author: LAMM, J.

text:
    W. H. KIRKPATRICK, Appellant, v. MARY A. O. PEASE, CHARLES S. PEASE, WILLIAM REES, ROBERT ROSE, B. F. MEYERS and W. O. PARK.
    Division One,
    March 28, 1907.
    1. SPECIFIC PERFORMANCE: Agent’s Authority to Sell: Letter From, Owner’s Husband! The husband1'oft the owner of land wrote to her agent to sell, and she advised with him about the letter, read its contents and it went with her approval. Held, that, under the statute (sec. 3418, R. S. 1899), the agent did not have authority to sell the land, although lie acted in good faith, under a misapprehension of his power.
    2. -: -: -Ratification. Notwithstanding the owner gave the agent no written authority to make a contract for the sale of the land, yet as she knew her husband had written a letter authorizing the agent to sell and approved its contents, and knew the agent was acting as her agent in selling it and that he had made a deed therefor in her name, and. knowing the entire situation, accepted and retained for over a year the entire purchase price, she will be deemed, through such acts, to have ratified the acts of her agent.
    3. -: -: -: -: Married Woman. A married woman may make a deed to lands held by her in her own separate right, as her own separate property, the same as a feme sole. She may give authority to an agent to contract a sale, and she may ratify a sale made by her agent without specific authority to sell.
    4'. -: -: -: -: Accepting Proceeds. A married woman, like any other person sui juris, cannot, with full knowledge of the facts, receive and appropriate to her own use, without objection, the .purchase price of land sold by one assuming to act in her behalf as hen agent, without such receipt and appropriation .amounting to a ratification.
    5. ———: -: -: -: Recall. It is axiomatic that ■ the principal, having once ratified the unauthorized acts of an agent, cannot subsequently recall such ratification.
    6. -: Contract Sufficiently Specific. The contract of an unauthorized agent to sell land, which is consummated in a deed signed by the agent in his principal’s name, which describes the land with particularity, the parties and the price to be paid, and ratified by the principal, is definite and certain enough to be susceptible of specific performance.
    7. -: Prior Incumbrances: Ownership of Land. Where the contract was to convey the land subject to certain prior privileges and concessions for a boat house, the court is not called upon to detei’mine whether or not the vendor is the owner of the land-covered by those privileges, and no good reason is apparent why the vendor should not be required to convey subject to those privileges, where the vendee seeks only the specific performance of his contract.
    8. -: Ratification: Subsequent Purchasers: Notice. If the unacknowledged deed is good in equity, because of the vendor’s ratification of the sale, subsequent purchasers with notice of said prior sale, are bound thereby.
    9. -: When Decreed. If the contract is fair, just and equitable, a court of equity will decree specific performance; otherwise, the parties will be left to an action at law. Courts of justice sit to enforce the law, and a contract is but a law unto the parties thereto.
    10. -: -: Discretion. Discretion does not mean caprice. It means a sound (that is, a judicial) discretion. Discretion in specific performance cases may be illustrated thus: if the bargain was overkeen and unjust,' or if the party against whom specific performance is sought was laboring under some disability and (had been overreached, then there would be something for the discretion of the chancellor to take hold of, something binding on his conscience; hut absent any earmarks of unfairness, overkeenness or overreaching, and present a fair, just real estate contract, to deny specific performance would be to wound the soul of equity itself.
    Appeal from Platte Circuit Court. — Row. A. B. Burnes, Judge.
    Reversed and remanded {with directions).

      Wilson <& Wilson and George W. Bay for appellant.
    (1) The land in controversy accrued to Mrs. Pease by conveyance in the year 1894. It, therefore, became her separate legal estate, which she could, in her own name, without her husband joining her, engage to sell; and such engagement the courts will respect and enforce. R. S. 1889, secs. 6864, 6869; Bank v. Hageluken, 165 Mo. 443. (2) It is not necessary that a contract for the sale of land should be evidenced by one writing, signed by both parties to it. It is sufficient .that the same is contained in several writings, signed by the party to be charged therewith, or -some other person by him thereto lawfully authorized, in writing. The letters which passed between Mrs. Pease and Park constituted the latter agent for the former to sell this particular tract to plaintiff, at the price paid for it. R. S. 1899, sec. 3418; Moore V. Mountcastle, 61 Mo. 424; Peyeke v. Ahrens, 98 Mo. App. 456. (3) The instrument which Park signed and delivered to Kirkpatrick as a deed, though, for want of power to malm it and failure to acknowledge the same, ineffectual as a conveyance, satisfied the requirements of the Statute of Frauds, touching agreements to sell lands. It set' forth the names of the parties, the consideration and the subject-matter of the contract, and was signed by Park, as agent for Mrs. Pease. Mastín v. Grimes, 88' Mo. 478; Smith v. Wilson, 160 Mo. 657. (4) Even if it should be conceded that plaintiff placed his signature to nothing which could bind him to observe his promises to Mrs. Pease’s agent, Park, and that, by reason thereof, there was no mutuality in the contract, such a concession would furnish no ground for refusing specific performance of the contract. Agreements with respect to the sale of land are exceptions to the general rule that courts will not enforce specific performance of contracts when the obligations are not mutual. All that is required in this respect, in the excepted class of contracts, is that the agreement shall be signed by the party to be charged therewith. Ivory v. Murphy, 36 Mo. 534; Mastín v. Grimes, 88 Mo. 478; Warren v. Costello, 109 Mo. 338; Smith v. Wilson, 160' Mo. 657. (5) Defendants, Rees, Rose and Meyers had actual and constructive notice of plaintiff’s equities; and their purchase, two years after the filing for record of the instrument purporting to convey the land to plaintiff,, and after this suit was commenced, is no obstacle in the way of a decree in favor of plaintiff. Farrar v. Patton, 20 Mo. 81; Thompson v. Henry, 85, Mo. 451; Maybee v. Moore, 90! Mo. 340; Eggert v. Dry Goods Co., 102 Mo. 512; Myers v. Schuchmann, 182 Mo. 159; Randolph v.' Wheeler, 182 Mo. 145.

      James W. Boyd and James H. Hull for respondents.
    (1) There is no evidence to show that the respondent Mary A. O. Pease authorized in writing (or otherwise) W. O. Park to sell or convey the land described in the petition. Sec. 3418, R. S. 1899; Johnson v. Fecht, 185 Mo. 345, 94 Mo. App. 605'. (2) Appellant admits in his petition that this pretended deed is without authority and is therefore void. This unauthorized and void paper constituted no agreement to sell any land to appellant. Any pretended deed made by Park, admitted and alleged by appellant to be void, cannot be construed into an agreement on tbe part of tbe respondent to sell lands to appellant. (3) Appellant in Ms argument claims that this respondent ratified tbe act of Park by writing the letter of March 27, 1898, that is, by endorsing the draft, which had been sent her. In the case of Johnson v. Fecht, 185 Mo. 346, it is said by this court that “What is herein-before said with reference to the certainty required in conferring the written authority upon an agent applies with equal force to a ratification. As so measured, the ratification fails to fill the requirement of the law.” Hawkins v. McGfroarty, 110' Mo. 546; Roth v. Goerger, 118 Mo. 556. In this case there was no ratification by respondent Mary A. 0. Pease. (4) Mary A. O'. Pease never owned all the property which her unauthorized agent undertook to sell and convey for her, and even if her agent had been authorized to sell land and had by mistake or inadvertently tried to sell land, and she received the money, and as soon as she found out the mistake, returned the money, no court would compel her to execute a deed, because such a decree would be to compel her to do an impossible act. According to the description of the land which Kirkpatrick desired to buy and which is contained in the unauthorized deed by Park to him," there is included a portion of the boat house, which never belonged to Mrs. Pease. The idea of appellant was that the boathouse, wMch was originally put over the water, should, as the water receded, be continuously moved so as to keep pace with the recession of the water. Therefore, in the pretended deed there is included a part of the boathouse and of the original site thereof, which Mrs. Pease never owned and which belongs to Mrs. Stephens, the wife of J. T. Stephens, or to some other person. (5) The. circuit court further found that there was no evidence sufficient to justify a decree of specific performanee. “The evidence relied upon for obtaining a decree of specific performance must be so clear and forceful as to leave no room for reasonable doubt in the mind of the chancellor hearing the cause.” Railroad v. McCarty, 97 Mo. 214; Yeth v. Gierth, 92 Mo. 97; Strange v. Crowley, 91 Mo. 287; Taylor v. Yon Schraeder, 107 Mo. 207; In re Ferguson Estate, 124 Mo. 574. (6) A decree for specific performance is a matter of judicial discretion. A decree for specific performance is not granted as an absolute right, hut rests in the sound discretion of the court. It will only be granted where it would be equitable and necessary to prevent injustice. Shinlde v. Yickery, 156 Mo. 15'; Railroad v. Curtis, 154 Mo. 24; In re Ferguson Estate, 124 Mo. 574; Glass, v. Rowe, 103 Mo. 513; Pomeroy v. Fullerton, 131 Mo. 592; Yeth v. Gierth, 92 Mo. 97; Cable v. Jones, 179 Mo. 614. (7) Respondents Rees and Rose purchased this land, paid the purchase price and obtained a deed thereto after appellant had stated to them, or to Mr. Rose and others, that under the circumstances of the situation he did not own the land, and that “he did not own it unless J. T. Stephens could be ejected therefrom.” It seems that Mr. Stephens cannot be ejected therefrom, and therefore according to appellant’s own statement he disclaimed any title to the land, and under those circumstances Rees and Rose purchased said land, and afterwards sold it to John Meyers, who now owns the property. Under these circumstances a chancellor would hardly feel it his duty to enter a decree against this respondent for specific performance.
   LAMM, J.

Plaintiff lodged a bill in equity in the Platte Circuit Court to enforce specific performance of an alleged contract of purchase of 1.97 acres of land (more or less) being part of the southwest quarter of section 12, township 54, range 37, in Platte county, described in the bill with particularity in courses, distances and monuments. This parcel of land will hereinafter he referred to as “Tract A.” On a hearing, nisi, plaintiff’s amended hill was dismissed. Thereupon, he appeals to this court.

Attending to the pleadings, the amended bill proceeds on the theory that defendant Mary A. 0. Pease was the owner in her own exclusive and separate right of Tract A, an irregular parcel of land on the shores of Bean Lake, a body of water in said Platte county (the description of Tract A, being diffuse, and technical, need not be set forth, but appears correctly in plaintiff’s amended bill); that her codefendant, Charles S. Pease, is her husband; that there was excepted out of Tract A a certain indefinite right described in the bill as “a right to use, occupy and enjoy a water front along the water line on the east side of Bean Lake as conveyed by "William Osborne to John Savage by deed recorded in book 21, page 278, of 'the records in the recorder’s office of Platte county;” that said Mary was the granddaughter of Colonel William Osborne and that during her coverture Colonel Osborne conveyed Tract A, together with a very large body of land, to Mary by a deed of April 6,1894, duly of record; that said deed was a gift of inheritance in lieu of a devise by will; that defendant W. 0. Park was Mary’s duly accredited agent, authorized in writing, “to look after, rent, care for, sell and otherwise attend to Tract A” and said larger body of land; that on February 26, 1898, through said Park as agent, in consideration of $200, she sold said Tract A to plaintiff and delivered possession thereof to him, and he thereupon made valuable improvements; that a deed to Tract A was made by Park, but the same was insufficient to convey the legal title to plaintiff, but that Park, as agent, transmitted the consideration to his principal, Mary, which was by her received with full knowledge that it was the purchase price of'Tract A and she thereupon ratified and confirmed the act of her agent in the premises; that Mary’s husband, in all said things concerning the sale of Tract A and the ratification thereof, co-operated with her; that plaintiff under said sale, payment of the purchase money, conveyance and delivery of possession, together with the acquiescence of Mary, had rested in the belief that he had a sufficient deed for Tract A, but that a short time before the bringing of this suit defendant Park retired from the said agency and plaintiff was then informed by Mary’s new agent (one Petty or Peddie) that Mary’s deed was invalid; that thereupon plaintiff was advised by counsel that Petty’s contention was true, and plaintiff thereupon applied to Mary for a sufficient deed to rectify the errors in her former conveyance, which, however bad in law, was alleged to be binding in equity and good conscience as a written contract to convey, but that Mary refused to make a sufficient deed, and thereafter, in March, 1900, sold Tract A with other land to her codefendants Rees and Rose, who (in turn) in April of that year, conveyed the same to her codefendant Meyers; that said Rees, Rose and Meyers,-collectively and severally, having received their said deeds with full knowledge of plaintiff’s equities and claims, are bound thereby. Wherefore, plaintiff prayed a decree adjudicating that Rose, Rees and Meyers took their respective deeds subject to plaintiff’s equities; and that said conveyances he held void as to Tract A; and for specific performance and for all proper general relief.

Defendant Park failed to answer, and it is: not clear why he was made a party.

Defendants Rees, Rose and Meyers were brought into the case by an amended bill — their deeds having been executed after the original bill was filed.

Mary A. 0. Pease answered by way of general denial. Further she specifically denied that her codefendant Park had any authority in writing to sell Tract A or any other land for her; and she avers that Parle sent her $200, but falsely pretended he had sold some land, but not the land described in the petition; that thereupon she declined to accept said sum and “immediately after receiving it, she tendered it with interest thereon, if any, to plaintiff,” who refused to accept it; that when this suit was instituted, she renewed her tender and brought said money and interest into court for him.

Defendants Charles S. Pease, Rees, Rose and Meyers answered tendering the general issue, except said Pease admits being the husband of Mary.

The reply denied new matter and reaffirmed the allegations of plaintiff’s amended bill that Mary accepted the consideration with full knowledge of all the facts relating to the purchase and kept the same until the institution of this suit, to-wit: for about two years, during which time plaintiff in good faith made valuable improvements on Tract A, because of all which, plaintiff says, Mary is estopped to allege a want of a written contract.

A surveyor’s map used at the trial will serve in understanding the facts. The tract marked on that map, “W. H. Kirkpatrick,” bisected by a line showing the shore line of Bean Lake in 1840' (as we grasp it) is Tract A. In Tract A and north of the platted road • and some distance away from the present water line of Bean Lake is the “boathouse,” which figures extensively in the trial. Farther to the east and across a wheat field is a tract marked, “Annie Stephens,” which also figured at the trial and will hereafter be designated as “Tract B” — the privilege for said boathouse being appurtenant to Tract B.

Said map was produced in this court as a blue print, and is as follows:

Questions raised on appeal group themselves into the following:

First, was there a binding contract made between plaintiff and Mary A. 0. Pease?

Second, if there was any infirmity in the authority of Park to make the contract, was there such ratification by Mrs. Pease as relates back and binds her?

Third, if a contract was made, or ratified, was it so definite and certain as to be susceptible of specific enforcement?

Fourth, did Mary A. 0. Pease own Tract A, i. e., was her title such as made the contract, if one was made or ratified, susceptible of specific performance?

Fifth, did defendants Rees and Rose purchase with notice of plaintiff’s equities, if any? And does defendant Meyers now hold under a conveyance subject to such equities?

Sixth, specific performance being directed to1 the sound discretion of the chancellor, should it be withheld in this case?

The facts essential to the consideration of these questions will appear in the opinion.

* I. The first and second questions may be considered together. Attending to them paintiff’s learned counsel concede there was no valid conveyance by Mrs. Pease to plaintiff, but they contend there was written authority from Mrs. Pease authorizing Park to make a contract; and, further, that the legal effect of what was done by him. was to make such contract and they rely on ratification. Defendant’s learned counsel argue contra. The facts uncovered below on these phases of the case are contained in a long record and cover many writings and matters of detail. Summarized, they are as follows: Park was a banker in Atchison, Kansas, and a relative of Mary. A. 0. Pease. Bean Lake lies on this side of the Missouri river and southeast of Atchison, in Platte county in this State. Some four years prior to 1898, Mrs. Pease became tbe owner of about 516 acres of land adjacent to Bean Lake and some of it washed by its waters. Her conveyance was made to her by her grandfather, Colonel William Osborne, a widower residing at Watertown in the county of Oneida, State of New York, as a gift of inheritance. Colonel Osborne (now dead) reserved to himself the income and profits arising from these lands during his natural life. The lands so conveyed included Tract A, but in fact the grant (as appears aliunde) was subject to a prior conveyance of Tract B and a certain boathouse permit on Bean Lake; all of which will appear presently. The Peases lived at Upper Montclair in New Jersey; and it is conceded on all sides that during the years 1897 and 1898 Park held a written power of attorney authorizing him to represent Mrs. Pease in the renting and caring for all said real estate. The terms of this power of attorney are such that it is agreed they did not include a power of sale. Under that power Park became her general agent to make improvements, farm or lease the land, collect rents, pay taxes, etc., and was to have all the income in excess of $700'. If the revenue of the farm fell below $700; Park was to have nothing. If they went over $1000; Mrs. Pease was to have two-thirds of such excess. By a supplemental and later agreement the recompense of Park as agent was placed at the fixed sum of $12.50' per month; and he agreed to perform the duties of agent and of farm overseer or superintendent, subject to the approval of the owner. In 1897 plaintiff lived on an island in Bean Lake close to Tract A on the shore. We infer he had resided there for many years, kept a fishing and bathing resort there and, under some undisclosed arrangement, had stables and a feed lot, possibly for his own stock, but certainly for the horses of those who came to his resort to bathe and fish, which stables and feed lot covered a part of Tract A and were accessible from his island. .The water of Bean Lake had permanently receded from its ancient bank, leaving tbe old bank as a bench and serviceable as a shelter for stock; and Kirkpatrick late in 1897 opened negotiations with Park for the purchase of Tract A, and Park, commenced a correspondence with bis principal, Mrs. Pease, anent that sale. Many letters passed backward and forward, some of them written by defendant Charles S. Pease; but Mrs. Pease read such before they were sent, they expressed her desires and went at her request. During the run of this correspondence, the Peases asked for a description of the tract Kirkpatrick desired to buy. Thereupon Park, on October 17, 1897, enclosed a rough freehand plat, which was put in evidence and a blue print thereof was produced here, as follows:

Having sent said diagram, Park •with, substantial accuracy entered into a detailed explanation of tbe shores of the lake, the purposes for which Kirkpatrick wanted the tract, the probable shape of the tract, itself and the environment. He recommended the sale and suggested the purchase money was needed in improvements. In reply to this letter Mr. Pease wrote in behalf of his wife and under her instructions. The letter seems to be lost and Mrs. Pease, in testifying of its contents, says: “My recollection of its substance is that I instructed Mr. Park to go ahead with the matter if it was all right.” Park says of this letter that “she instructed me to make a sale at not less than $40 per acre.” It seems the Peases up to this time were not advised of any boathouse permit or any other claims outstanding against Tract A, as will presently be seen; such permit (if existing) originated in a grant by Col. Osborne made prior to his deed to Mrs. Pease. It seems that Park at the beginning was uninformed in that particular. We infer, too, that Mr. Kirkpatrick knew nothing of the character -and origin of. any adverse claims; but he must have known the boathouse was there. We might as well say now that the record contains unmistakable evidence establishing to our satisfaction that Park acted throughout with a zealous fidelity to the interests of his relative, Mrs. Pease. On the authority of the foregoing correspondence with his principal, Park informed Kirkpatrick he had authority from the Peases to sell him two acres, together with water rights, for $200 cash, giving him a 'dear title to the same. Presently Mr. Kirkpatrick went to Atchison and turned over to Park his check for the $200 purchase price. Presently, by correspondence with Kirkpatrick, Park arranged to have a survey'made, which was done, and the exact description of Tract A was ascertained. Then a deed was drawn and signed by Park as agent for Mrs. Pease; it was in warranty form, described Tract A, and granted all appurtenant riparian and fishing rights to the lake front, excepting from the grant, ‘ ‘ a concession of 40 feet of water front next north of the county road to the K. O'. Club for a boathouse.” This, deed was not acknowledged, but was finally delivered and thereafter was duly placed of record on the 11th day of April, 1898, in the proper office in Platte county. It seems this so-called deed was not delivered at once, that Park had become aware of the boathouse on Tract A, and that it was used by a Mr. J. T. Stephens, the husband of the owner of Tract B. So Park wrote to Mr. Pease so early as January 12, 1898, referring to his (Park’s) authority to sell two acres on the shore of the lake and informing him that he had sold it at double the price he was authorized to take, to-wit: $200, but that he had not completed the transfer owing to the presence of a boathouse which must be removed before Kirkpatrick would take it, that the money was in the bank and the deed was made out and he hoped soon to have the land clear. Following that letter he wrote Mrs. Pease on February 14th, telling her that the Kirkpatrick sale still hung fire, that the hitch was over the occupation of a portion of Tract A by one Stephens in violation, or in excess of, his (Stephens’) water front privileges, that he hoped for a speedy settlement and would remit the proceeds of the sale as soon as collected. It was in evidence that Park sent Mrs. Pease a copy of the deed he proposed making to Kirkpatrick. Subsequently, on his own initiative, he wrote her the details of a trouble he was having with Stephens, that Stephens had tried to buy Tract A after Kirkpatrick had paid the money. He told her that Stephens had the privilege of building and using- a boathouse over the. water for forty feet north of the road,1 and that he' (Stephens) had construed that into a right to build his house back on the shore forty feet and run a fence around it. It seems that Mr. Park got into a personal altercation with Stephens and he wrote the particulars of that to Mrs. Pease. He asked her advice about an injunction and writ of ejectment and told her that he had given Kirkpatrick a warranty deed to the land, but the latter did not want to mix up in a row with Stephens. He explained to Mrs. Pease that her grandfather had sold some land, to-wit: Tract B, to a Mr. Savage for a sportsman’s club, together with a certain water privilege; that Tract B had passed into the possession of Stephens, who had built a boathouse and a pen back on the shore of the lake and had fenced them in. He asked whether he should remit the proceeds of the sale, or wait until the matter was ended. He forwarded her a certified copy of the original deed from her grandfather, Osborne, to Savage, under which Stephens claims the boathouse privilege, and asked her to. return it for use in any further proceedings. Mrs. Pease testified that she answered this letter and instructed Mr. Park to employ legal means to eject Stephens from the land. It will not be necessary to further follow this correspondence, which covered several months. We find therefrom that Park fully notified Mrs. Pease of the situation of things. We find that armed with this information she, by letter, ordered the proceeds of the sale sent to her. They were sent by draft. She accepted them with a substantial knowledge of all the facts, and the draft passed through the usual banking channels and was in evidence bearing her indorsement. These proceeds she kept for nearly two years and until she was made to believe that the transaction was inimical to her interests. After the receipt of the purchase money, she instructed Park that legal steps be taken to drive Stephens off the land. Attorneys were hired and their fees paid by Mrs. Pease and such steps taken. In March, 1899 (a year later), Park was ordered to suspend all legal action until further notice. Following that, in May or June, 1899', Mrs. Pease employed a new agent, Alexander Peddie, of Emmetsburg, Iowa. Mr. Peddie came upon the ground, studied the situation and made a report to Mrs. Pease. Influenced by this report, the Peases changed their minds and instructed. Peddie to tender back to Kirkpatrick the purchase money of Tract A, which was done in January, 1900, and Peddie asked Kirkpatrick to quitclaim. Kirkpatrick refused the tender and refused to make the deed. After this tender and after Kirkpatrick was informed by Peddie that his deed was not valid, Kirkpatrick complained to Park and Park wrote Mrs. Pease, going over the whole controversy and refreshing her mind in certain particulars, telling her that he had made the sale and that she had confirmed it, that a suit was threatened by Kirkpatrick but that he had prevailed upon Kirkpatrick’s lawyers to wait a little longer as the trouble was through a misunderstanding. He forwarded her a deed to execute to Kirkpatrick, or, if she preferred, she could send him (Park) a power of attorney dated back to the date of the original deed. Mrs. Pease ignored this letter. Thereupon suit was brought, and following that the Peases (through Peddie) sold 54 acres of land, including Tract A, to defendants Rees and Rose; and Rees and Rose in turn conveyed to defendant Meyers, subject to an exception in both deeds, viz: “Excepting water front privilege described in deed of William Osborne to John Savage, dated April 4, 1891, which deed is recorded in book 21, page 278, of Platte county, Missouri, records.”

The record shows that in March, 1898, Kirkpatrick was put in possession of Tract A by Park, except of the boathouse and a small inclosure there, and Mrs. Pease knew of this, that he substantially fenced it and built stabling thereon, and, barring the boathouse, was in possession at the date of the trial.

The foregoing record justifies the following observations :

(a) It will be seen that the original authority in Park to sell to Kirkpatrick is traced back to a letter. This letter was not signed by Mrs. Pease, but by her husband. She advised with her husband about the letter, she read its contents, and testified it went with her approval.

Section 3418, Revised Statutes 1899, reads: “No action shall be brought .... upon any contract made for the sale of lands .... unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract. ’ ’ Now, Charles S. Pease held no written authority from Mary; hence, authority from him to Park to sell Mary’s land was not authority in writing from Mary. So’ that, conceding an agent could be clothed with authority by letter, and conceding, moreover, that authority might be spelled out of several letters in a correspondence (Peycke Bros. v. Ahrens, 98 Mo. App. 456, and authorities cited), yet the facts at bar bring this case within the mischief struck at by the foregoing statute, and we cannot hold that Park originally had lawful authority to sell the land of Mary Pease to Kirkpatrick. And this is so, although Park acted in good faith, undér a misapprehension of his power.

A case might arise where there was an infirm power based on authority such as the foregoing, where, with the knowledge and acquiescence of the owner of the land, improvements were made by the purchaser and he so materially changed his situation that an equitable estoppel would be created, and an owner who had refused to speak “when in conscience he should have spoken,” would not be allowed to speak, “when in conscience he ought not” to deny written authority. But the facts in this case do not warrant the application of any such doctrine.

(b) Notwithstanding Mrs. Pease gave no written authority to Park to make a contract to sell Tract A, yet fairly construing the correspondence between her and Park, giving weight to the knowledge she had that Park was acting as her agent in selling Tract A and had made a deed therefor in her name (she thereafter accepting the full purchase price), considering', too, the information given to her with a copy of the deed in hand, she ought not to be allowed in writing to order the proceeds turned over to her and to put the same in her pocket, without such acts, based on such knowledge, being taken and deemed a ratification of Park’s acts.

A married woman, as our statutes now run, is clothed with the right to sell lands held by her in her own' separate right as her own separate property. [Farmers Exchange Bank v. Hageluken, 165 Mo. 443; R. S. 1899, secs. 4335, 4340.] She may make a deed thereto as a feme sole; hence, she may give authority to an agent to contract a sale, and it follows that she may ratify the act of her agent. The ratification of an act, done by one assuming to be an agent, relates back, and is equivalent to a prior authority. [Story on Agency (9 Ed.), sec. 242; Despatch Line of Packets v. Bellamy Man. Co., 12 N. H. l. c. 232.] The authority to contract a sale of real estate must be in writing; therefore (it is held), the ratification must be in writing, where ratification is relied on to make a binding contract. [Hawkins v. McGroarty, 110 Mo. 546; Mechem on Agency, sec. 136; Johnson v. Fecht, 185 Mo. l. c. 345, et seq.]

No one (sui juris) may, with full knowledge of the facts, receive and appropriate to his own use without objection the purchase price of land, sold by one assuming to act in his behalf as Ms agent, as Mrs. Pease did here, without such receipt and appropriation amounting to a ratification. [Mechem on Agency, sec. 149, and cases cited in note 2.] And, having once ratified the act, it is axiomatic that such ratification may not be recalled. .

II. "Was the contract so definite and certain as to be susceptible of specific enforcement? "We think so. Tract A is described with particularity in the infirm deed,-signed by Park for Mrs. Pease; the parties are set forth, and the price to be paid. The terms of the contract evidently were cash in hand; and no reason appears why the contract was not so definite and certain in its terms as to be susceptible of specific performance.

III. Did Mrs. Pease own Tract A — i. e., was her title such as made the ratified contract susceptible of specific performance ? In considering this question regard must be had to certain record facts to be presently uncovered, to-wit: In 1891, some three years prior to his conveyance to Mrs. Pease, Colonel Osborne conveyed Tract B to one John Savage. It is assumed in the record that this conveyance was made to Savage to aid in establishing a sportsmen’s club at Bean Lake. After describing Tract B by metes and bounds, the deed proceeds thus: “Together with the water front privileges appurtenant thereto.” As Tract B lies on the far side of a wheat field from Bean Lake, it is not plain to either a landsman or a waterman, from the naked grant without evidence aliunde, what “the water front privileges appurtenant thereto” may be. But the Savage’deed did not stop there; it goes on thus: “Also, the right to perpetually use, occupy and enjoy a water front along the water line on the east side of Bean Lake, immediately north of the county road, along the south liné of said section twelve for the construction of a boathouse over the water of said lake, of the length of forty feet along said water line.”

The privilege aforesaid will be hereafter referred to as “Permit C.” Presently thereafter, Savage conveyed Tract B to the “Bean Lake Pishing & Hunting Club,” and this conveyance included Permit C. In 1894 the Bean Lake Pishing & Hunting Club (which seems to have been known locally as a Kansas City Club) conveyed Tract B to secure a note signed by J. T. Stephens for $400', due in twelve months. The conveyance was a deed of trust in the nature of a mortgage and did not purport to convey the privileges set forth in Permit C. Presently the trustee sold the premises under the foregoing deed of trust to Annie E. Stephens, the present owner; and the trustee’s deed conveyed Tract B, but did not include the privileges set forth in Permit C. We infer that the Stephens referred to in the record as J. T. Stephens, is the maker of said note and the husband of Annie E., and that he is the party who, claiming under the trustee’s deed to his wife, the Savage deed and the aforesaid mesne conveyances, is occupying the boathouse on Tract A.

On such record hinges the contention of defendants that Mrs. Pease cannot make a valid conveyance to Tract A, and, therefore, whatever remedy Kirkpatrick may have, he cannot enforce specific performance.

But without deciding whether a vendee might not be entitled to part performance with satisfaction in damages for the part not performed, yet it is sufficient to say of this contention for the purposes of this case that it proceeds upon a misapprehension. If we hold that the unacknowledged deed executed by Park for Mrs. Pease is not good as a conveyance, which we do, yet if said abortive deed is good in equity as a contract to convey, which we also hold — then it will be seen that there was an exception reserved in the contract and that Kirkpatrick agreed to take title subject to “a concession of forty feet of water front next north of the county road to the K. C. Club for a boat-, house.” This is self-evidently the same concession granted in Colonel Osborne’s deed to Savage and in Savage’s deed to the Bean Lake Fishing & Hunting Club, to-wit: Permit C — subject to which Mrs. Pease (holding under a subsequent deed) took title. It is, furthermore, the same exception contained in the Peases’ deed to Rees and Rose, and in their deed to Meyers. So that, we are not called upon to pass, upon ^Stephens’ right under the trustee’s deed to enjoy the privileges of Permit 0. Whether that right is existent ought not to he determined in this case — Mrs. Stephens and her husband not being parties; nor does the case call for such determination, because, if the Stephens are entitled to the boathouse privileges of Permit C, then, under his contract, Kirkpatrick takes title subject to that privilege; and as the Peases conveyed Tract A with other land to Rees and Rose, subject to that privilege, no good reason is seen why they might not have conveyed Tract A to Kirkpatrick subject to the same privilege — consistency being a jewel, and inconsistency not. We see no insuperable obstacle to specific performance on this score.

. TY. Plaintiff’s counsel insist that Rees, Rose and Meyers took a title burdened with notice of plaintiff’s rights. This is so. In fact, defendants’ learned counsel do not argue that Rees, Rose and Meyers were not put upon inquiry and had no notice. They admit notice, but they say inquiry and notice amount to nothing unless plaintiff’s claims were substantial and enforceable in equity. They say (in substance) that plaintiff’s rights have no substance, that plaintiff has no standing in court, and, therefore, they bought with indifference and impunity, relying on 'the court’s brushing aside any apparent interest in plaintiff. But, as we have seen, they were mistaken in this and {ergo) must be held to take title subject to plaintiff’s equitable right to' specific perfomance, unless specific performance should be denied on a ground now to be considered.

Y. Finally, we are asked to sustain the judgment because specific performance is not a matter of absolute right, but rests in the discretion of the chancellor. In a sense specific performance does rest in the discretion of the chancellor. But discretion does not mean caprice. A discretion measured by a capriciously elastic yardstick would present a false measure of 'equitable right. This discretion is spoken of in the books as a sound discretion — sound, meaning judicial. The right doctrine is elegantly put by Wagner, J., thus: “A bill for the specific performance of a contract is not granted as. a matter of right by the court to which it is addressed, but from a just and reasonable discretion. But this discretion is not to be exercised in an arbitrary or capricious manner, but is to be governed by sound legal rules and principles. If, upon a whole view of the facts and circumstances, the court shall be of the opinion that the contract is fair, just and. equitable, it will use its extraordinary authority and decree specific performance; but, if, on the contrary, it appears inequitable and unjust, the remedy will be denied and the party left to his action at law.” [Ivory v. Murphy, 36 Mo. l. c. 542.]

Courts of justice sit to enforce the law. Now, the law may be said to be a general rule of action — a rule of civil conduct prescribed by the supreme power in a State. A contract is but a rule of action binding upon the parties thereto — i. e., a contract is but a law unto the parties thereto. Therefore, courts sit to enforce contracts — not to. abrogate them. [Evans v. Evans, 196 Mo. l. c. 23; Kilpatrick v. Wiley, 197 Mo. l. c. 172.] If (for instance) the bargain in this instance was over-keen and unjust, or if the party against whom specific, performance was sought was laboring under some disability and had been overreached, then (or in similar cases) there would be something for the discretion of the chancellor to take hold of — something binding his conscience. But, absent any earmarks of unfairness, overreaching or overkeenness (as here) and present a fair, just real estate contract (as here), to deny specific performance is to wound and vex the soul of equity itself.

In our opinion the judgment, nisi, was for the wrong party. That judgment is, accordingly, reversed and the cause remanded with directions to the chancellor to set aside the judgment dismissing plaintiff’s amended hill and to enter a decree for specific performance in favor of plaintiff, divesting the legal title to tract A (describing it) out of the defendants Meyers, Rees, Rose, and the Peases, and each and every of them, and vesting it in plaintiff.

All concur, except Woodson, Jnot sitting.


source: Caselaw Access Project

author: YALLIANT, P. J.

license: Public Domain

text:
    PETER F. MYERS v. JERRY T. HANSBROUGH, Public Administrator in Charge of Estate of MARGARET R. MYERS, Deceased, and JERRY T. HANSBROUGH, Appellants.
    Division One,
    March 28, 1907.
    1. CURTESY: Wife’s Debts: Statute. The estate of curtesy in his wife’s lands does not come to the husband at her death burdened with her debts. The administrator of her estate is not entitled to the possession of the lands as against her husband under the statute which authorizes the administrator, when so directed by the probate court, to take possession of the lands belonging to decedent and rent them for the payment of decedent’s debts.
    2. -: -: Before and After Married Woman’s Act. Esvtate by the curtesy is not a creation of the statute; it is created by the common law. Curtesy initiate becomes a vested interest as soon as it attaches to the wife’s estate. Under the Married Woman’s Act (sec. 6869, R. S. 1889; sec. 4340, R. S. 1899), a married woman’s real estate is her separate estate, and she is given the sole right to its possession, its rents and profits. The husband is thereby deprived of his common law right to the possession during the coverture, and to that extent his curtesy initiate is impaired, but it is not destroyed, and upon her death it becomes consummate; that is the law as to the real estate acquired by the wife after the statute was enacted and as to the rights of a husband married after that date. But the statute is not retrospective, and where the marriage occurred and the wife owned the lands before the enactment of the statute the husband’s curtesy rights are as they were at common law. That statute goes no further than to take away from the husband his common law right to the possession and usufruct of the land during the life of the wife.
    3. -: -: Estate That May Be Taken. It is the estate or interest of the debtor in the land that is liable to be taken for the debt. If the debts are the wife’s debts it is her interest in her lands that may after her death be taken for their payment, the interest that would descend to her heirs or to her devisees had she made a will, not the husband’s curtesy; which means a right in him to the possession of her lands, consummate upon, her death.
    4. -: How Created. Estate by the curtesy, the particular title by which the husband claims right to the possession of the wife’s land after her death, was never in the wife; it is an interest cut out of her title, subtracted from it, not by her leave or license, but by the arbitrary force of the law, and is an interest that cannot be taken from him either at the will or sufferance of the wife-. If her creditor, after the estate by the curtesy initiate was vested in the husband, obtains judgment against her and sells the land in her lifetime, the purchaser at the sheriff’s sale obtains only what was hsrs, which under the statute includes possession during her life, but he would,not acquire what was not hers, the husband’s right to the possession after her death. 9

    5. -: Destruction by Statute: Dower: Wife’s Debts. Tlhe estate by the curtesy in the husband is of the same nature, though differing in extent and' depending on different conditions, as the right of the wife to dower. The General Assembly could make both subject to the payment of debts, but it has not done so. The statute (sec. 4335, R. S. 1899) conferring power on a married woman to contract debts neither expressly nor impliedly imposes the burden of those debts on the husband’s estate in the lands owned by the wife.
    Appeal from Hannibal Court of Common Pleas. — ■ Eon. D. E. Eby, Judge.
    Aeeiemei>.

      R. E. Anderson and J. J. Senders on for appellants.
    (1) The respondent claims as tenant by the curtesy, and the question to be determined is whether in the face of the provisions of chapter 51 of the Revised Statutes of 1899, in which the provisions of the statutes of 1889 were, re-enacted, Ms rights as tenant by the curtesy vest until the debts created by the wife, such as funeral expenses, borrowed money and taxes, have been paid. Appellant insists that it does not and to hold otherwise would be to render the provisions of section 4335 of the act providing that she may contract, and be contracted with, sue and be sued, and to enforce, and have enforced against her property such judgments as may be rendered for or against her, meaningless. (2) It is well settled in this State that a married woman, as to her separate property, is to be regarded as a feme, sole competent to contract debts which will bind her separate property, whether it be named br reférred to, or not. Miller v. Brown, 47 Mo. 504; Rosenheim v. Hartsock, 90 Mo. 357; McFarland v. Heine, 127 Mo. 327; Turner v. Shaw, 96 Mo. 28. It is conceded that the husband is entitled to curtesy in all estates of inheritance of which- the wife died s’eized, either at law or in equity, but appellant maintains that in order that the provisions of section 4335 may have any force and effect, and not become a pitfall for honest creditors, they may have enforced against her property such judgments as may be rendered against her, and for that purpose may take possession bf and rent out said property for the purpose of paying her debts, the husband’s curtesy rights remaining in abeyance until her debts are paid. Rice, Stix & C'o. v. Sally, 176 Moi. 107. When under section 4335 the wife was rendered sui juris, nothing remains of the common law rule as to curtesy until her debts are paid. Whitesides v. Cannon, 23 Mo. 457.

      Thomas H. Bacon for respondent.
    (1) The disability of the wife to devise to the prejudice of curtesy imports the exemption of eonsummate curtesy from impairment by any post-mortem proceedings. R. S. 1899, sec. 4608. (2) There are many decisions fully sustaining the integrity of the common law curtesy consummate where all right of curtesy initiate is forestalled and excluded by the deed to the wife. Tremmel v. Kleiboldt, 75 Mo. 258; Soltan v. Soltan, 93 Mo. 307; McTigue v. McTigue, 116 Mo. 142; Martin v. Trail, 142 MO'. 94; Woodward v. Woodward, 148 Mo. 247; Cornwell v. Wulff, 148 Mo. 564; McBreen v. McBreen, 154 Mo, 331; Miller v. Quick, 158 Mo. 502; Casler v. Cray, 1591 Mo>. 588; Kennedy v. Kopman, 166 Mo. 94; Dozier v. Walsh, 180 Mo." 551. See, as to the general policy of the law: O ’Brien v. Ash, 1691 Mo. 283.
   YALLIANT, P. J.

This is an action of ejectment. The property in question, consisting of several lots and tenements in the city of Hannibal, belonged to Margaret R. Myers, deceased, in her lifetime. She died intestate, seized and possessed of the property, January 18, 1902. Her title to the various lots was that of an absolute legal estate in fee simple; to some of the lots her title was derived before the amendment of the Married Woman’s statutes in. 1889' and some afterwards. She left surviving her her husband, the plaintiff, and two sons of her marriage with him.

The defendant is the public administrator of Marion county, and as such lias charge of the estate of Margaret R. Myers deceased. Under an order of the probate court, made under authority of section 130, Revised Statutes 1899, the defendant has taken possession of the real estate in question for the purpose of collecting the rents for the payment of debts. That order is the sole foundation of his claim of right to the possession.

Plaintiff claims that he is entitled to possession by virtue of his estate by the curtesy.

The trial court rendered judgment for the plaintiff for possession, damages and costs, and the defendant appealed.

Defendant concedes that the plaintiff has an estate by the curtesy in the property and that by the common law he would be entitled to the possession, but contends that under section 4335, Revised Statutes 1899, which confers on a married woman power to contract debts as a femme sole, the estate derived by the husband from the wife comes to him burdened with her debts.

The error in that theory consists in assuming that the husband’s estate by the curtesy is derived from the wife. The estate by the curtesy is created by the law and is as independent of the wife as is the wife’s dower independent of the husband. It is dependent for its creation on certain facts, one of which is that the wife in her lifetime and during the marriage was seized of an estate of inheritance, but that fact given and the other conditions having existed, the law by its own force creates the estate.

From 12 Cyc. the following definitions are taken: “Curtesy is the estate to which by common-law a man is entitled on the death of his wife, in the lands or tenements of which she- was seized in possession in fee simple or in tail during their coverture, provided they had lawful issue bom alive which might have been capable of inheriting the estates” [P. 1002.]

And in a note to the text it is said: “It is a freehold estate in the husband for his natural life cast upon him by operation of law immediately upon the happening of the necesary incidents.”

The same author further says: “Curtesy initiate becomes a vested interest as soon as it attaches to the wife’s estate, and cannot be modified or abolished by the Legislature of a State; but until it attaches it is a mere right and may be modified or destroyed. When vested, curtesy initiate is an estate in the husband for his natural life, separate and distinct from the estate of the wife.” [Id., p. 1003-4.]

And again: “On her death the surviving husband, if all other requisites have existed, becomes vested with a freehold estate known as curtesy consummate.” [Id., p. 1008.]

Estate by the curtesy is not a creation of a statute, it is created by thfe common law. We do not find it mentioned in the writings of the common law that the estate by the curtesy is free from the burden of the wife’s debts, as we do find it said that the widow takes her dower free from the husband’s debts, but the reason for that is that by the common law the wife could make no debts. But the estate by the curtesy which we have is as it came to us through the common law and is affected by our statutes only as they expressly or by necessary implication affect it.

Under section 6869, Revised Statutes 18891 (now sec. 4340, R. S. 1899), a married woman’s real estate is her separate estate; she is' given the sole right to its possession, its rents and profits. The husband is thereby deprived of his common law right to the possession of his wife’s land during coverture, and to that extent his curtesy initiate is impaired, but' it is not destroyed and upon the death of the wife it" becomes consummate. [Woodward v. Woodward, 148 Mo. 241; Kennedy v. Koopmann, 166 Mo. 87.] What is just said relates to real estate acquired by the wife' after the statute just mentioned was enacted or to the rights of a husband married after that date. Where the marriage occurred before the enactment of that statute and the wife owned the land before that enactment, the husband’s rights are as they were at common law. That statute is prospective, not retrospective in its action.

It was held before that statute was enacted that a surviving husband had an estate for life by the curtesy in land in which the wife had an equitable estate -of inheritance and of which she died possessed, although it was expressed in the deed to be to ’her sole ■use and benefit, the deed not purporting to exclude all the estate of the husband. [Tremmel v. Kleiboldt, 75 Mo. 255; Kennedy v. Koopmánn, above cited.] The Married Woman’s statute goes no farther than to take away from the husband his common law right to the -possession and usufruct of the land during the life of .the wife, it goes no further in the way- ,of impairing his rights than do the deeds in the cases above cited. If the husband’s estate by the curtesy exists in land held by the wife as her separate equitable estate in -which he has no right to the possession during-her life, there is no reason why it should not exist in land held '.by her under the terms of that statute.

But it is contended that because section 4335, Re- ■ vised Statutes 18991, enables a married woman to con"tract debts those debts become a charge on her property and one who takes the property from her .takes it ■ cum onere. We should be careful not to become confused in this inquiry by the use of certain terms. Be-fore the enactment of the Married Woman’s statutes, if á married woman owned an equitable estate of which she had control, if she incurred an obligation which, but for her common law disability, would be ;a debt, ■a court of equity would make that obligation a . charge on the equitable estate. In such case the court resorted to the artificial reasoning that since the married woman knew she could not at law contract a debt she must be conclusively credited with the honest indention to charge her equitable estate with the payment of her obligation. The court in such case would not .give to.the Obligation the character of a mortgage or other specific lien, but would- subject the property to thfe discharge of the obligation in a manner analogous to the process of law in the subjection of the property ; of a debtor sui juris to the payment of his debts. And . h court of equity dealing now with a married woman’s equitable estate might perhaps still exercise that jurisdiction.

But when the statute was enacted removing the shield with which the common law had protected the married woman, dethroning the wife and! mother of the family and reducing her to the common level of a man in the mart of trade and traffic, she was declared capable of contracting debts and her property was rendered amenable to process as that of any one sui juris. In subjecting a married woman’s statutory separate estate to the payment of her debts there is no necessity for resorting to the artificial reasoning by which a court of equity declared her obligation a charge on her separate equitable estate, because now she may make a debt, and she has been endowed with the privilege of being sued and of having her property sold by the sheriff at the courthouse door under common execution. When she contracts a debt she does not thereby create a charge on her separate statutory estate any more than a mían may be said by the mere contracting of a debt to create a charge on Ms property. The term “charge” as applied in equity in such case has no application to a wife’s legal estate of which she has, under the statute, the sole and separate use. The property in the suit at bar was the wife’s legal estate and is liable to be taken for her debts in the same manner that the real estate of a man is liable. But as in the case of a man so in the case of a married woman, it is the estate or interest of the debtor in the land that is liable to be taken for the debt. It is the interest that Mrs. Meyers had in this land at the time of her death that is liable to be taken for the payment of her debts, the interest that would descend to her heirs or pass to her devisees if she had made a will.

The particular title by wMch the plaintiff claims right to the possession of this land was never in his wife, it is an interest cut out of her title, subtracted from it, not by her leave or license, but by the arbitrary force of the law. It is an interest that could not be taken from the husband either at the will or sufferance of the wife. If a creditor of hers, after the estate by the curtesy initiate had vested in the husband, had obtained judgment against her and sold the land in her lifetime, the purchaser at the sheriff’s sale would have obtained what was hers, which, under the statute, included possession during her life, but the creditor would not by such sale acquire what was not hers, what was beyond the reach of her will or sufferance.

The estate by the curtesy in the husband is of the same nature, though differing in extent and depending on sofue different conditions, as the right of the wife to dower; doubtless the General Assembly could make both subject to the payment of debts, but it has not done so. When the General Assembly conferred on a married woman the power to make a will devising her lands, as if apprehensive that that power might seem to imply that she could by her will deprive her. husband of his estate by the curtesy, it was expressly provided that the devise should not have that effect. [Sec. 4603, R. S. 1899.]

The statute, section 4335, Revised Statutes 1899', conferring power on a married woman to contract debts, neither expressly nor impliedly imposes the bur.den of those debts on the husband’s estate in the lands owned by the wife.

These are the views that the learned trial judge took of this subject, and he was correct.

The judgment is affirmed.

All concur.


author: CRAVES, J.

text:
    SOUTH MISSOURI PINE LUMBER COMPANY, Appellant, v. CROMMER et al.
    Division One,
    March 28, 1907.
    1. PROMOTER. A real estate agent and the owners, of real estate, who did not help organize the corporation which took oyer the timbered land contracted for by the incorporators, who, before they had ever seen the agent or the land-owners, had agreed to go into the sawmill business and to organize a corporation and had agreed that two of their number should put in property instead of cash and had agreed upon the stockholders of the corporation, -were in no sense promoters of the ' corporation.
    2. FRAUD: Burden. Fraud and collusion will not b.e presumed, and the burden is on .the party charging them to. satisfy the chancellor that they in. fact exist.
    3. -. — Deference to Chancellor. In an equity case dependent largely on the- oral testimony of interested witnesses, some, deference should on appeal be extended to the finding of the chancellor,' who heard the parties testify, saw their demeanor - on the witness stand, and read their facial expressions.
    4. --: Conspiracy. In this case the owners of timbered land and a sawmill were willing to sell it for $21,000, and agreed to pay a real estate agent $500 tq. sell it for that price and1 all he could get above that sum. He applied to a' promoter, and the promoter interested some bankers and other parties, and they sent' two of their number, including the promoter, to inspect the properties, and they drew up a contract with, the owners in which the owners were to be given $21,000 in money and certain real estate in certain cities to be accepted by their agent, and a company was' organized for $50,000 and the lands and properties (which in fact were at the time worth $40,000) were turned over to the company as its capital stock, and aftérwards' it turned out that two of the incorporators, one of whom was the promoter, who it was agreed were to put in certain lands for their sttock, had not done so, and it was then discovered that these two had managed to have the properties taken over at a valuation of $37,500 and it is charged that the land-owners were a party to a conspiracy between them, their agent and the promoter, to work a fraud on the others by a representation that the purchase price was $37,500. The evidence is reviewed, and it is held that the conspiracy was not established.

      Appeal from St. Louis City Circuit Court. — Row. Jos. R. Kinealy, Judge.
    Aukirmed.

      R. A. Holland and' Rush & Stringfellow for appellant.
    Although the evidence amply justifies the conclusion that the Crommers directly participated in the fraudulent scheme of raising the price, it is entirely . immaterial under the facts of this case- whether or -not either one of them so participated or had any knowledge that a fraud was being committed. It is admitted that Newhouse was the agent of the Crommers and they are bound by his fraud; his acts are their acts, his knowledge their knowledge, and this is true, not be- . cause of any authority, express or implied, which the Crommers may have given him to commit a fraud, but because of the equitable principle that where two parties are equally innocent he is liable who has made the commission of the wrong possible. Nor is it necessary to show that the Crommers received any part of the raise in the price. The profit which they received was in the sale of their property at twenty-one thousand dollars. They had the right to sell their land to the corporation for that price; but they did pot have the right to assist in deceiving Maxwell and Hartwig, either by their direct acts and words, or through the medium of their agent Newhouse. If such deceit and! fraud was practiced, it is immaterial who carried -,off the booty. South Joplin Land Company v. Case, 104 ‘ Mo. 572. It is not necessary that a promoter should afterwards become a stockholder in the company-. 1 Thomp., Corp., secs. 457, 458, 462; 1 Mor., Priv. Oorp. c ("2 Ed.'), sec. 291; Dickerman v. Trust Co., 176 II. S. 203; Burbank v. Dennis, 35 Pae. 444; 23 Am. and Eng. Ency. Law (2 Ed.), 232; Phosphate Co. v. Erlinger, 5 Oh. D. 118, 46 L. J. Ch. 425., 36 L. P. (N. S.) 222; Tale Gas Stove Co. v. "Wilcox, 25 L. B. A. 90; Simon v. Yulcan Oil Co., 61 Pa. 202; Hayward v. Leeson (Mass.), 49 L. B. A. 725.; Krohn v. Williams, 62 Fed. 869; Wiano Land & Imp. Co. v. Webster, 75 Mo. App. 457. Stock received as a secret profit may be cancelled. Teiser v. U. S. Board & Paper Co., 107 Fed'. 340- A principal is liable for acts of his agent committed in the course of the agent’s employment, although the principal did not authorize or justify or participate in, or even if he disapproves of, them. 1 Am. and Eng. Ency. Law (2 Ed.), 1152; Garretzen v. Duenckel, 50- Mo.. 104; Wichita Svgs. Bk. v. Bailroad, 20' Kan. 519; Bailroal v. First Nat. Bk., 10 Neb. 556; Edwards v. Thomas, 66 Mo. 468; Bank of Commerce v. Hoeber, 88 Mo. 37; United States v. State Natl. Bk., 96 U. S. 301. And it applies to misrepresentation and deceit. Bank of Commerce v. Hoeber, 88 Mo. 37; City Natl. Bk. v. Dunn, 51 Fed. 160; Goetz v. Flanders, 118 Mo. 342; Wolfe v. Pugh, 101 Ind. 304; Busch v. Wilcox, 82 Mich. 336; Lynch v. Mercantile Trust Co., 18 Fed. 486; Goetz v. Flanders, 118 Mo. 342; Phipps v. Mallory Com.. Co., 105 Mo. App. 67. The rule is not based on presumed authority, but on public policy. Where one of two innocent persons must suffer from the wrongful act of a third, it is more just that the principal who has placed the agent in a position of trust and confidence should suffer than a stranger. Lee v. Sandy Hill, 40 N. Y. 448; Locke v. Stearns, 1 Met. 560; Higgins v. Watervleit & Co., 46 N. Y. 24. A statement by one while conspiracy is in progress is admissible against ■all. State v. Minton, 116 Mo. 605 ; State v. Melrose, 98 Mo. 594; Poe v. Stockton, 39 Mo. App. 550; Strohmeyer v. Zepenfeld, 28 Mo. App. 268; State v. Crabb, 121 Mo. 554.

      Smith S Marbury, O. L. Hunger and W. S. Anthony for respondents.
    (1) Whether the Crommers were promoters is a question of fact and not of law, and must be determined with due regard to all the circumstances. -23 Am. and Eng. Ency. Law (2 Ed.), 233. (2) The Crommers, neither in person nor by their agent Newhouse, originated the incorporation of appellant company. 2 Cook on Stocks and Stockholders (3 Ed.), sec. 705; 23 Am. and Eng. Ency. Law (2 Ed.), 232; Pitts v. Steele Mtle. Co., 75 Mo. App. 221; South Joplin Land Co. v. Case, 104 Mo. 572. (3) If the Crommers and their agent Newhouse were promoters of appellant company, they would occupy the relation of trustees to. the company, and the law would require them to act in good faith towards the company, and account to it for all secret profits realized by them, or either of them, and unless such secret profits are traced into their hands, the judgment of the lower court must be affirmed. Burbank v. Dennis, 101 Cal. 90; South Joplin Land Co. v. Case, 104 Mo. 572; 23 Am. and Eng. Ency. Law (2 Ed.), 235; 1 Thomp., Corp., p. 324; Exter v. Sawyer, 1.46 Mo. 319. (4) The evidence fails to show any conspiracy of the Crommers with Haus, New-house and Ewart, or any conspiracy whatever, on the part of the Crommers with any one connected with the deal. Walsh v. Ass’n of Master Plumbers, 97 Mo'. App. 292; State ex inf. v. Ins. Co., 152 Mo. 1. (5) The suit by appellant company against the Crommers is the suit of a cestui que trust against its trustee, for an accounting to discover and estimate the alleged secret profits appropriated by them to their own use, and appellant can only recover of the Crommers such secret profits as the testimony shows they received and which should have gone to it. If the Crommers did not receive any such secret profits, no recovery can be had against them. 1 Thomp., Corp., p. 325; note 1; Ward v. Davidson, 89 Mo. 460; Keokuk Packet Co. v. Davidson, 95 Mo. 473. (6) A. J. Haus was the active promoter and incorporator of the company, and was the first president of the company, and E. P. Ewart was its first secretary, each of whom knew every preliminary step taken for the purchase of the property and the organization of the company. Haus was not sued, nor was he introduced as a witness and examined by plaintiff. Will a court of equity, admitting that appellant has a cause of action against defendants for acting as promoters for secret profits alleged to have been realized by them, render its decree by piecemeal, leaving out of consideration Haus, the chief ■actor in promoting appellant company? Real E. S. Co. v. C'ollonious, 63 Mo. 295'.
   CRAVES, J.

Plaintiff, South Missouri Pine Lumber Company, is a Missouri corporation, organized on March 24, 1900’, whose certificate of organization was issued by the Secretaiy of State, March 26, 1900. Plaintiff was organized with a capital stock of $50,000, divided into five hundred shares of $100 each. O'f these shares A. J. Haus subscribed for 169; E. P. Ewart, 141; W. F. Maxwell, 95, and E. C. Hartwig, 95. Ewart, who is defendant herein, was an experienced lumberman, formerly of Topeka, Kansas, and later of St. Joseph, Missouri; A. J. Haus, who' is no party to the action, was an experienced lumberman of St. Joseph, Missouri; Maxwell and Hartwig, stockholders in the company, with Ewart and Haus, were bankers' without experience in or knowledge of the lumber business. The defendants in this case are E. P. Ewart, an original stockholder in plaintiff company, but not such at the time of the suit; S'. E. New-house, William Crommer, William F. Crommer and S. J. Malugen. From the petition and from the evidence it appears that the two Crommers owned a- large tract ,of land in south Missouri, upon which there was saw timber of different kinds and character. They likewise owned sawmill plants situated upon portions of their property. The Crommers were and had been in hard straits, financially. At one time, prior to the transactions involved in this case, they had, through the instrumentality of S. E. Newhouse of St. Louis, procured a loan of $3,000 upon this property, from the Wesleyan College of Warrenton, Missouri. That, still being in hard straits, financially, they placed their property upon the market with defendant S. E. New-house, authorizing said Newhouse to sell said property for $21,000, and agreeing to pay him out of the-$21,000 the sum of $500, and further agreeing with him that whatever he got over and above $21,000 he should receive as his commission in addition to the $500 hereinabove mentioned. It seems that with this proposition upon his hands, Newhouse, through one Martin of Topeka, Kansas, and Brewster of St. Joseph, Mo., interested Hans and Ewart of St. Joseph, and they in turn interested Maxwell and Hartwig.

From- the start, it appears that Maxwell and Hart-wig were in favor of organizing a corporation to take care - of the Crommer property, or whatever property might be bought. Maxwell would not go in unless they incorporated. So far as the evidence shows, neither Newhouse nor the Crommers knew anything about these first discussions of organizing and incorporating the plaintiff company. Prior to the organization of the company it was agreed between Hans, Ewart, Maxwell and Hartwig, the prospective incorporators, that Hans and Ewart ■ should proceed to south Missouri, and examine the Crommer plant and lands and negotiate for the purchase of same. Accordingly they left St. Joseph for that purpose with the knowledge of Maxwell and Hartwig. But before leaving they had an understanding with Maxwell and Hartwig that they and each of them had real estate which they would like to trade in on the deal in lieu of a cash contribution for their stock in said proposed company. Haus and Ewart went to Elsinore, where the Crommer lumber plant was situated, and were there met by defendant Newhouse, the agent of the Crommers, as well as by the Crommers themselves, together with one Kirkland, who was the timberman for the Crommers. Under the guidance of Kirkland, Haus and Ewart inspected a portion of the timber land's then offered for sale by the Crommers and were asked, especially by young Crommer, to inspect it all. After this inspection and on March 15, 1900, the parties entered into the following contract:

“Elsinore, Mo., March 15, 1900.

“It is agreed, this day by and between ¥m. and W. F. Crommer of Elsinore, Mo., parties of the first part, and A. J. Haus, E. P. Ewart, W. F. Maxwell and - C. E. Hartwig, of St. Joseph, Missouri, parties of the second part.

“That the parties of the first part, for and in consideration of fifty dollars in hand paid and a further consideration of four hundred and fifty dollars to be paid March 19, 1900', and four thousand five hundred dollars to be paid on the delivery of the deeds to said property hereafter described by parties of the first part to said parties of the second part, and sixteen thousand two hundred and fifty dollars in real estate, located in St. Joseph, Missouri, and Topeka, Kansas, and accepted by S. T. Newhouse, of St. Louis, Missouri, agent for the parties of the first part, and by assuming a certain deed of trust for three thousand dollars, now on said lands, and property deeded by said parties of first part and due in three years from January, 1900, and payable to the Wesleyan College of Warrenton, Missouri, bearing interest at the rate of seven per cent, payable annually and by a deed of trust of thirteen thousand dollars secured on the property deeded by the parties of the first part and payable in thirteen each, one thousand dollar notes and due in one, two, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen and' fourteen months respectively with interest at six per cent from date thereof until paid, agreed to deed by special warranty deed to parties of the second part seven thousand five hundred acres of land located in Butler, Carter and Wayne counties, Missouri, to-wit: Five thousand acres of virgin timber land located as follows: (Description omitted).

“All in township 26, range 4 east, Butler county, Missouri, free and clear of any and all debt, except a certain deed of trust for three thousand dollars above described and which parties of the second part assume and agree to pay and the taxes for 1900.

“Also twenty-two acres of land located in the town of Elsinore, Missouri, together with all improvements thereon and all of the town lots owned by parties of the first part in the town of Elsinore, Missouri, excepting lots Nos. 1, 2, 3, 4, 5, 6, 7, 8, and the lot upon which Horren store building stands, together with all improvements thereon. The above twenty-two acres including the store building, warehouses, houses of all kinds, and sawmill and planing mill and all bams, in fact all improvements thereon, including the machinery in the mills, office fixtures, and furnish bill of sale to stock of goods now in said store building and warehouses, and teams consisting of seventeen mules, one horse and two horses, together with all harness, wagons, log chains, cant hooks, skidding tongs, in fact all tools, etc., owned by said parties of the first part at Elsinore, Missouri. Also a sawmill and planer located near Orchard Switch, and owned by the said parties of the first part and located in section 24, township 27, range 3 east, in Wayne county, Missouri, all property to be free and clear from debt, excepting the three thousand dollar deed of trust as above mentioned, and all taxes for the year 1900 and thereafter which parties of the second part assume and agree to pay. It is further agreed between said parties that this sale be consummated on or before April 2, 1900, by the said parties of. the second part paying over said $4,500 and executing their certain deed of trust as set out above, and executing their certain deeds to real estate as per agreement above, and said parties of the first'part delivering their'deed to the 7,500 acres and other property above set out at the office of the parties of the first part at Elsinore, Missouri, and it is* further agreed that parties of the first part will stop cutting timber on the said lands herein mentioned on the payment of four hundred and fifty dollars next Monday, March 19,1900, and to turn all mills and other property over to said parties of the second part, April 2, 1900, excepting the planing mill, which parties of the first part reserve the right to use free of cost if needed by them for fifteen days, or until April 15, 1900. It is understood that the timber cut and now in the yard: is not sold under this agreement and parties of the 'first part have the right to remove same, but not obstruct parties of the second part.

“W. F. Maxwell,

“E. O. Hartwig,

“By E. P. Ewart,

“Wm. CltOMMER,

“W. F. Grommer, Jr.,

“A. J. Halts,

“E. P. Ewart.”

About the time the contract above quoted was signed, Haus and Ewart wrote and telegraphed Maxwell to come down and inspect the property. Maxwell was there on March 19th, saw what purported to be a portion of the property, accepted the contract and paid the $450 mentioned in the contract. He then returned to St. Joseph, where, later, on the dates hereinabove mentioned, plaintiff corporation was organized and chartered. Maxwell and Hartwig each put in $5,000 in cash. On April 2, 19001, deed was made by the Crommers to the corporation, at which time Hartwig and his attorney, Rusk, were present, together with Hans and Ewart, who had gone to Elsinore a day or two previous. At this time the deed was received and the deed of trust made back to the Crommers: All of the parties were afforded ample opportunity to inspect the property.

This action is to cancel the last six notes of $1,000 each, mentioned in the contract above set out, as well as in the deed of trust, and further to “recover of defendants, William Crammer, William F. Crommer, E. P. Ewart and S. E. Newhouse, the value of the stock issued by plaintiff to the defendant, E. P. Ewart, and by him sold to the said Doyle. That plaintiff recover of said defendants the value of the stock issued to the said A. -J. Haus, and that the difference in the value between the property contracted to be sold and delivered under the contract of March 15, 1900, and the value of the property actually delivered either under that contract or said supplemental contract of January 18, 1901, be ascertained, and that plaintiff recover ■of defendants judgment for the amount of said difference.” Then follows a prayer for an injunction asking that the sale under said mortgage be restrained and that further attempt to collect said six notes be enjoined and restrained.

It appears from the petition and from the evidence that previous to this action, E. P. Ewart had been bookkeeper and general manager of plaintiff, and had sold his stock to one Doyle, who thereupon assumed the duties exercised by Ewart. It also appears from the evidence that Ewart was crowding Doyle upon some securities given in payment of his stock, and thereupon Doyle discovered in the books of the company that fraud had been' committed upon the company in the purchase of these lands, to the effect that the Crommers had never asked nor received more than $21,000 therefor, and the company had paid $37,500. It might he well to remark here that the four incorporators, after these lands had been acquired, put them into the corporation at the price and sum of $50,000, thus issuing to themselves full paid stock.

It further appears from the evidence that it was claimed that the Crommers had misrepresented the lands conveyed, in so far as to what amount was cov- . ered by virgin timber, and in settlement of this, dispute a supplemental contract was made, which supplemental contract was as follows:

“It is agreed and entered into this 18th day of ’January, 1901, by and between Wm. Crommer, of Belgrade, Washington county, Mo., and W. P. Crommer, of Carter county, Mo., parties of the first part, and the South Missouri Pine Lumber Co., of St. Joseph, Mo., duly incorporated in Missouri, by A. J. Haus, its president, and E.. P. Ewart, its secretary, party of the second part.

‘ ‘ That parties of first part, in consideration of one dollar, the receipt of which is hereby acknowledged, and a further consideration in lieu of any timber that may have been cut out of the lands contracted by said parties of the first part, March 15, 1900, and deeded as virgin timber, to said party of the second part, agrees to deed by special warranty deed to the party of the second part the following lands in Butler county, Missouri: (Description omitted.)

“Also the standing timber on 400 acres owned by parties of the first part and known by party of the second part and located in section 26, township —, range 3 E., Carter county, Missouri, to-wit: (Description omitted.)

“And accepted by said second party and credit notes held by said parties of the first part and secured by deed of trust to the amount of $1,750 in full of all claims or damages of said second party against said first parties for any shortage as above described, and it is further agreed that said parties of the first part shall have 90 days time to secure the lands to be agreed upon in the 480 acres mentioned above.

“Wm. Crommer,

“W. F. Crommer,

“South Missouri Pine Lbr. Co.,

“Per A. J. Haus, President,

“Per E. P. Ewart, Secretary.”

“We, William and W. F. Crommer, of Elsinore, Mo., agree this 18th day of January, 1901, to extend notes number 8, 9, 10, 11, 12 and 13, due January 2nd, February 2nd, March 2nd, April 2nd, May 2nd, and June 2nd, 1901, respectively, made by the South Missouri Pine Lumber Company, April 2, 1900', for one thousand dollars each, with interest at six per cent from date thereof and secured by deed of trust, note No. 8 due January 2, 1901, to May 2nd, each of the others every six months thereafter respectively until paid. In return said South Missouri Pine Lumber Company are to pay note No. 4, due Sept. 2nd, on or before January 26, 1901, with interest thereon from date thereof at German Savings Bank, St. Louis, Mo., instead of Elsinore, Mo., and notes No. 5, 6 and 7, dne Oct. 2nd, Nov. 2nd, and Dec. 2nd, 1900, respectively, with interest thereon at same bank on or before February 16, 1901, less credit of $1,750 as per contract of this date made between us and the South Missouri Pine Lumber Company.

“We further agree to use said moneys to be paid into German Savings Bank in payment of four hundred and eighty acres of land as per contract of this date or so much as will be needed of same, said money to be paid by said Bank and checked on orders made by S. E. Newhouse until said four hundred and eighty acres are purchased and contract of this date complied with.

“Wm. Crommer,

“W. F. Orom:mer,

“South Missouri Pine Lbr. Co.,

“Per A. J. Haus, President,

“Per E. P. Ewart, Secretary.”

The evidence, or the weight of the evidence, shows a practical compliance with this supplemental contract by the Crommers. It was so nearly fulfilled that no great substantial damage could accrue to the company. It is extremely doubtful, under the facts, whether there was any liability upon the part of the Crommers under the first .contract.

Defendant Malugen was sheriff and acting trustee in the deed of trust. The property had been advertised for sale under the deed of trust- at the institution of this action, which sale was stayed by the temporary injunction granted. The substantial defendants answered by way of general denial, pleaded the second contract as a settlement and adjustment of all matters, and asked affirmative relief by way of a decree of foreclosure. Reply, general denial. The record of evidence is contained in something 1-ike nine hundred printed pages. The trial court after hearing all the evidence, some competent and much incompetent, dismissed plaintiff?s bill and also dismissed defendants’ cross-bill asking for decree- of foreclosure, thus leaving the parties standing just where they were previous to the action. But later the court so- modified the decree as to keep the temporary injunction in force until the termination of the cause in this court. Plaintiff thereupon appealed.

The only evidence in any way detrimental to the Crommers is an alleged admission by Wm. Crommer, testified to by the witness Kirkland, to the effect that he (Crommer) knew that Ewart and Haus were raising the price from $21,000 to $37,500- before the deal was close-d. This is the only substantial evidence of any conspiracy upon the part of the Crommers to aid and abet Hans and Ewart in defrauding the proposed corporation. Hans, who was at the time of the trial a stockholder in the corporation, and an alleged party to the fraud, did not testify. Nor was he made a party to the suit, although the evidence of plaintiff would tend as strongly to involve him as to involve Ewart, and more strongly to involve him than the two Crommers.

Upon behalf of the defendants, it was admitted by ■ all that the Crommers only got $21,000' for their property. They emphatically denied any conspiracy or agreement to raise the price of the property to defraud plaintiff corporation. Newhouse, and the Crommers, denied having anything to do with the incorporation of plaintiff, or any knowledge of its incorporation, until such time as the deed was made, when the incorporators directed the deed to be made to plaintiff. For them the evidence shows that Newhouse got all the property at St. Joseph and Topeka, and out of it paid Martin, the real estate man at Topeka, $1,250, and Brewster of St. Joseph, $450. They testify that to the four promoters of plaintiff corporation, but one price was ever made by the defendants, Newhouse and Crommers, and that was $37,500. This price was fixed by Newhouse and the Crommers acquiesced in it, knowing that Newhouse was to get the difference between $21,000 and $37,500.

The evidence also shows that the property was in fact worth $40,000 or more; when plaintiff acquired: it. In fact, Doyle, one of plaintiff’s stockholders and its general manager, makes an estimate of the timber on the land, which would show that the property must have been worth $40,000 or more. Such further portions of the evidence as may be necessary will be noted in the course of the opinion.

OPINION.

I. The record discloses many lapses of memory in the witnesses. Nor is this confined to one side of the cause. Again, plaintiff’s general manager, Doyle, in effect admitted that he had been promised a consideration by Maxwell to testify as he, Maxwell, did. The testimony of Newhouse and Ewart is by no means clear and satisfactory, but to one used to the many schemes of real estate agents, where they are to get other than a fixed commission, a fair conclusion can be drawn from it. This, however, we will discuss hereafter.

First, were Newhouse, and Crommers, in any sense promoters of the corporation? Under the evidence, we say, no. The trial court was amply justified in finding that the parties were not promoters. “Whether a person is or is not a promoter is a question of fact and not of law, and must in each case be determined with due regard to all the circumstances. ’ ’ [23 Am. and Eng. Ency. Law (2 Ed.), 233.] The same authority, at page 232, defines promoter thus: “A promoter is a person who takes such preliminary steps in the formation of a corporation as to bring himself into a fiduciary relation thereto, analogous to that of trustee and cestui que trust.” Cook on Stock and Stockholders (2 Ed.), sec. 651, gives the following definition: “A promoter is a person who brings about the incorporation and organization of a corporation. He brings together the persons who become interested in the enterprise, aids in procuring subscriptions, and sets in motion the machinery which leads to the formation of the corporation itself.” Our court has adopted practically the same definitions. [Exter v. Sawyer, 146 Mo. 302; Land Co. v. Case, 104 Mo. 572.] There is nothing in this evidence to bring Newhouse or the Crommers within the definition of a promoter. No evidence here that they helped organize plaintiff corporation. Haus, Ewart, Maxwell and Hartwig had agreed to go into the sawmill business and to organize a corporation, before they ever saw either New-house or the Crommers. They had also' agreed before they ever saw Newhouse or the Crommers that Haus and Ewart should put in property instead of cash, if they could do so. They had agreed upon all the stockholders of the corporation. These agreements and understandings were in St. -Joseph before Hans and Ewart went to Elsinore, the location of the Crommer plant, where they, for the first time, met the Crommers and Newhouse.

Newhouse and the Crommers in no way solicited subscribers to the stock of the contemplated, corporation. No court could, under the evidence in this record, say that these parties were promoters. So that it follows that upon this theory of plaintiff’s case, the defendants Newhouse and the Crommers are not liable. This of course leaves out of consideration the alleged conspiracy between Ewart, who was a promoter, and Newhouse and the Crommers. This we consider next.

II. Plaintiff next urges that even if Newhouse and the Crommers were not technically promoters, yet Ewart was a promoter, and if Newhouse and the Crommers aided and abetted him in the perpetration of a fraud upon the company, they are liable in a joint action with Ewart. There is no question that Ewart was a promoter. Now, as to the alleged conspiracy between Ewart, Newhouse and the Crommers. To show this conspiracy to defraud the corporation by raising the price from $21,000 to $37,500, plaintiff showed that Haus put in property not worth more than $4,500 for $8,750; that Ewart claimed to put in the property of his father not worth more than $4,500 for $7,500, but in fact put in no property at all; that the Haus property was deeded to one Edwards, a friend of Ewárt, and Edwards placed a loan thereon for $2,200 and out of the proceeds paid Brewster $450 and turned over the remainder to Ewart; that Edwards afterwards deeded the Hans property to Carrie Thorn, the fiancee, and later the wife of Newhouse; that Newhouse afterwards sold the property for less than it was worth. They also show by Kirkland, who became the timberman for the company after the purchase from the Crommers, and who was in the service of the company at the date of the trial, that Wm. Crommer had admitted that Haus and Newhouse raised the price of the property and that he knew it. This is in substance the plaintiff’s case upon the alleged conspiracy.

Ewart, Newhouse, and the two Crommers each deny that there was any agreement or understanding between the parties to raise the price. Wm. Crommer, who denied the talk with Kirkland, is shown to be a man of excellent reputation and the evidence given by .him and his son bear the earmarks of honesty. New-house and Ewart say that after the delivery of the deed to the Topeka property, Ewart paid Newhouse $2,500 in cash and took up the deed. They alse say that Ewart paid Martin $1,250’ ont of the loan on the Haus property, as his part of the commission in making the sale, and the remainder was paid by Ewart to Newhouse. They explain that Edwards was made grantee in Haus’s deed for the reason that Martin did not know Newhouse and wanted his commission secured and asked Ewart to see to it for him. Martin knew Edwards and was willing to trust him. New-house had been sick for a long time and had large debts hanging over him and was anxious to get cash rather than property. Ewart had sold ont his lumber business in St. Joseph, and had the money with which to take up the deed to his father’s property. In our judgment Newhouse was getting the property which was being put in and would thereby be making a very nice commission for one financially in hard straits, and was not very particular at what price the property was being valued at in the trade. On the other hand, Haus and Ewart were g’etting large blocks of stock by putting in their property at an inflated value. In other words, they took advantage of Newhouse’s eagerness to trade to get big values for their real estate and thereby larger amounts of stock in their proposed corporation. When the trade was closed by the original contract, Newhouse set about to realize money out of the property and did so irrespective of the inflated valuation. This theory is consistent with all the evidence.

“Fraud wili not be presumed when all the facts in the case consist as well with honesty and fair dealing as they do with an intention to defraud.” [Rumbolds v. Parr, 51 Mo. l. c. 598.]

See, also, on the same proposition: Dallam v. Renshaw, 26 Mo. 533; Henderson v. Henderson, 55 Mo. 534; Glover v. American Cas. Ins. & Sec. Co., 130 Mo. 173; New England Loan & Trust Co. v. Browne, 177 Mo. 412.

Fraud and collusion will not be presumed, and the burden is on the party charging them to reasonably satisfy the chancellor that they in fact exist. [New England Loan & Trust Co. v. Browne, supra.]

In the case at bar the trial court heard all the parties testify from the witness stand. Their demeanor could be observed. Their facial expressions could be read. Under such circumstances the finding of the chancellor is entitled to some consideration by this court. The authorities on this, question are thoroughly, reviewed by Fox, J., in the Browne case, supra. In that case Judge Fox says: “We also fully recognize the duty of appellate courts, in equity cases, to supervise the decrees of the trial court, to the end that they may ascertain that its judgment is clearly in keeping with good conscience and justice. There is also another rule, equally well settled, in respect to the deference paid to the finding of the chancellor. While this latter rule should not interfere with the power of the appellate court to supervise the judgment of the trial court, and occasion this court to lessen its strictness in scrutinizing the findings of the chancellor, yet the action of the trial- court should not he absolutely ignored; but that due and appropriate consideration should be given to such findings to which they are entitled, under the well-settled rules, as announced by this court. ’ ’

An examination of this voluminous record shows no sufficient ground for disturbing the decree of the trial court, and the judgment is therefore affirmed, and temporary injunction dissolved.

Valliant, P. J., and Lamm, J., concur; Woodson, J., not sitting.