author: GRAVES, P. J.

text:
    COMMON SENSE MINING COMPANY, Appellant, v. H. L. TAYLOR et al.
    Division One,
    December 24, 1912.
    1. CORPORATION: Debts: Sale of Assets. The directors of a corporation in failing circumstances have the legal right to sell its assets to pay its debts.
    2. -: Knowledge of President: Estoppel. Knowledge of the corporation’s president is the knowledge of the corporation itself, unless there is fraudulent conduct upon the part of such officer participated in by those claiming under the disputed contract.
    3. -: Contract of Sale of Mining Lease: At Special Meeting: No Notice to Directors: Estoppel. A corporation, in embarrassing circumstances, with no available means to pay its debts, which, by a contract, valid on its face and purporting to be signed by authority of its board of directors, executed at a special meeting of its directors, for which no notice had been given and from which a minority were absent, sells its mining lease and machinery to an individual in consideration that he pay its debts within ten days, with a provision in the contract for an extension, and extended for another ten days,- by its president on being informed- that defendants would purchase if such extension were made, and within that time assigned by the purchaser to said defendants, who, w;ith no knowledge, that notice of the special meeting had not been given,, through such purchaser, with the company’s knowledge and acquiescence, pay all the company’s debts, enter into possession, and continue to-operate the mine and spend large sums of money in improving it, is estopped to deny that said contract was not authorized by its board of directors at a legal meeting.
    4. -: Estoppel: Ratification: Enjoyment of Fruits. A corporation is estopped to deny the validity of a contract unauthorized by its board of directors, by a resolution thereafter attempting to rescind it and declaring it rescinded for the failure of the other party to perform, and by accepting the full measure of the consideration inducing its execution.
    5.-: Estoppel: Unauthorized Contract: Fully Performed. A corporation is estopped to assert the invalidity of a contract, which is not ultra viren, but only voidable because not authorized by its board of directors, and which has been fully performed, while it stood by and, with knowledge and without objection, saw thousands of dollars spent on the faith of its validity, by an assignee who had no knowledge*of its infirmity.
    6. -:-: Notice of Directors’ Meeting: innocent Third Parties. Failure to give notice of a directors’ meeting cannot be set up by the corporation to defeat the rights of the assignee of the other party to the contract which recites it was authorized by its board of directors, said assignee being without knowledge of the irregularity or illegality in the directors’ meeting.
    7. -: Ratification: By Silence. A contract within the scope of the charter powers of a corporation, having no other infirmity than the failure of the board of directors to authorize it, and known by them to have been executed by its president in its behalf, will be presumed to have been ratified by them,, unless repudiated within a reasonable time.
    Appeal from Jasper Circuit Court. — Hon. Hugh Dabbs, Judge.
    AFFIRMED.

      Charles H. Winston for appellant.
    (1) Inasmuch, as plaintiff’s by-laws provide that the board of directors shall have management and control of the business of the corporation, and shall meet on the second Tuesday of each month and at such other times -as the board may, by resolution, direct, and as said by-laws provide that no officer. or employee of the company shall have power to bind the company by contract without the express authority of the board of directors, and as the board of directors did not by resolution or otherwise direct a meeting of the board to be held on April 18, 1906, and as only the five directors who attended were notified of that meeting, and the other two directors, Yan Dorp and Braucher, were not notified and did not attend, the so-called contract of those five directors and Taylor pleaded by defendants is not the contract of plaintiff, nor is it binding on -plaintiff. The pretended contract pleaded by defendants was not and could not be made or authorized by the board of directors at that pretended meeting. Hill v. Mining Co., 119 Mo. 29; Coal Co. v. Watson, 107 Mo. App. 451. (2) The telegram was sent by Sanderson without authority of the board of directors. There was no meeting of the board of directors in reference to it. There was no extension of the contract, even if such contract ever existed.. The directors themselves could not extend it without, assembling and holding a meeting of the board as. such. Hill v. Mining Co., 119 Mo. 9. (3) There is no estoppel barring plaintiff’s recovery in this action-Steel v. St. Louis S. & R. Co., 106 H. S. 447; Gray v. Gray, 83 Mo. 106; Curtis'v. Browne, 63 Mo. App. 431; Galbraith v. Newton, 30 Mo. App. 380; Blodgett v. Perry, 97 Mo. 263; Douglas v. Cissna, 7 Mo. App. 44; Taylor v. Zepp, 14 Mo. 482; Terrill v. Bouleware, 24. Mo. 254; Burke v. Adams, 80 Mo. 504; Newman v. Hook, 37 Mo. 207; Sutton v. Dameron, 100 Mo. 141; Bales v. Perry, 51 Mo. 449; Lumber Co. v. Kreeger, 52 Mo. App. 418; Railroad v. Apperson, 97 Mo. 300; ■ St. Louis v. Schulenburg Co., 98 Mo. 613; Stagg v. Linnenfelser, 59 Mo. 336; Austin v.- Loring, 63 Mo. 19; Bartlett v. Kander, 97 Mo. 356; Throckmorton v. Pence, 121 Mo. 50; State v. Branch, 151 Mo. 622; Gale v. Ins. Co., 33 Mo. App. 664; Smith-v. Roach, 59 Mo. App. 115; Smith v. McPike, 70 Mo. 175; State to use y. Berning, 74 Mo. 87; Nichols v. Bank, 55 Mo. App. 81. a. Because none is pleaded by defendants, whose answers aver a contract of purchase from plaintiff and performance by defendants. Golden v. Tyler, 180 Mo. 196; Carthage v. Carthage L. Co., 97 Mo. App. 20; McDonald v. DeSoto S. & B. Assn., 175 Mo. 250. b. Because both plaintiff and defendants had equal means of knowledge. Defendants knew the truth. Bales v. Perry, 51 Mo. 449; Blodgett v. Perry, 97 Mo. 263; Thompson v. Renoe, 12 Mo. 157; Olden v. Hendricks, 100 Mo. 533: Galbraith v. Newton, 30 Mo. App. 380; Taylor v. Zepp> 14 Mo. 482; Terrill v. Bouleware, 24 Mo. 254; Burke v. Adams, 80 Mo. 504; Douglas v. Cissna, 17 Mo. App. 44; Wurmser v. Frederick, 62 Mo. App. 634; Rosenkranz v. Swofford, 175 Mo. 518; Harrison v. McReynolds, 183 Mo. 533. (c). Because defendants were acquainted with the true character of •their own title or with the fact that they had none. ¡Steel v. St. L. S. & R. Co., 1.06 U. S. 447; Brant v. Coal ■& I. Co., 93 U. S. 327; Henshaw v. Bissell, 85 U. ¡S. 271; Bump v. Butter, 93 Fed. 300; Elliott v. Keith, 121 Ga. 121; Pointer v. Chapman, 8 Utah, 452; Houser v. Austin, 2 Idaho, 199. d. Because Moore and Bushnell and Taylor never intended to be, and were not, fair in the transactions. If they had intended to be fair, they would not have taken possession or operated the mine, till they got title or at least were sure of a valid and fair contract binding themselves as well as plaintiff. Electric Street S. Co. v. Mfg. Co., 125 Mo. 140; Wilson y. St. L. & W. R. Co., 120 Mo, 58; Cassidy v. Metcalf, 1 Mo. App. 593; 66 Mo. 519; Southworth v. Hopkins, 11 Mo. 331; Hoílmann v. Conlon, 143 Mo. 369. e. Because no man is entitled to the aid of a •court of equity when that aid becomes necessary by Ms fault. If the defendants had promptly within time have paid the claims as listed and then taken the papers held by the Conqueror Trust Company, such aid as they now ask would not have been necessary. It was their neglect or fraud by which those claims were left unpaid. State v. Potter, 63 Mo. 212; Quinlan v. Keiser, 66 Mo. 605; Hollmann v. Conlon, 143 Mo. 383. f. Because Moore and Bushnell as well as Taylor, were wrongfully defrauding plaintiff and they authorized all that Taylor did in wasting and injuring plaintiff’s premises, and in the discounting of the bills listed to be paid and in the refusal and failure to pay same. Omnia praesumuntur in odium spolia toris. Pomeroy v. Benton, 57 Mo. 531, and 77 Mo. 64; Per-nean v. Whitford, 39 Mo. App. 311; State v. Alexander, 119 Mo. 447; State v. Potter, 9 Mo. 356. g. Because the secret oral agreement between Moore, and Bushnell and Taylor, whereby he was to receive a salary, management-, control and share of the property, and to make it profitable to Moore and Bushnell, was a fraud on the rights of plaintiff, whose agent he undertook to be in the proposed sale under his proposition to the five directors who entrusted him in the matter. Pomeroy v. Benton, 57 Mo. 531.

      Fred L. Williams for respondents.
    (1) The contract was binding upon the plaintiff. 1st. The contract itself duly signed by plaintiff’s president and attested by plaintiff’s secretary raises the presumption that it was with full authority from plaintiff and that the officers of plaintiff had the authority to execute the instrument. 3 Clark & Marshall on Private Corporations, par. 682, p. 2090. 2d. It was not necessary that the corporate seal of the plaintiff be placed upon said contract to make it legal or binding upon the plaintiff corporation. Buckley v. Briggs, 30 Mo. 452. Sec. 2993, R. S. 1909, provides that corporations may even contract by parol. 3d There is no evidence offered by plaintiff that Yan Dorp and Braucher, the other two directors of the corporation, did not have notice of the meeting, but on the other hand, Farquhar, the secretary of the plaintiff, testifies that Van Dorp was notified of the meeting by telephone. Sanderson testifies that Brau-cher was in Kansas City and present with the other directors when Taylor’s proposition was discussed. The legal presumption is that all directors were properly notified. Ins. Co. v. Holmes, 68 Mo. 601; Rutherford v. Hamilton, 97 Mo. 549; Pitman v. Lead & Zinc Co., 113 Mo. App. 518; 2 Thompson on Corporations (2 Ed.), par. 1144, p. 78. 4th. The board of directors of a corporation have power to sell or convey all the assets of a company in order to pay the debts of the company. 3 Clark & Marshall on Private Corporations,-par. 691 (c), pp. 2100', 2101, 2102; lb., par. 779 (a), p. 2362; 5 Thompson on Corporations (2 Ed.), par. 6138, p. 958; Hutchinson v. G-reen, 91 Mo. 367; Chew v. Ellingwood, 86 Mo. 273; Shockley v. Fisher, 75 Mo. 501; Descombes v. Wood, 91 Mo. 196; Foster v. Planing Mill Co., 92 Mo. 89; Bank v. Iron Co., 97 Mo. 44; Iiuse v. Ames, 104 Mo. 92. (2) Plaintiff is estopped to set up defense that the contract was without its authority and void. a. The contract was executed by proper officers of plaintiff, b. The presumption that defendants had a right to rely upon, and upon which they did rely, was that the officers of the company had power to. execute the contract, c. Defendants acting in good faith and upon said contract expended large sums of money on the property, to-wit, approximately $18,000 more than the ore sales from said property, d. The plaintiff received the benefits of said contract by having its debts paid. The estoppel of a corporation to annul an executed agreement, or one whose consideration it has received (which, though unauthorized, it not prohibited by law or its charter), is grounded on thé idea of preventing a fraud by the corporation on the party whom it had misled into the performance of the agreement. Smith v. Richardson, 77 Mo. App. 422; McLaughlin v. College, 20 Mo. App. 42; Bailey v. Trustees, 12 Mo. 174; 3 Clark & Marshall on Private Corporations, sec. 680, p. 2081; Tenney v. Lumber Co., 43 N. H. 343; Eraser v. Wright, 52 N. J. Eq. 825; Wire Co. v. Steel Co., 164 Ill. 149; Brown v. Wright, 25 Mo. App. 54. (3) The plaintiff corporation has ratified the contract. Preston v. Lead Co., 51 Mo. 43; Kiley v. Forsee, 57 Mo. 390; Bank v. Fricke, 75 Mo. 178; Holmes v. Board of Trade, 81 Mo. 137; Campbell v. Pope, 96 Mo. 468; Bank v. Bank, 107 Mo.-133; Lonham v. Hahn, 127 Mo. 439; Jones v. Williams, 139 Mo. 1; Moore v. Ins. Co., 56 Mo. 343; Field v. Inv. Co., 123 Mo. 603; -State v. Perkins, 90 Mo. 610. (4) Even though there be want of authority from directors to the president to make a contract, it does not render the contract void but only voidable. City v. Bank, 74 Mo. App. 365; Drug Co. v. Robinson, 81 Mo. 18; Field v. Inv. Co., 123 Mo. 603; Hill v. Mining Co., 119 Mo. 9; Ins. Co. v. Smith, 117 Mo. 261; Sparks v. Dispatch Trans. Co., 104 Mo. 531; Lysaght v. Stone Masons’ Assn.', 55 Mo. App. 547; Winscott v. Inv. Co., 63 Mo. App. 367; Grohmann v. Brown, 68 Mo. App. 630; Smith v. Richardson, 77 Mo. App. 432.
   GRAVES, P. J.

“Wherefore plaintiff prays judgment for the recovery of said premises, and $40,000 damages for unlawfully withholding the same from plaintiff, and the waste and injury aforesaid, and the rents and profits down to the time of assessing the same, and $2400 per month for monthly rents and profits from the rendition of judgment until possession is delivered to plaintiff, and costs,” etc.

In fact there was nothing small about plaintiff’s case but the result nisi, which was to the effect that plaintiff had no interest in the property and was entitled to no damages therefor; not only so, hut an affirmative decree that defendants Moore and Bushnell in good conscience were the owners of the property,. and were so decreed it.

The case made and tried nisi is well indicated by the answer and the reply. The answer of Taylor, omitting from a contract pleaded the schedule of debts and machinery, is:

“Now in this day comes defendant H. L. Taylor and for his separate amended answer to plaintiff’s petition herein, denies each and every allegation therein contained, except such as are hereinafter expressly admitted.
“And for further separate answer this defendant says that on or about the 18th day of April, A. D. 1906, plaintiff was in possession, claiming to be the owner of a certain mining lease, granting to plaintiff the right to mine and use certain mining machinery belonging to New York & St. Louis Mining and Milling Company, on a certain tract of land situate in the county of Jasper and State of Missouri,, and described as follows, to-wit: The east one-half of the forty acres known as the ‘Royal Lease’ more particularly described as follows: The east one-half of the southwest quarter of the northeast quarter of section thirty-three, township twenty-eight, range thirty-two. Said lease being for a term ending January 1, 1912, with an extension provided for a further term ending January 1, 1916. And that said plaintiff was in possession of and claimed to be the owner of certain other machinery, tools and supplies located on said lease and •other accounts, credits and assets located in Jasper •county, Missouri; that plaintiff then and there being •embarrassed by accounts unpaid and debts contracted in running and operating said mining lease and machinery, amounting to approximately $3800, and having no money or means with which to pay the same, and being desirous then and there of having said indebtedness liquidated, as a means thereto and providing therefor, plaintiff agreed to sell, assign and transfer all of its property and assets in Jasper county, Missouri, to this defendant for and in consideration of the sum of one dollar and the assumption by this defendant of the aforesaid mentioned debts and indebtedness, and this defendant agreed to purchase the same on the terms and for the consideration aforesaid, and thereupon an agreement in writing was made and entered into by and between the plaintiff and this defendant herein, being in words and figures as follows, to-wit:
“ ‘Know all men by these presents: That the Common Sense Mining & Milling Company, a corporation of the State of Missouri, party of the first part and H. L. Taylor, of Joplin, Missouri, party of the second part, witnesseth:
“ ‘That the said first party, for and in consideration of one dollar and the assumption and payment by the said second party of all debts of said first party amounting to about $3800, a schedule whereof is hereto attached and made a part hereof.
“ ‘The said first party hereby agrees to sell and assign to said second party or to his assigns all the property of said first party being situate in the county of Jasper, Missouri, to-wit: Lease on twenty acres of mineral ground belonging to B. F. Horton and Luck K. Smith., more particularly described in the lease to one Coburn, of record in said Jasper county,, and released to the New York and St. Louis Mining & Metal Co., and in lease executed by said Horton and Smith to the said first party dated the — day of January, 1906, and recorded in Book —, at page —, in the office of the recorder of deeds for said Jasper county, at Carthage, Mo., together with all machinery, tools and supplies at the mines, accounts and credits, an inventory whereof is hereto attached and made a part hereof.
“ ‘The said second party accepts said property with the understanding that this is in full and complete payment and discharge of all claims or debts against or due by said first party contained in the schedule hereto attached or any other just and legitimate claim not scheduled, but inadvertently omitted therefrom.
“ ‘That the sale and assignment herein provided shall be concluded and fully executed within ten days-from the date hereof and that in the meantime till such consummation said second party to have care and custody of said property, to be relinquished at the expiration hereof should this conveyance not be followed by deed as herein contemplated.
“ ‘In Witness Whereof, the said parties have hereunto subscribed their names and affixed their seals. The said first party, its corporate seal affixed by authority of its board of directors, and the said second party his scroll seal. This 19th day of April, 1906.
“Common Sense Mining & Milling Co.
“Gr. A. SaNdehsoN, President.
“II. L. Tayloe (Seal).
a i
Attest:
“ ‘J. A. Farquhar,
Secretary. ’
“(Schedule of debts and machinery omitted)
“That afterwards and on, to-wit, the 27th day of April, 1906, it was agreed by and between the plaintiff and this defendant that said above mentioned contract he and the same was then and thereby extended for a further period of ten days.
“This defendant states that relying on the promises and agreements made by said plaintiff in said written contract and the extension thereof he proceeded at much cost and expense to himself in both time and money to induce capital to invest in said property. That he did, within the time mentioned in said contract and the extension thereto, induce F. W. Moore and J. W. Bushnell of the city of East St. Louis, Illinois, to purchase said property in said contract mentioned and to pay therefor a sum of money sufficient to pay off and discharge the obligations of said plaintiff in manner and form as provided in said contract and the extension thereof. That in order to induce the said F. W. Moore and J. W. Bushnell to purchase said property aforesaid and to pay therefor the amount of money sufficient to discharge the obligations of the said plaintiff as aforesaid, it became necessary for this defendant to and he did exhibit to them the aforsaid contract and acquaint them of the provisions thereof, and promise and agree with them to continue in control of and assume the active management of the mining property mentioned in said contract, under an agreement with said F. W. Moore and J. W: Bushnell that they would give him in consideration of his future management of said property a contingent one-third interest therein, and they to retain a two-thirds interest therein, but that this defendant should not have nor receive any dividends from said property until the said property should pay to the said F. W. Moore and J. W. Bushnell the moneys expended by them in the purchase of said property in paying off said claims as aforesaid, and that the moneys to be expended by them in the improvements and operation of said property, and until the property was put on a paying basis.
“This defendant further states that he complied in full with all the conditions of said contract of purchase to be by him performed and in the time and manner thereby provided; that he paid, assumed and discharged all of the aforesaid debts in the manner provided in said contract and that this defendant did in all things • perform and fully comply with all the terms and conditions in said contract by him to be performed.
“That this defendant then and there notified plaintiff that he had secured parties to take over said property and pay the indebtedness of said plaintiff and that he had fully complied with all the terms and conditions of said contract by him to be performed, and offered and tendered to plaintiff receipted bills for all of said indebtedness and then and there requested plaintiff to execute and deliver to him good and sufficient conveyance of all its property aforesaid.
“That this defendant, relying on the promises and agreement of said plaintiff in said contract contained and by virtue of said contract and in compliance with the aforesaid agreement with the said F. W. Moore and J. W. Bushnell, did, on or about the 4th day of May, A. D. 1906, begin the operation of said mining lease and machinery and to mine thereon in good faith and has continued to operate the same in good faith ever since and has expended large sums of money thereon, to-wit, the sum of approximately $16,012.54, in developing and improving said mining lease and mining property and the further sum of approximately $4375, in purchasing additional machinery and mining equipment for said property.
“This defendant further states that plaintiff has wholly failed to comply with the agreements and conditions of said contract on its part to be kept and performed, and lias failed and refused and still fails and. refuses, although many times so requested to do, to> execute and deliver to plaintiff good and sufficient conveyance to all of its said property aforesaid or any part thereof.
“Wherefore this defendant prays a decree that plaintiff he directed to convey by good and proper-conveyance all of the aforesaid property to he in this defendant, and for such other and further relief as to the court may seem meet and proper.”

Defendants Moore and Bnshnell pleaded the same contract, and allege that after seeing the contract and an extension thereof, and making inquiry as to the property, they purchased the same from Taylor, relying upon such contract. The additional material portions of their answer being:

“And the said H. L. Taylor acquainted them with the provisions of said contract and extension thereof, and described to them the location of the property therein described and the approximate amount of the' debts against the said Common Sense Mining & Milling Company and importuned them and each of them, to purchase said property. These defendants then, and there agreed with the said defendant H. L, Taylor, to purchase said property upon the terms mentioned in said contract and extensions thereof, provided that said defendant IT. L. Taylor, would agree’ to enter into the active control and management of said property and the operation thereof, these defendants then and there agreeing with said H. L. Taylor that in consideration of his entering into said active control and management of said property and the operation thereof and his services thereby to be rendered to give him a contingent interest in and to said property.
.“Defendants further state that they proposed that he should and the said H. L. Taylor agreed to actively and personally manage and operate said property and out of any and all proceeds from said property these defendants were to receive:
“1st. Any and all moneys which they expended in the purchase of said property and in its improvement and operation and that relying npon the good faith of the said Common Sense Mining & Milling Company, and npon its agreements in the aforesaid contract contained, and extension thereof, these defendants purchased said property and paid to said H. L. Taylor a snm sufficient to pay off and discharge all of the debts and obligations of the said Common Sense Mining & Milling Company, as provided in said contract, and directed him to proceed at once to pay off and discharge the obligations and debts in said contract and extensions thereof mentioned. And that said H. L. Taylpr forthwith and in the time and manner provided within said contract and extension thereof paid off and discharged all of the debts and obligations of plaintiff in said contract mentioned.
“Defendants further state that, relying npon the good faith of the plaintiff and npon its promises made in said contract and extension thereof, they did on or about the 4th day of May, 1906, authorize, empower and direct the said H. L. Taylor to enter into the active control, management and operation of said mine and property; that the said H. L. Taylor did, on said last-mentioned date, by virtue of the said contract and extensions thereof, between plaintiff and himself, and in conformity with these defendants’ directions and agreement, begin to operate and manage said property and mining lease and that he has, from that day to the present time, continued to operate and manage the same in good faith.
“The defendants further state, relying upon the good faith of the plaintiff and upon the promise made in the aforesaid contract and extension, that they have, since said 4th day of May, 1906, and up to the present time, expended necessarily in the development and improvement of said property and mine under said management and operation approximately the snm of $17,000, and that these defendants have expended the further sum of approximately $5000 in purchasing machinery and-mining equipment for said property and mining lease. That all of said amounts have been expended necessarily and in good faith and for the purpose of the betterment of said property ,and mining lease.
‘‘The defendants further state that the said H. L. Taylor did, on or about the 4th day of May, A. D. 1906, notify the said plaintiff that he had sold said property and mining lease and that he had paid off and discharged the obligations of said plaintiff as mentioned in said contract and extension, and then and there requested said plaintiff to execute and deliver to him a good and sufficient conveyance of all of said property mentioned in said contract and that said plaintiff then and there failed and refused and still fails and refuses, although many times requested so to do, to execute and deliver to said Ií. L. Taylor a good and sufficient conveyance to all of said property aforesaid or any part thereof.
“Wherefore these defendants pray a decree that plaintiff he directed to convey by good and proper conveyance the aforesaid mining lease and property to the defendant H. L. Taylor so that the same may he properly and justly adjusted between said H. L. Taylor and these defendants, or that the title of the aforesaid mining lease and property he vested in these defendants and divested from plaintiff, and for such other and further relief as to the court may seem meet and proper.”

The reply covers 20 large closely printed pages. It charges bad conduct upon the part of Taylor in selling the company some electric drills and machinery long prior to the contract. It charges that Taylor whilst installing the machinery and drills discovered that the mine was a good one and conceived the idea of beating plaintiff out of it. It charges that the contract signed by its president and secretary was not in fact the contract agreed upon with Taylor. It charges so many things that we shall not go furthter at this time than to add that plaintiff’s chief charge and contention is that there was no legal meeting of its board of directors at the time the contract was ordered executed, and hence the contract made by its president and secretary was void. This sufficiently outlines the pleadings.

The trial judge made some findings of fact in his judgment, thus:

“This cause coming on foT hearing on this 29th day of June, 1907, the parties to this cause, both plaintiff and defendant, appear by their respective counsel of record, and no party, plaintiff or defendants, requesting or asking a jury, all the parties to said cause waiving a jury, the cause is submitted to the court upon the pleadings and evidence for final determination and judgment. The court finds the allegations of plaintiff’s petition charging ‘that plaintiff was entitled to the possession of the following described premises, situate in the county of Jasper and State of Missouri, to-wit: The east one-half of the southwest quarter of the northeast quarter, of section thirty-three, township twenty-eight, range thirty-two, and being so entitled to the possession thereof that the defendant TI. L. Taylor afterwards, on the 19th day of April, A. D. 1906, entered into such premises, and unlawfully withholds from plaintiff the possession thereof,’ is not, upon consideration of the evidence, sustained, and therefore finds against plaintiff as to and upon, said allegations of fact. The court further finds that the charges made in the petition of waste and damage occasioned by the defendant H. L. Taylor, to plaintiff’s injury, are not sustained upon consideration of the evidence and finds against plaintiff as tp and upon said allegations of fact. The court further finds that the allegations of the answer of the defendants E. W. Moore and J. W. Bushnell as to the execution of the contract, set out in said answer under date of April 19,1906, are true. That by the terms of said contract, the plaintiff purported to contract and agree for and in consideration of one dollar and the assumption and payment by the defendant H. L. Taylor of all debts of the plaintiff, amounting to about $3800, to convey to said defendant Taylor, or to his assigns, the property in controversy in this suit; that said contract was ordered by plaintiff at a special meeting of the hoard of directors at which said meeting more than a majority of said board', to-wit, five, were present, and two were absent; that notice of said special meeting was not given as provided by the by-laws of plaintiff; that said contract was executed and signed by plaintiff by its president, attested by plaintiff’s secretary, as ordered by said hoard of directors at said meeting. That upon the execution of said contract (the same having been by plaintiff signed and delivered to the defendant Taylor) possession of the premises in controversy was under said contract turned over by plaintiff to the defendant, H. L. Taylor, who thereupon held the same in good faith and so complied, while so holding, with the said contract of purchase, and complied with all the conditions of the lease to him transferred by plaintiff by the said contract. That in order to carry out and perform the obligations qn his part under said contract, executed as' aforesaid, and in order to procure adequate funds to pay and discharge the obligations of plaintiff in said contract, mentioned, the defendant H. L. Taylor, contracted to and did assign to the defendants F. "VV. Moore and J. W. Bushnell all his right, title and interest in the property in controversy, the said Moore and Bushnell having no knowledge of the want of notice given at the special meeting aforesaid and acting in good faith and relying on said contract and believing the same to be authorized by plaintiff; that at the time of entering into said contract with the said H. L. Taylor, the plaintiff was in embarrassed circumstances, financially, and in an insolvent condition, and without credit, means or funds wherewith to pay its divers obligations and debts, many of which were past due and were being pressed for collection; that plaintiff, with full knowledge of the terms of said contract and knowledge of the facts that H. L. Taylor had assigned the same to ■ obtain funds for the purpose therein mentioned, stood by in silence, while the defendants Moore and Bushnell in good faith, relying upon said contract, and upon the right of assignment thereunder, did discharge all of said indebtedness of plaintiff as stipulated in said contract, so that, of said indebtedness, nothing remains, and thereby ■ plaintiff was and is forever released and discharged of all of its said debts. The court finds that defendants F. W. Moore and J. W. Bushnell, having entered upon the premises in controversy as assignees of the defendant H. L. Taylor, under said contract, have in good faith, necessarily and for the preservation and betterment of said property and mining lease, expended a large sum of money, to-wit, about eighteen thousand dollars above the receipts of said mine and lease, whereby said property was and is developed and rendered more valuable and increased in value to said amount and more. The court finds that plaintiff having had and obtained the benefit of the funds and labor of defendants, commenced their action herein without tendering or offering to the defendants to refund or repay any of the moneys paid in discharge of plaintiff’s debts, to plaintiff’s advantage, and with its knowledge and acquiescence under and in recognition of the contract aforesaid. The court finds that the defendant H. L. Taylor and Ms assignees, the defendants F. W. Moore and J. W. Bnshnell, have complied with the conditions of said contract upon their part, and having so complied have demanded the conveyance of the property in controversy in accordance with the terms of said contract by plaintiff, and although said demand has often been made the plaintiff has neglected, failed and refused to make and deliver such conveyance.
“The court further finds that the plaintiff has not, since this action has been pending, reimbursed or offered to reimburse or pay to the- defendants Moore and Bushnell the sums of money paid, in good faith, to the plaintiff’s benefit and the release and discharge of the plaintiff’s debts, as provided in said contract and to pay the defendants the amount necessarily paid in good faith by them for and toward the development, betterment and preservation of said property and lease, and that the plaintiff, although pending the trial of this cause was given an opportunity-and reasonable time in which so to do, has failed, neglected and refused to pay the debts paid on its account aforesaid, or pay the sums expended by said defendants for the preservation of the property and lease, aforesaid, or to pay any part of either. The court further finds that the defendants F. W. Moore and J. "W". Bushnell are the assignees of the defendant H. L. Taylor, to all the right, title, interest and claim of said Taylor and of all the right, title, interest and claim of the plaintiff in and to the property in controversy, and that the plaintiff, with full knowledge of the facts, has accepted, received and enjoyed all the benefits to it reserved and provided by said contract with defendant Taylor, but fails and refuses to perform said contract on its part. The court further finds that the plaintiff by its acts and conduct ratified said contract and is estopped to deny said F. W. Moore ■and J. W. Bushnell the ownership of the property in controversy, and estopped to assert or claim that the said contract was or is void. It is therefore ordered,, adjudged and decreed, by the court.
“First: That the plaintiff take nothing by its action herein against the defendant TI. L. Taylor, and that said defendant have judgment for his costs herein expended.
“Second: That the plaintiff take nothing by its. action herein against the defendants F. W. Moore and J. W. Bushnell or from either of them.
“Third: That all right, title, claim or interest of the plaintiff in or to the property described in plaintiff’s petition, hereinbefore set out, as well as all right, title, claim or interest. in and to the personal property in said contract mentioned, to-wit: Hoisting engine and connections, Westinghouse motor, Westinghouse generators, transformers, switchboard and connections, blower engine and blower, tubs, cars, rails and cables, tools of all kinds and descriptions, electric drills, columns, tripods and steel, oil supplies in oil house, telephones, steam pipe and connections used underground and belting, be divested out of plaintiff, and the same is hereby so divested, and that all said right, title and interest in and to all of said property be and the same is hereby vested in defendants F. W. Moore and J. W. Bushnell, and the same is-hereby so in them vested. That plaintiff be and hereby is forever estopped as against said defendants, from claiming any right, title or interest in or to said property or any part thereof.
“Fourth: That plaintiff be taxed with the costs, of this suit and that execution issue therefor.”

Other material matters will be Uoted in the course of the opinion.

I. Upon the whole the evidence justifies the findings of the trial court. The court finds that only five of the seven directors were present when the contract. of April 19th was ordered. The court also finds that there was no notice as provided by the corporation charter to the two absent directors. There is some ■evidence tending to show that these two directors did in fact have notice of the meeting of the directors at which this contract was ordered, but we shall accept the finding of the court, nisi, upon this question, and discuss the case from that standpoint, for in our view of the law, that point may be conceded, and yet the -decree nisi sustained. It is clear from the evidence that the plaintiff corporation was badly in debt, with no available means of meeting the debts, and its directors and officers were anxious to make some disposition of its property, i. e., the lease and machinery, in order to get out of debt. It is also clear that defendants Moore and Bushnell acted in good faith and without any knowledge of the alleged defect in the contract of date April 19. They furnished the money to pay plaintiff’s debts in the utmost good faith relying upon the contract, and they took possession of the mine in good faith, and thereafter spent large sums of money thereon in the same good faith. This, however, comes more properly in the discussion of the real question in the case.

II. The trial court found that the plaintiff was estopped from denying the validity of this contract, and we think under the evidence and law, such was a proper finding.

Within' the ten days prescribed by the contract Taylor notified the president of the plaintiff corporation that he thought he had a party who would buy the property, referring to defendants Moore and Bushnell, though not mentioning them. He asked for an extension of ten days, and the president of plaintiff by wire granted the extension. The original contract .and this wire were presented to Moore and Bushnell and upon the strength of them they purchased and took possession. The corporation being in failing circumstances tbe directors bad the legal right to dispose of its assets to pay its debts.

The contract of April 19, was valid upon its face, and carried with it the presumption that it was duly authorized. In fact it recited that it was fully authorized by the directors of the plaintiff corporation. Not only so, but it was recognized as a valid contract,, when later the officers duly executed and placed in escrow an assignment of the lease and other property of the plaintiff.

But in addition to this on September 25, following, the corporation, through its directors fully recognized the contract of April 19, by passing a resolution to rescind the contract. That resolution as offered by the plaintiff reads: “And be it further resolved that the contract between said company and H. L. Taylor bearing date 18th day of April 1906, be and is hereby rescinded and annulled.”

• On the same day in a letter to the Conqueror Trust Co. of Joplin, Missouri, the company which held the assignment mentioned supra in escrow, the reason for the attempted rescinding of the contract is thus set forth by the plaintiff company.

“You are hereby further notified that H. L. Taylor for whom said written documents were deposited in escrow in your custody by said company has wholly failed to perform his contract with said company and that said Common Sense Mining & Milling Company has rescinded and annulled said contract.”

It will be observed that throughout the plaintiff acted in full recognition of the contract, but tried to rescind it upon the ground that its terms had not been complied with by Taylor or his assignees. The trial court under the evidence found that there had been a, compliance with the contract, and that the contract had been fully performed by Taylor and his assignees Moore and Bushnell. This finding is fully justified by.the evidence. In fact the conrt conld not be justified had it fonnd otherwise npon this point. -Going more direct to the question of estoppel. The knowledge of plaintiff’s president is the knowledge of plaintiff itself. This is elemental, and 'the only possible exception would be 'where there was fraudulent conduct upon the part of such officer participated in by defendants, and which exception is not borne out by this record.

Under the proof plaintiff knew that its debts were being paid by Taylor.and his assignees. It knew that defendants were operating the mine and improving it at their own great expense. It knew that all this was being done in good faith under this contract to convey. It accepted the full fruits of the contract without complaint or murmur, and after its debts had been fully paid by Moore and Bushnell, and after they had expended some $18,000 in betterments of the property, and after five long months of delay, the plaintiff finally concludes its contract was never legally made, and brings this suit to recover the property, all the betterments, as well as damages for ore taken out. A bare statement of the facts makes the case smack of fraud and inequity. It does not appeal to our better sense of justice and right. No offer to place defendants in statu quo. No offer to do equity, although the trial judge recites that opportunity was given plaintiff to make such offer. On the other hand, plaintiff stands mute throughout, demanding its former property with all betterments, and most graciously accepting nearly four thousand dollars of its debts which were paid by the defendants. If any law can be found to throttle such a monstrosity it should be found, and we think the trial court found it, when in its judgment it declared that the plaintiff by its own acts was estopped to deny the contract.

The plaintiff should be estopped on the ground of preventing a fraud by the corporation on Moore and Bushnell, the real parties defendant, whom it had misled into the full performance of the agreement.

In Smith v. Richardson, 77 Mo. App; l. c. 430, BoND, J., clearly states the legal principle involved in this case. His remarks are so pointed and well worded that we quote at some length, rather than undertake a formulation of the rule ourselves:

“In determining the obligation of a private corporation for acts commonly termed ultra vires, an important distinction, noted in every well reasoned case, is sometimes overlooked. No corporation can hind itself or its stockholders by a contract expressly prohibited by its charter, by a statute, or by the general law. Such contracts are strictly ultra vires and create no obligation as far as they are executory, although the consideration therefor may have been received and enjoyed by the corporation. On the other hand, an act or contract merely in excess of the power granted to .corporations, but which is not expressly forbidden either by its charter or the general law of the State, although lacking affirmative authority for its performance on account of the silence, on that subject, of its charter or the general law, may yet, if the contract has been executed by the other party and its consideration received by the corporation, bind the latter on the principle of estoppel so that it could not be annulled by the corporation without a return of the consideration received by it. Contracts of this kind are not in the strict sense of the term ultra vires. They are only unauthorized acts of corporations, and not being void, but only voidable, the option to avoid them is lost if they have been wholly executed or executed by the adverse party. [Thompson Con., sec. 6016 el seq.] The reason a contract strictly ultra vires as above - defined, can never be enforced while anything remains to be done thereunder, is that a corporation deriving all its power to act from its constraining articles and the general law can make no lawful contract in violation of the positive edicts of either. On the other hand, the estoppel of a corporation to annul an executed agreement or one whose consideration it has received (which though unauthorized, is not prohibited by law or its charter), is grounded oil the idea of preventing a fraud by the corporation on the party whom it had misled into the performance of the agreement. A careful view of the controlling decisions will fully sustain this distinction between the enforcible and the nonenforeible acts of private corporations.”

At page 432 he further says: “This contract was fully performed by both parties — the corporation got the delay of one year, and the holder of the note received the collateral. Having had the benefit of its agreement — the nature of which is such that it cannot be restored — the corporation now seeks to recover what it gave while retaining what it received. Upon the plainest principles of justice this cannot be done under a contract which, like the one in question, does not violate the provisions of its charter or the general law. That the contract of the president of the association was unauthorized by its board of directors and unratified by them as a body, may be conceded. This at most rendered it voidable only, not an absolute nullity. No steps having been taken to avoid the agreement prior to its full performance .by both parties, it is too late for such action now.”

So in the case at bar. The contract made with Taylor was not void, but only voidable. It was not a contract ultra vires, but at most under plaintiff’s contention, a contract which the corporation could make, but which it did not make on account of no authority given to the president to make it. This corporation stood by and saw this alleged voidable contract fully performed. It was performed with the full knowledge of its officers. Not only so, but it stood by and saw thousands of dollars expended on the property upon the strength of the contract.- Such conduct clearly es-tops it from denying the validity of the contract, and the trial court was right in decreeing that the title of the property was in Moore and Bushnell.

Judge Thompson, in 10 Cyc. 1065, says: “Subject to exceptions in the case of municipal or governmental corporations, which are held to a strict exercise of their powers, the general rule is that corporations quite as much as individuals are held to a careful adherence to truth in their dealings with mankind, and cannot by representations or by silence involve others in onerous engagements and then defeat the just expectations which their conduct has superin-duced. A round statement of this doctrine is that es-toppels in pais' operate against corporations in like manner as against natural persons.”

And further discussing the doctrine of .estoppel as applicable to corporations, at page 1066 of the same volume he says: “As more fully explained later the same principle validates the voidable acts of corporations, on the theory of a ratification by the acquiescence of all the shareholders; so that after a long delay in which time other rights have supervened or expectations have been founded, upon the faith of an existing state of facts, the shareholders will be precluded from maintaining actions in equity to undo what has been done by the directors or officers without their authority.”

The same writer in his work on Corporations— 2 Thompson on Corporations (2 Ed.), section 1960, page 1048 — says: “In the law of agency there is a rule that if one accepts the benefits of an unauthorized contract made in his behalf by another, he is bound by its terms the same as if he had entered into the contract in person or had expressly ratified it; provided of course that he had full knowledge of all the. facts, and he is thereby estopped from repudiating the contract without restoring the benefits and putting the other party in statu qtio. This principle is applicable, in its fullest sense, to corporations, which, from their nature, can act only through the instrumentality of agents. If, therefore, an officer of a corporation, or other person, assuming to have power to bind the corporation by a given contract, enters into the ■contract for the corporation, and the .corporation receives the fruits of the contract, and retains them after acquiring knowledge of the circumstances attending the making of the contract, it will thereby become estopped from afterwards rescinding or undoing the contract. In qther words, by retaining the fruits of the unauthorized contract with knowledge of the circumstances which entitle it to its election either to affirm or disaffirm it, the corporation ratifies the contract and makes it good by adoption.”

In the same volume at page 1056, it is further said: “It is not strictly necessary to the proper application of the principle of estoppel that the corporation should have received a benefit from the contract but it is sufficient that the other party has acted on the faith of it to his disadvantage — as where he has expended money on the faith of it. The reason of the rule is that honesty and fair dealing are the highest public policy, and that a private corporation, which is a mere collection of individuals, is no more privileged to repudiate its engagements and act dishonestly than a single individual is.”

In 3 Clark & Marshall on Private Corporations, Sec. 680, p. 2084, it is said: “Failure to give notice of a directors’ meeting cannot be set up to defeat the rights of innocent third persons dealing with the corporation, for they have a right to assume that the meeting was regular.”

And in Sec. 682, p. 2090, of the same volume it is said: “As a rule, illegality or irregularity in a directors’ meeting cannot be set up to defeat the rights of innocent third persons dealing with the corporation, for, in the absence of notice to the contrary,, they have a right to assume that the proceedings were legal and regular- — that notice was given, that a quorum was present, that the meeting was called in the mode prescribed by the charter or by-laws, etc.”

In the case at bar the contract recited that it was made by authority of the board of directors. The real defendants were innocent third parties. In the face of this recitation in the contract, and under the law, the corporation should be estopped from denying the validity of this contract.

III. Indeed the trial court might have well put his decree upon the doctrine of ratification.

In 10 Cyc. 1073, the doctrine is thus stated: “Where the president of a corporation executes in its behalf, and within the scope of its charter, a contract which requires the concurrence of the board of directors, and the board, knowing .that he has done so, does not dissent within a reasonable time, it will be presumed to have ratified the act.”

The contract involved here was within the scope of the plaintiff’s charter. No contention is made to the contrary. Such act of the president and secretary in this case was known to the corporation through its directors for more than five months. Under the circumstances of this case that is a reasonable time in which to disown the act of the officers, even if such act was not fully authorized. This delay upon the part of the corporation amounts to acquiescing in and ratifying the unauthorized contract. We need not go further into other questions urged and- elaborately briefed.

The judgment nisi is a righteous one, and should be and is affirmed. All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    SIMCOE REALTY COMPANY, Appellant, v. WILLIAM J. LEMP BREWING COMPANY et al.
    Division One,
    December 24, 1912.
    APPEAL: Motion for New Trial: Omitted from Bill of Exceptions: Amendment in Circuit Court. Nothing is for consideration except the record proper, where appellant, after respondent had filed his brief asserting that the abstract shows no motion for a new trial and that no call for one appears in the bill of exceptions, appeared in the circuit court and, by leave, amended his bill of exceptions by inserting therein the motion for a new trial. A defective abstract or bill of exceptions cannot be cured in that way after respondent has filed his brief raising the point.
    Appeal from Jackson Circuit Court. — Hon. W. 0. Thomas, Judge.
    Aeeirmed.

      Haff, Meservey, German & Michaels, 8. D. New-JtirTc and Edwards & Bryan for respondents.
    (1) No motion for a new trial is preserved in the bill of exceptions, nor is there a call for one; therefore, there is nothing but the record proper before the court. Sec. 2083, R. S. 1909; State v. Griffin, 98 Mo. 672; Arnold v. Boyer, 108 Mo. 310; Ryan v. Grow-ney, 125 Mo. 474; State v. Revely, 145 Mo. 660; Phillips v. Jones, 176 Mo. 328; State v. Herron, 199 Mo. 159; Blanchard v. Dorman, 236 Mo. 416; Rose v. Township Board, 163 Mo. 396; State v. Ruck, 194 Mo. 428; Plarding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Betzler v. James, 227 Mo. 387; Seaggs -v. Ins. Co., 94 Mo. App. 88; Walker v. Vaughn, 143 Mo. App. 657; Coy v. Landers, 146 Mo. App. 413; Pearson v. O’Connor, 151 Mo. App. 169; Woodward v. Ins. Co., 156 Mo. App. 244. (2) No error in the record proper is assigned, and there is no such error; therefore the judgment must he affirmed. Sec. 650, R. S. 1899; Snmmet v. Realty & Brokerage Co., 208 Mo. 501; Noble v. Brinson, 231 Mo. 640.

      New & Krauthoff and M. E. Winger for appellant.
    (1) The trial court had power to canse the bill of exceptions to be amended so that the same shall speak the truth and contain the motion for new trial. R. S. 1909, Sec. 2120; Darrier v. Darrier, 58 Mo. 233; Baker v. Railroad, 122 Mo. 546; Ross v. Railroad, 141 Mo. 393; State v. Libby, 203 Mo. 596; Altkoff v. Transit Co., 204 Mo. 172; Reed v. Colp, 213 Mo. 577. If it be true, as ruled in the cases, that it is the exception to the overruling of the motion for a new trial which gives the motion life and vitality for the purposes of appeal, and if the exception can be inserted in the bill of exceptions by way of amendment based on “some,paper in the case” why cannot the very document itself, which the exception thus preserves, be inserted? State v. Logan, 125 Mo. 22; Noble v. Brin-son, 231 Mo. 643. (2) The power to amend the bill of exceptions is continuous in its nature and not lost by lapse of time. Loring v. Groomer, 110 Mo. 639; Mill Co. v. Sugg, 142 Mo. 360; State v. Gordon, 196 Mo. 196. To say that this court cannot consider the amendment to the bill of exceptions because it appears for the first time in a supplemental abstract which was presented for filing on the day the case was set'for hearing is to read into the law of amendments a condition that such amendment cannot be had unless made prior to the time'fixed by the rules of the Supreme Court for the service of the abstract of the record. Baker v. Railroad, 122 Mo. 546; Ross v. Railroad, 141 Mo. 393.
   WOODSON, J.

This is an action in ejectment instituted in the circuit court of Jackson county by the plaintiff against the defendant, to recover the possession of the west five feet of lot one hundred and ■ eighty-seven in Boss & Scarritt’s Addition, an addition in Kansas City, Missouri.

The petition was in the usual form, and the answer admitted possession, sets'up the Statutes of Limitations as a bar and pleads an estoppel in pais, and asks that the rights and interest of the parties be ascertained and determined under the provisions of Sec. 2535, B. S. 1909, same as Sec. 650, B. S. 1899.

The reply was a g’eneral denial.

A trial was had and a judgment was rendered in favor of the defendants and the plaintiff appealed the cause to this court.

I. At the outset of this case, we are confronted with the contention of counsel for respondents, to quote: “No motion for a new trial is preserved in the bill of exceptions, nor is there a call for one; therefore, there is nothing but the record proper before the court.”

This contention is not controverted by counsel for appellant, but is conceded by counsel appearing in the circuit court of Jackson county and filing in the cause a motion to amend the bill of exceptions filed therein, by inserting in said bill the motion for a new trial, which motion, over the objections and exceptions of respondents, was by the court sustained.

After said amendment 'had been made, counsel for appellant presented to this court a certified copy of the record of said amendment and ask leave to file- the same in the cause, in this court, to which counsel for respondents object.

The motion to amend the bill of exceptions was filed in the circuit court of Jackson county, and all the subsequent procedures had thereon were had, after counsel for respondents filed their brief in this court, raising the point that no motion for a new trial had been preserved in the bill of exceptions.

Upon this showing it is apparent that the bill of exceptions, the proper repository of the motion for a new trial, is not only defective in that particular, but the abstract of the record filed in this court, under the statute and rules of this court, must be and is defective in that regard also.

That being true, according to the repeated rulings of this court, there is nothing before us for determination, except the record proper. [Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Betzler v. James, 227 Mo. 375; Blanchard v. Dorman, 236 Mo. 416.]

II. While counsel for appellant have assigned no error appearing upon the record proper, nevertheless, we have taken the precaution to examine it carefully, and by so doing we failed to find any.

Therefore, according to the following authorities, the judgment should be affirmed: Summet v. City Realty Co., 208 Mo. 501; Noble v. Brinson, 231 Mo. 640.

It is so ordered. All concur.


author: LAMM, J.

text:
    KATE SPINDLE v. LUCIUS D. HYDE and WALTER E. HYDE, Appellants.
    Division One,
    December 24, 1912.
    1. DECREE: Not Responsive to Pleadings: Alleging Faudulent Sheriff’s Sale: Invalid as Homestead. Where the petition charged that a sheriffs sale and deed of real estate to one brother belonging to another was fraudulent as contrivances between them to hinder and delay existing and subsequent creditors, a decree setting them aside on the sole ground (not pleaded and not tried) that the judgment debtor had a homestead in the land and was not notified of his exemption privilege by the sheriff, is not responsive to the pleadings and cannot stand.
    2.-:-: Fraud Ex Maleficio Pleaded: Equitable Mortgage Decreed. Where the bill charges that one brother fraudulently conveyed all his real estate to another, as trustee ex maleficio, to hold for him, in order that he might defeat and hinder his existing and subsequent creditors, a decree which in effect finds a valid mortgage arising out of an alleged contract between the two, and holds all the conveyances by the one to the other to be valid equitable mortgages, and, having stated an account, permits redemption from that mortgage by the grantee of the deeds, who had not asked to redeem, is not responsive to the pleadings. The bill sounds in tort and the decree in contract. The bill assails conveyances as fraudulent, and the decree affirms them as valid but construes them to constitute a blanket equitable mortgage.
    3. -:-: General Prayer. The rule that under the general prayer for relief a party may have any relief to which he may show himself entitled, is limited to relief founded on and consistent with the facts .set out in the bill, and not such as may be proven at the hearing.
    4. -:-: Quieting Title: Aided by Answer. An answer to plaintiff’s petition charging a fraudulent conveyance, .which is in no sense a cross-petition or cross-bill containing averments entitling defendants to have title defined, determined and decreed under the statute to quiet title, cannot be invoked in aid of plaintiff’s petition to the extent of authorizing a decree adjudging the conveyances to constitute a blanket equitable mortgage.
    5.-: -: Fraudulent Conveyances: Suit to Set Aside by Purchaser After Execution Sale. The better course, since it tends to prevent a sacrifice of the property, is for the judgment creditor to go into equity in the first instance to set aside the conveyances complained of as fraudulent or to open them up to let in the lien of the judgment (following Welch v. Mann, 193 Mo. 1. c. 326); but he can also first cause execution to issue under his judgment and buy the property at execution sale, and then go into equity to have the prior conveyances set aside as a consummated fraud standing in the way of his title, but in doing so he must be held to prove the cause of action stated in his bill. *

      Appeal from Chariton Circuit Court. — Hon. John P. Butter, Judge.
    REVERSED AND REMANDED.

      J. A. Collet and W. M. Williams for appellants.
    (1) The decree is not founded upon the,issues tendered by the petition and embraced within the pleadings. The suit is predicated upon the charge that the various conveyances by which Walter E. Hyde acquired the legal title were made to’ carry out a conspiracy to hinder, delay and defraud the creditors of his brother and co-defendant, Lucius D. Hyde, and that the land was to be fraudulently held in secret trust for said Lucius E>. Hyde, a party to said conspiracy. The decree is based upon the ground that Walter E. Hyde was an equitable mortgagee and his brother entitled to redeem the land, and that plaintiff succeeded to this right by her purchase at the sheriff’s sale. A decree in equity must be founded upon facts, embraced within the pleadings. Dallam v. Renshaw,. 26 Mo. 543; Needles v. Ford, 167 Mo. 495; Schnider v. Patton, 175 Mo. 684; St. Louis v. Contracting Co., 210-Mo. 491; Newton v. Kenton, 79 Mo. 382. (2) The land in controversy was conveyed to Walter E. Hyde, and he became the owner thereof, long prior to the marriage of the plaintiff to Lucius D. Llyde, and before any such marriage was contemplated or thought of, so far as is shown by this record. Not one of the existing creditors at the time of the conveyances, is complaining and a subsequent creditor cannot succeed on the ground of fraud without showing that the-transfers were made to hinder and delay future creditors. Krueger v. Yorhauer, 164 Mo. 156; Pane v. Stanton, 59 Mo. 158; Grocery Co. v. Smith, 74 Mo. App. 419; Loehr v. Murphy, 45 Mo. App. 519. (3) The decree was erroneous in declaring Walter E. Hyde an equitable mortgagee of the land, and in stating an account with him on that theory: (a) The petition did not allege any such relationship and made no charge in regard to the receipts and expenditures, and no issue was tendered upon that subject. Needles v. Ford, 167 Mo. 512. (b) The testimony concerning an agreement to permit a redemption of the land was in effect, that within two years after the first sale, which was under the Ehrhardt judgment, at the suggestion of the sister of the defendants, it was agreed that Lucius D. Hyde might redeem the land by paying all the expenditures, and a writing to that effect was signed. This was after the land had been sold under the Erhardt judgment. A mere promise to permit the owner of land, after it has been sold under a valid lien, to redeem, cannot be enforced in equity. Mansur v. Willard, 57 Mo. 347; Price’s Heirs v. Evans, 26 Mo. 30. (c) The fact that the agreement was reduced to writing will not give it validity, if it was not founded upon a sufficient consideration. Taylor v. Yon Schrader, 107 Mo. 206; Tucker v. Bartle, 86 Mo. 114. (d) Before such a contract can be enforced,, its terms must be established by clear and satisfactory evidence, and not be based upon mere loose declarations or statements. Mansur v. Willard, 57 Mo. 347. (e) There was such laches as will prevent a redemption under the circumstances of this case. Ferguson v. Sodam, 111 Mo. 208.

      E. J. West for respondent.
    (1) The two conveyances made to Walter E. Hyde in February, 1895, were fraudulent and void as against creditors. The deeds were absolute in form, but intended only as security for $760 borrowed from the Farmer’s Bank on their joint notes. The land was worth $2400. The fact that the deeds were intended only as security was kept secret between the parties; and the grantor continued to exercise much authority and many acts of ownership over the land. The following badges of fraud are all found in these transactions: False statement of consideration, inadequacy of consideration, retention of possession'and continued exercise of control over the land by' the grantor, and deeds absolute in form, but intended only as security, and this fact kept secret' between the parties. Bump on Fraudulent Conveyances (4 Ed.), Secs. 45-67; 14 Ency. Law, 361 and 516-525; Farwell v. Meyer, 67 Mo. App. 566; Albert v. Van Prank, 87 Mo. App. 571; Gentry v. Field, 143 Mo. 399. (2) The purchase by Walter E. Hyde at the sale under the Ehr-hardt execution was fraudulent and void as against creditors. This purchase follows closely upon the heels of the two conveyances in February, 1895, and was actuated by the same motives and bears the same marks of fraud. (3) The fact that this purchase was made at a public sale under a valid execution does not relieve it of its fraudulent character. Dallam v. Renshaw, 26 Mo. 533; Woodward v. Mastin, 106 Mo. 324; Miller v. Leeper, 120 Mo. 478. (4) Irrespective of the secret trust and the contract to re-convey, the conveyances complained of are fraudulent and void as against both existing and subsequent creditors. Sec. 2881, R. S. 1909; Pawecy v. Vogel, 42 Mo. 302; Payne v. Stanton, 59 Mo. 160; Bracken v. Milner, 99 Mo. App. 187; Cole v. Cole, 231 Mo. 236; R. S. 1909, See. 2881. A voluntary conveyance is not fraudulent per se as to subsequent creditors, but where there is actual fraud, as in the case at bar, the conveyance is void even as to subsequent creditors. Cole v. Cole, 131 Mo. 260; Bracken v. Miller, 99 Mo. App. 187. (5) The sheriff’s deeds made under the Ehrhardt and the Wilding and Scrivenor judgments and executions were void because no homestead was set out to the execution defendant. Macke v. Byrd, 131 Mo. 682; Brewing Assn. v. Howard, 150 Mo. 445; Creech v. Childers, 156 Mo. 338; Smith v. Thompson, 169 Mo. 561; Kessner v. Phillips, 189 Mo. 515. (6) By means of the conveyances complained of in the petition the defendant, Walter E. Hyde, acquired title to the land in controversy to the nse of his brother Lucius D. Hyde, and the interest of Lucius D. Hyde therein was subject to sale under execution. R. S'. 1909, Secs. 2192 and 2880; Mcllvaine v. Smith, 42 Mo. 45; Lackland v. Garesche, 56 Mo. 267; Lackland v. Smith, 5 Mo. App. 153; Bank v. Lime Go., 43 Mo. App. 561; Mfg. Go. v. Steel, 36 Mo. App. 496; Roberts v. Barnes, 127 Mo. 405; Bank v. Powers, 134 Mo. 432; Johnson v. Christie, 79 Mo. App. 46; Bump on Fraudulent Conveyances, secs. 191, 194, 298, and 592; 14 Ency. Law, 263. (7) The title acquired by Walter E. Hyde to the swamp land from the county and to the other land at the-foreclosure of the deed of trust was acquired under a contract, whereby he agreed to advance certain money, and, when reimbursed out of the rents, profits and sales of the land, to reconvey the remainder of the land to Lucius D. Hyde. This constituted him a trustee for the use of Lucius D. Plyde, or an equitable mortgagee. Wilson v. Dumrite, 21 Mo. 325; O’Neill v. Capelle, 62 Mo. 202; Hargadine v. Henderson, 97 Mo. 375; Book v. Beasly, 138 Mo. 455. (8) The destruction of that contract by Bettie could not affect rights acquired under it. Neither could any change of mind on the part of Walter E. Hyde affect such rights. ‘ ‘ Once a 'mortgage always a mortgage. ’ ’ Wilson v. Dumrite, 21 Mo. 325; Reilly v. Cullen, 159 Mo. 322. (9) The contract to reconvev was supported by ample consideration. The consideration is found in the relation of the parties. It is found in the fact that the titles were acquired by Walter E. Hyde at grossly inadequate prices. It is found in the fact that the swamp lands were paid for with the proceeds of other lands conveyed to other parties, the money of Lucius D. Hyde. It is found in the fact that the title acquired by Walter E. Hyde under the Ehrhardt exe-cation sale was void because no homestead was set out to the execution defendant, and that the only legal title ever acquired by him to any of the land except the 160 conveyed to Mm in February, 1895, as security for a debt, was after tliis contract was made, and wMle it was in force and recognized as binding by all the parties. TMs contract was made by Walter E. Hyde to protect Ms brother. They thought it was sufficient to protect him then, and we agree with them. If it was sufficient then it is sufficient now. Its validity is not changed by the changed relations and interests of the parties, however much they may desire it. Neither do we understand that under the law of this State it is or ever was necessary that a writing declaring a trust should be supported by a' consideration. Trusts are peculiarly free from conditions of this kind. Bispham’s Equity (7 Ed.), Sec. 65. Measured by the standard here fixed, the written agreement executed by the defendants and given into the keeping of Bettie, meets all the requirements of the law, and fixed in Lucius an interest in the lands, which is now vested in the plaintiff. Lane v. Ewing, 31 Mo. 75; Leeper v. Taylor, 111 Mo. 324; Mullock v. Mullock, 156 Mo. 431; Leahey v. Witte, 123 Mo. 207; Richardson v. Champion, 143 Mo. 538.
   LAMM, J.

Plaintiff, for three weeks the wife of Lucius D. Hyde and residing with him during that time in Chariton county, where he lived, then sued Mm in the Jackson Circuit Court for divorce. The relief she obtained in that suit was threefold, viz.: first, a judgment in January, 1903, for $5250 alimony; second, the restoration of her maiden name; and, tMrd, the marital bonds binding her to Lucius were cut in twain.

Subsequently, in February, 1904, having sued out execution and caused certain real estate in Chariton county to be levied on as his property, it was struck off to her under the hammer at sheriff’s sale and she received a sheriff’s deed. Presently, she brought this suit against him and his brother, Walter E, Hyde, the object and general nature of which was to set aside certain recorded conveyances purporting to transfer the land to Walter, which said conveyances are said to have been made in fraud of her right as a subsequent creditor.

From a decree in her favor, but subjecting the land to a lien in favor of Walter in the sum of $1250, defendants appeal. Plaintiff set out to appeal also, but abandoned it and rests content with her decree.

There is a main question duly raised below and stoutly pressed here, viz: Is the decree responsive to the pleadings and issues in the cause? That question seeks an analytical examination of the pleadings and decree with precision and particularity. As the question lies at the threshold, let us attend to it in its logical order.

The cause was tried on an amended bill, full and rich in averment of detail and (as presently seen) ieaving no room for cavil or wabble on the theory of the pleader. Summarized, its averments follow:

After describing certain real estate, aggregating 445 acres, it avers that Lucius on October 22, 1894 (nearly ten years before the matrimonial venture of Lucius and Miss Spindle), owned it in fee simple and was in possession; that it was then subject to a deed of trust conveying it to one Rouse, trustee for the Connecticut Mutual Life Insurance Company, executed by him in January, 1894, to secure $4500. of borrowed money. (This deed of trust is not assailed.) After describing eighty acres (a different tract) the bill next avers that at the same time Lucius owned the tract in fee simple and was in possession thereof subject, however, to a vendor’s lien in favor of Chariton county for about seventy-five dollars. (This tract for convenience will be called “swamp land.”) That in October, 1894, one Ehrhardt recovered judgment against Lucius in the Chariton Circuit Court for the sum of $427.89; that at that time Lucius was greatly in debt, and, while he owned some other property of small value, he had only property enough (if honestly applied) to pay his debts — one other item of several thousand dollars indebtedness, due Wilding and Scrivenor, is set forth; that Wilding and Scrivenor, with other creditors, were pressing for payment of their claims and threatening suit; that Walter was acquainted with the financial condition of Lucius and knew he was being pressed for payment by his creditors. At this point the bill'may as well speak sweepingly for itself, thus:

“That the defendants, well knowing all of the facts aforesaid, and in order to cheat and defraud and hinder and delay the existing and subsequent creditors of Lucius D. Hyde, and especially said Wilding and Scrivenor, out of their just claims and demands against him, fraudulently designed and conspired together at the time of the rendition of said judgment and subsequently to put the apparent title to all of said lands beyond the reach of said creditors; and in order to accomplish such design and conspiracy, they agreed to put the apparent title to all of said lands in the name of Walter E. Hyde, with the understanding that he was to hold said title in secret trust for the use of Lucius D. Hyde, Walter E. Hyde to advance whatever money was necessary to make such change in the apparent ownership, and to reimburse himself out of said lands for such moneys as he might so expend.”

In order that the understanding of the chancellor-might be informed and his conscience be awakened by full information to that end and that a schedule of particulars, the steps taken to consummate the alleged fraudulent conspiracy and covinous contrivance-aforesaid, might he blazoned-forth, the bill goes on to .set fortli such, bill of particulars. Before each'item thereof is an earmarking allegation to the effect that the thing about to be complained of was done “in pursuance of said fraudulent design and conspiracy,” ■or “in further pursuance of said fraudulent design ■.and conspiracy.” After each item are such characterizing averments as this, viz:- That the act so pleaded as a specification, a fraudulent step, was •“solely in furtherance of the fraudulent design and ■conspiracy aforesaid.”

'The first act, so characterized, is that in February, 1895, Lucius conveyed to Walter the swamp land by a warranty deed without consideration, but with •a falsely recited consideration of $1000.

The nest step in the alleged fraud is that a few ■days thereafter, in the same month, he conveyed by a like deed to Walter eighty acres of the land first referred to in the bill, and that this conveyance was without consideration, but under a falsely recited one of $2000.

The next fraudulent step is that Lucius failed to pay the Ehrhardt judgment and “ by a failure to pay the same, caused and permitted an execution to be issued.” That the sheriff levied it upon all the land ■except the two eighty-acre tracts theretofore conveyed to Walter and, at the regular April term of the Char-iton Circuit Court, sold it under that execution. That at that sale Walter was the purchaser at an inadequate consideration of $488, and received a sheriff’s deed. That Lucius permitted such pretended sale not only to .put the apparent title in Walter but in order to cheat and defraud and hinder and delay his creditors.

The next act of fraud is said to be that Lucius 'refused to pay the vendor’s lien held by Chariton county on the swamp land and thereby “caused and permitted” the county to institute suit in 1897 to enforce the lien; that the lien was enforced and the swamp land, sold under the judgment, was purchased by Walter who received, a sheriff’s deed; that in that sale Walter was acting for Lncins; that the deed recited a $600 consideration, bnt in truth nothing was. paid except enough to satisfy the lien.

The next fraudulent step is said to be that Walter procured a patent to issue from the county in his own name as assignee of Lucius to the swamp land..

The next fraudulent step is said to be that in 1899 Lucius failed and refused to pay the Connecticut Mutual Life Insurance Company debt and thereby “caused and procured” the deed of trust to be foreclosed. That at such foreclosure sale Walter became the purchaser and received a trustee’s deed expressing a consideration of $5500; that he did not buy the land for himself, but for Lucius, and actually paid only the principal debt with a small amount of accrued interest. That he then borrowed $4500 from another Insurance Company (The Prudential) evidenced by his note and secured by a deed of trust on the land — this, to obtain the money to pay off the principal of the former debt.

The next fraudulent step is said to be this: In June, 1895, said Wilding and Scrivenor, having obtained judgment against Lucius for $4357.44, caused an execution to issue and to be levied on part of the land in question (the description covering about 400’ acres); that thereafter a sale was made under that levy and Wilding and Scrivenor purchased for $415 and received a sheriff’s deed in December, 1895. That after plaintiff had obtained her judgment against Lucius in 1903 and was threatening to have the land sold thereunder, Walter in order to cheat and defraud her, procured a deed from Wilding and Scrivenor purporting to convey to him the land acquired by them un-dqp that sheriff’s deed, for the inadequate consideration of $250.

It is next averred that in February, 1903, by the consent of Lucius, Walter conveyed to one McMahill 260 acres of the land for $6990.30, which purchase price he used to pay off the deed of trust he put upon the land to the Prudential Insurance Company, and to reimburse himself for moneys expended on account of the land. (There is no direct averment of fraud in, nor is there any attack made upon, the McMahill sale, nor is McMahill a party.)

In connection with these several steps taken to consummate the original fraudulent conspiracy (all of which, as said, are characterized as in pursuance thereof and to effectuate, fortify and consummate the same) there are allegations scattered through the bill connected with each item or step of the fraud, meaning that (by reason of the facts pleaded) the land is held in secret trust by Walter for Lucius and to place his property beyond the reach of his creditors in order to cheat, defraud and hinder and delay them, whether existing or subsequent.

Finally it is averred, in effect, that Lucius at all times referred to was insolvent and owned no property whatever in his own name, and that plaintiff, having obtained judgment as aforesaid, caused an execution to issue and be levied upon 235 acres of the land, describing it, and a sale to be made in February, 1904, at which she bid $100 and obtained a sheriff’s deed therefor. Averments (indicia of fraud) are next made to the effect that Lucius had been in possession of parts of said land and in control of the whole of it, except the McMahill part, and has been collecting the rents without accounting to Walter; that Walter has been in possession of part of the land and has paid taxes thereon, made improvements, paid off incum-brances and has kept an account of his receipts and has been fully reimbursed. Finally, the bill winds up in this fashion:

‘‘ That each and every apparent title to said lands or any part of said lands acquired by the defendant Walter E. Hyde, has been acquired by him in order to assist and enable his codefendant, Lucius D. Hyde, to place his property beyond the reach of his said creditors in order to cheat and defraud and hinder and delay said creditors, both existing’ and subsequent, out of ’their just claims and demands against him, and he has held and is now holding such apparent title in secret trust for the use of Lucius D. ITyde.
“Wherefore, by reason of all the foregoing facts, plaintiff prays the court to find by its judgment and decree that plaintiff is the sole and absolute owner in fee simple of all the lands included in. said deed from the sheriff of Chariton county, Missouri, to this plaintiff, dated the 5th day of February, 1904, and recorded in the recorder’s office of Chariton county, Missouri, in book 80, at page 395, and that the various deeds hereinbefore mentioned purporting to convey to Walter E. Plyde title to said lands or any part of said lands be held to have been accepted by him in pursuance of a design and conspiracy between himself and Lucius D. Hyde to cheat and defraud and hinder and delay the creditors of said Lucius D. Hyde out of their just claims and demands against him, and that the apparent title so held by said Walter E. Hyde was and is held by him in secret trust for the use of Lucius D. Hyde, and that plaintiff’s title to said lands so claimed by her be quieted as against the claims of the defendants and each of them, and that the defendants and each of them be forever barred and precluded from asserting or claiming any title, estate, or interest whatever in or to said lands or any part thereof. Plaintiff further prays judgment for the possession of said lands, and for such further orders, judgments and decrees as may to the court seem just and proper. ’ ’

Briefly put, the answer tendered an issue on the alleged .fraud, and alleged in turn that Walter’s several purchases (which were admitted) were without intent of wronging any person, and that he is now, as at all times lie lias been, bolding the land in bis own right. There was a prayer that title be quieted in Walter.

With the pleadings in that fix, let us' look to the decree. It, in substance, was that the sheriff's sale under the Ehrhardt judgment was void and that the sheriff’s deed to Walter passed no title because at that time Lucius' was entitled to a homestead and the sheriff failed to set off one to him; that soon after the Ehr-hardt sale the two Hydes entered into a contract whereby Walter was to have possession and control of the land, pay taxes and make improvements thereon, rent it out, collect rents, sell part of it, and, after he had been reimbursed for his outlays, or whenever Lucius should pay him a sufficient sum to reimburse him, he, Walter, was to convey the remaining part back to Lucius; that the several conveyances to Walter (whether by sheriff’s deeds, trustee’s deed or conveyances directly between the brothers) and all purchases by Walter were made while in control of the land under the foregoing contract; that his title.thus acquired is held under the terms, conditions and trusts of that contract; that there was due Walter under the-contract $1250 and that Walter acquired and held title-as trustee or “equitable mortgagee,” holding said lands until he be fully reimbursed; that Lucius was ‘‘equitable mortgagor ’ ’ and had ah interest in the land with the right to redeem; that said right of redemption had passed under plaintiff’s sheriff’s sale and deed to her in 1904; that by virtue of that sale she now owns the land subject to the payment to Walter of $1250; that the value of the monthly rents and profits were twenty dollars; that Walter recover judgment against the land for said $1250 (the same to be a first lien and to be paid by plaintiff within sixty days after judgment or within sixty days after it was affirmed on appeal here); that, if not paid, special execution issue in Walter’s favor; and, that, upon such payment, a writ of possession issue in Miss Spindle’s favor.

It is on such, pleadings and snob, decree that the question is sprung: Can the decree stand as responsive to the pleadings?

In determining that question, it is not at all necessary to set forth all the record facts on the merits, nor to comment on them. Of any such facts as are helpful in determining the question, we shall tale notice in their place. We are of opinion that the decree must be reversed because it is not responsive to the issues framed by the pleadings. This, because:

(a) In the first place the decree swept away the efficacy of the sheriff’s sale and deed under the Ehr-hardt judgment on a ground wholly outside the issues. The issue tendered by.plaintiff and accepted by defendants in that particular was whether or not that sale and deed were fraudulent as contrivances to hinder and delay existing and subsequent creditors of Lucius D. Hyde. ' That was an issue within the scope and purview of our statute leveled against fraudulent conveyances. [R. S. 1909, Sec. 2881.] Now, the court did not determine that issue, but (plowing around it and finding neither way on the issue of fraud) held that the sale and deed were void — why? Because of a wrong suffered by Lucius D. Hyde, to-wit, a failure of the sheriff to set off a homestead to him. Plaintiff tendered no such issue as that, defendant accepted no such issue as that, and the only basis for-the decree in that particular is that the naked fact was admitted at the trial that no homestead was set off to Lucius D. Hyde. If an issue of that sort had been raised by the pleadings, in threshing it out, nisi, questions would arise for determination of this sort: Whether the Ehrhardt judgment was for an indebtedness that antedated the acquisition of a homestead by Hyde; whether at that precise time Hyde was the head of a family and entitled to a homestead; whether the homestead privilege could,- under any circumstances, be waived by tbe debtor; whether, if so waived, it could be asserted years afterwards (not by him, but) by a subsequent creditor in avoidance of the sale; and (there being some evidence that Walter bought at that sale at the request of Lucius) whether, in that event, even Lucius would not be estopped to assert a homestead right as against Walter? This record is dark on all such questions and silent on all facts on which they could be ruled with safety.

Furthermore, the whole decree is built up around the proposition that shortly after the Ehrhardt sale the two brothers entered into a contract dealing directly with that sale and which subsequently, by its ■own virtue, drew' within its terms and intendments other conveyances and sales made long afterwards. With the fabric of the decree built up on the foundation of that sale and such contract, another question ■springs, to-wit: Is not the decree inconsistent in voiding the sale in one breath and in the next treating it as valid and as the basis of a valid contract? We think so. The same decree should not knit and unravel, or loose and bind, the same thing at the same time.

By stating some of the questions that might arise if the issue had been tendered that the sale was void because of the failure to set off a homestead to Lucius D. Hyde, we have no purpose of determining those issues at this time; for they are not in this case, we suggest them merely to outline the possible situation and the problem confronting the court for solution had such issue been tendered.

In Studybaker v. Cofield, 159 Mo. 1. c. 615, decided when the writer was at the bar, it fell to his lot to argue in this court (as a ground for setting aside a deed) that an old man in extremis was defrauded into making a voluntary conveyance by being assured by the grantee that his favorite nephew and heir expectant was dead. Evidence to .that effect had been put in at the trial. The answer of this court to that contention was this (inter alia): “The evidence, however,, was irrelevant, because there was no issue of that kind tendered in the petition.”

In Black v. Early, 208 Mo. l. c. 313, in disposing-of a part of a decree which held a certain tax levy void, a ruling was made, apposite here, to-wit:

“Furthermore, plaintiffs were not defending-against the tax of 1905 on the grounds assigned by the court for invalidating it. It is a wise rule of law that the judgment of a court must be responsive to the pleadings; otherwise, the door is open wide for findings and decrees not based on the pleadings and' not within them, thus leading to uncertainty and confusion and permitting cases to pass off on theories not threshed out at the trial and not within the pleadings of the evidence. The decree of the learned chancellor was, therefore, erroneous on this ground as well. [Roden v. Helm, 192 Mo. l. c. 93-4; Schneider v. Patton, 175 Mo. l. c. 723; Irwin v. Chiles, 28 Mo. l. c. 578; Newham v. Kenton, 79 Mo. l. c. 385; Reed v. Bott, 100 Mo. l. c. 67. See also, Kilpatrick v. Wiley, 197 Mo. l. c. 162, et seg.] ”

(b) It will be observed that the case' stated in the-bill was one of fraud alone. Fraud was the key that was to unlock the door and open up and avoid conveyances, patents, sheriff’s sales on execution, sheriff’s, sales on vendor’s liens, a trustee’s sale and a trustee’s deed; and defendants were summoned into-court, (and, when in, were challenged) to meet that charge and none other. By the bill Walter Hyde was a trustee, to be sure, but a trustee ex maleficio. The alleged fraud was earmarked and exploited in many alleged, ramifications and vermiculations. In fine, the bill, reeks with fraud, passim, the pleader impliedly stating that he had no case except one based on such actual fraud as would avoid a series of deeds, acts and: transactions running through, years — this, too, on behalf of a subsequent creditor. Now the decree says not one word about fraud. Critically speaking, it is tantamount to an inferential finding against the existence of fraud. Contra, in effect it finds a valid mortgage arising out of an alleged contract between the two Hydes. It holds no conveyance void except the sheriff’s deed on the heels of the Ehrhardt sale. It proceeds on the assumption that all the other conveyances to Walter are, in effect, valid mortgages in equity and are all to he summed up as, and woven into the seamless web of, a blanket equitable mortgage, and, having stated an account, it permits redemption from that mortgage. There could not well he a more radical departure from the issues tendered. The one (the bill) sounded in tort, the other (the decree) in contract. The one assailed conveyances as fraudulent, the other affirmed them as valid hut construes, them to constitute a blanket equitable mortgage. It. is plain that if the pleader had counted on the theory that Walter Hyde held an equitable mortgage arising-out of a contract, and that plaintiff was entitled to redeem from that mortgage because she had purchased, the equity of redemption at sheriff’s sale, the issues; in such a case would have been entirely'clifferent than those in the case tried. Those differences suggest', themselves spontaneously and need not be noticed’, here.

It may not be amiss to briefly state that when a. woman was on the stand, a sister of the two Hydes,, it cropped out in her testimony in a rambling way that shortly after the Ehrhardt sale a third brother, a minister, came to Chariton county on a visit. At that, time, either because of her solicitation or at the instance of the ministerial brother, the latter drew up a paper writing which was signed by Walter and Lucius and left with her. The birth of this writing was long: before any of the other deeds or transactions referred to in the bill. Walter agreed thereby, so she said, that on the repayment to him of his outlay he would sell or convey the land back to Lucius. On the face of things this contract seemed to relate only to the purchase under the Ehrhardt sale. The terms of the contract were not developed beyond the vaguest outlines. There was no inquiry sufficient to determine whether it was based on a valid consideration. Whether it was then newly thought of or was but putting in writ--ing a former; verbal agreement, we do not know. Whether at that time it was contemplated that further sales and conveyances should be made, or were likely, and that the contract was flexible and elastic enough to open itself up and cover those sales or conveyances, we do not know; and the parties litigant, having their minds fixed on the subject of fraud, did not take the pains to develop the matter in that regard. Was it an option to rebuy? We do not know. Was it a conditional contract of sale with time of its essence? We do not know. This evidence crept into the case on the issue of fraud or no fraud and, so far as we can see, it was the only office it was intended to fill. It certainly was not directed to an issue of mortgage- or no mortgage. Finally, there also crept into the case on behalf of plaintiff an account which Walter Hyde is said to have kept with this land. This evidence was also put in on the issue of fraud. Whether it is a full account or is susceptible of explanation from the standpoint of a mortgagor and mortgagee is not dis-closéd. Based on such evidence, without any issue tendered on the terms, validity and scope of that contract and without testimony sufficient to base a decree upon, if such issues had been tendered, the decree in question fell from the chancellor — all this without any amendment to the pleadings or offer to amend. It seems that at a certain time Lucius contracted a third matrimonial alliance, at which event the sister, having the custody of the contract, in a fit of anger or disgust destroyed it. This was her feminine way of indicating her disapproval,, she herself being single, of some age and unmarried, of her brother’s attempt to draw prizes, one after another, in what she evidently eyed askance as a matrimonial lottery. '

The question whether an amendment to this bill, of such character as would permit the issue of mortgage or no mortgage to be tried instead of the issue of fraud or no fraud, would be a departure, is a question which must he left to the determination of the ■circuit court when plaintiff offers such amended bill, if ever she does.

As a new trial generally must be awarded, it would he unseemly for us to put the chancellor in leading strings on the question of fraud if plaintiff elect to stand by her present bill. In the exercise of appellate jurisdiction we ought not to pass on that question, until the trial court has first done so. There is more than one anxious question to solve, and more than one legal proposition for him to apply in that regard before he can hold all the conveyances, complained of, fraudulent.

On her hill as it now stands, we hold the decree is not responsive to the issues. It went into an undefined limbo outside the pleadings for its substance.

That evidence, without a proper issue framed, or outside the issues, will not support a judgment on appeal, that a judgment must respond to the vital issues tendered by the pleadings, that a prayer in a bill of equity for general relief will not permit relief not consistent with the pleadings and fairly within their scope, is a favored doctrine of this court to which it has consistently and persistently held — a doctrine grounded in sound philosophy and standing every test of reason. “It is a great misapprehension to suppose that one cause of action can be stated in a bill in equity, and by some sort of comprehensive flexibility of chancery jurisdiction relief can be administered growing out of a state of facts not embraced within the facts pleaded. The rule that under the-•general prayer for relief a party may have any relief to which he may show himself entitled, is limited to-relief founded on and consistent with the facts set out in the bill, and not such as may be proven at the hearing.” [Newham v. Kenton, 79 Mo. 1. c. 385.] In fact,, a judgment is but the conclusion in a syllogism having for its major and minor premises the issues raised by the pleadings and the proofs thereon. A judgment is the sentence of the law upon the record. Now, what is the record save the issues raised by the pleadings- and the evidence on such issues (allegata et probata) —the one responsive to the other?

Early and late the doctrine formulated in the-Newham case has been the unbending rule in this jurisdiction. [NcNair v. Biddle, 8 Mo. 257; Mead v. Knox, 12 Mo. 287; Harris v. Railroad, 37 Mo. 307; Needles v. Ford, 167 Mo. l. c. 512; Black v. Early, 208 Mo. supra, and cases cited; State ex rel. v. Muench, 217 Mo. 124.]

If the bill had been incomplete or ambiguous, and both parties had put a certain construction upon it and put in proof on that theory, we would have had a different case to deal with. [Bragg v. Railroad, 192 Mo. 1. c. 358.]

(c) The answer is in no sense a cross petition or crossbill that would entitle defendants to have title defined, determined and decreed under Sec. 2535, R„ S. 1909. (Formerly, Sec. 650.) It makes no aver-ments essential to jurisdiction under that section and can not be invoked in aid of plaintiff’s bill.

(d) Plaintiff did not go into equity in the first instance to set aside the conveyances complained of as fraudulent, and said to be in the way of collecting her judgment, or to open them up_ to let the lien of her judgment in, as she might have done. That would liave been the better way; for it would have tended to prevent a sacrifice of the property. [Welch v. Mann, 193 Mo. l. c. 326, et seq.] She .first bought and then went into equity to clear np her title on the theory that a consummated fraud stood in its way. She was •entitled to take that course, if she so chose, but in doing so she must he held to prove the cause of action stated in her bill or on some proper amended. bill. Under the terms of the decree appealed from she did neither.

Plaintiff complains of defendant’s abstract, but the complaints are without merit in the present condition of the record as amended.

The decree is reversed and the cause remanded to be tried in accordance with this opinion.

All concur.