author: BOND, C. PEE CURIAM.

text:
    LIZZIE SMITH v. JOHN MOSELEY et al., Plaintiffs in Error.
    Division Two,
    May 23, 1911.
    1. WRIT OF ERROR: Non-Joinder of Parties: Dismissal. The statute requires all parties to the suit to be joined in the suit for writ of error; and if it is established or admitted that any are omitted, and no effort is made to bring them into court or to show why they were not joined, the writ will be quashed on motion of the defendant in error made before the submission of the cause. So that where a suit in partition was brought by one heir against twenty-two others, and all were satisfied with the judgment rendered except one defendant, a writ of error sued out of this court by said defendant in his own name as sole plaintiff in error, without joining any of his co-defendants or making any showing for failing to do so, and making only the plaintiff in the suit defendant in error in the writ, and they have not appeared or been notified, and no showing is made why they were not joined, his writ will be dismissed upon a motion filed before submission of the cause.
    2. -: -: How Admitted and Established. Plaintiff in ■error admits by his petition for a writ filed with the clerk, which shows t on its face the names of twenty-one other de- . fendants besides himself, that they have not been joined in the suit for the writ in which he alone is named as plaintiff in error and the sole plaintiff is named as the sole defendant in error; and the fact that they have not been joined is established by the filing, in obedience to the writ, of the transcript showing they were parties below.
    3. -: -: Dismissed by Court of Own Motion. The Supreme Court has the inherent power, in protection of its jurisdiction, upon its own initiative, without the filing by the defendant in error of any motion to quash, to dismiss the writ of error for failure to join necessary parties in the suit for the writ.

      4. -: -: Motion May be Made in Brief. A motion to dismiss the writ of error may be made by defendant in error in his brief, filed before the cause is submitted, in which is set forth a specification of the reasons on which it is founded. It need not be written out in separate form. The statement in the brief is tantamount to a formal separate motion. And the point is not waived by the fact that the brief contains other points.

      5. -: Relief Obtainable in Trial Court: Irregularity in Judgment. A writ of error will not be entertained where the same relief sought by it may be obtained in the trial court. Where the writ is sought to correct an irregularity in a judgment, and a motion seeking the same thing, timely filed in the trial court, is still pending there, the writ will be dismissed.
    6. -: -: -: Motion Pending in Trial Court. Where plaintiff in error, on the same day that judgment was rendered against him in the trial court in the partition suit, on an amended petition charging him with interest on the overplus of an advancement above his distributive share in the personal estate from the date of the final settlement, filed a motion to set aside that part of the judgment charging him interest, on the ground that it was not asked for in the original petition, under which judgment had been rendered against him by default and no process had been served upon him after- the amended petition had been filed, a writ of error, sued out^wMte that motion was pending, it being still pending, seeking the same relief sought by the motion, will be dismissed.
    Error to Boone Circuit Court. — Hon. E. W. Hinton, Special Judge.
    Writ quashed.

      Thomas T. Fauntleroy, Shepard Barclay and P. H. Cullen for plaintiffs in error.
    (1) The original petition in this case contains no claim for advancements, or interest on advancements. This petition was duly served upon the plaintiff in err-or, but the plaintiff in error being satisfied with any judgment which might he entered in accordance with the allegations and prayer of that petition, made default. Without any notice to the plaintiff in error an amended petition was filed setting up advancements and demanding interest- on advancements for a long period of time. The judgment in this case was rendered on the amended petition and plaintiff in error charged with advancements, and interest on advancements, and his entire interest in the estate greatly reduced. He contends that the judgment is erroneous. R. S. 1899, sec. 776; Janney v. Spedden, 38 Mo. 396; BoTbb v. Woodward, 42 Mo. 4891; Railroad v. Atchison, 137 Mo. 230 ; Randall v. Snyder, 214 Mo. 30; 11 Ency. PI. and Prac. 874; Black on Judgments (2 Ed.), secs. 138 to 143, and secs. 91 and 92. (2) In distributing’ an estate interest is not to be charged upon advancements. Nelson v. Myan, 21 Mo. 347; Raye v. Loper, 65 Mo. 472.

      C. B. Sebastian for defendant in error.
    (1) The 'same questions presented to this court for determination under the writ of error are still pending* and undetermined in the circuit court of Boone county, on a motion to modify, amend and correct the judgment, and until that motion is passed upon by the trial court,' the writ of error is not properly before this court and should be dismissed. (2) The judgment in partition determines, under the will of William Moseley, the interests of all the parties. It is sought by plaintiff in error to modify that judgment so as to diminish the interests of the defendant in error, Lizzie Smith, who was served with notice, and also to diminish the interests of seventeen of the other defendants in the court .below, who have not been served with a notice of any kind of this proceeding, and are. not before this court. (3>) The judgment in partition and order of distribution have been executed and the money paid out to all the parties (except plaintiff in error) at the October term, 1906', a year before the writ of error was issued, so “the money is not in court to be disposed of, and with neither parties nor property in court, this court is without jurisdiction in the matter. (4) But if the court should hold that it has jurisdiction to hear and determine the questions raised, then defendant in error insists that the judgment is fully warranted by the petition; there is no material variance between the petition and the amended petition.
   BOND, C.

— Lizzie Smith, one of the twenty-two heirs at law of "William Moseley, deceased, filed a partition suit, making the other heirs defendants, in the circuit court of Boone county, on November 10', 1904, to sell" for division the remaining real estate of .their ancestor, who died in 1882, leaving a will setting forth the amount of the several advancements" made in his lifetime to his. children, and requiring such, advancements to be charged to the respective child who had received them, on the final distribution of the testator’s estate.

The petition prayed for the sale of the land, since it was not divisible in kind on account of the large number of heirs, and that the proceeds should be divided according to the directions of the will of the testator.

At a final settlement of the personal estate of the testator, to-wit, in 1889, the advancements made to all of the children of the testator were equalized, except as to the advancement made to John P. Moseley, which had been so large that it exceeded his distributive sháre in the personal estate of his father by $522. John P. Moseley died before the bringing of the partition suit, leaving his son, John Moseley, and three other children as his heirs. John Moseley was personally served with process and a copy of the petition in the partition suit, and made default therein, for which judgment was rendered against him. Thereafter, Lizzie Smith filed an amended petition, making substantially the same allegations contained in her original petition, except a further allegation that the overplus of the advancement to John P. Moseley beyond his distributive share in his father’s estate, to-wit, $522, should bear interest at six per cent from the date of the final settlement of the personal estate, to-wit, February 13, 1889, and claiming that the amount, with interest so reckoned, should be charged against the portion of the proceeds of the sale of the land coming to John Moseley and the three other heirs of John P. Moseley.

Thereafter, sneh proceedings were had in the partition snit as, at the Jnne term, 1905, of the circuit court of Boone county, had resulted in a confirmation of the sale of the land and the- execution of deeds to the purchasers, and a division of the proceeds among all the heirs except John Moseley, who refused to accept the amount tendered him by the sheriff, because the court in its judgment on the amended petition had charged him as one of the four children and heirs of John P. Moseley with his proportion of the interest on the advancement made to his father.

Thereafter, on the 9th day of October, 1906-, John Moseley filed a written motion in said cause in the circuit court of Boone county, praying the setting aside of so much of the judgment rendered therein on the amended petition,, as charged the amount coming to him as one of the’ four children of John P. Moseley with a proportion of the ■ sum of the advancement and interest thereon made to his father. He alleged as the ground of this motion, that no such claim was made in the original petition of which a copy and summons had been served on him and wherein he had defaulted. This motion to set aside and vacate said judgment is still pending in the circuit court of Boone- county.

On the same day, October 9, 1906, the said John Moseley sued out a writ of error from this court to bring before it for review the said judgment rendered in the circuit court of Boone county. In his written application for the writ, he set forth the name of Lizzie Smith as plaintiff, and the names of himself and twenty other heirs as being parties to the partition suit wherein the judgment had been rendered in the circuit court of Boone county, but he took out a writ in his own name as plaintiff in error without joining any of his co-defendants therein or making any showing for failing so to do. Neither have his co-defendants appeared, nor are they represented by counsel in the writ of error pending in this court. The only party to this suit, except the plaintiff in error, is the defendant in error, the plaintiff below, who, though not notified, has appeared by counsel, who have filed a brief on her behalf, asking that the writ of error be dismissed:

First, Because the co-defendants of plaintiff in error have not been served with notice and are not before this court;

Second, Because the same questions presented to this court by this writ of error are now pending in the motion filed by the plaintiff in error in the court below;

Third, Because the judgment of the court below has been so far executed and performed that there is no fund in that court which could be disposed of; and asking,

Fourth, That if this court assumes jurisdiction, then judgment below should be affirmed. ,

I. Writs of error are writs of right at common law and by statute, but they are issuable “subject to the regulations prescribed by law.” [R. S. 1909, sec. 2054.] Among other regulations prescribed for the issuance of these writs, the statute permits it to be sued out within one year after the judgment suit to be reviewed. [R. S. 1909, sec. 2056.]

The statute, however, in reference to the parties entitled to the writ, provides, that they “shall all join in such suit . . . and if any are omitted, the writ shall be quashed on motion of the defendant in error,” made before the submission of the cause and supported by the affidavit. [R. S. 1909, sec. 2058.]

As to the fact of non-joinder of proper parties, the statute provides that “if it be established or admitted,” then the plaintiff in error may answer, showing that “persons not joined” are incapable mentally of consenting or are non-residents, etc. [R. S. 1909', sec. 2059.]

The subsequent sections of the statute give the party prosecuting the writ a further answer to the fact of non-joinder when “established or admitted,” by permitting him to show that the persons not joined refused to join, and by pointing out a statutory method for him to bring them into court; and if they fail to appear, that they' shall “be forever precluded from bringing another writ of error on the'same judgment.” [R. S. 1909, secs. 2061-2-3-4.]

This last clause in the statute shows the wisdom of its requirement, that all parties entitled to sue out writs of error directed at one judgment, shall be .joined when the writ is obtained; for, otherwise, a separate suit might be brought by each of the persons entitled to the writ, to the delay and vexation of the plaintiff in obtaining the benefit of his judgment and to the unnecessary increase of litigation.

These evils constitute the basis of the general law Avhich prohibits the issuance of writs of error except upon the joinder of all persons entitled. [7 Ency. Pl. & Pr., p. 860.]

In the present case the petition filed by the plaintiff in error Avith the clerk of this court for the obtention of the writ of error awarded herein, shows on its face a full and specific statement 'of the names of about twenty-one other persons who were co-defendants to the judgment rendered in the trial court. The transcript subsequently filed in obedience to the writ by the clerk of the trial court discloses the same number and same names as co-defendants of plaintiff in error in the judgment below. It is evident from this petition and the subsequent transcript of the record below, that it was both “admitted” by plaintiff in error when he obtained this writ and “established” by the transcript subsequently filed, that he was only one of about twenty-one defendants in the judgment in the trial court. This being true, under the plain language of the statute before quoted (R. S. 1909', sec. 2059), the burden was put upon plaintiff in error to satisfy this court of his right to prosecute the writ sued for without joining the other defendants who were also entitled to bring the writ of error. He has wholly failed to make any such showing. This court would be fully authorized, therefore, to dismiss the present suit because it was not issued “under regulations prescribed by law.” It has the inherent right to protect its own jurisdiction by taking any steps proper and necessary so to do, and it is not required, where the want of jurisdiction appears on the face of the record, to await the filing of a formal motion to dismiss a writ of error on that ground. But, if the power of this court to act of its own initiative on the record before it were. dependent on the filing of a motion to that end by the defendant in error (which we do not concede), then such a motion is contained in the brief filed in this court in behalf of the defendant in error. Our statute defines a motion: to-wit, “An application for an order is a motion.” [R. S. 1909, sec. 2092.] It further requires a motion to contain a “written specification of the reasons upon which they are founded.” [R. S. 1909, sec. 1841.] A motion possessing these requisites may be embodied as well in a brief filed in tins court as upon a separate piece of paper.

. In the case at bar defendant’s brief attacks the jurisdiction of this writ of error by alleging that the pecuniary interest of seventeen co-defendants of plaintiff in error would be directly affected by the decision of this court, and that none of these persons “have been served with a notice of any kind of proceeding,” and that they are not before this court. This contention embodies a full statement of all the elements of a formal motion to dismiss this case, and the fact that it is set forth in the brief filed herein instead of being written out in a separate form, cannot deprive this court of the power to consider and act upon it. That such statement in the brief is tantamount to a formal and separate motion has been ruled in the case of Guy v. Mayes, 141 Mo. 441. The point in judgment in that case was the effect of a failure of a plaintiff in error to give notice to the adverse party of the fact that he had sued out a writ of error. The adverse party did not file any separate and formal motion to dismiss on that ground, but made it one of the contentions contained in the brief filed on his behalf, that no such notice had been given. Said the court: “No written notice of the writ of error has been given, and counsel for defendant in error (along with their brief on the merits) make the point that the writ should be dismissed because of the want of notice. Without taking up any other objection to a full review at this time, it is enough to sa,y that the omission to serve a notice of the writ of error, as required by section 2290, Revised Statutes 1889, is fatal to plaintiff’s standing here,- no good cause being stated for the failure to give the notice. The filing- of a brief on the merits (accompanying- the objection just mentioned) does not amount to a waiver of the right to insist on that objection.” [Citing- cases.] The court added: “While to all parties concerned it might not be satisfactory to have an important case disposed of on a purely technical ground, we feel it our duty to enforce the existing law governing the practice on this subject when it is duly invoked. We, therefore, direct that the pending writ of error be dismissed at the costs of the plaintiff in error.”

In consonance with this ruling, we hold that the objections to the jurisdiction of this court contained in the brief filed for the defendant in error in this case, are equivalent in all respects to a formal motion to dismiss the writ of error for non-joinder of parties; that the brief having been filed before the submission of this ease, this court has full power to act thereon now, and that the substance of the allegation having been admitted in the petition filed by plaintiff in error for the obtention of this writ, and having been subsequently established when the transcript of the proceedings in the court below was filed herein, the present writ should be dismissed.

II. There is another reason why the writ of error in this case should be quashed. The plaintiff in error filed in the lower court a motion to set aside that portion of the judgment of the lower court. which charged the money coming to him as one of the four heirs of John P. Moseley with the interest on an excess of advancement to his father from 1889 up to the time of the rendition of judgment. The only ground which he alleged in said motion was, that the judgment in question had been rendered upon an amended petition filed in the case; that while he had been served with process and copy of the original petition and had defaulted therein, under the statute applicable to suits in partition, as to other civil actions, no judgment could be rendered for a larger or greater sum, in such cases, than was claimed in the original petition. [R. S. 1909, sec. 2100.] He alleged further in his motion that the allowance of this larger judgment was an irregularity apparent on the face of the proceedings; and, therefore, one which it was permissible to set up under the statute (Sec. 2121, R. S. 1909) providing three years within which a motion to set aside a judgment might be filed.

The record proper consists of the process and return, the pleadings, the verdict and judgment in civil eases.

If the point insisted upon by plaintiff in error is available to him, it should be equally so in the circuit court, for his motion for relief under the' statute was filed within the statutory limit. A writ of error will not be entertained to afford relief where the same relief can be obtained in the trial court. This is the general law and has been recognized and affirmed by the rulings of this court. [Fidelity, etc., Co. v. Schuchman, 180 Mo. 468.] That was a case for the correction of a judgment for error apparent on the face of the record in that it failed to show that the judgment on a bond to do a collateral thing should stand as a security for further breaches, but simply provided that it was to be satisfied on the payment of the damages assessed. In dealing with the correction of the judgment in question, the court put its power to act in the matter solely on the ground that the .three years within which a motion to set aside and correct the judgment might have been filed under the aforesaid statute, had elapsed, and, therefore, the party was remediless unless relief was afforded by writ of error — thus thoroughly approving in this State the general rule that writs of error will not be awarded for the purpose of remedying a- defect in a judgment curable by proper proceeding in the lower court. The statute in question (Sec. 2121, R. S. 1909) is useful for the partial vacation and correction of a judgment as well as for setting it aside altogether.

This has been expressly ruled in the case of Showles v. Freeman, 81 Mo. 540. Said the court in that case, l. c. 543, after quoting the statute: “It has long been the recognized practice of this court that irregular judgments may be set aside on motion filed any time within three years after the term at which such judgment may have been rendered. [Citing cases.] Such irregularity as may be reached by motion is defined to be ‘ the want of adherence to some prescribed rule or mode of proceeding, and it consists either in omitting to do something that is necessary for the due .and orderly conducting of a suit, or doing it in an unseasonable .time or improper manner.’ [Tidd’s Prac. 512, 513.]”

In dealing further with the matter then before the court it was said, also speaking of the judgment: “It could not exceed the amount of the bond. The court could, under no circumstances, render judgment against the sureties for any sum in excess of the bond itself. It was bound not to exceed the penalty in the bond.” The court added: “This is such error on the face of the record itself as will authorize this court to reverse the judgment of the circuit court and remand the case for correction, and which is accordingly ordered. ”

That cáse is exactly in point in principle with the matter under consideration. If the plaintiff in error is entitled to any relief, it is because of the fact that the judgment was rendered on an amended petition for a larger sum than was claimed in the original petition to which he had suffered a default. If his contention in that respect can be maintained, there is no reason why he should not have redress by the timely proceeding begun by him in less than three years after the judgment was rendered in.the trial court.

It is clearly within the jurisdiction of the trial court on a proceeding pending therein to make a proper ruling on that subject. For that reason the plaintiff in error is not entitled, even if he had joined the proper parties, to maintain the writ of error sued out in this court.

The result is that the writ of error awarded in this case is quashed; and the proceeding herein dismissed.

Roy, G., concurs.

PEE CURIAM.

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.


source: Caselaw Access Project

author: FEREISS, J.

license: Public Domain

text:
    LAURA D. LINDSLEY v. CLINTON L. CALDWELL, Appellant.
    (No. 1.)
    Division Two,
    May 23, 1911.
    1. ESTABLISHING TRUST: Attempt to Force Payment of Debt by Refusing to Execute. Where plaintiff’s money bought the certificate of stock and she in consequence was its equitable owner; where she permitted her agent to use her property, not for the purpose of hindering and delaying his creditors, but as a loan to enable him to extricate himself from financial difficulties; where the stock was placed in the name of defendant, who was acting as attorney for plaintiff’s agent, with the understanding and agreement that he was to immediately indorse the certificate in blank and turn it over to plaintiff’s agent;' and where defendant asserts no legal or equitable ownership in the stock, he cannot, in violation of his agreement, refuse to turn over the stock to plaintiff on the ground that the agent owes him a large sum of money for legal services. Even though he has a legal claim against the agent, he has no right to hold plaintiff’s stock for the sole purpose of forcing a settlement with her agent.
    2. -: -: Confidential Relation. And where the stock was placed in the name of defendant as the confidential adviser of plaintiff’s agent, under an express agreement that he would immediately indorse and deliver it to the agent, it would be violative of his confidential relation with the agent to permit him to retain the stock for the purpose of forcing the agent to settle with him, even though the stock, in point of fact, belonged to the agent.
    3. -: -: Made to Attorney to Defraud Creditors. The defense that the certificates of stock, purchased with the money of plaintiff, were placed in defendant’s name by plaintiff’s agent, under an express agreement that defendant was to immediately indorse the stock and deliver it to the agent, and that the transaction took that form in order to enable the agent to hinder and delay his creditors, and, therefore, equity, because of the corrupt purposes which prompted the transfer, will leave the parties where it finds them, is not available to a defendant who was the attorney and confidential adviser of the agent, and receives the conveyance as such.
    Appeal from St. Louis City Circuit Court. — Hon. O’Neill Ryan, Judge.
    AeEIRMED.

      R. F. Walker for' appellant.
    (1) The respondent must recover, if at all, on the strength of her own title. Ownership must be proved beyond, reasonable donbt. A preponderance of the evidence is not sufficient. Shaw v. Shaw, 86 Mo. 595; Brinkman v. Sunken, 174 Mo. 709; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Adams v. Burrus, 96 Mo. 361; Philpot v. Penn, 91 Mo. 38; Oreentree Brewery v. Dold, 45 Mo. App. 603. (2) In a suit to recover personal property not only will evidence of possession or dominion be considered, but all the facts and circumstances surrounding the claim of ownership will be carefully examined by a court of equity to enable it to determine whether the evidence is sufficient to sustain an honest claim of ownership or whether it is tinctured with fraud. King v. Moon, 42 Mo. 551; Bump, Fraud. Conv. (1896), see. 191. (3) He who having the full title desires to retain the control and use of his property, and yet transfers it to another, can, in the general course of human actions, have but one motive for that measure, and that motive must be to defeat or elude the claims of others. Such a measure can never be necessary for any legal or honest purpose. Bump, Fraud. Con. (1896) 191. (4) If the transaction shows artifice, collusion and a covert holding of the property, a court of equity will not afford relief. The suitor must come into court with clean hands. Fraud or any unconscientious conduct will repel a suitor from the forum whose very foundation is good conscience. Brotzman’s Appeal, 119 Pa. St. 653; 1 Pomeroy, Eq. Jur., sec. 404. (5) If the relation of principal and agent is alleged in a suit to recover specific personal property, and it appears that such relation has been vague, uncertain, unusual and out of the ordinary course of honest business dealings, a court of equity will not afford relief. The test of the agency relation is, who derived the benefit? Adams v. "Whittlesey, 3 Conn. 560. (6) A secret agency relation constructed upon and growing immediately out of an illegal transaction and pertaining to its subject-matter, is equally tainted by it. Armstrong v. Toler, 11 Wheat. 258; Busldngham v. Fitch, 18 Mo. App-. 91; Macklin v. Schmidt, 104 Mo. 349; Comstock v. Draper, 1 Mich. 481. (7) If the evidence shows that respondent only received the Bristol stock and not the 50 per cent contract at the time of the alleged sale of same to her, then the contract was not consummated or complete and is executory; if executory and the transaction has been shown to be covert, or contrary to honest business dealings, or opposed to public policy, a court of equity will not afford relief. If, therefore, this action had been instituted against Stevenson and he had set up the defense of fraud, upon proof of same a court of equity would have left the parties where it found them. If this rule is applicable in a suit against' Stevenson to recover this property, then it is applicable in a suit against the appellant who is in privity with bim if the sale-was consummated. In fact, any one (although not a creditor or in privity with a creditor) against whom an action is brought growing out of or based upon an executory contract, may plead fraud as a defense. The doctrine of in pari delicto applies to such cases in all of its fullness. Mitchell v. Henley, 110 Mo. 604; Laramore v. Tyler, 88 Mo. 661; Fenton v. Hamm, 35 Mo. 409; Sell v. West, 125 Mo. 621. ' (8) Even if the sale of June 2, 1900, had been genuine and had been executed by actual delivery of both the 22% shares of stock and 50 per cent contract, yet inasmuch as respondent permitted Stevenson to use the stock and contract for his own benefit, the grant is fraudulent under Sec. 3397, R. S. 1899-, equally as though the instrument of June 2, 1900, reserved a use and benefit to Stevenson, and in express words created the secret relation of trustee on respondent’s part and beneficiary on Stevenson’s part. In such case the respondent might terminate the trust by performing it as she did when she pretends she returned the stock to Stevenson in April, 1902. She cannot afterwards make a valid claim to the property or its proceeds .on the ground of the original alleged fraudulent conveyance. If she divested herself of title which she received in fraud of law, equity will not reinvest it in her. The barrier to her recovery from Stevenson prior to July 28, 1905, is not removed by Stevenson’s transfer of the stock to defendant. Fargo v. Ladd, 6 Wis. 106; Sauer v. Baer, 49 Mo. App. 86; Railroad Co. v. Mathers, 104 111. 257; Guntley v. Staed, 77 Mo. App. 155; Bank v. Powers, 134 Mo. 432; Barton v. Sitlington, 128 Mo. 164. . '

      Daniel Dillon for respondent.
    (1) Defendant is not in a position, as a creditor of Stevenson, to question the good faith of the transfer of this stock or any other property by Stevenson. At best, defendant has a claim for services, which is denied by Stevenson. He has not reduced 'his claim to judgment or even attempted to do so. Such a claimant, or alleged creditor, cannot maintain any proceeding in court to question or set aside a conveyance on the ground of fraud, and the reason of the rule is that he may never get a judgment, and therefore may have no rights which were injuriously affected by the conveyance. Davidson v. Dockery, 179 Mo. 689; Gran v. Walker, 79 Mo. 335; Kent v. Curtis, 4 Mo. App. 121. (2) Even if Stevenson was the owner of the stock in controversy in this suit, and, under the advice of defendant, it had been placed in the name of defendant, pursuant to an agreement or understanding that defendant was to return it to Stevenson on demand; and even if Stevenson did this for the purpose of concealing the stock from his creditors, yet defendant could not hold it, even as against Stevenson. Where transfer of property is made from a client to his attorney (especially when made under the advice of the latter), for the purpose of defrauding creditors, parties are not regarded as in pari delicto, but the client will be relieved if it can be done without injury to an innocent purchaser. 3 Am. and Eng. Ency. Law, 338; 4 Cyc. 962; Ford v. Harrington, 16 N. Y. 285 ; Good-enough v. Spencer, 46 How. Pr. (N. Y.) 347; Place v. Hayward, 117 N. Y. 495; Herreck v. Lynch, 150' 111. 283; Story’s Eq. Jur. (13 Ed.), secs. 310, 313.
   FEREISS, J.

— This suit arises upon a bill in equity filed by plaintiff in the circuit court of the city of St. Louis against the defendant.

The petition charges that W. H. Stevenson, acting as agent for plaintiff, Mrs. Lindsley, entered into an agreement with defendant to the effect that defendant should receive in his own name the certificate of stock alleged to belong to plaintiff for sixty shares of stock in the Helmbacher Forge & Rolling Mill Co., and indorse same in blank and immediately transfer it to Stevenson as agent for plaintiff; that the certificate wa,s so issued to defendant, and that defendant refused to comply with the agreement so made; and the court is asked to decree that the said defendant holds said stock as trustee for plaintiff, also that plaintiff be enjoined from transferring said stock, and for other and further relief.

Defendant in his answer alleged that the plaintiff had no title, right or interest in such certificate; that she had unlawfully confederated with the said Stevenson, who was the real party in interest, to put herself forward in his place and stead as the owner of said stock; that said Stevenson was insolvent; that said Stevenson had owned certain shares of stock in the Bristol Realty Company, together with the participation contract of that company, and that, with intent to hinder, delay and defraud bis creditors, said Stevenson transferred said stock and contract to plaintiff, and that such transfer was made without the knowledge or co-operation of plaintiff, and that the hill of sale for same was not delivered to plaintiff until after this suit was instituted; that said shares of stock and contract were exchanged by Stevenson for other property, a part of which consisted of this sixty shares of stock of the Helmbacher Forge & Rolling Mill Company; that said stock was issued to plaintiff at the request of said Stevenson for the purpose on the part of Stevenson of hindering, delaying and defrauding Ms creditors, and that this claim of ownership by the plaintiff is made in pursuance of the fraudulent plan of said Stevenson to conceal and cover up the property so as to hinder, delay and defraud his creditors, and that the plaintiff and Stevenson unlawfully conspired for this purpose; that it was the purpose of Stevenson to cause the stock involved in this suit to be transferred to a holding corporation, the stock of which was to be issued to the defendant and by him indorsed in blank and delivered to Stevenson.

It will be perceived that the defendant does not allege any facts which would give him any interest or ownership in this stock. The case was tried before the court, and it developed in the evidence that the defendant asserted a claim against Stevenson for legal services rendered during, a period of four or five years, during which time he was the confidential attorney and adviser of Stevenson in the various financial transactions developed in the evidence, which transactions, defendant claimed, were had on, the part of Stevenson for the purpose of hindering, delaying and defrauding his creditors. The defendant does not claim any ownership in this stock, but admits that he was holding it to force Stevenson to settle his claim-for attorney’s fees. He claimed that Stevenson owed him $15,000, which claim Stevenson denied in toto. Defendant offered to return this stock to Stevenson if the latter would acknowledge in writing that he owed the defendant $15,000 for his services, which Stevenson refused to do.

The plaintiff introduced evidence which tended to prove that she was the owner of this stock; that Stevenson was her agent; that all of the transactions, so far as she was concerned, were bona fide; that defendant had no claim against Stevenson for fees, and that he had been paid for all of his services.

The pleadings were quite lengthy, and the transcript of the evidence presents a large record. It is unnecessary to go into the testimony in detail.

The court found the issues in favor of the plaintiff, and ordered, adjudged and decreed that defendant indorse to plaintiff and deliver to her or her counsel of record the certificate of stock described in the petition.

I. After a thorough consideration of the facts in evidence, we are of the opinion that the finding of the court in favor of the plaintiff is.fully justified by the record. The evidence for the plaintiff is clear and satisfactory that she was the owner of this stock; that she had permitted Stevenson to use her property in St. Louis, not for the purpose of hindering and delaying his creditors, hut as a loan to enable him to extricate himself from financial difficulty, and that he had so used the property; that this particular stock was placed in the name of the defendant who was acting as attorney for plaintiff’s agent, with the understanding and agreement that he was to indorse the certificate in blank and turn it over to plaintiff’s agent; that defendant, in violation of this agreement, refused to turn over the stock; that he asserted no legal or equitable ownership in same, hut held it for the avowed purpose of compelling Stevenson to give him a written acknowledgment that he, Stevenson, owed defendant $15,000' for legal services.

Tlie defendant did not itemize his claim for services. He testified that he had not and conld not render a hill. The evidence fails to establish that he had a claim against Stevenson to the amount of fifteen thousand dollars or any other amount; that is to say, he gave no testimony which, even if true, would afford a satisfactory basis for a judgment in his favor against Stevenson in any amount for services rendered as an attorney. He stated in effect that he had • represented Stevenson for four or five years, and that his services were worth $15,000. But it is unnecessary to decide whether defendant had a legal claim against Stevenson for services, because even if he had such claim he had no right to hold this stock for the sole purpose of forcing a settlement with Stevenson. It was placed in his name as the confidential adviser of Stevenson, under an express agreement that he would immediately indorse and deliver it to Stevenson. Such action on his part is to be condemned, if for no other reason than that it is violative of the confidential relation which existed between him and his client. This would be true-if the stock in point of fact belonged to Stevenson. It is certainly true when the stock in point of fact belonged to plaintiff; especially, where it may be fairly inferred that defendant, because of his knowledge of all of these transactions, knew that the stock belonged to the plaintiff.

II. The defendant, recognizing no doubt the weakness of his position so far as his attempt to hold this stock as security for his fees is concerned, defends upon the further ground that the transfer of this stock to him by Stevenson was made for the purpose of hindering and delaying the creditors of Stevenson; and he invokes the rule that where a conveyance is made for such purpose, and an attempt is made by the grantor to regain the property, equity, because of the corrupt purpose which prompted the conveyance, will leave the parties where it finds them. We are of the opinion, however, that this unhappy defense is not available to tbe defendant. The rule which he invokes does not apply to a case like this, where the grantee is the confidential attorney of the grantor, and receives the conveyance as such. The rule applicable to this case is clearly expressed in 3' Am. and Eng. Ency. Law, p. 338, and is as follows: “Even where the conveyance by the client to his attorney is for the declared purpose of hindering and delaying the creditors of the client, it cannot be sustained as against him by the attorney or his assignee with notice; the parties are not regarded as being in pari delicto., and equity will refuse to sustain such a conveyance.” The leading case cited to support the text is Ford v. Harrington, 16 N. Y. 285, which held that, although the object of the assignment was to perpetrate a fraud on the creditors, yet on account of the relations existing between attorney and client, the attorney must be compelled to restore what he had acquired under the assignment. Therefore, even if the defendant should succeed in establishing as a fact that Stevenson was the real owner of this stock, and that the purpose of the transfer of the stock to defendant was to hinder, delay and defraud the creditors of Stevenson, still the defendant would have no right to hold the stock as against Stevenson.

This case was very fully tried by the circuit court, and great latitude was allowed the defendant in the introduction of testimony and examination of witnesses. The findings of the court are fully sustained by the evidence, and its judgment and decree are affirmed.

Kennish, P. J., and Brown, J., concur.


author: FERRISS, J.

text:
    LAURA D. LINDSLEY v. CLINTON L. CALDWELL, Appellant.
    (No. 2.)
    Division Two,
    May 23, 1911.
    1. ESTABLISHING TRUST: Trustee Retaining Title to Force Payment of Debt. Where plaintiff furnished the money by which the real estate was acquired and thereby became its equitable owner, and as a matter of convenience it was conveyed to defendant with the understanding that he was to hold it in trust for plaintiff, and in pursuance to that understanding he executed a declaration of trust in plaintiff’s behalf and delivered it to her agent, defendant cannot thereafter retain the title and refuse to convey to plaintiff, on the sole ground that plaintiff’s agent was indebted to him in a large sum and refused to acknowledge the debt in writing, even though defendant was the confidential attorney and adviser of the agent in all the financial transactions which resulted in putting the ownership of the property in plaintiff. In such case defendant is without any right, title or interest in the property.
    2. STRIKING OUT ANSWER: Evidential Matters. The court does not err in striking out from defendant’s answer evidential facts and circumstances, which, so for as they are relevant and material to the-issues, can be introduced as evidence under the answer after they are stricken out.
    3. ESTABLISHING. TRUST: To Defraud Creditors: Defense. Where the title was placed in defendant as a matter of temporary convenience, under his advice, and in pursuance of a declaration of trust in behalf of plaintiff executed by him, the defense that the title _ was put in him to defraud and hinder creditors of either plaintiff or her agent, is not open to him.
    Appeal from St. Louis City Circuit Court. — Now-. Daniel G. Taylor, Judge.
    Affirmed.

      B. F. Walker for appellant.
    (1) The rule is that if a plaintiff, in order to make out Ms cause of action, is required to show that the contract sued upon is for any reason illegal, the court should not enforce it whether pleaded as a defense or not. Bnt when the illegality does not appear from the contract itself or from the evidence necessary to prove it, but depends upon extraneous facts, the defense is new matter, and must have been pleaded in order to be available. School Dist. v. Sheidley, 138 Mo. 672; Agr. Assn. v. Delano, 108 Mo. 217; Musser v. Adler, 86 Mo. 446; Gibson v. Jenkins, 97 Mo. App. 27; Burnham v. Boyd, 167 Mo. 185; Bank v. Rohrer, 138 Mo. 380. (2) A motion to strike out confesses the facts and the only question, therefore, is, do the facts stated constitute a defense. Munford v. Keet, 154 Mo. 36; Wonderly v. Lafayette County, 150 Mo. 647. A motion to strike out a paragraph should be denied if any portion of it is relevant or responsive or if the averment be merely .defective. Such motions are not favored, especially in equity causes or where the moving party is not prejudiced by the matter pleaded, or where the striking out of allegations will measurably weaken the force of material facts sought to be stated or will render what is left unintelligible. 31 Oyc. 616, 637, 642 and 643. (3) A sheriff’s sale under execution may be shown to be collusive or fraudulent, and that there was a secret reservation of a. trust in favor of fché execution debtor with the consent of the purchaser. Dallam v. Bowman, 16 Mo. 225. (4) If this action had been instituted against Stevenson and he had set up the defense of fraud, upon proof of same a court of equity would have left the parties where it found them. If this rule is applicable in a suit against- Stevenson to recover this property, then it is applicable in a suit against the appellant, who is in privity with him. In fact any one (although not a creditor or in privity with a creditor) against whom an action is brought growing out of or based upon an executory contract, may plead fraud as a defense. The doctrine of in pari delicto applies to such cases, in all of its fullness. Mitchell v. Henley, 11 O' Mo. 604; Laramore v. Tyler, 88 Mo. 661; Fenton v. Harmon, 35 Mo. 409; Sell v. West, 125 Mo. 621. (5) Fraud, in common -with the highest crimes known to the law, is commonly made out by circumstantial or presumptive . evidence. Burgert v. Brochert, 59 Mo. 80; Muenks v. Bunch, 90 Mo. 500; Frederick v. Allgaier, 88 Mo. 598; Klauber v. Schloss, 198 Mo. 502; King v. Moore, 42 Mo. 551; Ross v. Crutsinger, 7 Mo. 245. (6) To permit a recovery by respondent if Stevenson be the real party in interest, would operate to exclude appellant from setting up several possible defenses he might interpose against the suit of Stevenson, which are clearly not admissible against the suit of respondent. Williams v. Whitlock, 14 Mo. 552. (7) A judgment or decree must always be based upon, consistent with and embraced in the pleadings. Newham V. Kenton, 79 Mo. 382; Schneider v. Patton, 175 Mo. 684; Roden v. Helm, 192 Mo. 71.

      Bond, Marshall S Bond and Daniel Dillon for respondent.
    (1) Defendant Caldwell attempted in his answer, and he now attempts in his brief, to defend this action on the theory that the land in question in this suit really belonged to Stevenson, and that the legal title was placed in Caldwell for the purpose of hindering, delaying and defrauding the creditors of Stevenson. Even if the facts were as he alleges, they would, constitute no defense to this suit.. Where a transfer of property is made from a client .to his attorney (especially when made under the advice of the latter), for the purpose of defrauding creditors, the parties are not regarded as in pari delicto apd the client will be relieved if it can be done without injury to an innocent purchaser. 3 Am. and Eng. Ency. Law, p. 338; 4 Cyc. 962; Ford v. Harrington, 16 N. T. 285; Good-enough v. Spencer, 46 How.- (N. T.) 347; Place v. Hayward, 117 N. T. 495; Herreck v. Lynch, 150 111. 283; 1 Story, Eq. Jur. (13 Ed.), secs. 310, 313'. Caldwell is not in a position, as a creditor of Stevenson, to question the good faith of the transfer of any property by Stevenson. At best, defendant Caldwell has a claim for services which is denied by Stevenson. He has not reduced his claim to judgment, or even attempted to do so. Davidson v. Dockery, 179 Mo. 689; Crim v. Walker, 79 Mo. 335; Kent v. Curtis, 4 Mo. App. 121. (2) If defendant Caldwell could have successfully defended this action by proving that the property in question really belonged to Stevenson and that the title had been placed in Caldwell in order to hinder and delay and defraud the creditors of Stevenson, then Caldwell, if he wished to establish this defense, should have appeared at the trial of said cause and offered evidence to prove said facts. This he utterly failed to do. The action of the court in striking out parts of his amended answer did not deprive him of the right to introduce such evidence. After the motion to strike out parts of the amended answer had been sustained there was still more than enough of the answer left to admit all competent evidence tending to prove said facts. Fulkerson v. Mitchell, 82 Mo. 20; Acock v. Acock, 57 Mo. 156; Roth Tool Co. v. Springs Co., 122 Mo. App. 606.. The parts stricken out were either irrelevant to any issue in the case, or they were statements, not of substantive facts constituting a defense, but merely of evidence by means of which defendant thought he could prove the substantive facts alleged in the answer. That it is not proper to plead evidence, but only substantive facts, is undisputed law. R. S. 1899, secs. 610 and 615; Alcorn v. Railroad, 108 Mo. 91; Russell Crain Co. v. Railroad, 114 Mo. App1. 493. (3) The evidence amply justified the decree, and the judgment being clearly for the right party, should not be disturbed. Williams v. Mitchell, 112 Mo. 315; Cass County v. Bank, 157 Mo. 137; Cass Co. v. Ins. Co., 185 Mo. 18; Railroad v. Stoop, 2001 Mo. 219; Carr v. Railroad, 195 Mo. 224; Poster v. Railroad, 112 Mo. App. 73.
   FERRISS, J.

— Plaintiff filed a bill in equity in the circuit court of the city of St. Louis against Clinton L. Caldwell and Otta C. Steele, defendants below, to recover certain parcels of land located in the city of St. Louis, described in the petition. The bill alleges that one Stevenson, agent for plaintiff, agreed with defendant Caldwell that the latter should take the title to said real estate in his own name and sign and execute a deed, with the name of the grantee in blank, and deliver same to said Stevenson, agent for plaintiff; that under said agreement said Stevenson was to fill in plaintiff’s name in said deed, or the name of á corporation in which she owned a great majority of stock; that the property so transferred was secured with the money furnished by plaintiff, and was deeded to Caldwell in pursuance of said trust agreement, without any consideration being paid therefor by Caldwell; that said Caldwell violated said trust agreement and fraudulently executed a deed to said property in blank to a real estate trust company in the city of St. Louis, without the knowledge of .plaintiff or her said agent, Stevenson.

The bill further states that defendant Caldwell, with fraudulent intent to convert said property to his own use, conveyed the same to one Mrs. Otta C. Steele, a sister of said Caldwell, without any consideration being paid therefor by said Steele, the said Caldwell well knowing that plaintiff was the equitable owner of said property and that her money had paid for same; that the defendant, Otta C. Steele, was acting under the influence and control of defendant Caldwell, and conniving with him in this matter.

The bill prayed the court to decree the defendants Caldwell and Steele as trustees of plaintiff, and to order defendants to convey said property to plaintiff.

To this bill Mrs. O'tta C. Steele, defendant, filed a separate answer in wbicb sbe stated tbat no delivery of said deed from Caldwell was ever made to ber; tbat sbe was ready to release and quitclaim said premises tbe same as if said deed bad not been filed, and was ready to tender ber said release and quitclaim; tbat sbe bad no desire to bold said property for any purpose.

An amended answer was filed by defendant Caldwell, in wbicb be alleged tbat plaintiff bad no title, right or interest in tbe subject-matter of tbe suit, and tbat sbe was unlawfully confederating with one William H. Stevenson and putting herself forward in tbe place and stead of said Stevenson, who was "the real party in interest, and tbat all of tbe transactions, matters and things alleged in tbe said answer ' are connected with tbe false and fraudulent exploiting of the plaintiff as tbe pretended owner of tbe subject-.matter of the suit. The answer then proceeds to set out at great length sundry facts tending to show tbat said Stevenson was insolvent; tbat be bad been engaged in a great many financial and real estate transactions, tbe details of wbicb are set out at length in tbe answer, and tbat tbe result of said transactions was tbat tbe properties involved in this case were transferred without consideration to one Charles Whitehead, who was procured by defendant Caldwell, by. db rection of Stevenson, to .serve as a straw man, and who executed certain mortgages on said property, and then conveyed, without consideration, tbe title to defendant Caldwell, by and with tbe authority of said Stevenson, and with intent to constitute said defendant a trustee of said property for tbe use and benefit of Stevenson, and to conceal tbe same from levy, seizure and sale by Stevenson’s creditors, and to binder, delay and defraud bis creditors; that tbe claim of ownership of said property by tbe plaintiff was made in pursuance of the aforesaid policy of Stevenson to cover up and conceal tbe real ownership thereof in order to binder, delay and defraud bis' creditors; that by collusion with plaintiff said Stevenson falsely pretended ownership in her of said property; that she, plaintiff, became a party to Stevenson’s scheme to binder, delay and defraud bis creditors, and participated in and conspired with Stevenson for perpetrating such frauds; that tbe defendant was employed by Stevenson as bis counsel and attorney in and about tbe matters connected with the preservation of Stevenson’s property, and defending tbe same from levy, seizure and sale by bis creditors, including tbe.real estate described in plaintiff’s petition; that defendant’s employment continued from 1901 until tbe time of tbe filing of this suit (1905), and that bis compensation therefor was by agreement with Stevenson to be “liberal pay if successful, and no pay if unsuccessful;” that during tbe four and a half years’ employment defendant rendered valuable and very considerable services to Stevenson in that behalf, with successful issue, and that be presented bis bill for services to said Stevenson for $15,000', payment of which was and is refused; that he, Caldwell, conveyed tbe property in question to bis sister, Mrs. Otta C. Steele, because it was necessary for him to make a conveyance of this property to some person •in bis control to prevent tbe said Stevenson from defrauding tbe defendant of this property before Stevenson should pay off and discharge bis indebtedness to defendant for professional services as aforesaid.

On motion of tbe plaintiff, a large part of tbe answer of defendant Caldwell was. stricken out, to which action of tbe court tbe defendant objected and still objects,' and further says that this action of. tbe court constituted reversible error.

Tbe case went to trial, and evidence was introduced by the plaintiff to sustain her cause of action. Defendant Caldwell did not appear at the trial. Portions of his depositions, however, were read in evidence by the plaintiff. Mrs. Otta C. Steele, defendant, appeared by attorney, disclaimed any interest in the land, produced and offered to deliver to the court a quitclaim deed from herself and husband, and deposited said deed with the clerk of the court, to be held subject to the orders of the court.

The plaintiff introduced testimony tending to show that she was the owner of the property in controversy. There was also introduced the deed to this property from Charles Whitehead to defendant Caldwell, also a declaration of trust, signed and executed by said Caldwell, in favor, of the plaintiff. Plaintiff also introduced evidence tending- to show that certain transactions were had in St. Louis in her behalf by her agent, W. H. Stevenson, by virtue of which she became the owner of these two pieces* of property; that it was necessary that some mortgages should ha placed upon this property; that in order to procure the making of such mortgages, as a matter of convenience and without any fraudulent or improper purpose, the property, on the 12th of December, 1904, was conveyed to Charles Whitehead, who on the same day executed two mortgages on the property, after which, on the same day, Whitehead conveyed the property to defendant Caldwell, and on the 15th day of December following Caldwell executed and delivered to Stevenson a declaration of trust, reciting the execution by Whitehead of the deeds aforesaid, and declaring that he, Caldwell, held the title for the benefit of Laura D. Lindsley, of New Ilaven, Connecticut.

Defendant Caldwell admitted in his testimony that, in all of the transactions of Stevenson detailed in evidence he was Stevenson’s attorney and confidential adviser, and that he was familiar with all of the transactions. He testified in effect that he refused to turn the property over until Stevenson would admit in writing that he owed defendant $15,000 for services; that he did not hold the property as security for his alleged claim, hut simply to compel Stevenson to make the desired written admission of his obligation to pay for said services.

I. The evidence clearly and satisfactorily establishes the following facts: (a) That the equitable ownership of the property in controversy was in the plaintiff, Mrs. Lindsley; (b) that the property was conveyed to defendant Caldwell as a matter of convenience, with the understanding that he was to hold it in trust for plaintiff, and that in pursuance of this understanding he executed and delivered to Stevenson a declaration of ■ trust in her behalf; (c) that defendant did not claim ownership of or any interest in the property, and that he retained it for the sole purpose of forcing Stevenson to acknowledge in writing that he owed defendant $15,000; (d) that defendant Caldwell was the confidential attorney and adviser of Stevenson during all of the financial transactions which resulted in putting the ownership of the property in controversy in plaintiff.

This case was submitted together with the case between the same parties, reported at page 498 of this Report. The two cases are substantially alike, except as to the property involved in each. In both cases the property is claimed by Mrs. Lindsley. In both cases, the defendant, Caldwell, retained the property upon the sole ground that he desired thereby to force Stevenson to settle with him for his fees. In both cases the defendant is without any right, title, or interest in the property as such. What we said in the other case applies equally to this. It may be said, however, that this case is even stronger in favor of the plaintiff, because of the declaration of trust in her behalf executed by the defendant, and which leaves him without a shadow of pretext for retaining the property.

II. One question is presented in this case not involved in the other, and that is whether the court committed error in striking out certain portions of defendant’s answer. We have not set out the answer in full. It is very voluminous. The parts stricken out by the court, detail at great length various evidential facts and circumstances which, so far as they were relevant and material to the issues, could be introduced as evidence under the answer as it remained after said parts were stricken out, and, therefore, no error was committed by the court in that regard.

By his own admissions the defendant, acting as confidential attorney and adviser of the agent of plaintiff, with knowledge of all the facts and the relations of the parties, received on his own advice, title to property belonging to plaintiff, as a mere matter of temporary convenience. Upon receiving the title, he takes advantage of the confidence which had been reposed in him, and refuses to surrender the title until a very large and vague claim on his part for services as such attorney is recognized. It is not open to him to defend on the ground that the title was put in him to hinder and defraud -creditors, if such were the fact. See authorities cited in Lindsley v. Caldwell, ante, page 498.

The evidence sustains the petition, and the judgment is affirmed.

Kennish, P. J., and Brown, J,, concur.


text:
    THE STATE v. JOHN PEYTON, Appellant.
    Division Two,
    May 23, 1911.
    1. REFERENCE STATUTES: Felony. Statutes whose object is 'to incorporate into the act of which they are made a part the provisions of other statutes by reference and adoption, are called “reference statutes.” They are of frequent use to ayoid encumbering the statute books by unnecessary repetition. They are usually made to apply to modes of procedure, but may be made to apply to offenses which are germane to the subject of the act, and even felonies may be created by them.
    2. -: Primary Election Law: Voting in Name of .Another. Sec. 4442, R. S. 1909, which is a part of the general election law, makes it a felony for one to attempt to vote in a name “not his own;” and section 31 of the Primary Law of 1907 says that “any act declared an offense by the general laws of this State concerning caucuses and elections shall also in like ease he an offense in all primaries, and shall he punished in the same form and manner as therein provided.” Eeld, that one who attempted to vote at a primary election in a name “not his own” can be punished in pursuance of said section 4442, which by the Primary Law is made applicable to primary elections.
    3. --: Title: Primary Election Law: Offenses. A title to an act entitled, “An act to provide for party nominations by direct vote,” clearly expresses the subject of the act to be laws governing the holding of party ’primary elections for the nominations of candidates, and under that title the body of the act may contain all provisions germane to the subject of primary elections, including those necessary to make the act effective, by providing punishment for those who violate its provisions; and, hence, a section of the act which declares the general election laws shall he applicable thereto, is embraced within its title— for instance, the- section of the general election law which makes it a felony for one to attempt to vote in a name not his own.
    Appeal from St. Louis City Circuit Court . — Mon. Charles C. Allen, Judge.
    Affirmed.

      Hugh G. Brady and G. Orrick Bishop for appellant.
    (1) The principal ground of the motion to quash in this case was based upon the theory that section 31 of the Act of 1907 regarding primary elections did not designate the offense charged in the indictment. This section (Laws 1907, p. 269) undertook to .define certain offenses under the act, and in one general sweeping clause provided that “any act declared an offense by the general laws of this State concerning caucuses and elections shall also in like case be an offense in all primaries and shall be punished in the same form and manner as therein provided, and all the penalties and provisions of the law as to such caucuses and elections, except as herein otherwise provided, shall apply in such, case with equal force and to the same extent as though fully set forth in this act.” It is a well-established principle of the criminal law that a statute defining an offense and prescribing a punishment should do so in unequivocal terms; that no act is an offense unless expressly so declared in terms which admit of no doubtful construction, and no punishment is to be inflicted unless specifically prescribed. And in this instance there is large room for doubt as to what was the intention of the Legislature. Why were the terms used “caucuses and elections” unless the intention of the Legislature was that the penalties heretofore inflicted for violations of the laws regulating caucuses and elections were to remain as before! (2) The indictment was also assailed in the motion to quash on the ground that section 31 of said act was in direct contravention of article 4, sections 28 and 33 of the Constitution, in so far as it undertook to describe and define offenses and prescribe penalties therefor, for the reason that the provisions of said section 31 were not clearly set forth or expressed in the title of the act. The Act of 1907 (Laws 1907, p. 263) under which this indictment purported to be drawn, is entitled simply “An act to provide for party nominations by direct vote.” No one would ever dream, in reading this title, that there was any provision made therein for punishing, as for a felony,' any person who should attempt to vote at a primary in the name of another person; or that any provision was made therein for a punishment of any violation of its provisions. The object of the title is. to notify the citizen of the general character of the act ° of which it is the title, and the natural inference from this title is that in some manner, specified in the act, party nominations (not elections) shall be made by direct vote, instead of, as formerly, by caucuses or conventions or ward or district meetings. St. Louis v. Weitzel, 1301 Mo. 616 ; St. Louis v. ’Wortman, 213 Mo. 131; State v. Per singer, 76 Mo. 347; Cooley, Const. Lim. (7 Ed.), 212.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) By his motion to quash, duly filed, appellant challenged the ■ sufficiency of the indictment on the grounds that the indictment is drawn under Sec. 4442, R. S. 1900, and that that section is not applicable to primary elections. That point seems to be answered in the case of State v. Taylor, 220 Mo. 628. The following case, though the question is not very well reasoned, seems in point in support of the excerpt from the Yon Stade-Taylor case above set out. State v. Hunter, 69 Ark. 548. Generally, “reference acts” deal with “rules of construction or modes of procedure for carrying out their provisions.” 26 Am. and Eng. Ency. Law, 711; 36 Cyc. 969'. The indictment is properly drawn and charges an offense under Sec. 4442, R. S. 1900. It follows the statute, and, with the changes made necessary by reason of the offense in this case having been committed at a primary election, follows substantially forms heretofore approved. State v.. Fielder, 210' Mo. 196 ; State v. Fawcett, 212 Mo. 738; State v. Scott, 214 Mo. 258. There was no need to allege that appellant was “prevented or intercepted.” State v. Neal, 178 Mo. 69.
   FERRISS, J.

— The defendant attempted, at a general primary election held in St. Louis on August •4th, 1908, to vote in the name of Peter B. Bysor, who was a duly qualified and registered voter. Proceedings were instituted against defendant, which resulted in his conviction of the offense of attempting to vote in a name not his own, and sentence to the penitentiary.

The indictment is drawn under section 4442, Revised Statutes 1909, which makes it a felony for one to attempt to vote in a name “not his own.” The defendant filed a motion to quash the indictment upon the following grounds :

“1st. The indictment does not charge any offense against the laws of the State of Missouri.
“2d. The indictment charges no offense declared to be such by the general laws concerning caucuses and elections.
“3d. The indictment charges the alleged offense to have been committed at a primary held August 4, 1908, which primary was held under the provisions of an act entitled, ‘An Act to provide for party nominations by direct vote,’ passed by the 44th General Assembly, approved March 18, 1907. Section 31 of said act is in direct contravention of the provisions of article 4, sections 28 and 33, of the Constitution of Missouri, in so far as it attempts to describe and define ' offenses and prescribe penalties therefor, for the reason that the provisions of said section 31 are not clearly set forth and expressed in the title of the act.
“4th. The indictment charges defendant with a felony which can be committed only at an election.
“5th. The indictment attempts to create a felony by implication.
6th. The act nnder which the primary was held Angnst 4th, 1908, does not in itself name or create a criminal offense of the character attempted to be charged in the indictment.”

This motion assails the indictment upon two grounds: 1. That section 4442 is not applicable to primary elections, and that consequently the indictment charges no offense nnder the law. 2. That the provisions of section 31 of the Primary Law of 1907 are not within the title of the act, and are therefore in violation of section 28 of article 4 of the State Constitution.

The only ground for reversal urged in this court is the action of the trial court in overruling this motion to quash.

I. Section 4442, Revised Statutes 1909, was enacted in 1903 as section 2120k of an act entitled, “An Act to amend article 6 of chapter 15, Revised Statutes of Missouri of 1899, by adding thereto sixteen new sections to be designated as follows: Sections 2120a, 2120b, 2120c, 2120d, 2120e, 2120f, 2120g, 2120h, 2120i, 2120j, 2120k, 21201, 2120m, 2120n, 2120o, 2120p, and defining offenses in connection with elections, and prescribing penalties therefor.” [Laws of 1903, p. 155.] Said section 4442 is a general law applicable to elections.

The primary election involved in this case was held August 4th, 1908, under the Primary Law of 1907. [Laws of 1907, p. 263.] Section 31 of that act provides: “Any act declared an offense by the general laws of this State concerning caucuses and elections shall also in like case be an offense in all primaries, and shall be punished in the same form and manner as therein provided, and all the penalties and provisions of the law as to snch caneases and elections, except as herein otherwise provided, shall apply in snch case with equal force and to the same extent as though fully set forth in this act.”

Section 32 is as follows: “The provisions of the statutes now in force in relation to the holding of elections, the solicitation of voters at the polls, the challenging of voters, the manner of conducting elections, of counting the ballots and making return thereof, and all other kindred subjects, shall apply to all primaries in so far as they are consistent with this act, the intent of this act being to place the primary under the regulation and protection of the laws now in force as to elections.”

Statutes of this character are called “reference statutes.” Their object is to incorporate into the act of which they are a part the provisions of other statutes by reference and adoption.

It is contended by the defendant that the offense defined in section 4442 cannot be regarded as incorporated into, and a part of, the Primary Law of 1907 by virtue of these reference statutes, for two reasons: (a) Because the reference is to acts denounced as offenses by the general laws concerning “caucuses and elections,” and the provisions of the primary law then in force (Laws 1901, p. 149; see. 25), made it a misdemeanor' only to impersonate another at a caucus or primary election; and (b) because a felony cannot be created by implication.

The Primary Law of 1901 was repealed by the Primary Law of 1907. The Act of 1907, by the terms of sections 31 and 32, refers to general laws regarding elections, and applies all their provisions and penalties to the primary law. The reference to caucuses is superfluous so far as this case is concerned, inasmuch as there -was no general law governing caucuses or primary elections other than this law of 1907, which repealed prior laws on the subject.

It is contended that the provisions of section 4442' cannot be made applicable to primary elections by the reference thereto in said sections 31 and 32 of the Act of 1907. Defendant’s counsel cite no authority to sustain his claim in this regard. Reference statutes are of frequent use to avoid encumbering the statute books by unnecessary repetition. [Sec. 11646, R. S. 1909; Quinlan v. H. & T. Ry. Co., 89 Texas l. c. 371.] “Whenever an act of the Legislature confers powers which are recited in another act, the act to which reference is made is to be considered and treated as if it were incorporated into and made a part of the act which contains the reference.” [Turney v. Wilson, 36 Ill. l. c. 393.] While such statutes' generally apply more particularly to modes of procedure, we can perceive no reason why they should not apply to offenses which are germane to the subject of the act. There is no reason why provisions essential to make the act effective should not be incorporated by reference to the other statutes dealing with the same general subject. This question has lately been considered by this court in State ex rel. v. Taylor, 220 Mo. 618, which case arose under this same primary law of 1907. One Von Stade, a judge of election, was prosecuted under section 4429, Revised Statutes 1909, for making a false return of ballots cast at this August 4th primary, 1908. Section 4429 has been in force since 1877, and is a general law applying to elections. Judge Taylor, of the St. Louis Court of Criminal. Correction, wherein the Von Stade case was pending, ordered the production of the ballot box in court for use by the State in the trial. Application was made to this court for a writ of prohibition against this order. It was urged by the relator that there was no authority for opening the ballot boxes, and referred to the rulings of this court in Ex parte Arnold, 128 Mo. 256; State ex rel. v. Spencer, 164 Mo. 23, and subsequent cases. The defendant contended that the primary election was not an “election” within the meaning of section 3, article 8, of the Constitution.

This court, speaking through Gantt, J., held that while section 3 of article 8 of the Constitution refers to elections for office, and not to primaries, still the Legislature had power to enact section 32 of the Act of 1907, and that this section means “that there should be no legal difference between the manner of counting- the ballots and making returns thereof for State and county and city officers under the statutes of this State and the primary for nominating candidates as •provided by the Primary Act of 1907; ’ ’ and further (l. c. 633) “in our opinion section 2116 (4429, R. S. 1909) is applicable to frauds by judges and clerks of such primary.”

In line with the above ruling, we hold that section 4442 is applicable to primary elections.

II. The Act' of 1907, under consideration, is entitled, “An act to provide for party nominations by direct vote.” The caption of the act is “Elections, Primary. ’ ’

This title clearly expresses the subject of the act, and under this title the body of the act may contain all provisions germane to the subject of primary elections, and necessary to make the act effective.

Numerous laws have been enacted by our Legislature defining offenses and penalties necessary to make the enactment effective, but not mentioned in the title. We have recognized the proposition that under a title indicating the general nature and subject, the body of the act may define, and provide punishment for, offenses in violation of the act. In State ex rel. v. Mercantile Co., 184 Mo. l. c. 183, this court said: “The title of the act is a fair index to the act. The matters not' specified in the title are mere matters of detail, or administration or punishment, and are therefore sufficiently covered by the title.” See, also, State v. Whitaker, 160 Mo. 59, and State v. Hamlett, 212 Mo. 80.

This ruling is in harmony with the decisions in other States. In Indiana it is said, speaking of a penalty provided in the body of an act, but not mentioned in the title: “The Constitution is satisfied if the constituent means embraced in the body of the act have a proper relation to each other and to the subject expressed in the title and are consistent in tending to carry forward and accomplish the general purpose indicated by the title and intended by the legislation. ... No act of the Legislature can be made effective without some reasonable provision for its enforcement.” [Republic Iron & Steel Co. v. State, 160 Ind. 379.]

In Illinois “an act to protect associations, unions of working men and persons in their labels, trade marks and forms of advertising” was held sufficient where the body of the act provided punishment for violating the act. The court said: “When the general purpose is .declared in the title, the means for its accomplishment provided in the act will be presumed to be intended as a necessary incident.” [Cohn v. People, 149 Ill. 486.]

In Michigan a convict in the penitentiary was convicted of a deadly assault within the prison, under the provisions of “an act to revise and consolidate the laws relative to the state prison, to the state house of correction and branch of the state prison in the Upper Peninsula, and to the house of correction and reformatory at Ionia and the government and discipline thereof, and to repeal all acts inconsistent therewith.” It was held that this title was broad enough to cover a section in the. act defining and punishing a felony committed by a convict. [People v. Huntley, 112 Mich. 569.]

Experience lias sliown that in order to preserve the integrity of elections, it is necessary to provide penalties for offenses against the ballot, and that no election law can be made effective without provisions defining and punishing offenses committed at the polls. "Whenever a general law on the subject is passed, such law must be presumed to contain the means to make it effective.

There is no question here of defendant’s guilt. He was fairly tried, and the judgment is affirmed.

Kennish, P. J., and Brown, J., concur.