author: LAMM, C. J.

text:
    RALPH H. ORTHWEIN v. GERMANIA LIFE INSURANCE COMPANY OF CITY OF NEW YORK and GENEVA LEOTA ORTHWEIN, Appellants.
    In Banc,
    November 17, 1914.
    1. PLEADING: Liberally Construed. Allegations of pleading must be liberally construed with a view to substantial justice.
    2. -: Insurance Policies: Lex Loci: Venue: Margin. A venue laid in the margin of the petition, thus, “In the Circuit Court, City of St. Louis, State of Missouri,” will be the venue for all other matters requiring a venue arising from the petition, none special being pleaded. So that, where the petition is grounded on policies issued by an insurance company, alleged to be organized in another State, but authorized to do business in this State, it will not be 7ieZd, in adjudging its sufficiency to state a cause of action, upon a demurrer thereto, that it is silent as to where the policies were executed or delivered, in that it contains no allegations showing they were governed by the laws of this State; for, if it alleges that the company was authorized to do business in this State at all times mentioned in the petition, that it did business by issuing the policies sued on on a given date, whereby it agreed to do certain things, and that plaintiff paid certain premiums and made certain demands of the company which he seeks to have enforced, those allegations, taken with the venue stated in the margin, are sufficient to authorize a holding that the policies are governed by the laws of this State and the contract is to be construed according to its statutes.
    3. -: -: -: Material Error: Must Be Believed to Exist. Error, to be reversible, must be material, and the court must believe it material. So that, where defendants demurred to plaintiff’s petition, charging it did not state a cause of action, and their demurrer being overruled appealed. the appellate court cannot reverse the trial court’s ruling on the theory that it cannot he determined from the petition whether it is a contract under the laws of. this State, if it must guess (1) as to whether it states a contract made and delivered in this State or (2) if made and executed in another State whether the law thereof is the same as Missouri’s.
    4. --: -: -: Venue: Impliedly Admitted by Demurrer. A demurrer to plaintiff’s petition by necessary implication admits the insurance policies sued on are governed by the laws of this State, if it charges specifically, by way of confession and avoidance, (1) that a named statute does not apply to the facts and (2) that, if held to apply, it must be brushed aside as unconstitutional.
    5. INSURANCE POLICY: Wife as Beneficiary: Vested Right: Constitutional Statute. A wife named as beneficiary in a life insurance policy issued on the life of her husband, upon which he alone paid the premiums, has no such vested rights therein as renders unconstitutional a statute which divests her of all interest therein in the event of her death or divorce before the death of the husband; even if spoken of as vested, they are subject to be divested on the condition subsequent. That statute must be read into the policy and become a vitally operative part thereof, as much so as if its very terms were read into it; and it is applicable to all divorced wives and to all insurance policies issued after its enactment. And hence there is nothing in its provisions permitting the husband, who has alone paid all the premiums on a policy issued on his life, to name another beneficiary, in the event, of the wife’s divorcement, that deprives her of her property without due process of law, or denies her the equal protection of the laws, or authorizes an unreasonable seizure of her property, or its taking for a private use, or violates any constitutional provision against special or class legislation.
    6. -: Freedom of Contract. Freedom to contract as one pleases is not an element of the life insurance business; on the contrary, the right to make insurance contracts is subject to statutory regulation.
    7. -: Wife as Beneficiary: Change: Divorce for Husband’s Fault. Sec. 6944, R. S. 1909, authorizing the husband to designate another beneficiary in a life insurance policy, issued on his life for the benefit of his wife and paid for by him alone, “in the event of the death or divorcement of the wife before the decease of the husband,” entitled him to designate another beneficiary whether he or she was found to be the injured party in the suit for divorce, and whether it was brought by him or her. The right is vouchsafed to the husband without regard as to who was adjudged to be at fault in the divorce proceeding, and the statute violates no vested right of the wife, and is constitutional.
    8. --: -;-: -: -. The word “divorcement” used in the statute, means “divorce,” and does not imply affirmative action by the husband alone. No other significance is to be given it. Even if it be true that in a Biblical sense the word “divorcement” primarily implied' affirmative action by the husband, that fact would have no tendency to prove the word was used in a Biblical sense by the General Assembly when inserted in section 6944.
    9. STATUTES: Construction: Unambiguous. A plain and unambiguous statute stands on its own reason, and when it is plain and unambiguous courts are' not allowed to vary, enlarge or reduce it, or read into it any exceptions or restrictions, or seek for any fanciful public hurts its enforcement may induce, because of speculative theories of their own or apprehension of others.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      Fidelio G. Sharp and Henry H. Oberschelp for appellants.
    (1) Plaintiff bas not stated a cause of action-unless the allegations of the petition are sufficient for reliance on section 6944, Revised Statutes 1909. Blum v. Ins. Co., 197 Mo. 513. (2) The Missouri statutes have no extra-territorial effect. The petition is silent as to where the policies were executed or delivered, and contains no allegations to show the policies were governed by any of the laws or statutes of Missouri. For aught appearing, the policies were executed in New York or some other State or country, and were subject to the laws of some other State or country. In that event no Missouri law or statute would apply. Hewitt v. Harney, 46 Mo. 371; Hilburn v. Ins. Co., 129 Mo. App. 670. (3) Even if the policies were Missouri contracts and governed by the laws of Missouri, still there would be no cause of action. As the divorce was rendered in favor of the wife against the husband, the statute does not apply, that not being a “divorcement of the wife” as the term is therein used. Sec. 6944, R. S. 1909; Punk & Wag-nail’s New Standard Dictionary (1913), subject, Divorce, 3, 4; R. S. 1909, secs. 359, 2370. (4) “Again, another guide to the meaning of the statute is found in the evil which it is designed to remedy.” It should be restricted to that, and not create new evils. Church v. United States, 143 U. S. 463; Blum v. Ins. Co., 197 Mo. 528; U. S. Cas. Co. v. Iiacer, 169 Mo. 313; Westerman v. Supreme Lodge, 196 Mo. 711; Rose v. Ins. Co., 153 Mo. App. 97;' Perry v. Strawbridge, 209 Mo. 632. (5) Even though the statute by its strict letter be applicable to this case, which we deny, yet it will be construed in the “light of reason.” The spirit will prevail. Perry v. Strawbridge, 209 Mo. 621; Church v. United States, 143 U. S. 457; Oil Co. v. United States, 221 IT. S. 1; Black on Interpretation of Laws (2 Ed.), secs. 29, 30. (6) Legislators as well as judges have always been regardful of the rights of women. No one can read the numerous acts of the Legislature from the first to the last, without being convinced beyond question that it has ever been the policy of this State to see that the innocent wife on divorcing her husband for his fault, lose none of her rights or property, but to retain all, to continue to hold the husband liable for her support, and under no circumstances to allow the guilty husband to gain an advantage by the divorce. This section must be construed in pari materia with those statutes, and in harmony with that settled policy. Saunders v. Saunders, 144 Mo. 494; Westerman v. Supreme Lodge, 196 Mo. 731; R. S. 1909, secs. 359, 2375, 2378. (7) If said Act of 1899 (now sec. 6944, R. S. 1909) is construe’d to apply to this case, divorce granted wife for husband’s fault, and to authorize a decree in favor of plaintiff, then it is unconstitutional and void, and in violation of the fourteenth amendment to the United States Constitution, in denying to this defendant, Geneva Leota Orthwein, the equal protection of the laws: First, by making an unjust and unreasonable distinction and discrimination in penalizing innocent wives, and favoring, encouraging and rewarding offending husbands for their wrongs; second, by depriving a wife, even if innocent, of her rights and property as a beneficiary in a full-paid policy on her husband’s life, yet continuing to allow the husband, even if guilty, to retain his interest as a beneficiary in a policy on her life; and third, by allowing a guilty husband, in case of divorce granted to the wife for his fault, both to retain his interest and ownership of a policy on the wife’s life in the husband’s favor and also to become the owner of the policy on his life which had been in favor of the wife, while the innocent wife, by such a divorce, loses her vested interest in a policy on her husband’s life in her favor, and .gets nothing, he retaining his absolute interest in a policy on her life in his favor. Fourteenth Amendment to U. S. Constitution; Cooley’s Constitutional Limitations (7 Ed.), p. 561; Sutherland, Notes on U. S. Constitution, p. 733'; Muller v. Oregon, 208 U. S. 418; Ritchie v. Wayman, 244 111. 509; State ex rel. v. Miller, 100 Mo. 439; Railroad v. Greene, 216 U. S. 417. (8) For the same reasons if the act is held applicable to this case, then it is in violation of section 53 of article 4 of the Constitution of Missouri, in that it is class and special legislation in favor of guilty husbands and against innocent wives, without any right or reason therefor. State ex rel. v. Miller, 100 Mo. 448. (9) If the act is held to apply to this case, then it is in violation of the fourteenth amendment to the United States Constitution in that it deprives this defendant of her property without due process of law, in that upon the granting of a divorce in favor of the innocent wife and against the guilty husband for his wrong, property absolutely vested in the wife, paid-up insurance policies in her favor on her husband’s life, is taken away from her and given to the guilty husband. Eitchie v. Illinois, 155 111. 108; State v. Julow, 129 Mo. 163.

      William B. Orthwein and Fred H. Bacon for respondent.
    (1) The venue of the case at caption applies to all the facts alleged. Sec. 1823, E. S. 1909; Benton v. Brown, 1 Mo. 393; Burnes 'v. Burnes, 61 Mo. App. 618; Palmer v. Eailroad, 76 Mo. 217. (2) When the place of making contract is not alleged in the body of the petition, or even where it is alleged that the contract was made in a different State than where the suit is brought, and the law of such State is not properly pleaded and proven, then the court will presume that the law of any such other State is the same as our law and the law of the fornm controls. The Missouri law therefore applies to this case. Plato v. Mulhall, 72 Mo. 522; Matthews v. Eailroad, 219 Mo. 550; Wyeth Co. v. Lang, 54 Mo. App. 147; Waite v. Bartlett, 53 Mo. App. 381; Law v. Crawford, 67 Mo. App. 154; Stephen on Pleading (9 Am. Ed.), chap. 281; 22 Ency. PI. & Pr. 788, note 5, 812, note 1. (3) Appellant herself relies on Sec. 6944, E. S. 1909, to sustain her appeal. If the Missouri law does not apply, then the above section would not apply to appellants’ side of this case. Blum v. Ins. Co., 197 Mo. 513; Haven v. Ins. Co., 149 Mo. App. 291. (4) Appellant’s constitutional defenses are not well taken. Any vested interest appellant claims in policies sued on is by virtue of Sec. 6944, E. S. 1909, which said section also contains the proviso allowing the husband to change the beneficiary in case of death or divorcement. The statute must stand or fall as a whole, and appellant cannot claim- the benefits of one part and contend that the other half is unconstitutional. Sec. 6944, R. S. 1909; Blum v. Ins..Co., 197 Mo. 513. (5) The purpose of the enactment of statutes taking away from the husband the right to assign the policy, or in any way interfere with it, was to protect the wife, so that in case she survives- him, the proceeds might go to her free from his creditors. Insurance Co. v. Brant, 47 Mo. 419; Pollitz v. Robinson, 72 Mo. 201; Reilly v. Hickcox, 72 Mo. App. 617. (6) Section 6944, above cited, in an exemption statute, must be construed liberally and does not deprive appellant Orthwein of any vested right, but merely reserves in the second paragraph of the statute certain rights to the husband which he had prior to its enactment, and part of which, the first paragraph, deprives him of, and is directly in line with the New York statute. Kittel v. Domeyer, 175 N. Y. 205; Wanchaaf v. Masonic Mutual, 41 Mo. App. 206. (7) The statutes of the State of Missouri, regulating the business of life insurance, form part of the policies referred to in the petition, the same as recited therein at length. Appellant Orthwein’s interest was always subject to the reservations in this statute and was subject likewise to the reservations in the policies, as appears in the petition, such as the cancelling of said policy for its cash surrender value, by the husband. Ins. Co. v. Cravens, 178 U. S. 389; Cravens v.. Ins. Co., 148 Mo. 583; Kern v. Supreme Council, 167 Mo. 471. (8) The statutes being part of the policies at the time they were written, the right to change the beneficiary was the same as if reserved in the policy itself. Section 6944 merely does away with the necessity of inserting the reservation in the policy itself, in ease of death or divorcement. Robinson v. Ins. Co., 168 Mo. App. 259; Waring v. Wilcox, 8 Cal. App. 317; Equitable Life Assn. Soc. v. Stough, 45 Ind. App.- 411. (9) The only possible interpretation of section 6944 shows that the section meant that the husband should have the right to change the beneficiary regardless of who got the divorce. Haven v. Ins. Co., 1491 Mo. App. 291; U. S. Casualty v. Kacer, 169 Mo. 315. Under the definition of word “divorcement:” Murray’s English Oxford, Century, Standard and Webster’s Dictionaries; March’s Thesaurus.
   LAMM, C. J.

Defendants unsuccessfully demurred to a second amended petition, and (standing on their demurrer, refusing to plead over and suffering judgment on the merits) appealed.

Appellant insurance company joining in the appeal but not in the abstract and brief, we assume it stands indifferent and neutral between plaintiff and its co-defendant. As it has to respond in any event, an adjudication vesting title to the policy fund in one or the other protects it.

The caption of the amended petition (said to be of significance on a question presently dealt with) runs: “State of Missouri, City of St. Louis, ss. In the Circuit Court, City of St. Louis.” Next follows the names of the parties- plaintiff and defendant. The petition reads:-

“For cause of action by way of amended petition and by leave of court, plaintiff states that the defendant, the Germania Life Insurance Company of the city of New York is, and was at all the times hereinafter stated, a corporation under the laws of the State of New York engaged in the business of life insurance and duly authorized to do business as such in the State of Missouri.

“Plaintiff states that heretofore, to-wit, on the 20th day of June, 1900, he procured to be issued a policy of insurance on his life by defendant Germania Life Insurance Company for the sum of ten thousand dollars, said policy being number 213,368, and dated June 20, 1900, the annual premium on which was two hundred and seventy-six dollars. Said policy provided that upon the death of plaintiff the said defendant company would pay the sum of ten thousand dollars to the then wife of plaintiff, defendant Geneva Leota Orthwein, for her sole use, if living at the time of his death, or in case of her previous death to the executors, administrators or assigns of plaintiff. It was also agreed in said policy that if it should lapse as to its original amount by nonpayment of premium after it should have been three years or more in force, it should remain valid, subject to all its conditions, for as many twentieths of the amount of said policy as there should have been whole years’ premiums paid.

“Plaintiff further states that heretofore, to-wit, on the 20th day of June, 1900', he procured to be issued by the defendant Germania Life Insurance Company another certain policy of insurance upon his life for the sum of twenty thousand dollars, the annual premium on which was the sum of five hundred and fifty-two dollars; said policy is dated June 20, 1900, and is numbered 213,367, whereby said insurance company promised and agreed, upon due notice and proof of the death of plaintiff, to pay the sum of twenty thousand dollars to the then wife of plaintiff, defendant Geneva Leota Orthwein, for her sole use, if living at the time of his death, or in case of her previous death, to the executors, administrators or assigns of plaintiff. It was also agreed in and by said policy that if it should lapse, as to its original amount by nonpayment of premium after it should have been three years or more in force it should remain valid, subject to all its conditions, for as many twentieths of the amount of said policy as there should have been whole years’ premiums paid.

“Plaintiff states that upon the first mentioned policy of insurance he paid the first and, to-wit, five subsequent annual premiums, amounting in all to the sum of $1656, and on the second mentioned policy aforesaid he paid the first annual premium and, to-wit, five subsequent annual premiums, the total amount so paid being $3312, and the total amount of premiums paid on both the said policies amounting to the sum of $4968.

“Plaintiff states that no part of said premiums, was paid by defendant Geneva Leota Orthwein, and that said policies have at all times since the issue thereof remained in the sole possession of plaintiff, and are now in his possession.

“Plaintiff states that heretofore, to-wit, on the 10th day of July, 1907, upon application of defendant Geneva Leota Orthwein, suing under the name of Neva L. Orthwein, plaintiff and said defendant Geneva Leota Orthwein were duly divorced by the circuit court of Lawrence county, Missouri, and upon the entry of said decree of divorce, said Geneva Leota Orthwein ceased to be the wife of plaintiff. Plaintiff did not appear in said cause and made no defense.

“Plaintiff states that the said policies were made payable as aforesaid without any consideration moving from said defendant Geneva Leota Orthwein to plaintiff. That he has demanded of said defendant Germania Life Insurance Company that it change the beneficiary in each of said policies to his estate and recognize plaintiff as the sole owner of said policies, or to cancel the same and issue others in their place, or to accept a surrender of said policies from plaintiff for the stipulated surrender value, all of which said Germania Life Insurance Company has refused to do, unless said Geneva Leota Orthwein will execute a release or assignment of said policies to him. That the said policies are and always have been the property of plaintiff; that he has demanded of said defendant Geneva Leota Ortliwein that she release the said policies to him or release any claim which she might have thereon, because of being named as beneficiary therein, but she has refused to execute any such release.

“Wherefore, plaintiff prays that by decree of this court he may be adjudged to be the sole owner of said policies and that the name of the beneficiary in each of said policies be changed to his estate and that said defendant G'eneva Leota Orthwein has no claim or interest therein; that said Germania Life Insurance Company recognize plaintiff as the sole owner of said policies, and obey the direction of plaintiff as to the disposition of the same.

“And plaintiff prays for all such other and further relief to which it may be entitled the premises considered.”

The demurrer challenged the petition, for that:

(a) It did not state facts sufficient to constitute a cause of action.

(b) On the hypothesis that the petition counts on section 6944, Revised Statutes 1909, as applicable and controlling, then the demurrer challenges the application of that section in the first instance; and iu the second instance challenges its constitutionality, in that:

First. It violates the 14th Amendment of the U. S. Constitution by depriving defendant Geneva of her property without due process of law and denies to her the equal protection of the laws.

Second. It violates section 30, article 2, of the Constitution of Missouri by depriving said Geneva of her property without due process of law.

Third. It violates section 11, article 2, of the same Constitution by an unreasonable seizure of Geneva’s property without any wrong on her part.

Fourth. It violates section 20 of the same article by taking the property .of Geneva for private use. This “taking” is explained by the demurrer to be that “the guilty husband by wronging his wife so that she divorces him, can appropriate to his own use what has theretofore been the sole and absolute property of the wife and in which he had theretofore no interest whatever. ’ ’

Fifth. It violates section 53, article 4, of the Constitution as special and class legislation in favor of “guilty husbands without any risk or reason therefor. ’ ’

While the blunt question is: Is the petition good on demurrer? yet, as seen in the demurrer, it splits itself into ramifications and is approached, in appellants’ brief from sundry angles. The statute noticed in the demurrer reads:

“Any policy of insurance heretofore or hereafter made by any insurance company on the life of any person, expressed to be for the benefit of the wife of the insured, shall inure to her separate benefit, independently of the creditors, executors and administrators of the husband: Provided, however, that in the event of the death or divorcement of the wife before the decease of the husband, he shall have the right to designate another beneficiary, upon written notice to the company, but such notice shall not be effected, unless indorsed upon the policy by the president or vice-president and secretary of the company issuing the policy. But when the premiums paid in any year out of the funds or property of the husband shall exceed the sum of five hundred dollars, such exemptions from such claims shall not apply to so much of said premiums so paid as shall be in excess of five hundred dollars, but such excess shall inure to the benefit of his creditors.”

Other statutes drawn within the lines of the discussion will be noted in due course. We are of opinion the demurrer was well ruled. Because:

(1) The first proposition advanced is that the. petition states no cause of action for that it is silent on where the policies were executed or delivered. It is contended that it contains no allegations showing the policies were governed by the laws of this State, hence (counsel say) as our statutes- have no extraterritorial force, it bears a fatal vice on its face.

The proposition, at best uncommonly subtle, is novel and we think unsound for the following reasons:

Allegations of pleadings must be liberally construed with a view to substantial justice. [R. S. 1909, sec. 1831.] Now, at a very early day it was ruled “that where there is a venue laid in the margin of the declaration, or in the commencement, that shall be the venue for all other matters (requiring a venue, but having none special) contained in the declaration.” - [Benton v. Brown, 1 Mo. 393.] So, too, the statute prescribes that the venue shall be laid in the margin of the petition. [R. S. 1909, sec. 1823.] So far as we stand advised, the point in hand has never been made since Benton v. Brown was ruled. Maybe up to this time, it was abandoned as unprofitable after that decision. At any rate, if the petition is measured by the rule laid down in the Benton-Brown case, it is well enough; for it alleges that defendant insurance company was authorized to do business in the- State of Missouri at all times mentioned in the petition. It next states that it did business by issuing two insurance policies on a given date whereby it agreed to certain things; that plaintiff paid on the policies certain premiums and made certain demands on the company. Under the Benton-Brown rule the venue (the locus in quo) of all those things is laid in the State of Missouri by virtue of laying the venue once in the margin. The word “venue,” as used in statutes and legal exposition, is elastic and broad enough in meaning to include not only the county in which an action is brought, but tbe place in which a fact happened. [Black’s L. Dict. (2 Ed.), tit. “venue.”]

Not only so, but by necessary implication the demurrer admits the policies are governed by the laws of the State of Missouri in force at the time unless certain things are true. This follows from the fact that it goes on to allege specifically (by way of confession and avoidance), first, that a named státute does not apply to tbe facts; second, that if held to apply then it must be brushed aside as unconstitutional.

Moreover, look at the matter from another viewpoint : Error, to be reversible, must materially affect the merits of the action and we must “believe” that is so. [R. S. 1909, sec. 2082.] This appeal is taken from a judgment on the merits, one rendered in a court of general jurisdiction — a court presumed to proceed by right and not by wrong. As prescribed by the statute just cited, if we reverse it we must do so because we believe the merits are materially affected. Are we asked by appellants to do that (to-wit, act on our belief) on the contention we are considering? Not at all. We are asked to reverse the judgment on one of two guesses: First, that the policies were New York contracts in spite of the fact that the company was doing business in Missouri. Why should we guess that way, or guess at all, when the lawmaker prescribes (not that we must guess, but) that we must believe?

Again, in those States carved out of what was once British territory the common law is presumed to obtain. In those States carved out of territory acquired from Mexico, France or Spain the common law (absent a showing contra) is not presumed to obtain. In this condition of things appellants put us in the pickle of having “another guess coming,” to-wit, a guess that the policies are contracts of some State carved out of what was once British territory where the common law is presumed to be in force; for, observe, if the policies were contracts of a State carved out of other than British territory, then, absent a showing as to what the pertinent statutes were, as here, the court was authorized to apply our own laws to the policies. [Mathieson v. Railroad, 219 Mo. l. c. 550 et seq.; Thompson v. Railroad, 243 Mo. l. c. 349.] In that view of it, we decline to make that guess also.

Speaking of guessing there is an amusing delusion abroad in the land to the effect that guessing is a working tool in administering law. It is now and then loosely (and jocosely) said, for example, that an appellate court has the last guess at the law, implying thereby, that the trial court has the first, and that each do it. Alas! how often must wisdom cry aloud in the streets and proclaim it from the housetops that the law is the perfection of reason? If guesses were allowed, then in the “bright lexicon” of jurisprudence “there would be no such word as” reason. Peradventure, too, if guesses were horses, every judge would gaily ride, and — but enough of that.

We rule the point against appellants.

(2) It would, we think, be to involve ourselves in what Sir Frederick Pollock once termed “a perpetual flux of speculative ideas” to see in the statute supra (Sec. 6944, R. S. 1909) anything depriving defendant Geneva of her property without due process of law, or anything denying to her the equal protec-, tion of the law, or any unreasonable seizure of her property, or any taking of the same for private use, in a constitutional sense, or any violation of the constitutional provision against special or class legislation. We will presently come to a construction of that statute as well as to a determination of the question whether it applies to this case. For the present, on the several contentions that it flies in the face of the Federal or State Constitutions in the particulars mentioned, it is sufficient to say that we perceive no substance in them. The statute does not .interfere with the vested rights of Geneva. In strictness, to be vested a right must be “fixed, accrued, absolute.” [Bl. L. Dict. (2 Ed.), tit. “vested.”] There may be, of course, a present fixed right of future enjoyment and that would be a vested' right, and there may be rights so vested as to be subject to divestiture. In policies of insurance on the life of her husband in her favor, which he took out after the enactment of that statute, and on which the premiums are paid solely by him, she has rights but no vested ones in a strict legal sense. Contra, her rights are either contingent on the absence of her death or divorcement and on his naming a new beneficiary after either event; or, if spoken of as vested, they are subject to be divested on condition subsequent. According to all acceptable doctrine that statute must be read into the policies and become a speaking and vitally operative part thereof. [Cravens v. N. Y. Life Ins. Co., 148 Mo. 583.] Suppose, to illustrate, the policy actually read ■that in case of the death or divorcement of the wife the husband could name another beneficiary. What legal infirmity would attend that provision? Yet if the statute be read into the policy and became an-integral part of it, the result is precisely 'the same as if the provision was originally a policy term. There is an imperative implied call for it and the policy is rounded into certainty by the maxim: Id certum est quod cerium reddi potest.

The foregoing pronouncement is steadied and fortified by another view, to-wit, freedom to contract as one pleases is not an element of the life insurance business, but it is uniformly held (on the solidest grounds of public policy) that the right to make insurance contracts is subject.to statutory regulation. [Dezell v. Fidelity, etc. Co., 176 Mo. l. c. 266; Burridge v. Ins. Co., 211 Mo. l. c. 172-3, 180.] So, we say again that with that -statute read (ás it must he) into policies coming into existence after its enactment, as here, Geneva took under and subject to the terms of the statute and not otherwise, and we see no place where due process of law is denied her, or where she can complain of an unreasonable seizure of her property, or the taking of her property for private use. So, the statute being on its very face a general one, applicable to all divorced wives and to all insurance policies issued under like conditions, we fail to see how it is justly open to the criticism that it denies equal protection of the law to her or that it is special legislation. A careful study of appellants’ brief and the authorities cited therein to sustain the views advanced, has not led to the conclusion that those views are sound or that the subject justifies extended exposition. The stiff and chief rule is that before a statute can be held unconstitutional there must be no two ways about it. Its infirmity must appear beyond any reasonable doubt. A strong presumption of its validity exists and it reposes in the friendly bosom of that presumption until such time as it is made to appear (after caution and full consideration) that its unconstitutionality is made out in accordance with stringent rules in that behalf. [Board of Commissioners v. Peter, 253 Mo. l. c. 530.]

Some other theories advanced apply as well to remaining questions and will receive attention presently.

We rule constitutional points against appellants.

(3) It is argued the statute quoted does not apply. It is a bit difficult to delimitate by metes and bounds the theories advanced in this behalf. We are inclined to the notion that they relate somewhat to the interpretation of the statute, a question we take next. But attending to the point, why does the statute not apply? If it does not apply what one does apply? Appellants put their fiinger on no other. To get the right perspective let us take a glance at a group of statutes. By section 6941 a married woman may insure the life of her husband in her own name or in the name of a third person for her benefit and in case she survive him, the policy sum becoming due is payable to her use free from the claims of the representatives of the husband or of any of his creditors, provided the premiums on such policy shall have been paid by her out of her funds or property. That statute does not fit the facts of this case as set forth in the petition. By the next section of the insurance act (Art. 2, sec. 6942) ■ the lawmaker directs that if the wife die before the husband the policy sum shall be payable to her heirs, etc., unless otherwise stipulated in the policy. It would seem that sections 6941 and 6942 relate to the same subject-matter. The next section, 6943, provides a scheme whereby an unmarried woman may insure in her own name or in the name of a third person the life of her father or brother for her sole use. That statute does not apply. The next section is the one in question. There was a statute, somewhat relating to the subject-matter, in existence in 1889 (R. S. 1889, sec. 5854) and which was brought forward as live law from former revisions. But in 1899, section 5854, supra, was made over and enacted practically as a new statute (Sec. 7895) with substantially new provisions and with old ones eliminated or modified. It now appears in the 1909 revision as section 6944. As already said, it was in force several years before the policies in this case were issued. Mrs. Orthwein did not insure or cause to be insured the life of her husband, nor did she pay the premiums. Hence, as said, she can claim nothing under section 6941. To the contrary, the allegations of the petition, without naming section 6944, bring the facts precisely within the purview of that section. Hence, the point made that the statute does not apply is without merit.

In leaving the point another observation is not amiss. If the statute applies, as we have just held, then Geneva is put in a strait betwixt two, to-wit, she asserts her rights under a statute which she complains of as unconstitutional in the same breath. As a general rule that may not be done. [State ex rel. v. McIntosh, 205 Mo. l. c. 607 et seq.J Must she not take the bitter with the sweet and stand on the whole law if on any interdependent part of it? If the statute permit her husband to withdraw the premiums from his creditors and encourages her husband to take out policies of insurance in her favor subject to the condition and with the proviso that he may name a beneficiary in case of her divorce or death, may she take the benefit of the law with one hand and repudiate its burdens with the other? The question whether the proviso (which contains the right to change the beneficiary on the death or divorcement of the wife) is such interdependent part of' the section that the latter must stand or fall as an entirety is not argued in briefs and as it is not necessary to our case, we pass it by.

(4) Appellants with animation maintain the proposition that the proviso does not cover the case at bar, to-wit, a case where the wife obtains a divorce as the innocent and injured party. They insist that the reason of the thing is the other way, hence it must be ruled that the lawmaker intended his law to cover only a case where thé husband procured the divorce and the wife was the guilty» party. The • identical question was put to this court in 1906 in Blum v. Insurance Co., 197 Mo. 513 (vide pp. 520-1), and was set to one side as not necessary to a decision, since that case broke on other points (p. 531). Four years subsequently the question was presented to the Springfield Court of Appeals in Haven v. Insurance Co., 149 Mo. App. 291, and was ruled against the present contention of appellants. We are asked to explode the doctrine of that case but decline to do so; for we think it soundly ruled, having regard to those two instruments which Coke says impugn or confirm all things, to-wit, reason and authority.

That learned court ruled that the word “divorcement” and the word “divorce” have an equivalent meaning in good usage, to-wit, the dissolution of the marriage tie, and that this- meaning is wholly distinct from the question of who was in fault in bringing about the dissolution. It held that such meaning must be attached to the word unless the purpose to be attained by the enactment required a different meaning. It then proceeded to consider the purpose of the law, the mischief to be remedied, the purpose of the particular form of insurance involved, the. state of the law at .the time of the enactment, the question whether the wife had a vested right in the policy fund or such form of policy issued after the enactment in question, and the public policy to be observed and preserved, the fact that unless the husband could change the beneficiary on the divorce of his wife a policy on his life would likely lapse for nonpayment of premiums on his part, the fact that unless he could change the beneficiary the policy fund would be diverted from those he was under a moral duty to provide for (for example, children, etc.) to the one he was no longer under á moral duty to provide for on his death — finally summing up as follows:

“Our conclusion is that the purpose underlying ■ this statute is to vouchsafe to -the husband without regard to who was in fault in the divorce proceedings the same freedom of action in providing for those whom he might be under some moral obligation to provide for after his death that he would have had if the marriage relation had never existed between him and the defendant Pearl L. Haven. The purpose underlying all contracts of life insurance where the policy is secured and the premiums paid by the insured is to provide for those dependent upon him after his death and when the divorce between him and his wife was granted he would no longer feel the obligation to provide for her resting upon him, and for this reason we think the intention of the Legislature was to leave him unhampered when in that condition to provide another beneficiary for whose benefit he would be willing to continue the payment of the premiums and thus keep the policy alive. ’ ’

It is possible appellants’ brief in the instant case approaches the question from one or another angle not considered by the Court of Appeals in the Haven case. If it were not for that possibility we would close the case at this point by adopting the reasoning and conclusions of our brethren of the Springfield Court of Appeals as the be-all and end-all of the matter.

Attending to that phase of it, it is argued that the word divorcement primarily involves the concept of affirmative action by the husband. If that view be adopted, then the next step in the evolution of the argument is that it means he must procure the divorce because of the fault of the wife. The argument is one no little elusive and refined, harking back to and taking root in extreme antiquity. We are referred to Deut. 24:1-3 which provides that if a man’s wife find no favor in his eyes because of some “uncleanness in her,” then he should “write her a bill of divorcement and give it in her hand.” Approaching the matter with diffidence and disposing of it with modesty (for do we not speak to a bar learned on the subject?) we make these observations: It may be conceded to appellants that the particular bill of divorcement referred to by Moses was the affirmative act of the husband, therefore involved action on his part and some “uncleanness” in her; but we pause to ask: Could a wife divorce her husband at all under the laws of Moses? Bishop says°that was a power lodged with the husband (1 Bish. Mar., Div. and Sep., sec. 54)- and could be exercised "pretty much or entirely at pleasure.” In that view of it the word certainly involved "action” by the husband. Why so? Because the action was masculine and masculine alone in that era-among the Jews. However that be, the mere fact that the word divorcement was used by Biblical translators has no tendency to prove it was used in a Biblical sense by the G-eneral Assembly in enacting section 6944. Maybe so, maybe no. Let him speak who knows, not I. Nor are we cited to any authority showing that the word in modern usage involves action by the husband — admitting it did so in Bible times. This because: When the race was young, speaking in a colloquial and not a scientific sense, divorces were acts of the parties, not of courts. Divorce seems to have been a mere personal equation and in nowise involved a public policy or a status. The husband could “put away his wife” under the oldest code in the world, that of Hammurabi, B. C. 2285-2242, sec. 137 et seq. In that code there was a rudimentary regulation in regard to the return of the wife’s ‘ ‘ dowry, ’ ’ if she was put away, and, if she brought no dowry, he was to-give her "one mina of silver for a divorce.” [Sec. 1391.]

(Nota bene: One mina of silver equalled fifty shekels; and one shekel, seventy-two and one-half cents, from which the cost of a divorce in Babylon, absent a dot, may be figured by the curious — if worth while.)

The duty of a husband to give his wife a "writing of divorcement” when he put her away seems to have been understood as an ancient Jewish custom by a mere reference to the fact. [Matt. 5:31; Matt. 19:7 et seq.; Luke 16:18; 1 Cor. 7:10-12.] In one of these references the right to put away the wife is said to have been allowed by Moses because of the "hardness of your hearts.” The same right gentlemen had, to-wit, that of putting away their wives, obtained in the pagan Roman Empire, but it seems also that the world had progressed to the point where it conceded the right to ladies, too. They could “put away” their husbands, the divorce being “pretty much at the pleasure of either of the parties.” [1 Bish. Mar., Div. and Sep., sec. 85.] Doés not everyone know that the greatest of Roman orators put Terentia, his wife, away and gave her a divorcement, because she tightened her purse strings on his call for money (she being rich and frugal and he somewhat of a spendthrift with elegant tastes) ? We dismiss this bit of' old gossip with the suggestion that when Cicero’s head was nailed to the rostra by Antony, and Fulvia, said Antony’s wife, thrust a hairpin through his dead tongue, we do not know that feminine thrust was because of his treatment of Terentia (for Fulvia, as former widow of' Clodius, had private grievances of her own against his tongue); but we do know there was even then a public sentiment against a divorce by the act of the husband, á public sentiment which, crystallizing in the flux of time into law, centuries ago made a divorcement no longer a private rescission of a contract, but the solemn judgment of a court on a status involving social order and public morals. It is too far a cry to go back to Deuteronomy and exploded conditions for proof that the word divorcement involves the affirmative action of the husband. Its form is a little unusual, but its meaning is self-evident. It is plain enough that when either party gets a divorce both are divorced and the status existing after the separation is a divorcement and properly termed such. In that sense it is as much his as hers.

It is argued that we should read into the statute the idea of innocence in the husband and guilt in the wife, before the husband should be rewarded by the right to change the beneficiary in a policy on his life, taken and kept up by him. One answer to that is that the lawmaker could have said so with one stroke of his pen and did not make that stroke. Why should we do for him what he declined to do for himself, when our function is to interpret and declare and not make the law? Another answer is that, w'hen a law is plain and unambiguous in terms, we are not allowed to vary, enlarge or reduce it because of speculative theories of our own. Ita lex scripta est is the maxim in that behalf. A plain and unambiguous statute stands on its own reason, and this is a statute of that character. If, however, we were put to it to assign reasons for the statute, more than one suggest themselves. For instance, speaking to support, in the statute on divorce is ample provision for the allowance of alimony out of the husband’s estate in accordance with the means of the guilty husband to give and the right of the innocent wife to receive.

Moreover, would not a sufficient reason be (I mean reason for not interpreting the statute in accordance with appellants’ view) that the statute is one intended to induce the taking out of policies and making provisions for wives who remain wives until such time as they become widows. To that end it gives the husband power to divert the policy sum in case the wife does not become such widow, to-wit, in case of her death or divorcement. "Would not appellants’ view not only clog the purpose but overlook the motive of the law? Nay, would it not be unjust and immoral for the lawmaker to say to all men: ‘ (If you will insure your lives in your wives’ favor and pay the premiums yourselves, I promise you you can change the beneficiaries by making new appointees in case of their death or divorcement,” and then face about (through judicial interpretation) and say to one of these men who acted on the law: “The law meant to say, in case of her death or your procuring a divorce from her because she was guilty of a breach of the marriage contract1” Courts should not torture or twist the statute into a device for obtaining property by false pretenses, or, what amounts to the same thing, by making of it the studied duplicity of some Delphian oracular utterance.

Again, it is argued that if the guilty husband be allowed the right to change the beneficiary, it would operate as an inducement to bad men to mistreat their wives so that they would (here notice a tang-of something like contributory negligence or cooperation in the wife) obtain divorces, and all this in order that when they obtained them, the said husbands could change the beneficiaries in insurance policies. Is such argument not a happy conceit that amuses but does not convince? If of any force, should it not be directed to the Legislature and not to this court? Might one not as well argue that if husbands could not change the beneficiaries it would be an inducement to designing women to g.et divorces from those husbands carrying large policies in their favor in order to enjoy the use of such'accumulations by cashing in their policies and all this in addition to alimony? ‘We cannot well abrogate or alter provisions of law on such fanciful hypotheses.

We have pursued the matter farther than intended. Let the judgment be affirmed. It is so ordered.

PER CURIAM. — This cause coming into Banc from division on a dissent, on. hearing there the divisional opinion by Lamm, C. J., is adopted as the opinion of the court.

All concur, except Bond, J., who dissents.


source: Caselaw Access Project

author: BROWN, C.-

license: Public Domain

text:
    WERTHEIMER-SWARTZ SHOE COMPANY et al. v. CLEVIE H. WYBLE et al., Appellants.
    In Banc,
    November 17, 1914.
    1. APPEAL: No Bill of Exceptions: Record Proper: Sufficiency of Petition. Although the bill of exceptions was filed too late, and accordingly only the record proper can be considered by the Supreme Court on appeal, still the sufficiency of the petition is a proper subject of inquiry.
    2. FRAUDULENT CONVEYANCE: Avoiding Deed from Third Person to Debtor’s Wife: Execution Sale: Combination: Inadequate Price: Equity. Plaintiffs’ petition states, that R traded his stock of goods and his note for $2500, which he afterwards paid, for a hundred acres of land the title to which was taken in his wife; that the conveyance of the land was made in fraud of plaintiffs as creditors of R; that plaintiffs separately sued him in attachment and the writs were levied and the abstracts filed; that R made default and judgments were taken against him, under one of which execution was levied and the land sold for $3 to L as trustee for plaintiffs, the execution being returned unsatisfied: that afterward R and his wife without consideration conveyed the land to defendant W in fraud of creditors, so that W became trustee for the plaintiffs; and that W in turn gave a purported deed of trust to defendant bank without consideration and likewise in fraud of creditors. The prayer asks that the original conveyance to R’s wife, the conveyance to W, and the deed of .trust be held fraudulent and void, and asks also for general relief. The decree held the conveyances fraudulent and void as against the sheriff’s execution deed to plaintiffs — a conveyance not mentioned in the petition. Held, that the inadequacy of the price paid at the execution sale, in connection with the combination which by interposition of the trustee brought it about, rendered the sale feigned and colorable, and amounted to a fraud against R, the debtor, and accordingly the judgment must be reversed and the cause remanded. [Only BROWN, WALKER, and WOODSON, JJ., concur in the opinion in this case: LAMM, C. J., and FARIS, J., concur in the result, while GRAVES and BOND, JJ., dissent.]
    Appeal from Pike Circuit Court. — Now. David N. Eby, Judge.
    Reversed and remanded. •

      Pearson & Pearson and J. II. Blair for appellants.
    (1) The petition does not state facts sufficient to constitute a cause of action, (a) It is not averred that Louis Landau, as trustee, ever paid the purchase price of $3 and received a deed from the sheriff as execution purchaser. A purchaser at execution sale acquires no title to the real estate until the deed has been executed by the proper officer. But when it is executed it relates back to the date of the sale, and vests title in the execution purchaser from that time as against the execution defendant, and his privies and against strangers purchasing with notice. Lumber Co. v. Franks, 156 Mo. 689; Boyd v. Ellis, 107 Mo. 395; Leach v. Koenig, 55 Mo. 451; Porter v. Mariner, 50 Mo. 364; Strain v. Murphy, 49 Mo. 337; Alexander v. Merry, 9 Mo. 513; Davis v. Green, 102 Mo„. 181; Blodgett v. Perry, 97 Mo. 275. The petition should have set out the details of the alleged trust in Landau, how created and for what purpose, in order to show that he had the right, under the terms of the trust, to purchase the land. The bald declaration that he purchased as trustee is not sufficient, (c) The petition alleges that the deed from Thomas N. Sanderson’s executors to Tillie P. Rettke was fraudulent and void. Assuming that to be true, then the title, certainly the legal title, to the land remains in the heirs of said Thomas N. Sanderson, or the beneficiaries under his will, and they should have been made parties defendant in this cause. And besides, if that deed is fraudulent and void no resulting trust could arise thereunder in favor of plaintiffs, as creditors of Gustavus Rettke, and théir petition states no cause of action. (2) There is no equity in the bill, (a) The purchase price of 3 cents per acre for the land which sold a few months prior thereto for $40 per acre, is so grossly inadequate that a court of equity will not ratify or confirm the transaction. State v. Elliott, 114 Mo. App. 562; Davis v. McCann, 143 Mo. 172; Durfee v. Morgan, 57 Mo. 374; Mitchell v. Jones, 59 Mo. 438. (b) The purchase price of 3 cents an acre is so shocking to the conscience, and so grossly inadequate, as to amount to proof per se of fraud in the sale. Walter v. Hermann, 99 Mo. 532; Knoop v. Kelsey, 121 Mo. 642; Phillips v. Stewart, 59 Mo. 491; Cobb v. Day, 106 Mo. 300; Railroad v. Brown, 43 Mo. 294; Briant v. Jackson, 99 Mo. 598. (c) Inadequacy of consideration, if it be of so gross a nature as to amount in itself to conclusive and decisive evidence of fraud, is a ground for cancelling a transaction. In such case the relief is granted, not on the .ground of inadequacy of consideration, but on the ground of fraud as evidenced thereby. Nelson v. Betts, 21 Mo. App. 231; Kerr on Fraud and Mistáke, 161 Pom. Eq., secs. 926, 927; Bisp. Prin'. Eq. (5 Ed.), see. 219. We have not been able to find in the books a case of inadequacy of price as gross and unconscionable as the case at bar. ■ (d) The purchase of the land by Louis Landau, as trustee for his co-plaintiffs, in our opinion, could not have had in view but one purpose, and that the suppression of competition at the execution sale between said co-plaintiffs. At least it had that effect. In the absence of such trust or combination either of those plaintiffs would, in order to protect itself, have bid for the land more than the debt of the other. This is self-evident. Inadequacy of price-when unreasonable, is evidence of a secret trust, and is prima-facie evidence- that a conveyance is not bonafide if it is accompanied with any trust. Kuykendall v. McDonald, 15 Mo. 293. It is now the uniform doctrine that any combination at public or private sale, having the effect of preventing competition in bidding, is against the policy of the law and void. Durfee v. Moran, 57 Mo. 374; Hook v. Turner, 22 Mo. 333; Parker v. Railroad, 44 Mo. 415; 17 Am. & Eng. Eney. Law, p. 980; Wooten v. Hinkle, 20 Mo. 290; Hook v. Turner, 22 Mo. 333; Stewart v. Nelson, 25 Mo. 3091; Miltenberg v. Morrison, 39 Mo. 72; Stewart v. Severance, 43 Mo. 322; Durfee v. Moran, 57 Mo. 374; Bailey v. Smock, 61 Mo. 213; Massey v. Tonng, 73 Mo. 260; Beedle v. Mead, 81 Mo. 297. (3) (a) The court erred in finding and decreeing that the conveyance executed by D. Taylor Sanderson and Robert B. Sanderson, executors of Thomas N. Sanderson, and D. Taylor Sanderson and wife in their own right, to Tillie P. Rettke was fraudulent and void. Creditors can complain only of the fraudulent conveyance of property which is subject to their debts. Burns v. Bangert, 92 Mo. 167. A deed cannot be set aside as fraudulent unless the grantor therein intended thereby to hinder, delay or defraud his own creditors. Parker v. Roberts, 116 Mo. 657. (h) The only right or interest that could have possibly accrued to the plaintiffs by reason of that conveyance was possibly a resulting trust in their favor, if G-ustavus Rettke fraudulently applied his own means toward the payment of a part of the purchase price for the land. But the court decrees that deed to be void. That being the case there was no resulting trust, or any other right or interest thereunder accruing to the plaintiffs. The deed being null and void the title remained in the beneficiaries under Thomas N. Sander-son’s will, as if the deed had never been made. A void deed is without legal force or effect, ineffectual to bind parties, or to convey or support a right. 29 Am. & Eng. Ency. Law, p. 1065. (c) This is not similar to a case where a person makes a fraudulent deed, and it is set aside. (4) The bill charges only, that the deeds from Thomas N. Sanderson’s executors to Tillie P. Rettke, and Tillie P. Rettke to Clevie H. Wyble, and the deed of trust from Clevie H. Wyble and wife to William J. Buchanan, trustee for the Bank of Eolia, are fraudulent and void, and asks that they be so decreed and adjudged. (It does not ask that they bé set aside, nor does the court set them aside in direct terms.) The court so decreed and adjudged, and further, went so far as to decree and adjudge that other conveyances were fraudulent and void which are not covered by, or even mentioned in, the pleading, and concerning which no relief is asked by plaintiffs, and under which Tillie P. Rettke acquired title to the land in controversy. The decree or judgment so rendered by the court is not within the issues made by the pleadings. This is reversible error. Spindle v. Hyde, 247 Mo. 32; Schneider v. Patton, 175 Mo. 723. "While under the prayer for relief a party may have any relief to which he may show himself entitled, such relief must be founded on and consistent with the allegations in the bill and not such as may be proved at the trial. Roden v. Helm, 192 Mo. 93; Ross v. Ross, 81 Mo. 84; Reed v. Bott, 100 Mo. 62; Irvin v. Chiles, '28 Mo. 576; Harris v. Railroad, 37 Mo. 310'; Newham v. Kenton, 79 Mo. 382; McNair v. Biddle, 8 Mo. 257. A decree cannot be based on facts not set up in the pleadings. Rumsey v. Railroad, 144 Mo. 175; Paddock v. Lance, 94 Mo. 283; Muenks v. Bunch, 90 Mo. 500; New-ham v. Kenton, 79’ Mo. 382; Baldwin v. Whaley, 78 Mo. 186.

      Tapley & Fitsgerrell for respondents.
    The appellants did not raise the question in the lower court that the petition did not state facts sufficient to constitute a cause of action, either by demurrer or objection to any of the evidence being offered at the trial of the case or by a motion in arrest. When the question is not raised in the lower court, reasonable inference will be indulged in by this court in favor of the petition being sufficient and will be sustained if by fair intendment it impliedly states a cause of action. Miller v. Klein, 160' S. W. 562. In this petition everything is stated that is essential. The appel-' lants did not file a Bill of Exceptions, and consequently none of the evidence is before this court and they stand on the hare record in the case. We think that the case above cited is sufficient. As to the second point: The decree in this case is in accord with the pleadings. Every material fact that is set out in the petition is passed upon by the court. Every fact that is passed upon by the court is referred to in the petition. It has been decided time and time again where .a decree is in accord with the pleadings that it is sufficient, and that is all that is necessary as far as the decree is concerned. As far back as the 68 Mo. the courts are found holding to this rule. Cox v. Estep, 68 Mo. 110, and on down to the present date. The petition in this cause alleges that Rettke owned the stock of goods; ■that the plaintiffs sold him goods for his store and brought suit with attachment in aid, obtained judgment and while the judgment lien existed Mrs. Rettke sold and transferred the real estate. The appellants are not in a position to object to the inadequacy of the consideration. They did not come into court and ask that the deed from Gustavus Charles Rettke to Louis Landau, trustee, be set aside and tender the purchase price paid by Louis Landau as trustee, to the sheriff; nor did they offer to pay- the indebtedness existing between Gustavus Charles Rettke and the respondents in this case. If they desire to take advantage of the inadequacy of the consideration they should at least tender the purchase price and what Gustavus Charles Rettke owes the reT spondepts herein. The respondents herein have lost their judgment liens !by limitation and if the court should hold that the deed from Gustavus Charles Rettke, to Louis Landau, as trustee, is not good by reason of the. inadequacy of the consideration, then the respondents have lost their judgment lien by limitation, and as far as their remedy is concerned, by reason of their judgment, is lost by these respondents. Ames v. Gilmore, 591 Mo. 539. This proposition is too old and too well settled to cite further authorities. Appellants were not taken by surprise for tbe reason that they bought this land from Rettke at the time it was attached and judgment entered against it by the circuit court in favor of the respondents, and at the time that same was sold respondents held the title. This suit was brought under Sec. 416, R. S. 1899, now Sec. 2344, R. S. 1900. Every allegation as required by said section is set out in the petition. Mansur & Tebbetts Imp. Co. v. Jones, ,143 Mo. 253. On August 18, 1907, the heirs of Thomas N. Sanderson, for the purpose of correcting title, made a quitclaim deed to Tillie Rettke. This was for the purpose of correcting the title in Tillie P. Rettke and if any title was thus passed it related back to the time when the title was passed to Tillie P. Rettke from the executors. When the executors executed the deed to Tillie P. Rettke, D. Taylor Sanderson owned an undivided one-half interest in said real estate and the estate of Thomas N. Sanderson owned the .other undivided one-half inter-' est in said real estate. The judgment being for the right party, the cause should be affirmed.
   BROWN, C.-

Suit begun in Pike County Circuit Court, August 26, 1909. The plaintiffs are Wertheimer-Swartz Shoe Company, and Laudan Grocery Company, corporations, and Louis Landau their trustee. The defendants are Clevie H. Wyble, Bank of Eolia and William J. Buchanan. The object of the suit is to obtain a decree establishing the title to about one hundred acres of land in Pike county as against the defendants.

The petition states, in substance, that in October, 1906, L. Taylor Sanderson, and Robert B. Sanderson, as executors of the will of Thomas N. Sanderson, deceased, for the consideration of $4000-, conveyed the land in question to Tillie P. Rettke, wife of one Gustavus Charles Rettke, by deed duly recorded. That the purchase money was paid by Gustavus Charles Rettke by the transfer to the grantors of a stock of goods owned by him in a store which he was running in the town of Cyrene in said county, for $1500, and the execution of the joint note of himself and wife for $2500 which he •afterwards paid; and that the conveyance of the lands to said Tillie'£ ‘ was a mere subterfuge made, contrived and designed by her and her said husband to cover up the means of her said husband, and was so made with the intent to hinder, delay and defraud the creditors of the said Gustavus, and especially the plaintiffs. ’ ’ That during the months of June to September, inclusive, 1906, the said Gustavus, while running and operating his said store in Cyrene became indebted to the Wertheimer-Swartz Shoe Company in the amount of $245, and to the Laudau Grocery Company in the amount of $222.30; that each of said plaintiff corporations brought suit against him by attachment on November 9, 1906, alleging as grounds for such attachment that he had fraudulently conveyed and assigned 'his property and effects so as to hinder and delay his creditors, that he had concealed, removed and disposed of his property and effects so as to hinder and delay his creditors and that the debt sued for was fraudulently contracted. Writs of summons and attachment were sued out on the same date in each case. The summons in each was duly served, and on the 11th day of November the sheriff levied upon and seized the land in question under the writ in the case of the Landau Grocery Company, and on the 12th day of November, 1906, levied upon and seized the same land in the Wertheimer-Swartz Shoe Company case; filing the abstracts of the attachment in both cases on the last named date. Both these abstracts recite the levy of the attchment upon the land to have been on the 12th. day of November. The petition further recites, with sufficient detail, that the defendant in each of those cases made default and that judgment was taken against them respectively for the amount of their respective claims and interest. That an execution was issued on the Landau judgment April 2, 1907, under which the sheriff levied upon and seized all the right, title, interest and estate of the said Gfustavus Charles Rettke in and to said real estate, and sold it at the.June term, 1907, and that Louis Landau as trustee for the other plaintiffs herein became the purchaser for ■the price and sum of three dollars; and that thereupon the execution was returned by the sheriff unsatisfied, “and the said Louis Landau has ever since said sale and purchase by him held the title to said real estate in trust for the use, benefit and behoof of the other plaintiffs therein, to-wit: said Wertheimer-Swartz Shoe Company and .Landau Grocery Company, and still holds the same.” The petition proceeds as follows :

“That the said judgments were from and after said 12th day of November, 1906, and still are, liens upon said real estate; that on the 23d day of August, 1907, said Tillie P. Rettke and her said husband by deed of conveyance of that date purporting- to convey said lands to said Clevie H. Wyble, which said deed was made without any consideration moving therefor, and was made with full notice to the parties thereto of the attachment of said lands, the lien thereon and the sale thereof as hereinbefore set forth; that such pretended sale was made and accepted in bad faith for the purpose of defrauding, hindering and delaying the creditors of said Gustavus Charles Rettke, and Clevie H. Wyble held said lands in trust for said creditors, and the said Clevie H. Wyble still so holds the same; that on the 30th day of August, 1907, said Clevie H. Wyble made a deed of conveyance of said lands purporting to be a deed of trust in the nature of a mortgage to said William J. Buchanan, as trustee for said Bank of Eolia, made for the pretended purpose of securing the payment of a promissory note for $2000 made as alleged by said grantor to said bank; that said deeds' of trust and promissory noté were made without any consideration therefor, and with the full knowledge by all of the parties thereto of said attachment liens on said lands, the said sale and the purchase thereof, and made for the purpose of aiding said Gustavus Charles Rettke, Tillie P. Rettke, and Clevie H. Wyble, in hindering, delaying and defrauding said creditors.

“Plaintiffs further state that said Gustavus Charles Rettke was rendered insolvent by said alleged sale of said lands to his wife, that he had no other property at any of the times herein mentioned nor has he any now and plaintiffs have no remedy at law and no means of collecting their said, debts except by proceedings as herein set forth.

“Wherefore plaintiffs pray that said conveyances of said lands to said Tillie P. Rettke, to the said Clevie IT. Wyble, and the deed of trust to said William J. Buchanan, trustee for said Bank of Eolia, and each of them, be held fraudulent and void as against the creditors of said Ghstavus Charles Rettke, and especially the plaintiffs, and for all such further relief as may be deemed meet and just, and for costs.”

Wyble answered admitting the execution of the deed from Tillie P. Rettke to himself and denying all other allegations of the petition. The bank and Buchanan filed a joint answer admitting the execution of the deed of trust and denied each of the other allegations of the petition. It will be observed that there is no allegation in the petition of the execution of a deed by the sheriff. The respondents made the following statement in their brief:

“ This suit was brought under section 416, Revised Statutes 1899. Every .allegation as required by said section is set out in the petition.”

The court recites in its decree that the Sander-son conveyances “were fraudulent as to the plaintiffs and were a part of the plans and scheme and were procured by the said Tillie P. Rettke with the knowledge of the other defendants, for the purpose of defrauding the plaintiffs herein; that the said conveyance of said lands to said Tillie P. Rettke was a mere subterfuge, made, contrived and designed by her and her husband, to cover up the means of her said husband and was so made with the intent to hinder and delay and defraud the creditors of the said Gustavus, and especially the plaintiffs herein.” Also that “said plaintiff, Louis Landau, as trustee for the other plaintiffs herein, became the purchaser of said real estate for the price and sum of three dollars, and said execution was by said sheriff returned unsatisfied and the said Louis Landau has ever since said sale and purchase by him held the title to said real estate in trust for the use, benefit and behoof of the other plaintiffs herein, to-wit: Said Wertheimer-Swartz Shoe Company and Landau Grocery Company, and still so holds the same.” Also' that the deeds from the Sandersons to Mrs. Rettke'“were fraudulent as to the plaintiffs and were a part of the plans and scheme and were procured by the said Tillie P. Rettke, with the knowledge of the other defendants for the purpose of de-' frauding the plaintiffs herein and were and are fraudulent and void as against the deed made and executed by W. P. Campbell as sheriff of Pike county, Missouri, dated the 11th day of June, 1907, and conveying to plaintiffs the right, title and interest of said Gustavus Charles Rettke in and to the lands above described and the plaintiffs have and recover of the defendants their costs in this behalf expended and that they have execution therefor. ’ ’

The decree also mentions quitclaim deeds of twenty-three other persons, made and recorded before the beginning of this suit, and not mentioned in any pleading in the case, holding that they were made without consideration for the purpose of correcting supposed defects in the original executors’ deed, and are fraudulent and void as to the plaintiffs.

Under the ruling of this court in Craig v. Railroad, 248 Mo. 270’, approved in Bridge Co. v. Corrigan, 251 Mo. 683, the bill of exceptions was filed too late, and the case is before us on the record proper only. This imposes the duty to inquire whether the petition is sufficient to support the decree rendered. The sufficiency of the petition as the statement of a cause of action is a proper subject of inquiry at every stage of the case. [R. S. 1909, sec. 180.]

From an examination of these pleadings it is not easy to obtain a clear idea of the nature and object of the suit. The controversy is about a tract of land alleged to have been sufficiently valuable to have been sold by its owners to • one Rettke for $4000. The payment-of this amount stripped Rettke, who owed nearly $500 to two of the plaintiffs, of everything he had, and he caused the land to be conveyed to his wife, so that to all appearances she became the capitalist and he the insolvent debtor. Each of the two creditors sued him by attachment, levied on the same land, obtained judgment, and one of them took out- an execution under which he caused it to be sold by the sheriff. Instead of bidding independently, they jointly employed their co-plaintiff to bid for them both, and he became the purchaser for three dollars. The petition leaves them here. It does not disclose that a sheriff’s 'deed was made.

Although it is evident that none of the plaintiffs have or can be entitled to any interest in the land otherwise than under the deed to Mrs. •Rettke, the only prayer of the petition is that this deed be held fraudulent and void. It is true that there is, if we use a little construction to aid the language, a prayer for general relief, under which the court might have held the deed to Mrs. Rettke valid, and as creating a valid trust in favor of such creditors of her husband as should, in equity, seek to enforce it. ' It created no trust in his own favor. Whenever one has come to this court to have such a trust declared he has met with discouragement; sometimes expressed in the most vigorous language consistent with judicial dignity and conservatism. We have told him that “he does not come into a court of equity with clean hands,” that he has made his bed an unclean one — let him lie in it; that the maxim that he who comes into equity must come with clean hands “touches to the quick the dignity of a court of conscience itself;” that its application does not depend upon the averments of the pleadings, or the wish of counsel, but it may be invoked and applied ex mero motu by the court. [Creamer v. Bivert, 214 Mo. 473, and cases cited; Davidson v. Dockery, 1791 Mo. 687.] All of which goes to show that when one attempts to hide the title to his property from his creditors under the mantle of another, equity will not, when the trick has served its purpose, search it out from its hiding place, and "return it to him as on a silver platter, in the form of a judicial declaration of a trust in his favor. It will, rather, like a famous judge of old, take water and wash its hands in the presence of the multitude, in token of its innocence of the terrible thing about to happen.

The fact that in such a case as this, whatever may be the nature of the rights and remedies of creditors, and they are undoubtedly ample, the debtor has no title, either legal or equitable, of which the law can take notice, has induced some courts to doubt whether there is anything vendible on execution under statutes like ours, which only cover “real estate whereof the defendant or any person for his use, was seized, in law or equity, at the time of the issue and levy of the attachraent, or rendition of the judgment, order or decree whereon execution was issued, or at any time thereafter.” Where the debtor, having the title, has made a fraudulent conveyance, the statute leaves no question of this kind, but pronounces his conveyance, so far as his creditors are concerned, “clearly and utterly void.”

The Supreme Judicial Court of Maine, in distinguishing a case like the present, Des Brisay v. Hogan, 53 Me. 554, said: “It was decided in Corey v. Greene, 51 Me. 114, that where the debtor never had any title to the land, a levy is unnecessary. It is true that, in that case, the title was held by a stranger, while in this it is held by the debtor’s wife. But this makes no difference. It is only when the debtor once had a' title to the land and has conveyed it away fraudulently, that a levy can be of any use. In such case, the conveyance being fraudulent, it is as to the creditor no conveyance, and he may treat the title as still remaining in the debtor. But when, as in this case, the debtor never had any title, treating the conveyance to his wife as either valid or void will not give him a title — it will be either in "the wife or her grantor — it will not be in the debtor — and a levy upon it as his property would be an idle and useless ceremony. No title could possibly be obtained by it.”

In Chicago & A. Bridge Company v. Packing Company, 46 Fed. 584, 588, a similar case which arose under the Missouri statute, the court said that there is much practical sense in this distinction. ‘Justice, however, does not require that we should follow it in this case. We can rather profit by the example Dickens has given us in Mr. Jaggers. The scented soap with which he washed his hands of the sins of his clients left an odor more pungent, and characteristic, and telltale, than the sin itself. So when a court of equity has found that a litigant has, by an attempted fraud upon his creditors, either actual or constructive, placed himself outside the pale of its assistance, it should take care that the virtuous resentment in which it washes its hands of all participation in his fraud does not leave an odor in its nostrils so pungent and insidious that in its indignation it will offer its process to those who desire to pursue the culprit for purposes of plum der. We obtain an interesting view of this case from that standpoint.

The plaintiffs claim to have three dollars worth of equity in the four thousand dollars worth of land. It will not be claimed for a moment that the Eettkes, or any of the defendants, ever received any benefit whatever from this three dollars; in short, the court, in vindication of its own common sense and common knowledge, will presume that it was not sufficient to pay the cost of advertising and other costs incident to the sale. Instead of this sum having been applied to any extent toward the satisfaction of the judgments, it was used by the plaintiffs in payment of the cost of putting themselves in the commanding position from which they are carrying on this suit, leaving their judgment still intact for future use.

It was quite unnecessary that the plaintiffs should have expended these three dollars. The statute under which they attached the land gave them a remedy as broad and effective as that afforded by the statutory provisions relating to fraudulent conveyances and sales upon execution combined; and it certainly limited its remedy to a time preceding the execution and delivery of the sheriff’s deed in which the attachment proceeding, if successful, must culminate; for it is given to the creditor and not to the execution purchaser. [R. S. 1909, sec. 2344.] The statement of plaintiffs in their brief that the ease was brought upon the section just cited, together with the fact that the petition fails to allege the execution of a sheriff’s deed, and does state that the defendant Wyble still holds the land in trust for Rettke’s creditors, might justify the disposition of this appeal upon that ground alone; but the attachment creditors have made the execution purchaser a party plaintiff; and the trial court in its decree having assumed the execution of a sheriff’s deed to the plaintiff Landau notwithstanding the silence of the petition on that point, and having attempted with more or less clearness and success to grant relief upon-that theory, we think it proper to briefly consider his rights from that standpoint.

There is no subject upon which the courts and textbooks have been more circumspect in the use of language than in treating of the effect of inadequacy of price upon execution and judicial sales. Mr. Rorer states the doctrine thus: “If there be no fact or circumstance relied on to set a sale aside but inadequacy of price, then the inadequacy must be such as in itself to raise the presumption of fraud, or else the sale will not be disturbed.” [Rorer on Jud. Sales (2 Ed.), sec. 549.] In section 1095' of the same excellent work he repeats the idea as follows: “But although inadequacy of price will not alone be cause to set a sale aside, unless so gross as to raise a presumption of other cause, yet when inadequacy is combined with accident or appearance of fraud or unfairness, the sale will be set aside.” In Mangold v. Bacon, 237 Mo. 496, 523, the court in correcting the language used by the majority in the same case upon a former appeal (229 Mo. 459), with a trifle more frankness said: “The majority opinion closed and locked a door heretofore open for use to reach relief in extreme and aggravated cases. That door should be left open — not only so, but used in this case on the facts here before us, even if no other ground of relief appears. In so far as the' majority opinion is in' conflict herewith, it should not be followed.” We also, said in Guinan v. Donnell, 201 Mo. 173, 202: “It has always been held by this court that inadequacy of price alone will not justify the setting aside of a sheriff’s sale of real estate under execution, unless the price is so inadequate as to shock the moral sense and outrage the conscience. Then courts will interfere to promote the ends of justice. [Railroad v. Brown, 43 Mo. 294; Holden v. Vanghan, 64 Mo. 588 Knoop v. Kelsey, 121 Mo. 642; Davis v. McCann, 143 Mo. 172.]” These guarded expressions evidently mean that the courts do not desire to foreclose themselves from holding, if a proper case shall arise, that inadequacy of consideration alone may be such as to raise a presumption of fraud for which a sale will be set aside in equity, and that such inadequacy is always evidence to be considered in combination with other circumstances of fraud or unfairness in determining whether or not the sale should be set aside.

Applying these principles to the case stated in this petition we find no difficulty in dealing with the alleged equities of the plaintiffs; The inadequacy of price under the circumstances alleged is such as to render the sale a feigned and colorable one, a form through which whatever title or interest could be conveyed through the execution sale might be taken by these creditors without any rebate from their respective judgments or other consideration. This alone casts discredit upon the transaction, for the law contemplates that the single purpose for which land may be sold out at execution sales of this character is to raise money for application upon the judgment debt. The laws for this purpose are not open to the discreditable interpretation that they were devised to give creditors the opportunity to speculate upon either the misfortunes or sins of their debtors. Added to these considerations is the fact that the petition shows upon its face that the inadequacy of price was produced by a wrongful combination between the attachment creditors which amounted to a fraud against the debtor. The condition, of the title practically placed the sale ixi the hands of two bidders, namely, the two judgment creditors. Each of these was able to bid the amount of his judgment- and would probably do so; for they alleged that outside what was invested in this land the debtor was insolvent so that nothing more could be hoped for from his property, although the judgment could be held over him in the hope of realizing something from his future acquisitions. Had these men bid independently,, as they were able to bid by reason of the means controlled by them for the payment of the price, it would have been highly improbable, in short we may reasonably say impossible, that the land would have been sold without some credit upon these judgments. It was the combination between them by the intervention of a trustee and that alone which enabled them to secure the land without aiiy abatement of the debts.

We do not say that it is not competent for creditors under some circumstances to combine to bid upon the property of a debtor. We only say that any such combination is unlawful which leaves out of consideration the right of the debtor to a fair disposition of his property and substitutes’ its appropriation by the combination without any consideration whatever. In Durfee v. Moran, 57 Mo. 374, 379, in considering the same question we said: “That the price was grossly inadequate there can be no doubt, and although it is true that inadequacy of consideration is not of itself a distinct or independent principle of relief in equity, still, where the transaction discloses a state of affairs that shocks the moral sense or outrages the conscience, courts will interfere on slight circumstances to promote the ends of justice and defeat the schemes of fraud. [Han. & St. Joe R. R. Co. v. Brown, 43 Mo. 294.] Where property is palpably sacrificed, and a valuable estate is acquired for a mere pittance, all the attending circumstances will be closely scrutinized. [Parker v. Railroad, 44 Mo. 415.] It is now the uniform doctrine that any combination at public or private sale, having the effect of preventing competition in bidding, is against the policy of the law and void. In the case of Wooton v. Hinkle, 20 Mo. 290,'a sale was set aside, because there was an agreement among several persons, that one of the number should bid off the land, and the others should refrain from bidding, and then it should be divided between them. [See also Hook v. Turner, 22 Mo. 333.]”

It does not help the plaintiffs to say that the transaction out of which they are trying to develop their remedy is a fraudulent one, and that therefore the defendants must be content to be meat for any beast of prey that chooses to make a meal off them. One cannot read the petition and 'decree without the impression that it was intended to be framed upon the theory 'of constructive notice of the attachments by the filing of the abstracts, and that these attachments of this land were notice of the claim that the title of Mrs. Rettke was affected by the fraud charged generally in the affidavit. The fact that the defendants overlooked or misapprehended these things would not outlaw them. In fact, were they in the penitentiary for crimes growing out of the same fraud, the circumstance would not justify this court in abating its watchfulness to make sure that any litigant seeking the aid of its equity powers to extinguish their interests came with clean hands and a worthy cause. We are of the opinion that could we consider this petition as a bill to remove the cloud of the Wyble claim from a title acquired by plaintiffs through the execution sale, it contains no equity, and the decree necessarily entered upon that theory is therefore erroneous. We do not think that, should it turn out that a deed was executed by the sheriff in pursuance of his sale to Landau, the circumstance, under the facts of this case, would stand in the way of a proceeding of the nature contemplated by section 2344, Revised Statutes 1909, to charge the judgment debts described in the petition against the land in question.

• The judgment of the circuit court is reversed, and the cause remanded for further proceedings in accordance with this opinion, with leave to the parties to amend their respective pleadings in accordance with the rules of law applicable in such cases should they be so advised.

PER CURIAM. — This cause coming into Banc on a dissent is reheard there;

with the result that Wood-son, Brown and Walker, JJ., concur in the divisional opinion of Brown, C.; Faris, J., and Lamm, C. J., concur in result only; Graves and Bond, JJ., dissent.