nor is the act class legislation.
    14. -: Public Policy. Courts cannot declare statutes void on the ground that they are against public policy and morals and liable to lead to corruption and oppression.
    Mandamus.
    Peremptory writ issued.

      Wilfley, Williams, McIntyre, Hensley & Nelson for relators.
    (1) The business of relator does not conflict with the laws and Constitution of this State, but, on the other hand is, in each and every particular, in full accord therewith. (a) The agreement and declaration of trust for the formation of the Great American Home Savings Institution is a lawful contract, providing for the formation of a “voluntary association of unincorporated individuals” to do business in Missouri, under Section 10263, R. S. 1919. State ex rel. v. Swanger, 190 Mo. 561; 4 Cyc. 304; Hammerstein v. Parsons, 38 Mo. App. 332; Missouri Bottlers’ Assn. v. Fennerty, 81 Mo. App. 525; King v. Webb, 14 East. 406; Kuhlman v. Meyer, 50 Mo. App. 648; Muscogee Land Co. v. Hyer, 18 Fla. 419; Coleman v. Knights of Honor, 18 Mo. App. 195; Byrne v. Jones, 159 Fed. 321; Michod v. Gerod, 45 U. S. 503; Sec. 10234, R. S. 1919; Heard v. March, 12 Cush. 580; Townsend v. Goeway, 19 Wendall (R. I.) 427; Husey v. Arnold, 185 Mass. 202; Cross v. Jackson, 5 Hill, 478; Pittsburg Wagon Works Est., 204 Pa. St. 432; Hart v. Seymour, 147 111. 598; Kerrison v. Stewart, 93 U. S. 155; Silk Works v. Solomon, 4 Hun, 135. (b) It is true that relators have not complied with any of said statutes relating to" limited partnerships, and this for the very simple reason that said association is in no sense a limited partnership. It would be very impractical if not impossible to carry on the business known as the building and loan association business under a limited partnership. Relators in the present instance are certainly not attempting so to do. Furthermore the limited partnership statutes do not prohibit the carrying on of any business but are merely permissive in that they grant certain privileges to those who undertake to operate thereunder and in compliance with said statutes, (c) Said association does not seek to exercise the powers of a corporation, is not a corporation, and it is therefore not required to comply with the laws concerning the organization of private corporations. "[Incorporated associations may have and possess many of the incidental attributes of corporations. But incidental attributes, such as having a common name, stockholders, stock certificates, by-laws, directors, limited liability of stockholders or trustees, do not render such associations corporations, such privileges are not privileges belonging exclusively to corporations but are merely such privileges as have for many generations been held and possessed by individuals under and by virtue of their common law right of contract. Spottswood v. Morris, 12 Idaho, 360; Hotel Company v. Jones, 177 U. S. 449; Warner & Ray v. Beers, 23 Wend. 101; King v. Webb, 14 East. 406; 4 Cyc. 304; Hammerstein v. Parsons, 38 Mo. App. 332; Missouri Bottlers Assn, v. Fennerty, 81 Mo. App. 525; State ex rel. v. Stead, 64 Mo. App. 28; Sec. 1186, R. S. 1919 (seventh clause), (d) The name ££ Great American Home Savings Institution” is not an imitation of the.name ££American Home Building and Loan Association.” State ex rel. v. McGrath, 92 Mo. 358.’ (e) The business proposed to be carried on by the relators (as fully explained in the statement of facts) falls clearly within the provisions of said Section 1026-3. Relators having fully complied with the provision of said section, said section expressly exempts the relator association from complying with the remaining sections of said article. (3) Respondent’s duties under Sec. 10263, R. S. 1919, being purely ministerial, he is without right or authority to raise said constitutional questions. State ex rel. Wiles v. Williams, 232 Mo. State ex rel. Railroad Co. v. Johnston, 234 Mo. 351; Smith v. State of Indiana, 191 U. S. 138; Braxton County Court v. West Virginia, 208 U. S. 192. (4) If the court should hold that respondent can raise the question then we most earnestly insist that Section 10263, does not in any manner violate any of the constitutional provisions now attempted to be raised by respondent. (5) Mandamus is the proper remedy. State ex rel. v. Cook, 174 Mo. 118; State ex rel. v. Johnston, 234 Mo. 356.

      Jesse W. Barrett, Attorney-General, and Merrill E. Otis, Assistant Attorney-General, for respondent.
    The questions raised by the pleadings are purely legal. The discussion of these questions in the brief filed in this case with leave- of court by the amicus curiae is, from respondent’s standpoint, so exhaustive and complete that respondent desires to submit the case upon that brief, hereby adopting it as a presentation of the points and arguments by reason of which he has refused to issue to relators a certificate to do business.

      Alroy 8. Philips and Lee B. Etving, Amicus Curiae.

    (1) The relator association is not a common-law trust, (a) Its directors take no title to its assets and the title is vested in the holders of the trustee certificates, who constitute its members. Douthitt v. Stinson, 63 Mo. 278; Coal Co. v. Bingham, 97 Mo. 196. (b) Its members are owners and masters of the capital fund, who are associated together by the terms of the agreement and are principals whose managing committee, or “directors,” are “at all times subject to the control” of the members, and are agents and not trustees. Williams v. Milton, 215 Mass. 8; Simson v. Klipstein, 262 Fed. 825. (2) The relator association must comply with the chapter on limited partnerships, (a) It is a partnership and its ' members are liable as partners. Williams v. Milton, 215 Mass. 1; Simson v. Klipstein, 262 Fed. 823; Laney v. Fickel, 83 Mo. App. 63. (b) It cannot limit the liability of its members without complying with the chapter on limited partnerships. Sec. 9240, E. S. 1919; Selden v. Hall, 21 Mo. App. 462. (3) The relator asociation is an unincorporated corporation which is subject to the chapter on corporations and cannot do business without being incorporated. Sec. 11, Art. 12, Mo. Constitution; Sec. 9722, E. S. 1919. (a) The power to be sued in its partnership name is not a power or privilege possessed by a partnership. Weldon v. Fisher, 194 Mo. App. 579. (b) The right to be sued in their own names, given by our statutes to • unincorporated associations, is a sovereign grant of a power not possessed by partnerships. Sec. 1186', E. S. 1919; Spottswood v. Morris, 12 Idaho, 375, 382. (c) See 9722, E. S. 1919, is itself a sovereign grant to voluntary associations of all of the powers of corporations save entity and the powers incident to entity. Sees. 9722, 9749, E. S. 1919; Williams v. Express Co., 195 Mo. App. 362; Weihtuechter v. Miller, 276 Mo. 329. (d) The Missouri doctrine is that the mere assumption of corporate powers, without a sovereign grant, brings an unincorporated association within the definition of a corporation. Williams v. Express Co., 195 Mo. App. 362; Weihtuechter v. Miller, 276 Mo. 322, 329. (e) Lack of entity brings relator association into such conflict with the requirements of the law that it must incorporate under it. Secs. 9734, 9735, 9742, 9749, 10,144, 10,159, E. S. 1919; Sec. 7, Art. 12, Mo. Constitution; Sec. 8, Art. 12, Mo. Constitution, Home Lumber Co. v. Hopkins, 190 Pae. 601; 11 C. J. 381. (4) Not being incorporated, the relator association has no legal entity or artificial personality, and cannot take title to or act as trustee of the loan and trust fund. Great Northern Hotel Co. v. Jones, 177 U. S. 449; Guild v. Allen, 28 R. I. 434; German Land Assn. v. Scholler, 10 Minn. 338; 5'C. J. 1343; Douthitt v. Stinson, 63 Mo. 268, 73 Mo. 199; Coal Co. v. Bingham, 97 Mo. 196; Reinhard v. Mining Co., 107 Mo. 624; Miller v. Risenberger, 144 Mo. 299; Benevolent Society v. Murray, 145 Mo. 628; Lumber Co. v. Oliver, 65 Mo. App. 435; Riffel v. Ozark L. & L. Co., 81 Mo. App. 177; Talbert v. Grist, 198 Mo. App. 495. .(5) Relator association’s plan of compensation for itself is contrary to equitable principles, (a) It is contrary to equitable principles for a trustee to solicit- being made trustee and charge the settlor or beneficiaries with the expense of creating the trust. Trustees are only allowed compensation for expenses in administering the trust. 39 Cyc. 484. (b) It is also contrary to equitable principles for relator association to share in the profits of the loan and trust fund in which it has no interest, and an agreement to that effect will not be permitted to stand. 39 Cyc. 296; Kilpatrick v. Robert, 278 Mo. 265; In re Mays, 197 Mo. App. 565; 39 Cyc. 300, 301; Cornet v. Cornet, 269 Mo. 298. (6) Relator association is a bond investment company, (a)It is a corporation within the meaning of Sec. 10333, R. S. 1919, because that section is in the chapter on corporations, -and the definition in Section 9722, applies to the whole chapter. Authorities cited under Point 3. (b) The business done by relator association is that done by bond investment companies. Sec. 10333, R. S. 1919; Pratt v. Livingston Mercantile Co., Ill Mo. App. 102; 9 C. J. 7, 8; 25 Cyc. 1636; Siever v. Inv. Co., 183 Mo. 41-45; United States v. McDonald, 59 Fed. 563; Glover v. St. Louis Mutual Bond Inv. Co., 138 Mo. 410. (7) The relator association is a co-operative association not excepted from the operation of the Co-Operative Act. (a) Relator association is not a building and loan association, because it is organized for profit and lacks the element of mutuality and the other features of a building and loan association. 9 C. J. 919, 921, 23; Section 10201 and the other sections of Article 9, Chapter 90, Revised Statutes 1919. (b) Section 10246, excepts only building and loan associations like those referred to and incorporated under Article IX of Chapter 90, R. S. 1919. Sec. 10246, R. S. 1919; Jarrett v. Cope, 68 Pa. 71. (c) The catchwords to Section 10263 do not make a building and loan association out of relator association or any association therein referred to. Annotation to Sec. 7090, R. S. 1919. (d) Relator association is not one of the kind of associations referred to and excepted by Sec. 10263, R. S. 1919, because the persons who accumulate the loan and trust fund and contribute thereto are not members of relator association and there is no association of such contributors. (8) Respondent has the right to question the constitutionality of Section 10263. (a) This section requires respondent to determine whether a proposed plan “is in conflict with the laws and Constitution of this State,” which is the determination of questions of mixed law and fact. Such duties are judicial and not ministerial in their nature. 26 Cyc. 161; State ex rel. v. Thornhili, 174 Mo. App. 473; United States v. Commissioner, 72 U. S. (5 Wall.) 565; People v. Salsbury, 134 Mich. 551. (b) If respondent has abused such powers he is subject to mandamus. 26 Cyc. 161-162.' (c) Respondent questions his jurisdiction to issue a license under the statute, and mandamus always lies to determine whether jurisdiction exists, and if so, to compel its exercise. State ex rel. Bayha v. Phillips, 97 Mo. 331; State ex rel. v. Homer, 249 Mo. 66, 75; State ex rel. v. Holtcamp, 266 Mo. 372. (d) Even if respondent’s duties are ministerial in their nature, the mere fact that the Attorney-G-eneral has advised him to continue refusing to issue a license to relator on the ground of the unconstitution ality of the statute is sufficient to entitle relator to raise the question. State ex rel. v. Kimmel, 256 Mo. 643; State ex rel. v. Williams, 232 Mo. 71. (g) This court has often passed on the constitutionality of statutes where it involved the power of a ministerial officer to proceed at all, and the propriety of the action of this court in issuing a writ to compel an officer to proceed under an unconstitutional statute. State ex rel. v. Gordon, 268 Mo. 713; State ex rel. v. Johnson, 234 Mo. 354. (9) Section 10263 denies the equal protection of the laws in violation of Section 1 of Article XIV of the amendments to the Constitution of the United States. This section allows the associations therein referred to to be licensed, supervised and examined without cost to such associations, and throws the entire burden of the expense thereof upon the shoulders of building and loan associations. Secs. 10229, 10230, 10231, R. S. 1919; Laws 1915, p. 8, sec. 13; Laws 1917, p. 50, sec. 4, and page 70, sec. 26; Laws 1919, p. 42, sec. 4; Ford v. Standard Oil Co., 32 App. Div. 596, 53 N. Y. Supp. 51; Merchants’ Exchange v. Knott, 212 Mo. 635; State v. Bixman, 162 Mo. 39, 71; Armour & Co. v. City Council, 134 Ga. 178, 27 L. R. A.. (N. S.) 676; State v. Gabarowski, 111 Iowa, 496 56 L. R. A. 570; State v. Shedroi, 75 Vt-297; City of Laurens v. Anderson, 75 S. C. 62, 117 Am. St. 890'; Commonwealth v. Hana, 195 Mass. 266, 11 L. R. A. (N. S.) 803, 122 Am. St. 257; State v. Whitecom, 122 Wis. 122. (10) Section 10263 is in violation of clause 26 of Section 53 of Article IV of the Missouri Constitution. (a) To grant inspection free to one at the expense of another is the grant of a special privilege, (b) It is also the grant of an immunity. (11) Section 10263, permits lotteries in violation of Section 10 of Article XV of the Missouri Constitution. It authorizes the methods forbidden in Section 10237, and the practical operation of all such schemes results in their being held to be lotteries. Making loans in the order of written applications therefor works out as a lottery. United States v. Pnrvis, 195 Fed. 620; Siver v. Guarantee Inv. Co., .183 Mo. 50; United States v. McDonald, 59 Fed. 563. (12) Section 10263, violates Section 5 of Article "XTT of the Missouri Constitution, in that it permits corporations to conduct their business in such a manner as to infringe the general well-being of the State. State ex rel. v. Mercantile Co., 184 Mo. 176, 186.
   HIGJBEE, J.

The statement of the case by relators, not questioned by the respondent except as to their conclusions, is substantially as follows:

This is a proceeding in mandamus against the Supervisor of Building and Loan Associations in the State of Missouri, brought by the Great American Home Savings Institution, an unincorporated association of individuals, who are also parties relators, seeking a certificate of authority to do business in this State, under a plan set forth in a trust agreement for the formation of the Great American Home Savings Institution heretofore filed with the Supervisor of Building and Loan Associations when an application was made October 27, 1920, for a certificate to do business in this State under the provisions of Section 10263, Revised Statutes 1919. The form of the trust agreement for the organization of the Great American Home Savings Institution is what is familiarly known as a common-law trust.

Attached to said trust agreement were a detailed statement of its plan for doing business, a copy of the contracts proposed to be issued and other documents.

The Supervisor of Building and Loan Associations refused to issue a certificate authorizing this association to do business in this State, and suit was instituted in this court praying for a writ of mandamus commanding the Supervisor of Building and Loan Associations to issue to petitioners herein a certificate authorizing them to do business in this State under the plan set forth in said trust agreement. The alternative writ of mandamus was granted by this court, whereupon respondent waived the issuance and service of said alternative writ, and afterwards filed his second amended return.

The Great American Home Savings Institution is a voluntary unincorporated association of individuals formed for the purpose of accumulating a fund or funds to be used under the terms of the trust agreement for the purpose of enabling the contributors to such fund or their assigns, to secure a loan or loans for the purpose of acquiring a dwelling house or farm or other income-producing property, or discharging a mortgage or other encumbrance thereon. The business intended to be carried on under said trust agreement to • all practical intents and purposes is the same as the business now being conducted by corporations doing a building and loan association business in this State.

Said trust agreement provides for the issuance of trustees’ certificates in the amount not exceeding $100,-000 to provide an initial fund which is in the nature of a permanent guaranty fund and furnishes funds to m,eet immediate loan demands and is to stand as a guaranty to the maintenance of the loan and trust fund. The trust agreement further provides for the issuance of trust certificates on the monthly installment plan in denominations of $1,000 and multiples of $100 in excess thereof. The holders of said trust certificates are to pay thereon in monthly payments the sum of $6.50 per $1000 face value for a,period of 132 months. The loan and trust fund is created from these monthly payments by setting aside $6.20 per month out of each monthly payment, after the first three payments, and said fund is to be maintained upon a four per cent basis, compounded monthly, which is the liability of the Great American Home Savings Institution on account of said fund. The Great American Home Savings Institution agrees to establish and maintain said loan and trust fund at all times unimpaired. The first three monthly payments of $6.50 and 30 cents of each subsequent payment of $6.50 per each $1000 face value of certificates shall belong to the general funds of the trust and will be available for overhead and operating expenses.

The trust agreement further authorizes the issue of a “full paid interest bearing certificate” subject to the approval of the Supervisor of Building and Loan Associations. Hence, the Great American Home Savings Institution has three sources available for raising funds to mate loans to home builders: first, by the issuance of $100,000 of trustee certificates, which cannot be issued for- less than their par value: second, the issuance of the installment trust certificates; and, third, the issuance of full-paid interest-bearing certificates.

The owner of the trust certificate shall be entitled to a loan equal to its face value to be-made from the “Loan and Trust Fund” (or from funds created by the issuance of trustees’ certificates), in the order of written applications made therefor, and subject to the rights and priorities of other certificate owners, the security tendered for said loan being satisfactory. The said loan shall be made only for the purpose of the purchase or building of a home, purchase of farm or other improved income property, or making improvements thereon or paying off mortgage, deed of trust, or other encumbrances existing thereon. In the event a certificate owner does not avail himself of the borrowing privilege, then at the end of eleven years he collects his investment plus his share of the surplus profits earned in the “Loan or Trust Fund, ’ ’ not to exceed $308 per $1000 face value of the certificate, ¡which means the maximum -.amount-to be repaid on the $1000 trust certificate held lay. one who has not exercised the loan privilege;,and' 'has deposited 132 monthly payments of $6.50 '(or a total of $858) is $1308. However, $1000 is the guaranteed liability of the institution.

Loans made from the Loan and Trust Fund under the terms of the trust certificate are to be repaid by the borrower in 132 monthly installments of $11.19 per $1000 which cover both principal and interest on the loan. In other words, anyone who borrows $1000 from the Loan and Trust Fund repays the Great American Home Savings Institution in 132 monthly payments of $11.19 each, or an aggregate of $1,477.08, which is a return of the principal with interest at the rate of 7.72 per cent per annum. By reference to the actuarial opinions of Messrs. Harvey and Shepher, the sum of $6.20 per month set aside to the Loan and Trust Fund from the $6.50 monthly payment by the holder of trust certificate for 132 months, less the first three payments, improved with interest at the rate of 7.72 per cent earned on loans, will equal $1,248.37 at the end of the tim,e. That is, the individual share of each certificate owner in this fund and its earnings at 7.72 per cent'interest will amount to $1,248.37 per $1000 face value of certificate, and since the liability assumed on the certificate is limited to $1000, this actuarial opinion shows a surplus profit earned on the money set aside to the Loan and Trust Fund for the “exclusive benefit and profit of certificate owners” of $248.37 on each individual certificate of $1000. But under the .terms of the certificate “all surplus earnings from interest, fines, transfer and waiver fees, cash surrender and partial paid-up values” belong to the non-borrowing owners of trust certificates, to the “extent of, but not to exceed a total surplus of $308 per $1000 face value.” So that the Great American Home Savings Institution does not profit by the earnings from these sources on account of the $6.20 placed in the Loan and Trust Fund unless said earnings exceed $308 per $1000.

The loan privilege provides that “when loan is made for any of the purposes defined herein, this certificate may be surrendered, in which event the owner shall be credited with its accrued value — equal to $6.20 of each monthly deposit made on each $1000 face value of this certificate less the first three; with interest at the rate of 6 per cent per annum, which may be applied as part equity requirements for said loan or withdrawn in cash at the option of the owner.”

Trust certificates become non-forfeitable after four monthly deposits have-been made. That is, the holder may surrender his certificate and receive in lieu thereof a paid-up certificate for the total amount paid in, less the first three payments, which paid up certificate matures eleven years from date with interest at five per cent per annum.

The trust certificate gives its owner a cash surrender privilege at the end of three years or at the end of any year thereafter equal to $6.20 of each monthly deposit made, less the first three payments with interest at the rate of five per cent per annum thereon — plus its share of surplus earned, not to exceed two per cent more, or certificate owner may borrow eighty per cent of the accrued cash value after one year at eight per cent discount by giving certificates as collateral security.

The affairs of the Great Amerian Home Savings Institution are under the general direction of a board of directors selected by the holders of trustees’ certificates. The board of directors shall cause a full and accurate set of books of account to be kept, in which shall be kept a full record of all of the transactions of the institution, and a full report of the financial condition shall be made by the president of the trust at all annual meetings of the trustees. The board of directors shall be charged with the duty of taking proper action by all proper methods in order to afford a proper and equitable administration of the affairs and business of the trust.

Under the plan of organization and operation and under the law under which relators seek to do business, the trustees or managers of the Great American Home Savings Institution shall from time to time furnish such surety bonds to secure the faithful performance of their trusts as may be required by the Supervisor of Building and Loan Associations of Missouri, and the Great American Home Savings Institution shall be subject to the supervision and examination of the Supervisor of Building and Loan Associations of Missouri, similar, in so far as applicable, to his supervision and examination of building and loan associations.

It is admitted in the pleadings that prior to the time respondent declined to issue to relators certificates of authority to do business in this State, or at any time prior to the institution of this suit, respondent had not been advised by the Attorney-General of Missouri that Section 10263, Revised Statutes 1919, was unconstitutional.

It is further admitted in the pleadings that at and prior to the time relators made application to respondent for a certificate of authority to do business in this State, relators applied to and were advised by the then Secretary of State of Missouri that the name “Great American Home Savings Institution” was available for their use, and that the same did not conflict with any corporate name then in use in this State.

As suggested above, all issues of fact have been eliminated by the pleadings and the only issues involved are purely legal ones. Respondent contends that said plan of doing business conflicts with certain of the laws of the State of Missouri, and also contends that Section 10263, Revised Statutes 1919 (which is the section under which relators seek to organize), violates certain provisions of both the State and Federal constitutions.

I. The relator’s statement sets forth the organization, the plan for doing business, the contracts proposed to be issued and the business of the association, so that it is unnecessary to recite the articles of association. The réspondent does not question the accuracy of the statement. We are only concerned with the legal questions arising on the pleadings.

The Missouri State League of Building and Loan Associations, claiming to have a real interest in this case, has intervened and filed a brief as amicus curiae (adopted by the Attorney-General), contending that the relator association is not a common-law trust; that it is a limited partnership; that it is subject to the chapter on corporations and cannot do business without being incorporated; that not being incorporated, it has no legal entity or artificial personalty and cannot take title to or act as trustee of the loan and trust fund; that it is a bond investment company; that it is a co-operative association not excepted from the operation of the Cooperative Act, and is not a building and loan association, and that it has not complied with the several applicable statutes.. Other contentions will be noted in the opinion.

It is admitted that the relator association has not complied with the statutes relative to limited partnerships, and other statutes referred to, but it claims it has complied with and is entitled to a license to do business as an unincorporated association under Section 10263, Revised Statutes 1919.

This statute was enacted in the year 1919 (Laws 1919, p. 225). Omitting the emergency clause, the act is as follows:

“Building cmd Loan Associations. — That the provisions of Article X, Chapter 90, Revised Statutes of Missouri 3919, shall not be applicable to any unincorporated association of individuals formed for the purpose of accumulating a fund or funds to be used for the purpose of enabling the contributors to such fund, or their assigns, to secure a loan or loans for the purpose of acquiring a dwelling house or farm or other income-producing property or discharging a mortgage or other encumbrance thereon: Provided, however, that no such association shall commence business in this State until it shall first submit to the Supervisor of Building and Loan Associations a detailed statement of its plan for doing business and copy of the contracts proposed to be issued, and procure from him a certificate authorizing it to do business, and it shall be the duty of the Supervisor of -Building and Loan Associations to examine into such association, and if he finds that the business of such association is not in conflict with the laws and Constitution of this State, he shall issue his certificate authorizing such association to do business; and provided further, that the trustees or managers of such association shall, from time to time, furnish such surety bonds to secure the faithful performance of their trust as such Supervisor of Building and Loan Associations shall reasonably require, and be subject to his supervision and examination, similar in so far as applicable, to his supervision and examination of building and loan associations; and provided also,. that one copy of all contracts or trust certificates issued shall be deposited with the Bureau of Building and Loan Supervision of this State.”

The contentions in the respondent’s second amended return are that the organization, plan of doing business, the contracts proposed to be issued, and the business of said association are in conflict with the laws and constitutions of Missouri and of the United States, in the following particulars, some of which we will take up in their order; the articles of association are a mere naked agreement and do not establish a trust; the alleged declarants do not own any trustee certificates and have not invested any money in said enterprise. The specifications under this head cover two pages of printed matter relative to the contention that the plan is contrary to equitable principles, much of which is apparently abandoned in the brief.

■The main contention is answered by the statute itself. This is not a case of a capitalized association seeking incorporation, as a bank or'trust company, which must have a certain proportion of its stock paid up. The statute provides “that no such association shall. commence business in this State until it shall first submit to the Supervisor of Building* and Loan Associations a detailed statement of its plan of doing* business and a copy of the contracts proposed to be issued, and procure from him a certificate authorizing it to do business.” Under this clear mandate, no steps can be taken towards the accumulation of a fund until the authority to do business has been obtained. The objection that the trustee certificates are assignable and trustees become and cease to be trustees by the mere purchase or sale of trust certificates, without any right in the creators and beneficiaries to object, is without merit. The right to sell is incident to ownership. We are unable to see any valid objection to the plan of doing business or the election of officers. [State ex rel. v. Swanger, 190 Mo. 561, l. c. 570.] It is a matter that concerns- the contracting parties, purely a matter of convention, unless contrary to the statute.

“An association being solely a creature of convention between the members, no check exists upon its power to enact such constitution or by-laws as the associates may choose to adopt, so long as they do not provide for the commission of illegal acts, are not in themselves contrary to public policy, or do not affect vested interests. Such constitution and by-laws constitute a contract between the members, and are binding alike on the association and its members. The courts possess no power to pass on the question of the reasonableness of such rules and regulations as are agreed to by the associates for the conducting of their joint affairs. It has been uniformly held, however, that the courts may, in a proper case, construe and fix their meaning.” [4 Cyc. 305.]

Counsel for relators sum up the matter in their brief:

“No valid objection can be made that the trustee certificates are to be assignable. The assignability of such certificates has long been recognized at common law. [King v. Webb, 14 East. 406; Warner & Boy v. Beers, 23 Wend. 1011.]

“The trust-agreement makes full provision for safeguarding the rights of the beneficiaries. It is shown by the best actuarial authority in this State that the plan is financially sound. In fact, this is conceded by the pleadings in this case, and respondent makes no point in that regard. When this is considered in connection with the further fact that the trustees managing this trust are at all times subject to the control of a court of equity and by virtue of Section 10263, supra are under the constant supervision of the Supervisor of Building and Loan Associations of Missouri, it becomes difficult to conceive how stronger safeguards could be made to protect the investing public.”

II. The return recites: “The relator parties to the articles . of association have failed to comply with any of the provisions of Sections 9237-9249, Revised Statutes 1919, relating to limited partnerships.”

The pleader fails to allege wherein the articles of association fail to comply with the various sections indicated, or that such compliance is required. The allegation is simply the averment of a legal conn0^. statement of issuable facts, and is to be treated as no statement at all. [Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388; Lappin v. Nichols, 263 Mo. l. c. 291.]

In the brief, however, counsel for the amicus curiae contend that the relator association is a partnership and it cannot limit its liability. This issue is-not made by the pleadings. If it were, it would be inconsistent with other contentions in the brief, that it is a bond investment company, a corporation, that it has no legal entity or artificial personality, that it is a co-operative association and a lottery. How can it be all these? How it can assume these protean characters at one and the same time is bewildering. The declaration that it is a corporation is a solemn negation that it is a partnership, or a joint-stock company, or a bond investment company. The pleas are inconsistent and self-destructive. [Wertheimer-Swarts v. McDonald, 138 Mo. App. 328, l. c. 339; Darrett v. Donnelly, 38 Mo. 492; Ledbetter v. Ledbetter, 88 Mo. l. c. 62; 31 Cyc. 150.] If it is a lottery, it is an outlaw and all contracts made with it are void.

Counsel cite in support of their contention that it is a partnership, Laney v. Fickel, 83 Mo. App. 60. Bond, J., was there considering the liability of a member of a joint-stock company engaged in manufacturing and trading to its creditors. The learned jurist said, at page 63: “While there is some variance in the authorities as to what steps must be taken before the members become liable in this manner to third parties, all the cases are agreed that such liability is consummate upon a showing that the member joined the association, attended its meetings and consented to the engagement out of which the liability arose. [Hunnewell v. Willow Springs Canning Co., 53 Mo. App. 245.] The case at bar presents all these elements of liability in plaintiff’s connection with the company. He was therefore liable as a co-partner with his other associates for the claims sued upon by him, since they were valid obligations against the joint-stock company itself.”

It is thus seen that the liability of the member was bottomed on his consent, while a partner is liable for the acts of the other partners in a trading concern within the scope of the partnership business, whether he consents or not. [30 Cyc. 503 et seq.]

The limitations on the liability of members is found in paragraphs B and M of the articles of association, which read:

“(B) That no trustee, director or officer of said savings institution shall be personally liable for any debts properly chargeable against said institution, or any fund or funds thereof.

“(M) That trustee certificates shall be issued to each trustee evidencing their interest in such form as the directors may provide, and said certificates shall contain a clause providing that when the same has been paid in cash at its par value the liability of-said trustee is limited to the funds invested therein.”

It must be remembered that this is a non-trading concern. In Coleman v. Knights of Honor, 18 Mo. App. 389, 394. Rombaubr J., said: “Nor can we see how the member or those claiming under him can be heard to assert that the rules established by the corporation in that regard were not reasonable. The member is a voluntary party to the compact, and as such bound by it unless it is in derogation of some charter right, or is otherwise invalid as contravening some paramount provision of law. A by-law may be void as to strangers, or members who do not assent to it, and yet good as a contract between members of the corporation who do assent to it.”

.. In State v. Stone, 118 Mo. 388, the defendant represented as agent an association of one hundred residents of the State of New York, “who were conducting insurance upon the manner of the ancient Lloyds” (p. 394) before said individuals had procured a license to do business in Missouri. By the terms of the agreement or articles of association each of the one hundred subscribers agreed to deposit $1000,' and it was stipulated that each subscriber should be separately liable to the amount authorized by him individually and not jointly liable with the other subscribers (p. 395). Burgess J., said: “If then we are correct in our position in construing the statute as including and meaning individuals, there is no apparent reason why defendant could not have obtained from, and why the Insurance Commissioner could not have issued to him, a valid certificate under Sections 5910 and 5911 of the statute, if defendant had shown to him that those whom he represents had complied with the law in regard to insurance companies doing business in this State” (l. c. 400).

In Hammerstein v. Parsons, 38 Mo. App. 332, syllabus 1 reads: “While the members of an unincorporated association are partners inter sese, their rights against each other may be limited by contract, and the constitution and by-laws of the association constitute a contract between them.”

So, while the question is not raised by the pleading and need not be considered, it is clear that it was competent for the members to contract as to their liability inter sese. [See citation from 4 Cyc. 305, supra.]

III. It is contended that relator must be incorporated before it can do business; that the power to sue and be sued,' to acquire, sell and convey property, to do business as a legal entity, and the powers in- , • Ip cident thereto, are sovereign grants of powers possessed only by corporations and it is therefore subject to the chapter on corporations.

The answer to this contention is the statute itself. Section 10263, Revised Statutes 1919 expressly exempts associations of the character mentioned therein from the other provisions of Article X, Chapter 90, Revised Statutes 1919. The emergency clause of that act declares that “such associations are now prohibited by law and should be encouraged.” By that act the Legislature declared the policy of the State.

But it is said that the assumption of corporate powers, without a sovereign grant, brings an unincorporated association within the definition of a corporation. The statute itself is the sovereign grant. But for this enactment, associations of the character authorized thereby could not exist.

IV. Respondent contends that these associations are corporations by force of Section 11 of Article 12 of our Constitution which reads : “The term ‘corporation,’ as used in this article, shall be construed to include all joint-stock companies or associations having power or privileges not possessed by individuals or partnerships.”

In Williams v. U. S. Express Co., 195 Mo. App. 362, the defendant contended that being a joint-stock company, it was not a suable entity. The court held, at page 364 (quoting Sec. 2963, R. S. 1909; now Sec. 9722, R. S. 1919, which is a copy of the section of the Constitution referred to), that: ‘A joint-stock company at common law was a hybrid midway between a corporation and a partnership; e. g., it had directors and officers, articles of association, a common capital, divided into shares; these shares represented the interest of the members, were transferable without the consent of the other members, hence there was no delectus personae, and the death of the member did not dissolve the company. ’ [State ex rel. Pearson v. Louisiana & Missouri River Rd. Co., 196 Mo. l. c. 536.]

“Construing together Sections 2963 and 2990 of Article 1, Chapter 33, Revised Statutes 1909, and Section 1760, Article 4, Chapter 21, Revised Statutes 1909, we cannot but arrive at the conclusion that the defendant, being a joint-stock company, and, therefore, having powers and privileges not possessed by individuals and partnerships, must be treated as a corporation for the purposes of said Chapters 33 and 21, and as such can ‘sue and be sued, complain and defend in any court of law or equity’ as a legal entity.”

In Weihtuechter v. Miller, 276 Mo. 322, l. c. 328, White, C., referring to Williams v. U. S. Express Co., supra, and other cases, shows that joint-stock companies have been recognized as entities entitled to sue and be sued, and that the “Legislature evidently understood that such associations (voluntary unincorporated associations) could be sued, for by the Act of 1915 they provided a method for service of process upon them the same as upon corporations. [Laws 1915, p. 225.]”

In Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, the court, in construing a similar article in the Constitution of Pennsylvania, said: “The only effect of the clause is to place the joint-stock companies or associations referred to under the restrictions imposd by that article upon corporations, and not to invest them with all the attributes of corporations” (.l c. 456).

This contention was made in Spotswood v. Morris, 12 Idaho, 360, and the section of the Idaho Constitution,' identical with Section 11, supra, was cited. In disposing of the point Sullivan, J., said: “The association under consideration is not a corporation exercising any of the powers or privileges of corporations not possessed by individuals or partnerships. It is a voluntary association. To possess or exercise powers or privileges of corporations requires a sovereign grant — a franchise which said association has not and does not profess to possess” (l. c. 375).

The court noted the fact that eighteen states, among them Missouri, had practically identical sections, defining corporations, in their constitutions.

It is obvious that the article of the Constitution and statute referred to do not by legislative fiat convert joint-stock companies or voluntary associations into corporations or require their incorporation before doing business. At common law voluntary unincorporated associations could not sue or be sued. [Lilly v. Tobbein, 103 Mo. 477.] By an amendment to Section 1760, Revised Statutes 1909, suits maybe brought against any such association “in the name it has selected.” [Sec. 1186, R. S. 1919.] Respondent will not contend that this amendment required such societies to be incorporated or made them corporations.

V. The contention that the relator association is a bond-investment company and cannot do business without compliance with Sections 10333-10338, Revised Statutes 1919, is unsound, for the reason that ^ i-s n°l a corporation, nor does it seek to do a bond-investment business within the meaning of the statute referred to.

Section 10263, Revised Statutes 1919, under which, relator seeks to do business is a part of Article X, Chapter 90, Revised Statutes 1919, and expressly exempts associations organized under it from compliance with the other sections of that article. The Legislature, in its wisdom, has required that every association organized under this section shall submit to the Supervisor of Building and Loan Associations a detailed statement of its plans, etc., and procure from him a certificate authorizing it to do business, and imposes on the supervisor the duty of examining into such association, and if he finds that the business of such association is not in conflict with the laws and Constitution of this State, he shall issue his certificate authorizing it to do business. This requirement is exclusive. The relator is not required to obtain permission to do business from the State Bank Commissioner under Section 11919, Revised Statutes 1919, commonly called the “Blue Sky Law.” Expressio unius est exclusio alterius.

VI. The respondent’s return states: “The plan of said association is financially unsound and is such as ’will make the loan and trust fund insolvent, and ^ ^18^ inherent defects that will tend towards its dissolution. The surrender values at or after loan are more than the reserve requirements of the loan and trust fund.”

On the other hand, in the briefs of counsel for the amicus curiae, they estimate the “profits of the association for eleven years from loan and trust' fund to be $370,161.50 and compound interest, eleven years at 7.7208 per cent on $100,000 capital fund, $126,615.78; total profits of association, eleven years, $496,776.78 Per annum on $100,000 capital fund, 45.16^.” They say: “The share of the association in the earnings of loan and trust fund is very large as above shown. Relators have not shown what they will be, nor have they shown that the agreement is fair in this respect. Such a partnership in profits between trustee and beneficiary should not be countenanced by a court of equity.”

Suffice it to say that the very large'and unconscionable profits estimated in the brief disprove the contention of the respondent that the plan of doing business adopted by the relator spells financial ruin.

The opinions of the actuaries attached to the petition are fairly summarized in the statement. It is there shown that the undivided share of each certificate owner in the fund and its earnings at 7.72$ interest, will amount to $1248.37 per $1000, showing a profit of $248.37 for the exclusive benefit of the holder. “But under the terms of the certificate ‘all surplus’ earnings from interest, cash surrender and partial pnid up values belong to the non-borrowing owners of trust certificates to'the extent of, but not to exceed $308 per $1000 face value.”

These. considerations are matters of contract. Courts, as it has been seen, have no power to pass on the reasonableness of the terms • adopted by the contracting parties. ■

VII. It is claimed in the return that the name of the association “Great American Home Saving Institution” is an imitation of the American Home Building and Loan Association, a corporation domiciled in the City of St. Louis, or is so near thereto as to be likely to mislead the public. It is admitted1 by the pleadings that prior to the time relators applied for a certificate to do business, relators were advised-by the then Secretary'of State that the name adopted “was available for their use and that same did not conflict with any corporate name then in use in this State.”

The name of a corporation or of an unincorporated association is a necessary element of its existence and the right to its exclusive use will be protected upon the same principle that persons are protected in the use of trade marks. [State ex rel. v. McGrath, 92 Mo. 355, l. c. 357; 5 C. J. p. 1343, sec. 31.] In Supreme Lodge, Knights of Pythias v. Improved Order, Knights of Pythias, 113 Mich. 133, 38 L. R. A. 658, l. c. 662, it was held that the latter name was not an infringement on the former. The oonrt said: “To me it is self-evident that no careful person could think that these two orders were identical, and, as has been said in cases of this class the question is whether the similarity is calculated to mislead the ordinary run of mankind. There certainly is just as much distinction between these two names as there is between that of the Episcopal Church and the Reformed Episcopal Church, or that of the Presbyterian Church and the United Presbyterian Church. ’ ’

We think there is little, if any, resemblance between the name of the relator association and that of the American Home Building and Loan Association, at least none that is calculated to mislead the ordinary run of mankind.

VIII. Respondent contends that Section 10263, Revised Statutes 1919, denies the equal protection of the law, in violation of Section 1 of Article XIV of the Amendments to the Constitution of the United States, in that it allows the association referred to to he licensed, supervised and' examined without cost to such association, and throws the burden of the expense thereof upon the building and loan 'associations. Section 10230, Revised Statutes 1919, provides that every incorporated building and loan association shall make semi-annual reports to the supervisor and that with such report each association shall pay twenty-five cents for each $1000 of assets shown by such report, which payments go into the State Treasury, to make up a fund known as the “Building and Loan Supervision Fund.” The salaries of the supervisor and of his examiners and employees and the cost of maintaining the department are paid out of this fund. Section 10263 makes no requirement of incorporated building and loan associations.

Can the Missouri State League of Building and Loan Associations raise this question?. It is not a party to this case and cannot be heard to call in question the constitutionality of this act in an action between other parties.

'“Laws enacted by the Legislature are presumed to be valid and even if defective, because violative of some provision of the State Contitution, are not void, although they may in a proper case be voidable; that is, upon complaint by a party whose rights are impaired by the statute. Upon this point Cooley says:

‘The statute is assumed to be valid, until some one complains whose right it invades. Prima-facie and upon the face of the act itself, nothing will generally appear to show that the act is not valid; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the Legislature, therefore, concurs with well-established principles of law in the conclusion that such an act is not void, but voidable only; and it follows, as a necessary legal inference from this position, that this ground of avoidance can be taken advantage of by those only who have a right to question the validity of the act, and not by strangers.’” [State ex rel. v. Blake, 241 Mo. 100, l. c. 107.] See, also, Ex Parte Tartar, 213 S. W. 94-96; State v. Bockstruck, 136 Mo. 335, 38 S. W. 317; State v. Bixman, 162 Mo. 1, 62 S. W. 828.]

We think it a misconception that the statute grants to relator a special privilege or immunity.

Section 10263 requires the supervision of the Supervisor of Building and Loan Associations “to examine into such associations,” and provides that “the trustees or managers of such association shall from time to time furnish such surety bonds to secure the faithful performance of their trust as such Supervisor of Building and Loan Associations shall reasonably require, and be subject to his supervisión and examination, similar in so far as applicable to his supervision and examination of building and loan associations.”

It cannot be reasonably inferred from this that this section grants or contemplates free inspection or free service in any respect. When the statute requires supervision and examination similar in so far as applicable to the supervision of building and loan associations, it adopts and incorporates the statute referred to, so far as applicable, and by necessary implication entitles the supervisor to the fees appertaining to such service. The laborer is worthy' of his hire. [36 Cyec. 1152; Crohn v. K. C. Home Tel. Co., 131 Mo. App. 313.]

IX. It is said that Section 10263, Revised Statutes 1919, violates Section 5 of Article 12 of the Constitution of Missouri, in that it permits corporations to conduct their business in such a manner as to infringe the general well-being of the State. Section 10263 has no reference to corporations. It deals solely with unincorporated associations. But, aside from this, Section 10263 subjects this class of societies to the wholesome supervision and examination of the supervisor of building and loan associations. It is not seen that it permits them to conduct their business in a manner to infringe on the general well-being State. lg of the

X. Finally, it is said that Section 10263, Revised Statutes 1919, permits lotteries in violation of Section 10 of Article XV of the Constitution. It authorizes the accumulation of a fund or funds for the purpose of enabling the contributors to such funds or their assigns, to secure loans. A simple' reading of the statute excludes every conception of a lottery. It forbids the issue of a certificate authorizing an association to do business if the business is in conflict with the laws and Constitution of the State. Section 10 of Article 14 of the Constitution outlaws -lotteries.

Criticism is made of the plan for making loans; that they must be made in the order of their application. Any other plan would savor of favoritism. Counsel cite Siver v. Investment Co., 183 Mo. 41. The facts in that case show that the scheme was an unmitigated gamble, if a scheme in which the contributor will always fail and the investment company can never lose, may be so characterized. The difference between that case and the case at bar is the distance between the poles.

There are other suggestions made in the return, e. g., that the Act of 1919, Section 10263, is void because the title is defective and because it is special and class Legislation and violative of public policy. Although they are not mentioned in the brief, we have considered these suggestions and find no merit in them. Courts cannot declare statutes void on the ground that they are against sound public policy and morals and liable to lead to corruption and oppression. [8 Cyc. 778.]

Finding, as we do, that the relators are clearly entitled to a certificate authorizing them to do business as an unincorporated association under Section 10263, Revised Statutes 1919, it is ordered that a peremptory writ be issued as prayed.

All concur except Elder and Woodson, JJ., not sitting.


source: Caselaw Access Project

author: SMALL, C.

license: Public Domain

text:
    ALLIE DENNIS et al., Appellants, v. W. H. GORMAN.
    Division One,
    July 11, 1921.
    1. HOMESTEAD ACT: Liberally Construed. The homestead laws create a special statutory estate not governed by the general laws of descent and distribution. Their purpose was to afford a safe anchorage for a man and his wife and children against financial stress and storm, and accordingly are to be liberally construed in their favor and against creditors. But they cannot be construed beyond their evident intent.
    2. HOMESTEAD: By What Law Fixed. The rights of the widow and children and of the creditors in the householder’s homestead are fixed and determined by the law in force at the time of his death. Where he died October 15, 1907, the rights of his widow, children, grandchildren and creditors were fixed by the Act of 1907, which is the same as Section 6708, Revised Statutes 1909.
    3. -: Sale by Probate Court: Collateral Attach. Under the Homestead Act of 1895 (Sec. 3620, R. S. 1899) and the Homestead Act of 1907 (Sec. 6708, R. S. 1909), the probate court had no jurisdiction to order the homestead of a deceased householder to be sold to pay his debts not legally charged thereon in his lifetime, where he left a wife and surviving children; but such a sale was an absolute nullity and void, and being such it can be nullified in a collateral proceeding.
    4. -- — : -: Act of 1907. The Homestead Act 'of 1907 (Sec. 6708, R. S. 1909) gave to the probate court no more jurisdiction to order the sale of the homestead of a deceased householder who left children him surviving than did the Act of 1895 (Sec. 3620, R. S. 1899). By the said Act of 1907, it is only in case the heirs of the husband ‘.‘be persons other than his children” that the probate court has power or jurisdiction to order the sale of his homestead to pay debts not legally charged thereon in his lifetime. Not even when one of his heirs is a grandchild, there being children, can the homestead be sold; for the Act of 1907 means that it is only in case all the husband’s heirs are “persons other than his children” that his homestead can be sold to pay his debts not expressly charged thereon in his lifetime.
    5. -: Abandonment By Wife and Children: Sals to Pay Debts. The fact that the widow and children left the homestead ■ and moved to another county after the homesteader’s death did not increase the jurisdiction of the probate court to order it sold to pay his debts not expressly charged thereon in his lifetime. The rights of his children become vested in them as remaindermen in fee upon his death, and there is nothing in the statute requiring them to continue to reside on the property or forfeit their title.
    6. -: Grandchild: Bight to Fee. The householder having died leaving two children, one of them a minor, and a grandchild, and the statute saying that the homestead cannot be sold to pay debts if the heirs of the husband were “persons other than his children,” the attempted sale of the homestead under orders of the probate court was void, not only as to the two children, but as to the grandchild as well.
    7. -: Sale: Estoppel. Where the children lmew nothing of the administratrix’s sale of the homestead, ordered by the probate court to pay decedent’s debts, and received none of the proceeds, and the widow refused, as administratrix, to file a petition for its sale and it was filed by the creditors because" of her refusal, the children are in no sense estopped to recover the homestead property, even though one of them was twenty-two years old at' the time of her father’s death, and the other twenty-two when the sale was made.
    8. -: Conveyance by Widow: Quarantine. A quit-claim deed by the widow of a deceased homesteader conveyed all her rights therein, whether of homestead, dower or quarantine, and his children who had reached their majority continued to own the fee subject to the rights conveyed to her grantee. And if her homestead right has been extinguished by remarriage, the right to possession by the children, the youngest having become of legal age, is subject to the former widow’s unassigned dower.
    9. -: Grandchild: Eight to Occupancy. The minor grandchild of the deceased householder does not have the right of occupancy of his homestead jointly with his widow and children, even though she had been residing with him as a member of his family, her parents being dead. The right of occupancy is given by statute only to minor children of the householder, and that right ceases when the youngest reaches twenty-one years of age. But such grandchild has a remainder in fee in the homestead property as an heir of the homesteader.
    10. -: Conveyance by Widow: Occupancy by Children: Unassigned Dower. The right of the deceased householder’s children to occupy his homestead, under the Act of 1907, ceased when the youngest of them reached twenty-one years of age, and where the youngest had reached that age at the time the widow conveyed her right and interests in the homestead, and she has since married,, she no longer has a homestead right; but her grantee acquired her right of dower and quarantine until dower is assigned, and although the children are owners in fee their right to possession, the younger having reached legal age, is subject to the dower and quarantine of the former widow until dower is assigned.
    Appeal from Wright Circuit Court. — Hon. G. H. Skinker, Judge.
    Aeeirmed {in part); reversed and remanded {in part, ivith directions).

      George W. Goad for appellants.
    (1) Under the homestead law of 1895 the homestead tract could not be sold by the administrator of the deceased householder to pay the general debts of his estate. Broyles v. Cox, 153 Mo. 242; In re Powell’s Estate, 157 Mo. 151; Kenne v. Wyatt, 160 Mo. 1; Balance v. Cordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568; Ehlers v. Potter. 219 S. W. 915. (2) Under the homestead law of 1895 the homestead tract could not be sold to pay the general debts of the deceased householder, even after the death or remarriage of the widow, and the majority of the minor children, in which event the homestead tract passed in fee to the heirs of such deceased householder free from debts not charged thereon in his lifetime. Street v. McCune, 148 Mo. App. 700; New Madrid Banking Co. v. Brown, 165 Mo. 39; Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568.; Ehlers v. Potter, 219 S. W. 915. (3) The homestead law of 1895 was amended in 1907 by adding thereto a specific prohibition against the sale of the homestead tract for payment of the debts of the deceased householder, unless such debts were charged thereon during his lifetime, which amendment was a complete recognition and adoption of the construction of the court of the 1895 law, and applies to the case at bar. B. S. 1909, sec. 6708. (4) The probate court was without jurisdiction in ordering and approving said sale. Such-orders were not final judgments. The sale was void, no title passed thereby and is open to attack in this proceeding. Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568; Ehlers v. Potter, 219 S. W. 915. (5) The homestead rights of the children cannot be impaired by abandonment by the widow. Phillips v. Pres-son, 172 Mo. 24. (6) The word “children” as used in the 1895 homestead law and the 1907 amendment should be construed to include grandchildren, especially as in this case., where the grandchild is an orphan, lived with, was supported by and a member of the family of the deceased householder. Werne v. Large, 258 Mo. 163; Kenny v. McVoy, 206- Mo. 42'; Moran v. Stewart, 122 Mo. 295; In re Williams. Estate, 62 Mo. App. 339.

      J. W. Jaclcson and Lamar & Lamar for respondent.
    (1) At the time of the sale the widow had conveyed her right by deed, had moved to Springfield and established a home. The two children were both of age, the oldest twenty-eight and the youngest twenty-two, at the date of the sale. The grandchild, Leon England, is not a' beneficiary of this homestead statute, (a) “Children” as used in the statute providing for a homestead for the widow and children, does not include “grandchildren,” although such grandchild may have been supported by the decedent as part of his family. 11 C. J. 751 (2) B; 21 Cyc. 569, sec. 2, note 49; Peeler v. Peeler, 68 Miss. 141; Wilkins v. Briggs, 48 Tex. Civ. App/598, 107 S. W. 140; Clements v. McKa, 110 S. W. 185; Brown v. Brown, 104 Ark. 313, 149 S. W. 330. (b) The word ‘children” both in the popular and in the technical sense means descendants in the first degree, and does not include “grandchildren.” 1 Boutvier’s Law Dictionary on “Children” (15 Ed.) p. 310; Von Behrn v. Stoeppelmann, 226 S. E. 875; Lich v. Lich, 158 Mo. App. 413; Starrett v. McKim, 119 S. W. (Ark.) 824; Walker v. Vicksburg Ry. Co., 34 So. 749; Thomas v. Thomas, 53 So. (Miss.) 633; Palmer v. Horn, 84 N. Y. 516; Walter v. Truslow, 35 N. E. 955; Brown v. Brown, 98 N. W. (Neb.) 718. (e) Not .only is the benefit of a homestead statute limited to children as thus defined— that is, descendants in the first degree — but the benefits of homestead to such children is not extended after majority, by reason of such child after majority being a dependant female or an imbecile. 21 Cyc. 586, notes 64 and 65. (2) At the time of the execution of the deed by the widow on April 8, 1913, both the children were more than twenty-one years of age, the youngest being then twenty-two. If the widow had any homestead, she had a perfect right to sell and convey such homestead, and by such deed this right passed to respondent Gorman, the grantee in such deed. Mark v. Heiss, 90 Mo. 578; Phillips v. Pearson, 172 Mo. 28. (3) Having-conveyed her homestead, if she had any, to respondent before the administrator’s sale, and the children being of age, there was no homestead when the land sold. There being no person entitled to homestead in the premises at the time this action was filed or at the time of the sale, no canse of action existed in favor of any person. Wilson v. Wilson, 255 Mo. 535; Denk v. Fiel, 249 111. 424; Londe'n v. Martindale, 67 N. W. 133. (4) Judgments of probate courts in administration matters are entitled to all the presumptions that attach to judgments of courts of general jurisdiction. One who is a party to an action in the probate court in which the right of homestead is available as a defense must interpose this defense, and if he fails to do so, the judgment rendered in such suit will bar his subsequent assertion of such right. 21 Cyc. 619; Wilson v. Wilson, 255 Mo. 528, 536; 18 Cyc. 797; Smith v. Black, 231 Mo. 690; McDonald v. McDonald, 242 Mo. 176; Desloge v. Tucker, 196 Mo. 587, 601; Higbee v. Bank, 244 Mo. 411, 424; Harter v. Petty, 266 Mo. 296, 303; Bobbins v. Boulware, 190 Mo. 51; Covington v. Chamberlin, 156 Mo. 574; Sigmond v. Bebber, 73 N. W. (Ia.) 1027; Doran v. Kennedy,'141 N. W. (Minn.) 851; Doran v. Kennedy, 237 U. S. 362; Stone v. Elliott, 106 N. E. (Ind.) 710; Reinhart v. 'Seaman, 69 N. E. 847; Jarrell v. Cole, 215 Fed. 315. (5) The filing of a proper petition gives the probate court jurisdiction of the land, and notice to'the parties in interest gives jurisdiction of the person. Grayson v. Weddle, 63 Mo. 523, 537; Pattel v. Thomas, 58 Mo. 163, 173; Overton v. Johnson, 17 Mo'. 442, 450. (6) Administrator’s sales (and all judicial sales for that matter) will be liberally construed. Tutt v. Boyer, 51 Mo. 425, 430; Thompson, v. Pinell, 199 S. E. 1012; Noland v. Barrett, 122 Mo. 181, 190. (7) In order for a judicial' sale to be subject to collateral attack, as sought in this case, the lack of jurisdiction must appear from the face of the record. Covington v. Chamberlin, 156 Mo. 574; Robbins v. Boulware, 190 Mo. 33, 52. (8) It will not be disputed that an appeal lies both from the judgment of the probate court, ordering the sale of the land, and from the final judgment approving the sale. Desloge y. Tucker, 196 Mo. 587; Tutt y. Boyer, 51 Mo. 425, 430; Thompson v. Pinell, 199 S. W. 1011; Price v. Realty Assn., 101 Mo. 107, 118; Rogers v. Johnson, 125 Mo. 202, 215; 18 Cyc. 794.
   SMALL, C.

Appeal from the Circuit Court of Wright County. Suit to quiet title to ninety-five acres of land in said county. The petition is in the regular form to quiet title at law; it also contains a second count in ejectment.

The answer, besides a general denial, after admitting possession and claim of ownership, sets up that defendant purchased the property at a sale made by the administratrix of the estate of George Manear at the February term, 1913, of the probate court of said county, to pay the debts of the deceased, under due and regular orders and proceedings after due notice to all parties interested in said estate, including plaintiffs, who were personally served with notice of such proceedings by the sheriff as required by law. That at such sale the defendant was the highest and best bidder and purchased the property for $880, which he paid to the administratrix and received a regular administratrix’s deed therefor. That said sale was duly confirmed and is binding upon the plaintiffs as res adjudicata, and the orders and judgment of said court are pleaded in bar of all claims of the plaintiffs. It is further alleged, by way of estoppel, that the said estate received the benefit of the money paid by defendant, and defendant after-wards took possession and made valuable improvements upon said land with the knowledge and consent of' plaintiffs.

The reply put the allegations of the answer in issue.

There is substantially no dispute as to the salient facts. The plaintiffs, Allie Dennis and Marie Iiearold, are the children, and the minor plaintiff, Leon England, is the grandchild, and they constitute the only heirs of George Manear, who died October 15, 1907. At and a number of years before Ms death, he was the owner of the land and occupied it with his family as a homestead. It did not exceed $1500 in value. His family, when he died, consisted of the plaintiffs, and his wife, Laura Manear. The widow was appointed administratrix in 1908, but failing and refusing to apply for and procure an order of sale to pay debts proved up against the estate, the creditors filed such petition, and after the order of sale was made in 1911 and renewed for several terms, the property was sold at the February term, 1913, and defendant became the purchaser. The proceedings were all regular, in the usual form for the sale of real estate of the deceased to pay his debts. The plaintiffs did not appear at any stage of the proceedings or take any notice thereof. The debts for which the land was sold were not charged against it in the lifetime of the decedent, and were not contracted before the homestead was acquired. About a year before the sale, or in 1912, the widow and two daughters and granddaughter, who up to that time continued to reside on the homestead, removed to Springfield, Missouri, where they resided at the time of the sale. The children and grandchild received none of the' proceeds of the sale, so far as shown by the evidence, and had no knowledge of its occurrence. But $250 of such proceeds was paid “back on the land,’.’ by the administratrix. Just before the sale, the widow, by quit-claim deed, dated April 8, 1913, sold and conveyed all her interest in the property to the defendant for $1,160. At the time of their father’s death, one of his daughters was twenty-two years of age, the other sixteen,- and said grandchild was an infant of tender years and was a minor when this suit was brought. The widow, in testifying, said her name was Laura Hendricks, at the time she testified.

The lower court found .the issues for the defendant on both counts of the petition, and refusing a new trial, the plaintiffs brought the case here by appeal.

The principal question on this appeal submitted by counsel on both sides, is whether, on the foregoing facts, the said administratrix’s sale was absolutely void and subject to collateral attack. There are some minor questions also which will be noticed in the opinion.

I. Our homestead laws create an estate unknown to the common law. It is a special statutory estate not governed by the general laws of descent and distribution. The purpose of such legislation was to afford a safe harbor and anchorage for a man and his wife and children against financial stress and storrq, and is accordingly to be liberally construed in their favor and against creditors to promote its beneficent purpose. [Balance v. Gordon, 247 Mo. l. c. 124.]

The law in this State was first enacted in 1862 (Laws 1862-3, p. 22), and changed from time to time since its first enactment. The various statutes and the history of the Homestead Act have been so repeatedly set out in the decisions of this court that it is sufficient for us to refer to the statutes on the subject directly bearing upon and governing this case. Section 2 of the Homestead Act of 1895 (Acts 1895, p. 185) being afterwards incorporated in Revised Statutes 1899, as Section 3620, was as follows:

“If any such housekeeper or head of a family shall die leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts, of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall attain its legal majority and until the death of such widow; that is to say, the children shall have the joint right of occupation with the widow until-they shall arrive at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, and upon her death or remarriage it shall pass to the heirs of the husband; and the probate court having jurisdiction of the estate of the deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto. [R. S. 1889, sec. 5439, Amended Laws 1895, p. 185-c.] ” • •

Said Section 3620, Revised Statutes 1899, was subsequently changed by the Act of 1907 (Laws 1907, p. 301), afterwards Section 6708, Revised Statutes 1909, by making the joint right of occupancy of the widow and children continue until alLthe children Avere twenty-one years of age, and expressly authorizing sale of th'e homestead for the general debts of the decedent, in cases Avhere his heirs “be persons other than his children,” by adding to the Law of 1895 the following: “Provided, that if the heirs of the husband be persons other than his children, then such homestead may be sold for the payment of any debt or debts legally established against his estate, subject to the rights of -the widow. Such sale in either case may be made at any time during the course of administration of the husband’s estate, and to be conducted in like manner and the same proceedings had as is or may be provided by law for sales of other real estate for the payment .of the debts of deceased persons.”

It is firmly established that the rights of the widow and children and the creditors are fixed and determined by the law in force Avhen the husband dies. [Bushnell v. Loomis, 234 Mo. 384-5; Balance v. Gordon, 247 Mo. 131.]

So that George Manear, having died October 15, 1907, the Act of 1907 aa'us” then in force and the rights of the parties hereto must be determined by that act or said Section 6708, Revised Statutes 1909. Under the said Section 3620, Revised Statutes 1899, it has been uniformly held that the probate court has no poAver to sell the homestead for the debts of the deceased, because the statute prohibited such sale and vested the title in the widow and children and heirs free from the claims of creditors of the deceased, and, in effect, holding that the homestead is no part of the decedent’s estate and is not subject to the jurisdiction of the probate court in administering his estate. [Broyles v. Cox, 153 Mo. 242; In re Powell’s Estate, 157 Mo. 156; Balance v. Gordon, 247 Mo. 127; Armor v. Lewis, 252 Mo. 574; Ehlers v. Potter, 219 S. W. 916; In re Boward v. Boward, 288 Mo. 148, 231 S. W. 600.]

It is true, that the question did not arise collaterally in all the above cases, but it did arise collaterally in Balance v. Gordon, 247 Mo. 119, and Armor v. Lewis, 252 Mo. 568, and the point was urged by counsel, as shown by their briefs in the Armor Case, that if the probate court had jurisdiction over the subject-matter and the parties, its judgment ordering the sale could not be absolutely void and subject to collateral attach. But the court necessarily ruled that the said court had no such jurisdiction to sell the homestead, which was the subject-matter of its action.

In the Armor Case, supra, l. c. 582, the court, per Lamm, J., said: “It must be taken as assumed that it could not be contended for a moment that the probate court had any jurisdiction to order the sale of the homestead in contravention of the Homestead Statute.” And on page 576, the learned Judge observed: “We shall not overrule the Broyles-Cox, the Powell and the Balance-Gordon cases. Stare decisis.” All of which cases held, that the probate court had no power to sell the homestead for debts of decedent.

This court very recently had occasion to review its prior decisions, and especially the Armor Case, supra, and the cases therein relied upon, and has construed them as holding that a sale of the homestead by the probate court under the Act of 1895, was without jurisdiction and subject to collateral attack as absolutely null and void. [In re Ehlers v. Potter, 219 S. W. 916; In re Boward v. Boward, 288 Mo. 148, 231 S. W. 600, decided this term of court, in which it is said, such sale is “cor-am non judice.”]

So, under the law as it stood in Wag. Stat., sec. 5, chap. 58, when the homestead was vested in fee in the widow with a joint right of occupancy in the children until majority, this court held that the orders and judgment of the probate court authorizing the administrator to sell and confirming the sale of the homestead for debts of the husband were absolutely void in collateral proceedings. [Lewis v. Barnes, 272 Mo. 377; Rogers v. Marsh, 73 Mo. 64; Anthony v. Rice, 110 Mo. 223.] In the case last cited, the. widow appeared and contested in the probate court the application of the administrator for such order of sale, but took no appeal from the adverse judgment of the probate court, notwithstanding which, this court held the proceedings void for want of jurisdiction in the probate court. The Rogers Case and the Anthony Case aré also referred to with approval in Balance v. Gordon, 247 Mo. supra, at page 127.

So that, without reference to the authorities from other jurisdictions cited by learned counsel for respondent, we hold that it is the settled law in .-this State that under the said Act of 189-5, and afterwards up to the taking effect of the Act of'1907, the probate court had no jurisdiction over the subject-matter when it attempted to sell the homestead of the decedent for his debts, and any such sale was an absolute nullity and void upon collateral attack.

II. Did the Act of 1907 (Sec. 6708, R. S. 1909), in case the decedent left children him surviving, give the probate court any more or other jurisdiction than the Act of 1895? Obviously, not. It is only in case the heirs of the husband “be persons other than his children,” that the probate court has power or jurisdiction to make such sale under the Act of 1907. In this case, the husband’s heirs were his children and his grandchild. So that it cannot be said that his heirs were “persons other than his children.” The statute of 1907 means that only in case all the husband’s heirs are “persons other than his children” caii the homestead be sold for his debts not expressly charged thereon in his lifetime, which is not claimed was the case here. If he left any children as his heirs, it cannot be said that his heirs were “persons other than his children.” Any other construction would be a “sour” construction of the statute, which this court, per Lamm, J., said, in the Armor Case, supra, was not admissible.

"We rule, therefore, that the administratrix’s sale in question here was an absolute nullity for want of jurisdiction in the probate court over the subject-matter of such sale, and as such is subject to collateral attack.

III. Nor is it material that the widow and two daughters and grandchild of George Manear left the homestead after his death and changed ^]3eqr domicile to Springfield, Missouri, where they resided when such sale was made. The rights of his children and heirs as remaindermen in fee became vested in them upon the death of the householder, and there is nothing in the statute requiring them to continue to reside on the property or forfeit their title. The case of Wilson v. Wilson, 255 Mo. 528, is beside the point, because under the statute passed on in that case, a statute prior to the Act of 1895, the heirs had no fee in remainder.

IV. Under the statute of 1895, as amended in 1907, the remainder in fee passed to the heirs, all the heirs of the deceased husband. This would vest ai1 undivided one-third in the grandchild in this case. Said one-third wás not subject to the sale made by the administratrix, although said minor was not the child of the decedent, because, as we have just ruled, the homestead could not be sold by the probate court for the decendent’s debts unless all his heirs were “ persons other than his children,” which was not the case here.

V. The estoppel pleaded in the answer is not urged in this court by learned counsel for respondent, no doubt, because the'facts in the record show the children knew nothing of the administratrix’s sale and received none of the proceeds, and the widow refused, as administratrix, to file petition for the making of such sale, which was made upon petition filed by the creditors because she did so refuse. Obviously, there was no estoppel against the plaintiffs in this case.

YI. We rule, therefore, that the plaintiffs, as heirs of said George Manear, deceased, own the fee in the land in dispute, subject to the rights that were conveyed to the defendant by the quit-claim deed of the widow. This deed conveyed all her rights, whether of homestead, dower or quarantine, in the property to the defendant. [Phillips v. Presson, 172 Mo. 24.]

VII. Did the minor child, Leon England, have right of joint occupancy with the widow and daughters of the deceased until she was twenty-one years of age? We think not. While the statute is entitled a mos^ liberal construction, it cannot be construed beyond the intent of the Legislature. [Regan v. Ensley, 283 Mo. 297, 222 S. W. 773.] We do not think that grandchildren come within the intent of the Legislature as the children who would have a joint right of occupancy of the homestead with the widow until they are twenty-one years of age — even although they had been residing with the decedent as members of his family, their parents being dead, as in this case. It was only the minor children of the householder who were to have any such right of occupancy, and this was to cease when they reached the age of twenty-one years. This shows, that even all of the householder’s own children were not to be beneficiaries in such joint tenancy, and it was to be limited to his “minor children,” and that such words were used in their ordinary and primary meaning. The words “minor children” have been construed in the following cases in other jurisdictions, and we concur in the construction, not to include “minor grandchildren,” in similar provisions in homestead acts, although they were dependent members of the householder’s family, at the time of his death: Peeler v. Peeler, 68 Miss. 141; Wilkins v. Briggs, 48 Tex. Civ. App. 598; Clements v. Maury, 110 S. W. 185; Brown v. Brown, 104 Ark. 313. Consequently, the minor plaintiff, Leon England, had and has no joint right of occupancy as a minor child of the decedent until she is twenty-one years of age, but her right is limited to her remainder in fee as an heir of the decedent.

VIII. It appears that both of the plaintiffs, Allie Dennis and Marie Heareld, were more than twenty-one years of age when the administratrix’s deed Avas made, which was the 5th day of May, 1913. Their right of joint occupancy, therefore, as minor children of the deceased, had expired long before this suit was brought, which was July 5, 1919.

IX. The widoAA^ having remarried since her husband’s death, as we assume from her testimony that her name was Laura Hendricks at the time of the trial, the defendant has no right to possession of said property, as the grantee of the widow’s homestead right, because that expired with her remarriage, under the statute.

But defendant also acquired the widow’s right of dower and quarantine by his deed from her, which gave him a right of possession to said property until • said dower is assigned. [Phillips v. Presson, 172 Mo. supra.] Such dower and the assignment thereof are expressly provided for by the Homestead Act in force on October 15,1907, when George Manear died. [Sec. 6708 and 6710, E. S. 1909.]

The result is, the judgment of the circuit court on the second count of the petition, is affirmed, but is reversed as to the first count, the count to quiet title, and remanded with directions to the circuit court to enter judgment on said first count, declaring that plaintiffs are the owners in fee simple of the property described in the petition, subject to the dower and quarantine rights of said former widow of George Manear, deceased, which are owned by the defendant, all in accordance with the views expressed in this opinion.

Ragland, G., concurs; Brown, C., not sitting.

PEE CURIAM: — The foregoing opinion by Small, G., is adopted as the opinion of the court.

All of the judges concur.