text:
    MINOR SHULL v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    May 31, 1909.
    1. APPEAL: Questions Considered: Constitutionality of Statute: No Adverse Ruling. It is only the adverse rulings of the trial court that can form the basis of a complaint for an appellant on appeal. So that where the trial court gave an instruction for defendant declaring unconstitutional the statute requiring a railroad company to pay its employees every thirty days and doubling the amount due for failure to so pay them, and the judgment for the employee was for only the amount due and defendant alone appeals, the Supreme Court will not consider the constitutionality of that statute.
    2. GARNISHMENT: Suit Pending: Conditional Judgment. Where a creditor sued an employee in a magistrate’s court and the railroad company was summoned as garnishee, and appeal was taken from a judgment in favor of that plaintiff to the, circuit court, and pending that suit the same employee sued the railroad company in the circuit court for the amount of wages due him and at the trial the creditor’s suit against him was still pending undetermined, the judgment, if for the plaintiff employee against the company, should be so conditioned that execution could not issue thereon and payment thereof be demanded until such time as there is a determination of the garnishment proceeding. Otherwise the company, if unsuccessful as garnishee in that case, would have to pay the wages due twice.
    Appeal from Jasper Circuit Court. — Hon. Howard Gray, Judge.
    Reversed and remanded (ivith directions).

      Martin L. Clardy and Edw. J. White for appellant.
    (1) Regardless of the correctness of the holding of the trial court on the invalidity of the garnishment statute, the effect of that holding may be to submit the defendant to a liability in such proceeding, either in that court, or on appeal, and under the holding in How-land v. Railroad, 134 Mo. 474, the judgment in this case, whether for the wages admitted to be due, or for double such wages, ought to be conditional and not effective until defendant is discharged in such garnishment proceeding. (2) The Laws of Missouri for 1903, giving double wages to employees not paid every thirty days, is unconstitutional; it cannot be upheld as a police regulation, but is an arbitrary classification, without any sound reason therefor. State v. Loomis, 115 Mo. 307; State v. Mo. Tie and T. Co., 181 Mo. 536; State v. Julow, 129 Mo. 163; Railroad v. Ellis, 165' U. S. 154; Railroad v. Wilson (Tex.), 19 S. W. 910; Brace-ville Coal Co. v. People, 147 HI. 66; Grand Rapids Chair Co. v. Runnels, 77 Mich. 104. The above cases all refer to similar statutes, in regard to employers and employees and contracts between those occupying that relation and placing burdens or penalties upon the one, for violation of the statutory duty prescribed. Such statutes — and the one involved in this suit — are to to be distinguished from those upheld as police regulations, such as the mine regulation acts, the car fender statutes, the double damage acts, for failure to fence tracks, etc., based upon some police reason for their validity and not being a merely arbitrary classification, such as the Act of 1903, denying to railroads the equal protection of the laws.
   GRAVES, J.

Plaintiff sues the defendant for wages as section foreman for fifty-nine days, beginning August 30, 1903, and ending October 27, 1903, at the rate of,$1.50 per day, aggregating $88.50. By his second amended petition, upon which the case was tried, he further pleads that since the commencement of the suit the defendant had paid on said account the si;m of $45, leaving a balance of $43.50'. After these allegations showing that defendant was a railway corporation and plaintiff its employee and the service and wages, the petition thus concludes:

“For which sum the plaintiff prays judgment and asks that the same may he doubled under the act of the • General 'Assembly, entitled, An act to require owners and operators of railroads to pay their employees once in every thirty days in lawful money of the United States, and providing for the violation thereof. Session Acts 1903, at page 220.
“Wherefore plaintiff prays judgment for the sum of $87, it being double the amount earned, with six per cent interest from the 15th day of November, 1903, and for costs of this suit.”

Defendant’s answer may be summarized thus: First, it admits the employment of plaintiff and that he has not as yet been paid in full. Denies that it owes defendant $43.50 or any other sum, but alleges that if conditionally owed the plaintiff $32.95; that plaintiff had been sued on attachment in Pettis county, Missouri, by C. A. Dircke, before John B. Hughes, J. P., on October 13, 1903, wherein judgment was demanded in the sum of $187.65, in which said suit this defendant had been sued as garnishee and judgment entered against said defendant in said court as garnishee; that defendant had appealed from said judgment to the circuit court of Pettis county, Missouri, in which court defendant had moved the court to dismiss said garnishment proceedings, because the amount claimed was less than $200, which said motion was overruled by the circuit court of Pettis county; that said cause is still pending in said circuit court, but that Dircke, the plaintiff therein, had performed all necessary legal conditions necessary to entitle him to a final judgment against this defendant (the garnishee) in the said sum of $32.95; that the plaintiff herein is only entitled to a conditional judgment for $32.95, to be effective upon the full release and discharge of defendant from said garnishment proceeding. Secondly, defendant denies that plaintiff is entitled to double the amount of the wages due him by virtue of the Act of 1903, pleading the unconstitutionality of said law in appropriate manner and pointing to the constitutional provision, both State and National, alleged to be violated thereby.

By reply, the plaintiff avers that if there was such a proceeding by Dircke against plaintiff before John B. Hughes, justice of the peace in Pettis county, as averred by defendant in its answer, then said proceeding was void and of no force under section 3447, Revised Statutes 1899, and that if defendant answered to said garnishment proceeding it was in violation of section 3448, Revised Statutes 1899'.

The reply then admits that at the commencement of the suit the amount due him from the defendant was $32.95 and says said sum is still due him and asks that he have judgment for double the amount as provided by the Acts of 1903, supra, and prayed judgment for $65.90.

Trial was had before the court without the intervention of a jury. Plaintiff to sustain his case introduced a stipulation signed by counsel for both parties, by which it was agreed that plaintiff had performed the services mentioned in his petition and that there was a balance due of $32.95. The plaintiff then rested his case.

The defendant then introduced in evidence the record and files in the case of C. A. Dircke v. Minor Shull, in the Justice of the Peace Court of John B. Hughes, in Pettis county, and also those in the circuit court. The proceedings in the justice’s court are regular and show a default judgment against the Missouri Pacific Railway Company, garnishee, in the sum of $187.65 and costs. And this record also shows an appeal by said garnishee to the circuit court of Pettis county.

The records in the circuit court show that the Missouri Pacific Railway Company filed its motion to dismiss said garnishment proceeding against it, because upon the face of the transcript it appeared that the amount sued for was less than $200, and that the garnishee had been served with garnishment notice long prior to the rendition of any judgment against Minor Shull, the defendant in such case.

This record also shows the interrogatories filed in the Pettis Circuit Court by Dircke, and also a motion for judgment by Dircke, which motion is to the effect following:

“Comes now plaintiff, C. A. Dircke, and moves the court that whereas plaintiff having heretofore filed interrogatories in this cause, and the defendant, the Missouri Pacific Railway Company, garnishee, having failed to exhibit and file his answer thereto on oath within six days as required by section 3446.
“Therefore plaintiff moves the court that the plaintiff be given judgment by default against said Missouri Pacific Railway Company, garnishee, as provided in said section 3446 and section 3449, Revised Statutes of Missouri of 1899.
“And plaintiff asks that such judgment be rendered in his favor notwithstanding the provisions of section 3447 and section 3448, Revised Statutes of Missouri of 1899, which last mentioned statutes are unconstitutional being in conflict with section fifty-three of article four of the Constitution of the State of Missouri, which provides that ‘the General Assembly shall not pass any local or special law,’ and that ‘the General Assembly shall not pass any local or special law granting to any corporation, association or individual any special or exclusive right, privilege or immunity.’”

It was then admitted that the Pettis county case was still pending at the time of the trial of this cause.

Plaintiff requested no declaration of law and none were given for him. For the defendant the court gave the following:

“The court declares that the Session Laws of Missouri for 1903, page 220, giving double damages against a railroad company for a failure to pay its employees every thirty days, is unconstitutional and void, being contrary to section 30 of article 2 of the Constitution of Missouri, and contrary to section 53 of article 4 of the Constitution of Missouri, and contrary to the Fourteenth Amendment of the Constitution of the United States, in that it deprives the defendant and its employees of their property without due process of law; denies them the right'to make a lawful contract in a lawful way and deprives the defendant and its employees of the equal protection and provision of the laws as citizens of the United States and is class legislation.”

And the court refused to give the following:

“2. The court declares the law to be that if it shall find from the evidence in this case that prior to the institution of this action against the defendant, by the plaintiff, the defendant was summoned in an attachment suit in the justice court of Esq. J. B. Hughes, in Pettis county, to answer as garnishee to an indebtedness which plaintiff owed one C. A. Dircke, in the sum of $187.65, and that a judgment in said sum was after-wards rendered against .the plaintiff in this action and a judgment rendered against this defendant as garnishee in said cause, on which an appeal was taken by this defendant to the circuit court of Pettis county, Missouri, where said garnishment is still pending, then this court can only render a conditional judgment for the amount of $32.95, the amount due the plaintiff in this action against this defendant, said judgment to be valid and operative only on the discharge of the defendant as garnishee in said action pending in Pettis county, Missouri.
“3. The court declares the law to be that section 3449 of the Revised Statutes of Missouri for the year 1899 is unconstitutional and void for the reason that the same is contrary to and in conflict with section 53 of article 4 of the Constitution of Missouri; and, therefore, the court declares the law to be that a garnishment against the defendant in the justice court in Pettis county was not void on account of the plaintiff in said garnishment suit not having previous to the said garnishment reduced his claim to judgment against defendant in the said garnishment proceeding.”

Judgment was entered for plaintiff in the sum of $35.05, from which said judgment, after unsuccessful motions for new trial and in arrest of judgment, the defendant has appealed.

I. By its answer the defendant attacked the constitutionality of an act of the General Assembly approved February 23, 1903, entitled: “An Act to require owners and operators of railroads to pay their employees once in every thirty days in lawful money of the United States, and providing a penalty for violation thereof.” [Laws 1903, p. 220.]

The trial court at the instance of defendant gave a declaration of law declaring that act to be unconstitutional and the judgment entered shows that such act was so considered by the court. Plaintiff abided the judgment of the trial court upon the question of the constitutionality of that act and was satisfied with a judgment for the amount of his wages without having them doubled as by that act provided. This question is not therefore before us on this appeal. It is only the adverse rulings of the court, nisi, that can form the basis of complaint for an appellant here. So that as the trial court took defendant’s view of this particular question, we shall not go into the extensive brief upon the point made here. By not appealing, plaintiff has conceded that the lower court was not in error when it held this act to be unconstitutional, and this must suffice the defendant in this case, without further adjudication by our court. We reserve our judgment on this statute until it is lodged in a concrete case.

II. The next point raised is that the judgment below, even though it be for plaintiff, should have been so conditioned that execution could not issue thereon and payment thereof demanded until such time as there was a determination of the attachment proceeding in the circuit court of Pettis county, and a discharge of the defendant as garnishee in that court. By its answer the defendant pleaded all the facts as to the pendency of that suit and all the steps therein taken. By its proof the pendency thereof was shown. By its answer the court was asked to render a conditional judgment protecting the defendant, and by instruction number 2, refused by the court, it again asked such protection from the court. The refusal of this instruction is charged as error. The judgment is an unconditional judgment and should the defendant, as garnishee in the Pettis county case, be unsuccessful there, then the defendant would have to pay these wages twice. Such a result is wrong and ought not to be upheld by any court. The identical question was discussed by Sherwood, J., in the case of Howland v. Railroad, 134 Mo. 474. In the Howland case, the plaintiff sued the defendant for $31.20 on account of wages. Prior to this suit an attachment suit had been instituted against Howland by a creditor in a justice’s court in the State of Iowa. In that case the railway company had been summoned as garnishee, and said attachment proceeding was pending and undetermined. Notwithstanding these facts were made to appear in the Howland case, the circuit court of Grundy county entered up an unconditional judgment in favor of How-land for $31.20' and the defendant appealed. After a review of all the cases Judge Sherwood concludes an exhaustive opinion in this language: “Upon consideration we are of the opinion that the ends of justice can be best attained by following the course authorized by the courts in Vermont, Alabama, California and Georgia. To allow the defendant in the second suit to plead the attachment in the first in abatement, would frequently lead to unavoidable embarrassment, because, as suggested in the Massachusetts case, peradventure no judgment might ever be rendered in the attachment suit, and consequently the plaintiff in the second suit would have his suit abated and he be mulcted in costs, and then have to renew his suit perhaps after great delay. Guided by these reasons, we reverse the judgment and remand the cause with directions to the circuit court to enter judgment for plaintiff for the amount due him, to-wit, $31.20, and grant a stay of execution so as to protect the defendant garnishee as hereinbefore indicated.”

The Vermont rule as stated by Judge Sherwood is: “Substantially the same end is attained in Vermont by giving judgment in favor of the creditor, the attachment defendant, against the garnishee, with stay of execution until the garnishee is released from the garnishment.”

In the more recent case of Virginia Fire & Marine Ins. Co. v. New York Carousal Mfg. Co., 40 L. R. A. l. c. 239, the Supreme Court of Virginia has elaborately collated both lines of cases on the proceeding in such cases, and the great weight thereof is with the views expressed by this court in the Howland case. The judgment in the case at bar is therefore erroneous in its present form.

III. It is urged in the briefs that section 3449, Revised Statutes 1899, is unconstitutional, and this question is in the record by the refusal of instruction number 3 requested by defendant. The instruction is evidently a misprint as to the section. Defendant was evidently either leveling its gun at section 3447 or section 3448 or both, which prohibits attachments before judgment where the sum claimed is less than $200, and which were added to our Chapter 33, pertaining to garnishment, by the revision of 1899. But, be this as-it may, it is not necessary to pass upon the question in this case in view of the conclusions we have reached as to the judgment which should be rendered.

We are of opinion, as indicated by our paragraph, two, that this judgment should be reversed with directions to the lower court to enter up a judgment for plaintiff for the sum of $35.05, as of the date when this judgment was originally entered, but conditioned that no execution shall issue thereon until such time as the defendant may be fully discharged as garnishee in the case of C. A. Dircke v. Minor Shull in the circuit court of Pettis county, Missouri, and further conditioned that, if in the Pettis county case the defendant here and garnishee therein shall be held for a sum equal to or greater than this judgment, then the same shall be satisfied of record upon a proper showing made.

Judgment reversed and cause remanded with directions aforesaid.

All concur.


source: Caselaw Access Project

author: WOODSON, J. GRAVES, J. LAMM, P. J.

license: Public Domain

text:
    JOHN F. RICHARDS, Appellant, v. NORTHWESTERN COAL AND MINING COMPANY.
    Division One,
    May 31, 1909.
    1. CORPORATION: Dissolved by Time: Presumption That It Has Officers. Presumptions of fact never arise against well known and usual occurrences and conditions of things. The court will not in the absence of evidence presume that a corporation whose charter expired in 1886, and which was in 1875 adjudged a bankrupt, at the time of its civil death did not have a president or directors, for common knowledge teaches that upon the dissolution of a corporation it invariably has such officers.

      2. -- Dissolution: Title to Real Estate. Upon the dissolution of a corporation its real estate does not revert to its grantor. It vests in its then president and directors or managers of its affairs as trustees to be administered by them for the benefit of its creditors and stockholders.
    3. -: Adjudged a Bankrupt: Deed by Assignee After Discharge: Correction by Later Deed. The assignee in bankruptcy of an insolvent corporation had no authority, after the termination of the bankruptcy proceedings and his discharge as assignee, to convey the unmined coal under certain described land, which came into his hands as a part of the assets of the bankrupt corporation; and the mere fact that he recited in the deed that it was executed to correct a former deed gave it no additional force, especially where the former deed did not refer to the coal, but related to other property.
    4. QUIETING TITLE: Adjudging Neither Party to Be Owner. In a suit to quiet title under Sec. 650, R. S. 1899, where plaintiff prays the court to ascertain and determine the title of the parties and defendant denies plaintiff’s title and sets up title in itself, it is the duty of the court to ascertain and determine the title of both plaintiff and defendant, and if neither has title to so adjudge and decree. But such a judgment affects only their title, and does not adjudicate the rights and equities existing between defendant and any other person not made parties.
    Appeal from Macon Circuit Court. — Ron. Nat. M. Shelton, Judge.
    Affirmed.

      T. E. Francis for appellant.
    (1) The common law of England is in force in this State. Sec. 976, R. S. 1899. (2) At the common law, upon the dissolution of a corporation, its real property reverts to the grantor. Knight v. Wells, 1 Lutwitche 519 ; Atty-Genl. v. Lord Gower, 9 Mod. Rep. 226; Prior of Spalding’s Case, 7 Edw. IV. 10-12; 1 Coke on Littleton, Chap. 13, p. 157; 1 Blackstone’s Com. 484; 2 Kent’s Com. 307; Angelí & Ames on Corporations (11 Ed.), 195; Fox v. Horah, Iredell (36-N. C.) 358; State Bank v. State, 1 Blackford (Ind.) 282; White y. Campbell, 5 Humph. (24 Denn.) 38; Bingham y. Weiderwax, 1 Comst. (N. Y.) 509; Nicoll v. Railroad, 12 Barb. (N. Y.) 465'; Hooker v. Htica Turnpike Co., 12 Wend. (N. Y.) 371; Life Assn. v. Fassett, 102 111. 315; Titcomb v. Ins. Co., 79 Maine 315. (3) Section 976, R. S. 1899, which provides that upon the dissolution of a corporation, its directors shall have power to administer its affairs and dispose of its real property has no application to this case, because: (a) If the corporation in question had directors at the time of its dissolution, they failed to exercise this power. The statute did not cast title upon them ipso facto, by virtue of the dissolution, but merely gave them a right to acquire title by taking affirmative action; and affirmative action not having been taken by them, title did not attach. This statute is in derogation of the common law, and should be strictly construed. Tit-comb v. Ins. Co., 79 Maine 315; Fox v. Horah, 36 N. C. 358. (b) Because, presumptively, said corporation had no directors at the time of its dissolution. In 1873, it was adjudged a bankrupt, and the assignee in bankruptcy “was discharged in 1878. In 1886, by virtue of the expiration of its charter, it became dissolved, at and after which time no action was taken by any one assuming to be a director of said corporation looking to a recovery and disposition of the land in question for the benefit of stockholders. Under these facts, the presumption is, that there were no directors to exercise the power conferred by section 976, consequently said statute does not apply, and the land reverted to plaintiff’s devisor, by virtue of the common law.

      Gage, Ladd & Small for respondent.
    (1) Upon the dissolution of a corporation, the title to its real estate does not revert to the grantor. The doctrine that upon the dissolution of a corporation, whether by expiration of its charter or otherwise, the title to its real estate reverted to the grantor, if snch doctrine ever existed, is a relic of barbarism and is nowhere now recognized as the law. McCoy v. Farmer, 65 Mo. 249; Morrill v. Railroad, 96 Mo. 177; R. S. 1879', sec. 744; R. S. 1899, sec. 976; Sword v. Wicker-sham, 29 Kan. 537; Mormon Church v. U. S., 136 U. S. 47; Bacon v. Robertson, 18 How. 487; 5 Thomp. on Corp., secs. 6745, 6746; Heath v. Barmore, 50 N. Y. 305; 2 Cook on Corp. (5 Ed.), sec. 641; Lindeman v. Rusk, 125 Wis. 210'; Huber v. Martin, 127 Wis. 412. In plaintiff’s, brief, Fox v. Horah, 36 ÍST. C. (1 Iredell’s Eq.) 358, is referred to and relied on. That case was decided in June, 1841. It was explicitly overruled by the same court in Wilson v. Leary, 120 N. C. 90, decided in February,' 1897. Shayne v. Evening Post Pub. Co., 168 N. Y. 70; Gray on Perpetuities (2 Ed.), secs. 44-51a. Nicoll v. Railroad, 12 Barb. 465, is referred to by plaintiff in his brief. That case was decided by the Supreme Court of New York in 1852, while the cases from the New York Court of Appeals, supra, were decided, Heath v. Barmore, in 1872; Shayne v. Evening Post Pub. Co., in 1901. (2) The Central Coal and. Mining Company was a business corporation, whose members were stockholders owning-shares of its capital stock. Such corporation as this could not exist without stockholders. Bankruptcy, does not destroy a corporation. And there having been, ex necessitate, stockholders at one time, it follows, ex necessitate, that those persons, or their successors by transfer of their stock or by the laws of descent, are still the owners of their shares. There were also directors, and if their offices have not been filled by others, they are still directors. So far from there being a presumption that there were no directors or stockholders, the presumption to the contrary state of facts is conclusive. If defendant is not the owner of this property by virtue of the various conveyances in evidence, there are some persons, somewhere, who are entitled to it, and, in the language of Wilson v. Leary, supra, it is no concern of the plaintiff who they are or where they are, or whether they ever assert their rights. His ancestors having once sold this property, and received and kept the price of it, this plaintiff — least of all men in the world — will be heard to say, as against this defendant, who has in good faith bought, paid for and occupied it, that no other persons have asserted their claims to it, and, therefore, that plaintiff may take it away from the defendant. (3) Plaintiff was not in possession. To maintain an action under Sec. 650, R. S. 1899, plaintiff must either have title or be in possession. Manning v. Coal Co., 181 Mo. 359; Gordon v. Park, 202 Mo. 236, 117 S. W. 1163. (4) Even if defendant have no title, if plaintiff does not prove title or possession, his petition must be dismissed. He must recover upon the strength of his own title and if he has none he cannot succeed by showing that defendant has none. If the plaintiff fails to establish either title or possession, it becomes entirely immaterial where the title, in fact, rests; the court makes no inquiry as to that, the case goes no further, but the petition is dismissed. Morrill v. Douglass, 14 Kan. 294; Myrick v. Coursay, 32 Minn.'153; Herrick v. Churchill, 35 Minn. 318; Jellison v. Hallo-ran, 40 Minn. 48&; Pinney v. Russell, 52 Minn. 443. (5) It was error in the court below to find in this proceeding that defendant had no title. The court should, when it found that plaintiff had neither title nor possession, have dismissed the case, and made no finding as to the existence or non-existence of title in defendant. It will be time enough to find that defendant has no title when some one appears and attacks it who has a title.
   WOODSON, J.

This suit was begun in the circuit court of Macon county to determine the title to the coal underlying forty acres of land situated in said county. This suit is based upon section 650, Revised Statutes 1899.

The judgment below was to the effect that neither plaintiff nor defendant had any estate, right, title or interest in or to said coal. From that judgment both parties duly appealed.

The petition is in the form usual in such cases, alleging that plaintiff owned the coal in controversy, and that defendant made some claim of title to the same, the precise nature of which was unknown to plaintiff and could not, therefore, be described; and praying the court to hear evidence with respect to the' claims of title of the parties, and to ascertain, determine and adjudge their respective rights and interests.

The answer of defendant is a general denial, a plea of title in defendant, and pleas that the action is barred by the ten and twenty-year Statute of Limitations.

Plaintiff’s reply is a general denial.

The ease was tried on the following agreed statement of facts:

“For the purpose of the trial of this case at the present term of this court it is hereby stipulated between the parties hereto:
“1. That on the fifth day of December, 1867, John Richards was the owner in fee of the southwest quarter of the northwest quarter of section 23, township 57, range 15, in Macon county, Missouri. That on the said day, the said John Richards and Elizabeth, his wife, executed, acknowledged and delivered to the Central Coal & Mining Company of Missouri a warranty deed, by which they conveyed to said Central Coal & Mining Company of Missouri all the mineral coal lying, being and situate underneath the surface of the said southwest quarter of the said northwest quarter, and that the said deed was filed for record in the office of the recorder for said Macon county on the seventh day of December, 1867, a copy of which deed is hereto attached, marked ‘Exhibit 1,’ and made a part of this stipulation.
“2. That the said Central Coal & Mining Company of Missouri was on the eleventh day of December, 1866, a corporation organized and created under and by virtue of the laws of the State of Missouri for a period of twenty years, as appears by a certified copy of the articles of the association of said corporation, hereto attached and made a part hereof and marked ‘Exhibit 2.’
“3. That the said John Eichards departed this life on the twenty-eighth day of June, 1898, and that by his last will and testament duly proved and admitted to probate on the seventh day of July, 1898, he devised the said southwest quarter of the said northwest quarter of section 23, township 57, range 15, to his son, John Franklin Eichards, the plaintiff, according to the terms of his said last will and testament, a copy of which is hereto attached and made a part of this stipulation and marked ‘Exhibit 3.’
“4. That the said John Eichards left surviving him a widow, and said widow by an antenuptial agreement duly executed and recorded in said Macon county, Missouri, released and relinquished her dower to the said land, as appears by an exhibit hereto attached and hereof made a part, marked ‘ Exhibit 4. ’
“Either party shall have the right at the trial to introduce any other competent evidence not inconsistent with the above stipulation.”

By other evidence introduced, it was proven that in 1873 said Central Coal & Mining Company was adjudged a bankrupt, and its affairs were administered by an assignee from that time until the year 1878, when having reported that he had fully discharged his trust, said assignee was discharged.

The register in bankruptcy, by deed dated August 25th, 1874, conveyed the coal to J. E. Hale, the assignee in bankruptcy. Hale afterwards resigned as assignee, and W. G-. Forman was appointed in his stead. After this substitution, Hale, by deed dated July 27, 1875, conveyed the coal to said Forman. After Forman’s discharge as assignee and after the bankrupt estate was closed up, he by deed dated July 31,1884, conveyed to E. Y. Snively, W. J. Loomis and L. J. Loomis, the coal in question, and some other property. This deed recites that the property described in it had been ‘£ intended- to be conveyed by Forman to Sidney Bartlett and Nathaniel Thayer for a valuable consideration by them paid;” that ££Bartlett and Thayer had transferred all their interest in the property described to Loomis, Snively and Loomis,” or their successors; that “in consideration of these facts, and in view of the fact that said premises were overlooked and not conveyed to Bartlett and Thayer,” Forman conveys them to Loomis, Snively and Loomis.

The defendant by mesne conveyances claims title to the coal through said Snively and Loomis.

OPINION.

I. It is the contention of counsel for plaintiff, that upon the termination of the bankruptcy proceedings in 1878 against the Central Coal and Mining Company, all of the property thereof not disposed of by the assignee reverted to the company; and that upon its dissolution by limitation, December 11, 1886, all of its undisposed of real property by operation, of law reverted to the grantor, John Richards, and that upon the death of the latter, the title thereto passed to his son, the plaintiff herein.

That contention is most earnestly denied by counsel for defendant; and they insist that under section 976, Revised Statutes 1899, which had been in force for many years prior to the organization of the Central Coal & Mining Company, the coal in question became vested in the officers of the company for the purpose of paying the debts and for the use of its stockholders.

Said section 976 reads as follows: “Upon the dissolution of any corporation already created, or which may hereafter be created by the laws of this State, the president and directors or managers of the affairs of said corporation at the time of its dissolution, by whatever name they may be known in law, shall be trustees of such corporation, with full powers to settle the affairs, collect the outstanding debts and divide the moneys and other property among the stockholders, after paying the debts due and owing by such corporation at the time of its dissolution, as far as such money and property will enable them; to sue for and recover such debts and property by the name of the trustees of such corporation, describing it by its corporate name, and may be sued by the same; and such trustees shall be jointly and severally responsible to the creditors and' stockholders of such corporation to the extent of its property and effects that shall have come into their hands.”

Plaintiff insists that said section has no application to the facts of this case, for the reason assigned —that at the time of the dissolution of the Central Coal & Mining Company it had no president, directors or managers of its affairs, and that he or they could not, therefore, act as trustees for said corporation in the collection of its debts, or make distribution of its money and property among its stockholders.

There is no evidence contained in this record which tends to show that said corporation at the time of its dissolution had no such officers or stockholders. Counsel for plaintiff tries to supply that omission by insisting that the courts in the absence of evidence must presume that there were none such. "We can indulge in no such presumption, for the reason that presumptions of fact never arise against the well-known, usual occurrences or condition of things; such a corporation cannot be organized or exist without officers and stockholders, and common knowledge and experience teach us that upon the dissolution of a business corporation,1 it invariably has a president or other chief officers, directors and stockholders. That being true, instead of presuming this company had none such, the presumption must be to the contrary, that it did have such officers and stockholders.

But suppose we should indulge in that presumption, and concede for the sake of argument that said section 976 has no application, for the reason that there would be no one to collect and disburse the corporation’s moneys and property, then would plaintiff be entitled to maintain this action1? While the authorities are not uniform upon that question, yet the overwhelming weight thereof is against plaintiff’s contention, that upon the dissolution of a corporation its real property reverts to the grantor.

We will review some of the authorities cited by counsel for each party.

Angell & Ames on Corp. (11 Ed.), sec. 195, in treating this question uses this language: “At common law, upon the dissolution or civil death of a corporation, all its real estate remaining unsold, reverts back to the original grantor or his heirs; for, says Coke, ‘In case of a body politique or incorporate, the fee simple is vested in their politique or incorporate capacity created by the policy of man, and therefore the law doth annex the condition in law to every such gift or grant, that if such body politique or incorporate be dissolved, that the donor or grantor shall re-enter, for that the cause of the gift or grant faileth.’ The grant is indeed only during the life of the corporation, which may endure forever; but when the life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of any other grant for life.” '

Coke on Littleton, vol. 1, chap. 1, par. 13b, used this language: “For if land holden of I. S. be given to an abbot and his successors, in this case if the abbot and all the convent die, so that the body politique is dissolved, the donor shall have again this land, and not the lord by escheat. And so if land be given in fee simple to a dean and chapter, or to major and commonalty, and to their successors, and after such body politique or incorporate is dissolved, the donor shall have again the land, and not the lord by escheat. And the reason and the cause of this diversity is, for that in the case of a body politique or incorporate the fee simple is vested in their politique or incorporate capacity created by the policy of man, and therefore the law doth annex the condition in law to every such gift and grant, that if such body politique , or incorporate be dissolved, that the donor or grantor shall re-enter, for that the cause of the gift or grant faileth.”

The same question came before the King’s Bench in the case of Attorney-General v. Lord Gower, 9 Mod. l. c. 226, and among other things Lord Chancellor Hardwicks said: “Besides these estates that moved to the corporation from the hands of private donors, and the corporation leases or is dissolved, the land will not escheat to the crown upon their dissolution, because as Lord Coke says in his First Institute, 13b, if lands are given to corporate bodies by private donors, and the corporation leases or is dissolved, the land will not escheat to any body, but will revert to the private givers.”

In the case of State Bank v. State, 1 Blackf. (Ind.) l. c. 282, the Supreme Court of Indiana, in the discussion of this question, said: “We have thus far examined the judgment which directs a seizure of the goods and chattels, rights and credits, lands and tenements, of the corporation, on the assumed position that they will necessarily fall to the State on the dissolution, of the corporation. We shall now inquire into the correctness of this position. In order to elucidate the subject, we shall examine it in detail; and in the 1st place inquire, what becomes of the lands and tenements — 2dly, what becomes of the goods and chattels —and 3rdly, what becomes of the rights and credits, of the corporation; and we shall find that each of these three items is governed by different principles. 1st. As to the land and tenements. ‘When a corporation is dissolved,’ says Sir Wm, Blackstone, ‘the land and tenements revert to the person or his heirs who granted them to the corporation; for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again. The grant is only during the life of the corporation, which may endure forever; but when that life is determined by the dissolution of the body politic, the grantor takes 'it back by reversion, as in the case of every other grant for life.’ [1 Bl. Com., 484.] This is the doctrine advanced by Lord Coke. [Co. Litt., 13b. See also 2 Kyd on Cor., 516; 2 Bac., 32; 2 Cruise, 493; and Colchester v. Seaber, 3 Burr. 1866.] We see but little in the books that contradicts or questions those authorities, and the cases that look a different way maintain that the lands would escheat. [2 Bac. 32.] If either of those principles be correct, we feel warranted in determining that the corporate lands and tenements cannot be seized into the hands of the State, and certainly not in the manner contemplated by this judgment.”

In the case of White v. Campbell, 5 Hump. l. c. 39, the Supreme Court of Tennessee used the following language: “Chancellor Kent, in the second volume of his Commentaries, says: ‘According to the set-tied law of the land, upon the civil death of a corporation, all its real estate remaining unsold reverts back to the original grantor and his heirs.’ ”

The Supreme Court of Illinois, in the case of Life Association v. Fassett, 102 Ill. l. c. 323, used this language: “Upon the dissolution or civil death of a corporation, all its real estate, by the strict rule of the common law, reverts to the original owners or their heirs, and all its personal estate vests in the Crown, in England, and the State here, and all debts due to or from it are by operation of law extinguished. [Angell & Ames on Corporations, 195.] ”

The Supreme Court of Maine, in the case of Titcomb v. Ins. Co., 79 Me. l. c. 316, said: “But this is a mutual company and has no stockholders, and the provisions cited do not apply. According to the old settled law of the land, says Chancellor Kent, upon the civil death of a corporation, when there is no special statute to the contrary, all its real estate reverts to the grantors and their heirs, and all its personal estate vests in the people. [2 Kent (10 Ed.), 385-6.] To the same effect is Angell & Ames on Cor. (2 Ed.), c. 22, sec. 6.”

In the case of Fox v. Horah, 1 Ired. Eq. (N. C.) l. c. 361, the Supreme Court of North Carolina, in discussing this question, said: “We believe that the rules of the common law, governing the disposition of the property which the corporation held at the moment of death are well settled, though differing according to the character of the property upon which they operate as being either realty, personalty, or choses in action. The real estate remaining unsold reverts to the grantor and his heirs, ‘because’ (in the language of Lord Coke) ‘in the case of a body politique or incorporate the fee is vested in their political or incorporate capacity, created by the policy of man, and therefore the law doth annex a condition in law to every such gift and grant that if such body politic or incorporate be dissolved, the donor or grantor shall re-enter, for that the cause of the gift or grant faileth.: ”

The following authorities also sustain plaintiff’s contention: Knight et ux. v. le Corporation de Wells, 1 Lutwyche, l. c. 519; 1 Blackstone’s Com., 484; 2 Kent’s Com, 307; Hooker v. Turnpike Road Co., 12 Wend. 371.

As before stated, the great weight of authorities deny that upon the dissolution of a corporation, whether by expiration of its charter or otherwise, the title to its real estate reverts to the grantor, and most of them hold that if such doctrine ever existed, it is a relic of barbarism and is now not recognized as the law.

This court, speaking by Judge Norton, said: “ After the statement of the doctrine in Angelí & Ames on Corporations, that at common law, after the civil death of a corporation, all debts due to and from it are totally extinguished, the author adds, that ‘ the rule of the common law in relation to the effect of dissolution upon the property and debts of a corporation has in fact become obsolete and odious. Practically it has never been applied in England to insolvent or dissolved moneyed corporations, and in this country its unjust operation upon the rights of both creditors and stockholders of this class of corporations is almost invariably arrested by general or special statute.’ ” [McCoy v. Farmer, 65 Mo. 244, l. c. 249.]

The same question again came before this court in a case of ejectment by the heirs and devisees of one Forsyth, who had conveyed the real estate to a certain corporation. It was claimed that the existence of the corporation had ceased by operation of law, and, therefore, that the title to the real estate reverted, by operation of law, to the heirs of the grantor. The judgment below was for the defendant, and it was affirmed by the Supreme Court,. Judge Black, writing the opinion, said: “Suppose that under this statute the corporate powers of the St. Louis County Railroad Company ceased, because of its failure to complete and put in operation any part of the road within ten years, that it thereby forfeited its franchise to be a corporation;-, and suppose further that a decree of forfeiture had¡ been duly pronounced, still its unsold property would; vest in the directors for the purpose of paying its-debts and for distribution among the stockholders.’*' [Morrill v. Railroad, 96 Mo. 174, l. c. 177.]

The Supreme Court of Kansas denied that doctrine in the following language: “It will be seen that, by virtue of the provisions of section 42 of the act relating to corporations, upon the dissolution of any corporation, property belonging to it does not revert to the original owner of the property, but it is either placed in the hands of a receiver, or goes into the hands of the president and directors, or managers of the affairs of the corporation, for the purpose that the affairs of the corporation may be settled, and the debts paid, and the property distributed among the stockholders of the corporation. Hence, even if the town company had not conveyed away the property in dispute to Clogston or others, still it would not revert to the plaintiff, but, after paying the debts of the corporation, would go to the stockholders thereof. We suppose that the deeds from the town company to Clogston, and from Clogston to Rawson, and from Rawson to the defendant, are legal and valid; but it is not necessary to enter into a consideration of their validity or invalidity, for, whether they are valid or invalid, the plaintiff has no right to recover in this action. All his title to the property in controversy passed from him on May 9, 1873, and, so far as the evidence shows, no portion of the title to any part of the-property in controversy has ever passed back again to him.” [Sword v. Wickersham, 29 Kan. l. c. 749.]

In the Mormon Church case, Mr. Justice Bradley said: “When a business corporation, instituted for the purpose of gain, or private interest, is dissolved, the modern doctrine is that its property, after payment of its debts, equitably belongs to its stockholders.” [Mormon Church v. United States, 136 U. S. l. c. 47.]

Justice Campbell, speaking for the Supreme Court of the United States: said: “The effects of a dissolution of a corporation are usually described to be, the reversion of the lands to those who had granted them; the extinguishment of the debts, either to or from the corporate body, so that they are not a charge nor a benefit to the members. The instances which support the dictum in reference to the lands, consist of-the statutes and judgments which followed the suppression of the military and religious orders of knights, and whose lands returned to those who had granted them, and did not fall to the king as an escheat; or of cases of dissolution of monasteries and other ecclesiastical foundations, upon the death of all their members; or of donations to public bodies, such as a mayor or commonalty. But such cases afford no analogy to that before us. ' The acquisitions of real property by a trading corporation are commonly made upon a bargain and sale, for a full consideration, and without conditions in the deed; and no conditions are implied in law in reference to such conveyances. The vendor has no interest in the appropriation of the property to' any specific object, nor any reversion, where the succession fails.” [Bacon v. Robertson, 18 How. 480, 487.]

Thompson on Corporations states the rule as follows: “We have had occasion to note, in passing, the principle of the ancient common law that, upon the dissolution of a corporation, its real property, acquired by gift or grant for corporate use, reverts to the donor or grantor, or his heirs; and we have also noticed the pointed denial by Chancellor Kent that such was ever the law of England as regards moneyed corporations. . . . Notwithstanding this language, the author does not believe that a case can be found, decided in any of the English courts within the last hundred years, where it was held that land which had been purchased by an incorporated joint-stock business company, for a consideration, reverted, on the dissolution of the corporation, to the grantor or his heirs; or, where the personal property of such a corporation, upon the event of its dissolution, was held to escheat to the crown. . . . The modern rule then is, that, upon dissolution, the title to real property does not revert to the original grantors, or their heirs, and the personal property does not escheat to the State, but that both species of property vest in a receiver or other trustee; and that all the property, real and personal, of the corporation, is to be administered by him for the benefit of creditors and stockholders.” [5 Thompson on Corporations, secs. 6745, 6746.]

The doctrine of reverter is also denied in the State of New York. Judge Sapallo, delivering the opinion of the New York Court of Appeals, said: “In so far as the plaintiff’s right to recover t in this action is sought to be sustained on the ground that at common law real estate held by a corporation at the time of its dissolution reverts to the grantor, it cannot be supported for two reasons: First, because the plank-road company has not been dissolved; and, secondly, because the rule of law invoked by the plaintiff does not prevail in this State in respec't to stock corporations. Under the provisions of 1 R. L. 248, and 1 R. S. 600, sections 9 and 10, upon the dissolution of a corporation, the directors or managers at that time become trustees of its property (unless some other custodian is appointed) for the purpose of paying the debts of the corporation and dividing its property among its stockholders; and these provisions apply as well to the real as to the personal property of corporations. Consequently, where lands are conveyed absolutely to a corporation having stockholders, no reversion or possibility of a reverter remains in the grantor. The conveyances to the plank-road company in this case appear to have been absolute conveyances —no condition or limitation of the estate seems to have been contained in them, and they, therefore, passed the whole estate-of the grantor.” [Heath v. Barmore, 50 N. Y. 302 l. c. 305.]

And 2 Cook on Corporations (6 Ed.), sec. 641, denies the doctrine of reverter in the following language: “It was formerly believed to be the common law that upon the dissolution of a corporation all its assets belonged to the State, and all its debts were cancelled, and that the creditors were not entitled to anything from the assets. This remarkable theory has been stated and restated in text-books and decisions of the courts for over one hundred years. It is found in Blackstone’s Commentaries and in "the old works of Eyd on Corporations and Grant on Corporations. The courts, however, while upholding the rule theoretically, have quite uniformly refused to apply such a doctrine, and have invented various theories, fictions and arguments for avoiding this supposed doctrine of the common law. Finally, in 1899, an English court denied that the common law ever’ countenanced such confiscation, and showed that in the seventeenth and eighteenth centuries many corporations were dissolved, and that in not a single case was any such doctrine applied. It again may be said that, although the common law has its reproaches, this is not one of them. The American courts have always refused to follow the supposed common-law rule on this subject.”.

The Supreme Court of Wisconsin said: “The claim is made . . . that under the common-law rule debts due it or owing by it are extinguished, and that its personal property then undisposed of éscheats to the State, and its real estate reverts to its grantors or donors. If these propositions are well founded, the legal consequences are certainly weighty and far-reaching, and there should be no uncertainty in their application for the ascertainment of private property rights, and of those of the State within their operation. True, there are cases declaring that the dissolution of a corporation is followed hy such results, hut the trend of modern adjudications on the subject disavows that such were the doctrines of the common law1 as regards moneyed or commercial corporations. The result of the adjudications seems correctly and well stated hy Chancellor Kent. He observes: ‘The rule of the common law has in fact become absolete and odious. It never has been applied to insolvent or dissolved moneyed corporations in England. The sound doctrine now is, as shown hy statutes and judicial decisions, that the capital and debts of banking and other moneyed corporations constitute a trust fund and pledge for the payment of creditors and stockholders, and a court of equity will lay hold of the fund, and see that it he duly collected and applied.’ [2 Kent, 307, note.] The reason usually assigned for rejecting the old rule and holding it inapplicable is that the rule had its origin at a time when corporations dealt almost exclusively with municipal, ecclesiastical, and eleemosynary affairs, and when the modern business corporation was unknown, and that the growth of these moneyed corporations necessitated the application of principles which would protect the private property interests of persons dealing with them under the changed conditions. To this end, the rights and interests in and to the property of business corporations are, in their essentials and nature, considered to he like those pertaining to partnership organizations; and when such corporation dissolves, and thereby loses legal capacity to preserve its estate, a court of equity will, if necessary, lay hold of its assets to compel a final liquidation of its affairs, and a distribution of the capital among the stockholders as in partnership associations.” [Lindemann v. Rusk, 125 Wis. l. c. 229.]

In a later case, the Supreme Court of Wisconsin adhered to these views: “We are cited to the supposed ancient rule of the common law that upon the termination of a corporation its real estate reverts to the grantor and its personalty to the sovereign and that its debts become extinguished. Some bearing is claimed for that. While it has some distinguished support in modern times (2 Kent’s Commentaries, 307), it long since became obsolete, if it ever was the law, except as regards public corporations. It was distinctly repudiated by this court in Lindemann v. Rusk, 125 Wis. 210. The authorities supporting such repudiation are substantially without conflict. [Citing .authorities.] American courts have, except in a very few instances, never recognized the doctrine, and quite recently it was held by the Court of Queen’s Bench in Bankruptcy that it never had any place in the common law of England. In In re Higginson and Dean (1899), L. R. 12, B. D. 325, 79 L. T. Rep. 673, Weight, J., said that no instance was recorded in the books where such doctrine was ever applied by any English court, and referred to an American decision, Bank of Vincennes v. State, 1 Blackf. (Ind.) 267, where the contrary was held, as having been reasoned on a false basis. We may safely close this branch of the case by saying that, aside from dicta here and there, in the whole not worthy of serious consideration, there is no legitimate support anywhere for the rule that the propr erty of a business corporation upon its termination and the payment of its debts goes otherwise than to its members, if it has members to take. It is quite remarkable that the ancient rule should, for well nigh two centuries, have been confidently asserted from time to time by judges and text-writers as the law, including writers of such eminence as Bacon, Kyd and Kent, have first been repudiated quite unanimously in America, and then he declared in the supposed place of its origin to never have been a part of the common law. Here, the language of Justice Bradley, in Late Corporation (Mormon Church) v. United States, 136 U. S. 1, 17, confining the application of the supposed ancient rule to public corporations, has been universally adopted.” [Huber v. Martin, 127 Wis. l. c. 435.]

The case of Fox v. Horah, 36 N. C. (1 Ired. Eq.) 358, referred to and relied on by counsel for plaintiff, was explicity overruled by the same court in Wilson v. Leary, 120 N. C. 90, and in doing so the court used this language: ‘ ‘ The plaintiffs must recover upon the strength of their own title, and not upon defects, if any, in the title of the defendants. . . When the lodge ceased to exist for want of members, whether its property passed to the grand lodge of I. O. O. F., in this State, of which Oriental Lodge . No. 24 was a member, or escheated to the State for the University (Code, sec. 2627) does not concern the plaintiffs and is not before us. The title in fee simple had passed out of the grantor, and, having vested in the Oriental Lodge, upon the extinction of the latter as a corporate entity, its property by no just construction could return to those whose ancestors had conveyed it in fee upon receipt of the purchase money, which he and they have kept and enjoyed. The plaintiffs’ counsel insist, however, that at the time of the conveyance the Revised Statutes (Ch. 26, sec. 17), provided that a corporation, unless otherwise specially stated in its charter, had existence for only thirty years, and, as there was no special provision in this charter, the grantor only parted with the property for 30 years, and held a resulting trust. But the conveyance was in fee, and a corporation limited in duration can take a fee simple conveyance just as a natural being, whose existence is also limited. Either may convey away the property, and upon the death of either without having disposed of it the property will go to pay creditors, to heirs, to stockholders, or as an escheat, according to the circumstances, but in neither case is there any reverter to the grantors. On the death of a corporation the property is usually administered by a receiver, and on the death of a natural person by the personal representative, or passes to the heirs. By the Constitution of North Carolina (article 8, sec. 1) all corporations (if chartered since 1868) are subject to extinction at any time, or their duration can be abridged or extended, at the will of the Legislature. It would now be a startling doctrine that upon the repeal of a charter all real estate, though conveyed to the corporation absolutely in fee simple, reverts, as at common law, to the original grantors, to the total exclusion and loss of creditors and stockholders. On the contrary, such property, when not held on a base or qualified fee, as was the case in State v. Rives, 27 N. C. 297 (though it has been since held that there are no qualified fees in this State — School Com. v. Kesler, 67 N. C. 443) would be administered to pay creditors, the surplus being divided among the stockholders. If there were no stockholders, then the question might arise whether the property had escheated to the State, but certainly the grantors, upon such corporation becoming extinct, would have no greater right to a reversion than would the grantors to any other corporation. . . It is true, it was held in an opinion by Gaston, J., Fox v. Horah, 36 N. C. 358, that by the common law, upon the dissolution of a corporation by the expiration of its charter or otherwise, its real property reverted to the grantor, its personal property escheated to the State and its choses in actio'n became extinct, and, hence, that, on the expiration of the charter of a bank, a court of equity would enjoin the collection of notes made payable to the bank, or its cashier, the debtor being absolved' by the dissolution. Judge Thompson (5 Thomp., Corp., sec. 6720) refers to this decision ‘in accordance with the barbarous rule of the common law’ as ‘probably the last case of its kind,’ and notes that it has since been, in effect, overruled in Von Glahn v. DeRosset, 81 N. C. 467, and it is now expressly overruled by us. Chancellor Kent (2 Com. 307 note) says, ‘This rule of the common law has, in fact, become obsolete and odious,” and elsewhere he stoutly denied that it had ever been the rule of the common law, except as to a restricted class of corporations. [5 Thompson, supra, sec. 6730] The subject is thoroughly discussed by Cray on Perpetuities, sections 44-51, and he demonstrates that my Lord Coke’s doctrine rested on the dictum of a 15th century judge (Mr. Justice Coke, in the Prior of Spalding’s case, 7 Edward IV, 1467), and is contrary to the only case deciding the point, Johnson v. Norway, Winch 37 (1622), though Coke’s statement has often been referred to as law. But, whatever the extent of this rule at the common law, if it was the rule at all it was not founded upon justice and reason, nor could it be approved by experience, and has been repudiated by modern courts. The modern doctrine is, as held by us, that ‘upon a dissolution the title to real property does not revert to the original grantors or their heirs, and the personal property does not escheat to the State.’ [5 Thompson, supra, sec. 6746; Owen v. Smith, 31 Barb. 641; Towar v. Hale, 46 Barb. 361.] The crude conceptions of corporations naturally entertained in a feudal and semi-barbarous age, when they were few in number, and insignificant in value and functions, by even so able a man as Sir Edward Coke, and the fanciful reason given by him (Coke Lit. 136) for the reverter of their real estate, to-wit, that a conveyance to them must necessarily be a qualified or base fee, have long since become outworn and discredited. That which is termed ‘the common law’ is simply the ‘ right reason of the thing ’ in matters as to which there is no statutory enactment. When it is misconceived and wrongly declared, the' common rule is equally subject to "be overruled, whether it is an ancient or a recent decision. Upon the facts agreed, judgment should he entered below against the plaintiffs, dismissing their action. Reversed.”

To the same effect is the case of Shayne v. Evening Post Pub. Co., 168 N. Y. 70, and Gray on Perpetuities (2 Ed.), sees. 44-51a.

"We, therefore, hold that the so-called common law rule of reverter is not in force in this State, and that even in the absence of said section 976 a reverter to the corporation would not have taken place.

"We are, therefore, of the opinion that the finding, and judgment of circuit court as to plaintiff was proper.

II. This brings us to the question presented by defendant’s appeal, namely, that it acquired from the Central Coal & Mining Company the title to this coal by mesne conveyances, and that consequently the trial court erred in not so finding.

This record shows that the only title defendant claims to have to this coal is under a deed, dated August 5, 1884, executed by Forman six years after his discharge as assignee in said bankruptcy proceeding. Clearly he had no authority after the termination of the bankruptcy proceeding and his discharge as assignee to convey the coal which came into his hands as a part of the assets of the bankrupt estate; and the mere fact that he recited in the deed that it was executed to correct a former deed gave it no additional force or effect, especially since that deed in no manner or form refers to or undertakes to convey this coal, but relates to other property not involved in this case.

Counsel for defendant do not seriously controvert that proposition, but seem to insist upon it as an inducement for the court to modify the judgment of the circuit court as to it by striking out of it that part which held that it also had no title to said coal.

Tn our opinion the trial court did right in finding against the* defendant also for the reason that plaintiff’s case was based upon section 650, Revised Statutes 1899, and defendant, in its answer, denied plaintiff’s title and sets up title thereto in itself. Under said section it was the duty of the court to ascertain and determine the estate, right, title and interest of parties to the suit. In obedience to the plain mandate of that statute, the court heard the evidence and correctly found that neither the plaintiff nor defendant owned the coal, and rendered judgment accordingly. But nothing contained herein is to be taken or construed as adjudicating the title or equities, if any, defendant may have or own in or to this coal, as against' all other persons.

We are, therefore, of the opinion that the finding and judgment of the court as to defendant was also correct, and should be affirmed as to both plaintiff and defendant.

All concur, except V alii ant, J., absent; Lamm, P. J., in result in separate opinion; Graves, J., also, in separate opinion.

GRAVES, J.

I think upon the record that both plaintiff and defendant failed to make out paper title, or a title by adverse possession, to the coal under this land. But, I am under the further impression that the evidence tends to show that defendant for a time before the institution of this action, but not for ten years, had been in possession of this coal and was mining the same under a claim of right under their deed. In this claim of right there may be some equities between defendant and parties other than plaintiff which could not be properly adjudicated in this cause. However, the issues on trial were between plaintiff and defendant, and the adjudications here would not in any way bind the defendant in any action brought by or against it in the determination of any rights as between it and other claimants or parties.

So understanding the law, I concur in the result of the opinion by Judge Woodson.

Lamm, P. J., also concurs in this and expresses himself further upon other questions.

LAMM, P. J.

I am in doubt whether the judgment should not be modified so as to strike out all finding relating to defendant’s title. . Since plaintiff had neither title nor possession of the coal, it is questionable whether under the form of answer here he was entitled to any finding as to defendant’s interest or estate. But as this is not a proceeding in rem and does not settle the title as to the whole world, defendant is in no legal danger that the judgment will be construed as res adjudícala in any controversy between it and others having or claiming an equitable or legal title to the coal.

Therefore, there is no error affecting the merits and I concur with my brother Woodson and my brother Graves that the title is settled as between plaintiff and defendant. Therefore, I concur in the result.


author: GRAVES, J.

text:
    EMILIE HARDER, Appellant, v. ST. LOUIS TRANSIT COMPANY.
    Division One,
    May 31, 1909.
    NO SUFFICIENT ABSTRACT: No Petition: No Judgment. Where neither the amended petition upon which the cause was tried, the verdict returned, nor the judgment rendered, is either set out or abstracted in the abstract, the court cannot hold that the trial court erred in sustaining defendant’s motion for a new trial on the ground that its demurrer to the evidence should have been sustained; and all that can be done is to affirm the order granting a new trial.

      Appeal from St.' Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge.
    Aeeibmed.

      G. T. Priest for respondent; Boyle & Priest of counsel.
    Plaintiff’s appeal in this cause should be dismissed and the trial court’s action affirmed, for the following reasons: (a) Because the pleadings are not set out in the abstract, and because they are necessary to a review of a trial court’s act in sustaining defendant’s demurrer to the evidence, (b) Because the purported abstract fails to show that there was any verdict or judgment entered of record, or the amount of the verdict or judgment, (c) Because the abstract fails to show that an affidavit was filed and entered of record, or that plaintiff was allowed an appeal by order of court, or 'that there was any record entry showing an appeal was allowed, (d) Because the abstract fails to show that any bill of exception was allowed, signed and sealed by any court or ordered filed by any court or . any entry record showing that any bill of exception was allowed, signed, sealed and ordered filed, (e) Appellant’s appeal should be dismissed because the abstract fails to set out all the evidence in haec verba. Meriwether v. Iiowe, 48 Mo. App. 152; Mitchell v. Mitchell, 191 Mo. 477; McKinney v. Northcut, 114 Mo. App. 153; Nash v. Brick Company, 109 Mo. App. 600; Christopher v. “White, 42 Mo. App. 430:

      A. R. Taylor for appellant in reply.
    The claim made by respondent that the appeal should be dismissed because the abstract is insufficient is untenable for the following reasons: (a) The abstract is a full compliance with Rule 13 of this court, which rule governs on this question. ■ It is printed in fair type, paged and indexed. It sets forth so much of the record as is necessary to a full and complete understanding of all questions presented to the court for decision. It sets forth the pleadings verbatim though there was no question made on the pleadings, and it would have been sufficient to set forth only the. substance. The evidence of witnesses is stated in narrative form except where questions are necessary to a complete understanding of the evidence. In such cases the questions and answers are given, as required by the said rule. This is the requirement of the rule and the abstract is in conformity to the rule, and if so the whole of the contention for dismissal of the appeal is untenable and frivolous, (b) To particularize these contentions of respondent and the answers thereto, respondent first contends that the abstract fails to show the petition on which the trial was had and chooses to think that the amendment on the trial of the petition by interlineation required the filing of a new petition, but this petition as amended by interlienation on the trial February 14,1906, is set forth in haec verba on pp. 1-2-3 of abstract, and the abstract so shows as follows: “The petition as amended in this cause filed August 16, 1904, follows.” To this petition, as so amended, the respondent, as shown by the abstract at page 3 of abstract, on February 14, refiled its amended answer, and this is set out in haec verba on pp. 3-4 of abstract. The reply to the amended answer was filed February 14, 1906, and the abstract, p. 5, shows this. Thus, the record or abstract shows that there was a joinder of the issues of fact, and any objection to the petition except for want of jurisdiction of the court over the subject-matter, or that the petition failed to state a cause of action, was waived. Sec. 602, R. S. 1899; White v. Railroad, 202 Mo. 561. (e) The next ground of said motion is that the abstract fails to show that there was any verdict or judgment entered of record. The complaint does find in the abstract the words “trial progressed and finished and verdict and judgment for plaintiff.” But complainant urges that it does not appear that the judgment was entered of record. What does the court understand from such an abstract of the record? Is not this sufficient to inform the court that a verdict and judgment for the plaintiff was rendered as required by the rule? We think so. But again, in compliance with the statute, Sec. 813, R. S. 1899, there is filed in this court “a certified copy of the record entry of the judgment, order or decree appealed from in said cause, showing the term and day of the term, month and year upon which the same shall have been rendered.” The petition shows that this action is for a penalty of five thousand dollars; and that, therefore, that sum is necessarily involved and no less can be involved. The jurisdiction of the cause must be in this court. Casey v. Railroad, 205 Mo. 721. Therefore, this contention for the motion is answered in that the abstract shows that the verdict and judgment were for the plaintiff. That the cause on any appeal must be within the jurisdiction of this court because the penalty is five thousand dollars. That the certified copy of the judgment is filed in this court as the transcript.
   GRAVES, J.

Plaintiff instituted this action in the circuit court of the city of St. Louis to recover the sum of five thousand dollars for the alleged negligent killing of her husband, Mas A. Harder, by defendant, St. Louis Transit Company. Upon a trial at the February term of said court for the year 1906, the record discloses that a verdict of some kind was returned in favor of plaintiff, and on said verdict a judgment of some kind was entered. The amount of this verdict and judgment nowhere appears in this record. After setting out the pleadings, the'abstract says:

“February 13, 1906, February term, 1906, jury sworn in this cause and cause laid over to February 14 at said term of this court.
‘ ‘ February 14,1906, at said term, plaintiff amends petition by interlineation, by leave of court.
“Amended answer refiled as above set out, reply filed as above set out, trial progressed and finished and verdict and judgment for plaintiff. ’ ’

It then appears that upon motion for new trial being filed by the defendant, the trial court sustained the same by the following order of record:

“The court having heard and duly considered the defendant’s motion for a new trial, heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained on the grounds that the court erred in failing and refusing to give, 1st, at the close of plaintiff’s evidence, the peremptory instruction in the nature of a demurrer to the evidence, asked by the defendant and marked ‘A,’ and 2nd, in failing and refusing to give at the close of all the evidence, the peremptory instruction in the nature of a demurrer to the evidence and marked ‘B,’ and, 3rd, because the court erred in permitting the case to go to the jury.”

From this order the plaintiff has appealed.

It will be observed that the petition was amended on February 14, 1906, during the trial.

In the first part of the abstract, and on page one thereof, we find the following: ‘ ‘ The petition as amended in this cause, filed August 16th, 1904, follows:” Following this statement in the abstract is a copy of a petition brought to the October term, 1904, of the circuit court in the city of St. Louis. As to what the petition was after its amendment on February 14,1906, not one word is found in the record. The petition, therefore, upon which the cause was actually tried and submitted is not in the record at all. To what extent this amendment by interlineation changed the former petition we have no means of ascertaining. "Whether the evidence introduced supported the allegations of this amended petition we have no way of knowing, yet we are asked to say that the trial court was in error when it concluded that a demurrer to the testimony should have been sustained. In other words we are not advised from this record what the petition upon which the trial was had really was, nor what in fact was the verdict and judgment except that the verdict and judgment were for plaintiff. The proof offered might have been at variance with the allegations of the last amended petition. It might have totally failed to have sustained the allegations thereof. A demurrer to the testimony raises the question as to whether or not the proof sustains the allegations of the petition, and we cannot determine this fact without having before us the petition upon which the cause was tried. It might also be well to remember that when we reverse an order granting a new trial to defendant, where plaintiff has had a verdict and judgment in the first instance, our action reinstates such verdict and judgment, but we would feel loath to so do unless we were apprised by the record as to the amount and character of the verdict and judgment. "We might surmise in this case that it was for $5,000, but it would be a mere surmise, because the record gives us no light upon the question. Under this state of the record there is nothing to be done but to affirm the order and judgment granting the new trial, and it is affirmed. '

All concur.