author: WILLIAMSON, J. WILLIAMSON. J.

text:
    R. S. MATTHEWS et al., Appellants, v. JAMES G. VAN CLEVE et al.
    Division Two,
    April 9, 1920.
    1. WILL: Construction: Intention. The guiding rule for the construction of a will is that effect must he given to the lawful intent and purpose of the testator, and all other rules are to he used merely as aids to it.
    2. -: To Trustee for a Son and, His Heirs: Active Trust: Life Estate: Judgment Creditors. One, clause of the will read: “I devise and beaueath to my son, Benjamin N. Tracy and his heirs the following described real estate ... to have and to hold the same in trust for the us'e and benefit of my son, Milton C. Tracy and his heirs, the said trustee to, have the sole management and control thereof, to collect the rents and pay the same to said beneficiary and his heirs, the said Milton to have no control or disposition of said estate and no power to encumber the same, but said trustee to have power to sell and convey the same or any part thereof for reinvestment in other property to be held by him or his successors in the same way.” Held, first, that, the will created an active trust; second, it gave to the trustee no power to encumber the property, by mortgage or otherwise; third, it vested the legal title in the trustee; fourth, the income was inalienable, could not be anticipated, and was not subject to debts or liens created by the beneficiary; fifth, the devise was valid against judgment and all other- creditors of the beneficiary; sixth# upon the death of Milton, his entire interest in the estate died with him, leaving nothing to which the rights of his creditors could attach, nor anything upon which their prior judgments against him could operate; seventh, the interest of Milton in the real estate was an equitable life estate in the income only; and, eighth, judgments against Milton and the trustee, though final, were effective only against Milton’s life estate in the income, which terminated with his death, and do not survive as against Milton’s heirs.
    3. -: -: Judgments: Subsequent Creditor’s Bill: Estopped of Remaindermen, Where the will devised real estate to a trustee “for the use and benefit of my son, Milton O. Tracy and his heirs, the said trustee to have the sole management and control thereof, to collect the rents and pay the same to said beneficiary and his heirs, the said Milton to have no control or disposition of the same and no power to encumber the same,” judgments against the trustee and Milton for Milton’s debts availed his creditors nothing as against the remaindermen; and a creditor’s bill, based on said judgments, whereby his creditors were given a perpetual judgment lien upon the property left in trust to the trustee, in which the trustee acquiesced by silence, does not affect the interest of the remaindermen, nor are they estopped to question the validity of said judgment, for the trustee could not fritter away their title by unauthorized admissions, and besides the interest of Milton died with him. The judgments did not operate on the income received by the trustee for Milton’s use; and neither they, nor the judgment on the cross-bill, operated on the equitable interests of his heirs.
    4. -: ,-: —:-; Laches. No rights of the remaindermen requiring assertion accrued to the remaindermen under said will until the lifetime beneficiary died, and if he died after the suit was instituted they could not be charged with laches for not sooner asserting their rights as against the invalid judgments rendered in favor of his creditors against him and the trustee. There can be no laches unless the opposite party has been prejudiced by delay.
    6. -: —--: Life Estate. A devise to. a trustee of certain real estate “for the use and benefit of my son and his heirs” may ere-ate an equitable life estate in the income in the son and an equitable fee in his heirs.
    6. -: ■-- — : Active Trust. A devise to a trustee for the use and benefit of a son and his heirs, with full control and management vested in the trustee and no power of encumbrance or dis- , posal, is inconsistent with an estate in fee in the son.
    • 7. -: -: -: Suit Against Beneficiary: His Death and Revivor: Hew Questions. The will devised real estate to a trustee for a son and his heirs. Suit was brought by the trustee and the son to have annulled certain judgments in favor of the son’s creditors. The son died during the pendency of the suit, and it was revived by the substitution of his heirs as plaintiffs. To their amended petition defendants entered their appearance and joined issues. Held, that whether or not objection to that method of procedure would have been availing in the trial court need not be considered, for the suggestion that the heirs are limited to such questions as could have been made by the son is made for the first time in this court and cannot therefore be considered.
    Appeal from Macon Circuit Court. — Non. Nat M. Shelton, Judge.
    Reversed and remanded'.

      R. 8. Matthews, and Otho F. Matthews for appellants.
    (1) Plaintiffs contend that in the plain language of the third item of the will it states that Milton C. Tracy could not in any way mortgage, sell or create debts that would he a lien upon the real estate in question. It puts the fee simple in Ben N. Tracy and Ms successors. Upon the death of Milton C. Tracy, the title vests in the heirs of Milton 0. Tracy, or as it is contended, the title vests in the heirs of Benjamin N. Tracy, Sr., deceased, the maker of the will, and it malees no difference because they are the same identical persons as the heirs of Milton 0. Tracy. 28 Am. & Eng. En'cy. Law, p. 959!; Partridge v. Cavender, 96 Mo. 452; Peeken v. Dorres, 20 Mo. App. 5. These Missouri cases give the rule of construing such wills and hold that the legatee cannot even encumber the rents and profits. Uraliana v. Mlore, 189 S. W. 1186. (2) It is not necessary that an instrument creating a spendthrift trust should contain an express' declaration that the interest of the cestui que trust in the trust estate shall be beyond the reach of his creditors, providing such appears to be the clear intention of the testator or donor as gathered from all parts of the instrument construed together in the lights of the circumstances. .20 Am. & Eng. Ency. Law (2 Ed.), p. 141; Pugh v. Hays, 113' Mo. 424; "Walton v. Ketchum, 147 Mo. 209'. In an active trust, the legal title is in the trustee. Simpson v. Erisner, 155 Mo. 157; Simpson v. Jennings, 163 Mo. 832. (3) The word “heirs” after “Milton C. Tracy,” is not a word of inheritance, but a word of limitation, and Milton G. Tracy has no title in law or ini equity in the property in controversy. Jarboe v. Hey, 122 Mo. 341; Lampert v. Haydel, 96' Mo. 439. There can be no estate limited after an estate in fee. (4) The judgments were all obtained without any appearance on the part of the defendant, M. C. Tracy, in person or by an attorney, as shown by judgments themselves as entered of record, and offered in evidence. The record of attempted revival of all of said judgments in 1906 was without service on Milton C. Tracy, of any kind, and without his knowledge or consent, and without any authority of anyone to appear for him. Likewise, the attempted consolidation of the three judgments into a creditors’ bill was without any notice to Milton C. Tracy and without any process or service on him, and without his knowledge and without authority of his trustee to appear for him in any manner, whatever, if the said James W. Roberts could be construed as his trustee, never having qualified by giving bond or maldusr reports to the court, etc. All of said judgments are void. The statutes reauire that scire facias should be served upon Milton 0. Tracy. R. S. 1909, n. 915. Hence, the proceedings in 1906 and 1907 are void. Said judgments are now barred by the Statute of Limitations. (5) The creditors ’ bill is void for the further reason that the said Milton C. Tracy tabes nothing under the provision in the will of his father, only the rents bf the real estate for life. (6) For a judgment creditor to maintain a-creditor’s bill, it must appear that he has exhausted his legal remedies fori the collection of the judgment. In this case, the evidence shows that Milton C. Tracy had property not subject to any trust at all times since said judgments were obtained, and that no execution was ever issued thereon. Wilkinson v. (Goodin, 71 Mo. App. 394; Merry v. Fremon, 44' Mo. 518; Alnutt v. Leper, 48 Mo. 319; Humphreys v. Milling Co-., 98 Mo. '542; Thias v. Siener, 103 Mo. 314; Miller v. Hewitt, 113 Mo. 639; Ray-bum v. Mitchell, 106 Mo. 365; dark v. First Natl. Bank, 57 Mo. App. 277; Faddock-Hawley Iron Co. v. MbDonald, 61 Mo. App. 559. (7) When a trust is an executive or an active one with the legal title to the trust vested in the trustee, it cannot be in any manner reached or interfered with by the creditors of the beneficiary. S'choeneich v. Field, 37 Mo. App. 452; Merry v. Fremon, 44 Mo. 518. (8) Appearance cannot be waived on a creditors bill or a revival, and this goes to the jurisdiction of the subject-matter and is fatal in every stage of this case and cannot therefore be cured by any waiver or coursd of any proceeding by the parties. Baxter v. Moses, 77 Mo. 465; Brown v. Bank of Mississippi, 31 Miss. 454.

      B. R. TJysart and John T. Gose for respondents.
    (1) Milton C. Tracy took an equitable fee in the .trust property in question, by the will of his father as found by the court in the instant case. The property was devised to a trustee for the sole use and benefit of Milton C. Tracy. The property was not limited over to any other, person or use. There was no remainderman mentioned or provided for. All the property of testator was disposed of. That the property devised was intended for Milton 0. Tracy is made evident and conclusive by the eighth item of the said will, wherein the testator speaks of the property in question as “bequeathed and devised to nay said son, Milton.” Hardin’s Exr. v. Hardin, 186 S. W. 898. The plaintiff’s contention that Milton C. Traey only took a life estate is not sound. "Wfhere the -court had jurisdiction, its judgment is not subject to collateral attack, as in this case. State ex rel. v. Bank, 213 S. W. 8151 (2) Had this been a dry trust, with no duties to° perform 'by the trustee, it would have been executed at once by the Statute of Uses. Sec. 2867, R. S. 1909; Carter v. Long, 181 Mo. 710'; Perry on Trusts (5 Ed.), sec. 208; Webb v. Hayden, 166 Mo. 48; Newton v. Re'benack, 90 Mo. App. 6'56. (3) If a will creates an active trust, requiring duties to be performed, the legal title does not vest in the beneficiary or the cestui que trust, until such duties are performed. Pew v. Hayes, 113 Mo. 424; Simpson v. E'risner, 155 Mo. 157; Garland v. Smith, 164 Mío. 1. (4) The plaintiff contends that the 'circuit court had no' power or jurisdiction to provide and adjudge a continuing lien in favor of these defendants- in rendering its judgment in the creditors suit on January 10,1907. A court of equity has jurisdiction of liens. In 25 Cyc. 681. (5>) In the decree of January 10.1907, the court ¡granted a stay of execution during the lifetime of Milton C. Tracy, which the court clearly had the right to do. And it is well established that the granting of a stay of execution is equivalent to extending the lien until the time of the stay expires. Mercantile Trust Co. v. Rv. Co., 69 Fed. 193; State ex rel. v. Deering. 180 Mo. 68‘. (6) The creditors’ bill was the proper proceeding in a case where tbe property is held in trust. 5 Enev. Plead. & Pra.o. pp. 391, 598 and 608; Titus v. Development Co., 264 Mo. 229. A defendant can have relief on his cross-bill where the plaintiff for anv cause, fails to recover. A dismissal of the plaintiffs’ petition, whether voluntarily or bv order of the court, does not dispose of the cross-bill, but it is the duty of the court to proceed and .render judgment on the cross-bill. 5 Enov. Plead. & Pra.c. pp. 632. 663 and 664; 25 Cyc. 684: McMkrray v. McMurray, 258 Mo. 416.
   WILLIAMSON, J.

Appellants brought their suit, a proceeding in equity, in the Circuit Court of Macon County, Missouri. The issues were duly made up> and upon a hearing of the cause the judgment of the court was in favor of the defendants, and plaintiffs thereupon appealed to the Kansas City Court of Appeals. That court transferred the- case to this court, on the ground that the title to land is involved in the proceeding. A motion to remand having been overruled, the cause remains here for decision. The facts out of' which this controversy arose are 'substantially as follows:

Benjamin N. Tracy, Senior, was the father of Milton C. Tracy, Bettie Tracy Roberts, Luther Gr. Tracy, Benjamin N. Tracy, Junior, and Aubrey D. Tracy. Benjamin N. Tracy, Sr., died, testate, in Macon County, in 1873. His will was duly admitted to probate in that county, and the estate was duly administered. His wife, Frances W. Tracy, is also dead.

The third paragraph of testator’s will reads as follows:

“I devise and bequeath to my son, Ben N. Tracy and his heirs the following described real estate, to-wit: Twenty-six feet off of the east end of Lots One and Two in Block 87 in Macon City, Missouri; also Lot No. Thirty in College Addition to Macon City, Missouri, and Lot No. Six in Block 167 in the College Addition to said City of Macon; to have and to hold the same in; trust for the use and benefit of my son, Milton 0. Tracy and his heirs, the said trustee to[ have the sole management and control thereof, to collect the rents and pay the same to said beneficiary and his heirs, |the said Milton to have no control or disposition of said estate and no power to encumber the same, but said trustee to have power to sell and convey the same or any part thereof for reinvestment in other property to be held by him or his successors in the same way.”

Benjamin N. Tracy, Jr., on the death of his father, duly qualified as trustee of Milton 0. Tracy, and acted in that capacity for a number of years. He; was sueceeded in the office of trustee by one Philip Trammel, who was succeeded by James W. Roberts (husband of the defendant Bettie Tracy Roberts), who resigned in 1912, and the plaintiff' R. S. Matthews was then appointed trustee in his place, and acted in that capacity until the death of Milton 0. Tracy, July 11, 1915'.

This' suit was originally brought by Milton C. Tracy and his said trustee, R. S. Matthews, against James 0. Van Cleve, Edwin McKee and Edward* J. Demeter, all of whom are judgment creditors of the said Milton C. Tracy, and Bettie Tracy Roberts and Charles H. Pavson. Upon the death of Milton C. Tracy-pending the suit, his heirs, Fred N. Tracy and Luther G-. Tracy, were substituted as parties plaintiff in his stead.

It is alleged in the petition that by inheritance or purchase the title to all of the land involved in this action is now vested in the three plaintiffs and in the defendant Bettie Tracy Roberts. Mrs. Roberts, however, also claims in her answer to be the sole owner of these 'lands by virtue of the will of Milton C. Tracy. Further details as to the- derivation of title are not necessary to an understanding of the issues of this case.

Charles II. Payson was made a party defendant because he also had a judgment against the decedent, Milton C. Tracy, and under his said judgment had caused an execution to be issued, and had levied the i same upon the interest of Betty Tracy Roberts in said real estate. Further reference to this matter is unnecessary.

It is further alleged that for about fifteen years prior to his death, Milton C. Tracy was an invalid, confined to his home and unable to attend to any business; that the defendants Van- Cleve, McKee and Demeter had each obtained separate judgments against said Milton 0. Tracy, and thereafter 'had brought a creditors’ bill, so-called, in the Circuit Court of Miacon County, Missouri, whereby, as they claim, they had obtained a perpetual lien upon the portion of the property left- in trust to Benjamin K Tracy, Jr., for the use of the said Milton 0. Tracy by the will of the testator. This proceeding was ¡badj' during the latter years of .the life of Milton C. Tracy, and at a time when his brother-in-law, James W. Roberts, was acting as his trustee. James W. Roberts was an attomey-at-law, and, if is alleged, undertook to enter the appearance of the said Milton C. Tracy, to sajid, action; in the [nature of a creditors’ bill, and no process whatever was served upon the said Milton 0. Tracy in that suit. Plaintiffs allege that the conduct of the said Roberts in so doing was unauthorized and fraudulent, and done in connivance with the said judgment creditors and without the knowledge, consent or approval of the said Milton C. Tracy, and that' the judgment so rendered is, for that aind other reasons in the petition alleged, null and void; that the original judgments in favor of said judgment creditors separately are barred by the Statute of Limitations, and that neither the original judgments nor the judgment obtained in the so-called creditors’ bill proceeding constitute a lien upon the lands in question.

It further appears that by order of court, in an effort to preserve the trust estate, the trustee was authorized to borrow of one George W. Gilstrap, the sum of six hundred dollars, and to give a deed of trust upon the property in question to secure the same, which he did. The validity of this deed of trust is not attacked. It appears that a portion óf the trust estate had been sold, and in violation of the terms of the will, the proceeds had been paid to the said Milton 0. Tracy, or used in the payment of taxes against the trust property, so that at the time of the suit but a small part of the trust estate remained.

The answer of the defendants Van Oleve, McKee and Demeter admits that they severally obtained judgments against the said Milton 0. Tracy, and that their judgments were afterwards consolidated in one judgment in the so-dalled creditors’ proceeding, and (the original judgments were thereupon released upon the record. They deny the allegations of fraud and collusion between themselves and Roberts, trustee, plead. that their judgments were from timef to time revived; by writs of scire facias until consolidated in the creditors’ judgment aforesaid; aver that Roberts was duly, authorized to enter the appearance of Milton C. Tracy to these various proceedings, both as his trustee and as his attorney; plead that no appeal was taken from the judgment rendered in the'creditors’ bill proceedings against Milton C. Tracy and James "W. Roberts in January, 1907, and that all questions concerning the same are now res adjudicata; that the existence of, said judgment was well known to 'Milton C. Tracy for a long time prior to this death, -and to the plaintiff R. S. Matthews at the time of his appointment as trustee; that Milton C. Tracy died testate; that his will was duly probated in the Probate Court of Macon County, Missouri, and that by the terms of his will the said Milton 0. Tracy devised and bequeathed to the defendant B'ettie Tracy Roberts the real estate here! in question, which seems to have been practically all he had,' and that by reason of the facts1 alleged plaintiffs are estopped to question the validity of the said judgment and lien! obtained in said creditors’ bill 'proceeding; that by his quiescence and silence the plaintiff Matthews had lulled defendants' into a false sense of security,' until it was too late to revive the judgments in tjieir favor, and that plaintiffs are thereby estopped to question the validity of the judgments in the said creditors” bill proceeding.

Van Cleve, McKee and Demeter also filed their cross-bill, alleging the judgment obtained by them in January, 1907, against the said Milton C. Tracy and James W. Roberts, his trustee, in the creditors’ bill proceeding aforesaid; that by the terms of said judgment it was to be a continuing lien upon the lands here involved, until the death of said Milton 0. Tracy, and that thereafter the property was to be sold to satisfy said judgment; and praying that the land be sold to satisfy the judgment aforesaid, after the payment of six hundred dollars due the said George W. Gilstrap.

Bettie Tracy Roberts filed a separate answer, denying that either the defendants Van Cleve, McKee and Demeter or the plaintiffs', or any of them, have any interest in said real estate, and claiming to- be the sole and exclusive owner thereof, apparently basing her claim upon the will of the said Milton C. Tracy. This defendant prayed for a judgment of the court divesting title from the plaintiffs and her co-de’fendants, and vesting the title to the entire property in herself.

The answer of the defendant Charles H. Payson admitted that he had obtained judgment against his co-defendant Bettie Tracy. Roberts; that execution had been issued thereunder, and levy made upon her interest in the real estate in question, and denied that her interest in said real estate was1 subject to a lien in favor of the defendants Van Cleve, McKee and D'emeter.

Plaintiffs]’ reply to the answer of Van Cleve, McKee and Demeter was in substance a general denial, coupled with an allegation that under the will of Benjamin NI Tráoy, Sr., the title to the property left in trust to Milton C. Tracy vested, upon the death of said beneficiary, in the heirs of Benjamin N. Tracy, Sr., that none of his heirs were made, parties to the said creditors ’ bill proceeding, nor to any proceeding in which the said Van Cleve, McKee and Demeter obtained any judgment, and therefore plaintiffs were not bound by said judgments.

Upon a hearing of the cause, the court dismissed plaintiffs’ petition and adjudged the judgment and decree rendered on the 10th day of January, 1907, in favor of Van Cleve, McKee and Demeter, to be a valid lien upon the premises in question, and ordered a sale of said lands and directed that the proceeds should be applied, ifilrst, to the payment of the note held by the said Gilstrap, and the remainder to the payment of the -several judgments' in favor of said Van Cleve, McKee and Demeter. It seems to have been conceded that the property would not be more than sufficient to pay these sums, after paying the costs, and no judgment was rendered concerning the disposition of any possible surplus. The judgment is silent as to the defendants Mrs. Roberts and Payson.

Plaintiffs duly filed their motion for a new trial, and, their motion being overruled, they have appealed.

The questions arising in this case involve the construction of the will of Benjamin N. Tracy, Sr. Upon the proper interpretation of those portions of the will relating to Milton C. Tracy, the decision of this case hinges.

In this instance, as in all others relating to the construction of wills, the guiding rule of construction is that effect must be given to the lawful intent and purpose of the testator. All other rules' of construction are merely to be used in aid of that rule.

It will be noted that the testator devised the property in question, and other property (to use the words of the will itself), “to my son Ben N. Tracy and his heirs ... to have and to hold the same in trust for the use and benefit of my son, Milton C. Tracy and his1 heirs.” The trustee is, (a) to have the sole management and control of the trust estate; (b) to collect the rents and pay the same to the bene-' ficiarjy and his heirs; (c) to have power to sell .and convey the lands embraced in the trust, or any part thereof, and (d) to reinvest the proceeds in other property to be held in trust in like' manner. This was an active, not a-passive trust. [Pugh v. Hayes, 113 Mo. 424; Higbee v. Brockenbrough, 191 S. W. 994; Maxwell v. Growney, 213 S. W. 427; Freeman v. Maxwell, 262 Mo. 13.]

■ It will be noted further that the will in express terms provides that the beneficiary is given no control or disposition of the trust property, and no power to encumber it. Thus, both by affirmative language as to the trustee and negative language as to the beneficiary, the control, management and disposition of the trust property is1 vested in tbe trustee, and in bhn alone. Tbe language is clear, apt, emphatic and admits of no double construction. No other provisions of the will modify or in any way 'alter the meaning of the quoted clause.

The intention of the testator clearly was to create an active trust; to vest the legal title in the trustee, and to provide for the payment of the income only to Milton C. Tracy, and we hold that that is what he did.

The trust so created is what is1 called a spendthrift trust. There is much learning in the books respecting spendthrift trusts and much might be said concerning the varying doctrines concerning them to be found in the English law, in the Federal courts, and in the reports of our sister states, but, happily, there is no need to enlarge on those matters. Our own courts have long since adopted feed principles concerning such trusts, and have consistently adhered to them.

In the case at bar, the beneficiary had no control over any part' of the trust estate except the income, nor. any control over that until it was paid to him. It was the clear intent of t!he testator that this income should be inalienable, that it should not be anticipated, and that it should not.be subject to any debts or liens created by the beneficiary. The, will, in set terms, provides that the beneficiary shall have “no power to encumber” the estate, and “no control or disposition” of it.

Is this devise then, valid or invalid as against creditors of the beneficiary, whether judgment-creditors or otherwise? We think it is. valid. The beneficiary had only an equitable life estate in the income. Spendthrift trusts are of equitable origin, and are cognizable in courts of equity only. Equity is fond of enforcing trusts,. and of effectuating the intentions of donors. In the case at bar, the intention of the donor is clear. It was1 his own property that he was giving away. It was to his own son — bone of his bone and flesh of his flesh — that he was giving gifts. His obvious purpose was to provide for that son against existing or anticipated misfortune, perhaps against the son’s own improvidence or lack of business acumen, and the effect of tbe provision was, pro tombo, at -least, not only to provide for the son but to guard the public against the possibility of the son’s ever becoming a public charge. The provision was evidenced by a writing eligible to record and required by law to be recorded. As to antecedent creditors, no harm Could come to them because their debts were contracted before the will became operative, and subsequent creditors became so, charged with notice of all of the provisions of the will. The purpose was lawful, the means proper, and the end laudable, for it is written:

“But if any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel.” [I Tim. 5, 8.]

Of more specific application, perhaps, are some of our own decisions. The following are a few of many that might be cited. [Lampert v. Haydel, 96 Mo. 439; Partridge v. Cavender, 96 Mo. 452; Jarboe v. Hey, 122 Mo. 341; Heaton v. Dickson, 153 Mo. App. 312; Kessner v. Phillips, 189 Mo. 515, l. c. 523; Graham v. More, 189 S. W. 1186; Higbee v. Brockenbrough, supra.] Further authority for the views herein announced may be found in the learned opinion of Mr. Justice Miller, in Nichols, Assignee, v. Eaton, 91 U. S. 716, and tbe cases there cited.

Accordingly, we hold that the' clause of the will in question was valid as against creditors and all others, .and being so, upon the death of the beneficiary, his entire interest in the trust estate died with him, leaving nothing to which the rights of creditors- could attach, nor anything upon which judgment liens could operate.

But it is said that respondents, the judgment creditors, during the lifetime of the beneficiary, in a suit to which he and his then trustee were parties, were adjudged alien upon the property'in question, and that that judgment is in full force and effect. It is conceded, however, that' only the beneficiary and his then trustee, Roberts, were parties defendant to the suit in which that judgment was rendered. What was1 the effect, then, of that judgment? It seems clear, on principle, that it could only have been effective against whatever interest the beneficiary, Milton C. Tracy, had in the trust estate, and that interest, as we have seen, was an equitable life-estate in the income only. That estate terminated at his death. Certainly the remaindermen, not'being parties to that suit, are not bound by any judgment rendered in it. Their. interests are not affected by it. As to them the situation is as if noi such judgment had ever been rendered, and the beneifilciary being now dead, it is the rights of the remaindermen, only, -that are now to be determined. On a point so elementary no authorities need be cited. It follows that their judgment avails respondents1 nothing. .

On the facts set out in our statement of facts, respondents sav that appellants are estopped now to question the validity of the judgment rendered in the creditors’ bill proceeding. We think there is no merit in this contention. In the first place, appellant Matthews,. as trustee ,for Milton C. Tracy, the beneficiary, could not fritter away. , the title of the remaindermen to the trust property, by unauthorized admissions, nor could the beneficiary do so. In the second place, there is no, virtue in this plea of estoppel, for' the reason that, even if respondents had revived the judgments rendered in their favor in 1903, they would not have been benefited thereby, so far as the property here involved is concerned, because the interest of Milton C. Tracy in the trust testate, for the reasons stated, died with him. Estoppel arises only when one has-been misled to his hurt, by the conduct of another. [De Lashmutt v. Teetor, 261 Mo. 412.]

Neither do we think there is any merit in respondents’ plea of laches. ■ They are not shown to have been prejudiced by any delay on the part of -appellants in asserting their rights in the premises.' No rights requiring assertion accrued to appellants until the death of the beneficiary, and it appears from this record that the beneifilciary died after the institution of this suit.

Having reached the conclusions already announced, there is no need to discuss other questions arising in this case. We conclude, therefore, that the learned chanceller was in error in holding that Milton C. Tracy under the will of his father took an equitable fee title in the real estate here in question, and was also in error in holding that the judgment in the creditors ’ proceeding, as of date January 10, 1907, constituted a lien upon that real estate. Appellants were therefore entitled to a decree declaring that judgment not to be a lien upon said lands, and their petition seeking that relief was erroneously dismissed. Since the holder of the six-hundred dollars deed of trust was not a party to this action, his rights are not in anywise adjudicated.

For the reasons stated, the judgment of the lower court should be reversed and this cause should be remanded for further proceedings consistent with this opinion.

It is so ordered.

AH concur.

On Motion tor. Rehearing.

WILLIAMSON. J.

Respondent in a motion for a rehearing suggests that this is “the first time that an opinion of this court has ever held that a devise to A and his heirs creates a life estate because the testator provides that A cannot control, dispose of or incumber the property conveyed.” In Cross v. Hoch, 149 Mo. 325, the testator devised certain property ‘to my daughter Sarah Cross and her heirs,” but “subject to the trust, care and control of” a named trustee. It was contended in that case, as it is here, that the use of the words “and her heirs” created a fee simple estate in the devisee, but the Court in a well-reasoned opinion in which many authorities are reviewed, held that the devisee took only a Hfe estate. There is a striking analogy, also, between the facts in that case and in the case at bar. In the Cross case the testator devised various lands to different daughters evidently intending to vest in them severally, and in law and in fact actually vesting in them, a fee to the lands devised, without using the words ‘ ‘ and her heirs, ’ ’ but when referring to Sarah Cross he did devise the lands to her “and her heirs,” and, as stated, this was held to create a life estate only. So in the instant case, testator devised in one paragraph of his will certain lands “to my son Aubrey D. Tracy” and in another paragraph he devised certain lands “to my son Benjamin -N. Tracy” — in neither cáse using the words “and his heirs”, though afee was obviously intended— but when he made the devise of the lands here in question, that devise was to the trustee “for the use and benefit of my son Milton C. Tracy and his heirs.” In the light of the context, as well as of the authorities, we think that no fee passed to the beneficiary. The restrictions upon use, control and disposition are inconsistent with an estate in fee. [Burnet v. Burnet, 244 Mo. 491, l. c. 505; Potter v. Couch, 141 U. S. 315 ; 16 Cyc. 601; 2 Washburn on Real Property, 484.]

This action was originally brought by the beneficiary and his trustee, and was “revived” upon the death of the beneficiary, at which time an amended petition wa® filled arid the heirs of the beneficiary were substituted as parties plaintiff. To this’ amended petition respondents entered their appearance and joined issues. No objection to that method of procedure appears to have been made in the trial court. Whether 'such objection,-if properly made, would or should have prevailed, we need not now inquire. The cause was tried in all respects as if brought in the first instance by the plaintiffs in the amended petition. While a plea of res adjudicates was made below, based upon the judgment in the creditors,’ bill proceeding, the suggestion that, because of the revivor, the present plaintiffs are limited to such questions as could have been made by tbe beneficiary; and none other, makes its initial appearance in this court and cannot be considered. [Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 685, l. c. 705.]

The limitations of time and space forbid a review of the numerous authorities cited,, although we have read all of them with interest. After a careful review of the law and the facts of this case, we see no reason for a different conclusion from that heretofore expressed. The motion for a rehearing is denied.

All concur.


source: Caselaw Access Project

author: RAILEY, C.

license: Public Domain

text:
    HENRY COWAN v. O. G. YOUNG, Appellant.
    Division Two,
    April 9, 1920.
    1. ACTION AT LAW: Appellate Practice: Substantial Evidence. A suit to recover the price of cattle sold and delivered is an action at law, and will be treated as such on appeal, although presented as though it were a suit^in equity; and being an action at law, it is elementary that, unless reversible error was committed in the admission or rejection of evidence, or in the giving or refusal of instructions, the verdict of the jury, if supported by substantial evidence, must be sustained.
    2. CONVERSION: Suit on Contract: No Motion1 to Elect. Where plaintiff’s petition is a suit on a contract to recover the reasonable value of cattle sold and delivered, it is defendant’s duty, if he is not able to determine whether the suit is one for conversion or one on contract, to file a motion to require the petition to be made more specific and definite; and if no such motion is made, and the petition waives defendant’s tort in converting the cattle to his own use and proceeds in assumpsit, the case will be determined on appeal on the same theory on which it was tried, . namely, not as a suit for conversion, but as an action on contract,
    3. ACTION AT LAW: Demurrer to Plantiff’s 'Case: ¡Waiver* Defendant waives his demurrer to plaiptiff’s evidence by presenting his own evidence and requiring the jury to pass upon the entire case.

      i. SALE: Suit for Price: Prior Attachment: Election/of Remedies, Hhe commencement of a suit in attachment -against defendant as owner for the price of cattle sold, dismissed before trial, is not inconsistent with a subsequent suit' against defendant for the price of the cattle, without attachment.
    5. -: -; — : Prior Replevin: Election of Remedies. Where a party has the right to pursue one of two inconsistent remedies and makes his election, and the action is prosecuted to final judgment, he cannot thereafter pursue the other remedy. But by bringing a suit in replevin, in which plaintiff alleged that he was the owner of the cattle sold, which suit was dismissed before trial, plaintiff did not estop himself from bringing a subsequent suit for the reasonable value of the same cattle, in which he waives the defendant’s tort in converting them to his own use. There was no such election of one of two inconsistent remedies. as made the replevin a bar to a suit to recover the price for which the cattle were sold, there being no judgment or trial in the replevin suit.
    6. -: Equitable Estoppel: Ratification. An instruction which applies the doctrine of equitable estoppel and seeks to hold defendant, and not his agent, as the purchaser of the cattle sold, and is throughout consistent with the allegations of the petition and answer, in an action to recover the value of the property, does not present a theory of ratification, and is not erroneous.
    7. APPELLANT’S BRIEF: Failure to Comply With Rules. Unless propositions made in appellant’s brief comply with Rule 15, they will not be separately discussed.
    Appeal from Jackson Circuit Court. — Son. T. J. Seehorn, Judge.
    Affirmed.

      Goodwin Greason and B. F. Deatherage for appellant ; T. A. Witten of counsel.
    (1) Defendant’s objection to the introduction of any evidence on the ¡ground that the petition' did not state a cause of action, ought to have been sustained. The facts stated in the petition, if true, would constitute a conversion of the property while the prayer is for recovery of the contract price. (2) The court erred in refusing at thre close of plaintiff’s ease to give an instruction asked by the defendant in the nature of a demurrer to plaintiff’s evidence, because there was no evidence tending to prove either (a) that defendant bought the cattle in question from plaintiff or at any time agreed, either in person of by agent, expressly or impliedly, to pay plaintiff for said cattle, or (b) tending to prove that defendant had any notice or knowledge that Jersig (if he so did) had represented to plaintiff that he was defendant’s agent to purchase said cattle for defendant and to enter into a contract with plaintiff concerning same, before defendant had received and used said cattle, and there was nothing to submit to the jury either upon the theory that the suit was upon a contract or upon the theory that it was an action in tort for a conversion. (3) If the present suit is oii an alleged contract, to recover the price of the cajtle, then the court erred in refusing to give, at the close of plaintiff’s case, an instruction asked by defendant in the nature of a demurrer to the.evidence because the evidence of plaintiff disclosed that he had previously elected to claim the cattle and had brought and prosecuted a suit in replevin therefor, and is thereby barred from prosecuting this action. Dry Goods Co. v. Warden, 151 Mo. 578; Light So Power Co. v. Machine Co., 170 Mo. App. 232; 15 Cyc. 257, 259, 260; Milling Co. v. Bums, 152 Mo. 350; 15 Cyc. 2621; McWilliams v. Thomas, 74 S. W. 506; Snyder Co. v. Brown, 46 S. W. 108; P'arker v. Panhandle Natl. Bank, 34 S. W. 196; Sullivan v. Ross, 113 Mich. 3111; MacMurrayJudge Iron Co. v. St. Louis, 138 Mo. 608; Welsh v. Corder, 95 Mo. App. 45; Avery & Son v. Texas Loan . Co., 62 S. W. 793; Tamer v. Compton Hill Imp. Co., 192 'Mo. 379; Bigelow on Estoppel (5 Ed.), 67'3. (4) The court erred in submitting to the jury in instruction “B” the theory of a ratification by defendant of acts and representations of Jersig, because there was no evidence in the case to support' that theory. Nor was ratification pleaded. Lipscomb v. Talbot, 243 Mo. 28; Wade v. Hardy, 75 Mo. 394; Capital Bank v. Armstrong, 62 Mo. 59; Noble v. Blunt, 77 M]o. 242; Loving Co. v. Cattle Co., 176 Mo. 353; MeClanahan v. Payne, 86 Mo. App. 292; Weil v. Posten, 77 Mo. 287; Glass v. Galvin, 80 Mo. 302; Lenox v. Harrison, 88 Mo. 495 ; Christian v. Ins. Co., 143 Mo; 469;

      New, Miller, Camack $ Winger and P. E. Reeder for respondent.
    (1) Defendant’s objection to the introduction of any evidence on the ground that the petition did not state a cause of action wa.s properly overruled by the trial court. Sufficient facts were alleged in the petition to state a cause of action upon a contract by plaintiff with the defendant, acting through his agent Jersig, and even though a cause of action for conversion of the cattle may have also been set forth in the petition, and even though such cause of action for conversion may have been improperly united with one on contract in the petition, such improper joinder was waived by the defendant for his failure to attack the petition before answer, either by demurrer or by motion. Secs. 1800, 1804, E. S; 1909'; House v.' Lowell, 45 Mo; 381; Stone v. Perkins, 217 Mo; 586; Bailey v. Houston, 58 Mo. 361; Meade v. Brown, 65 Mo.. 552; Hendricks v. Calloway, 211 Mo. 536; Koehler v. Kowland, 2.05 S. W. (Mo.) 221; Finnell v. Met. Ky., 159 Mo. App. 522; City Light Co. v. Machine Co., 170 Mo. App. 231; Counihan v. Thompson, 111 Mass. 272; Stewart v. Hayden, 72 Fed. 412; Stewart v. Hayden, 169 IT. S. 15. (2) The court properly refused defendant’s demurrer to the evidence at the close of plaintiff’s case because there is ample evidence in the record showing, (a) that Jersig bought the cattle from Cowan for Young as the latter’s agent and agreed in behalf of Young to pay for them and that Jersig was the duly authorized agent of Young to make such purchase; and (b) that Young, thereafter fully ratified the acts of Jersigi in purchasing the cattle for him and in his behalf, acting as Young’s agent. H’ilz v. Mo. Pac. Ey. Co., 101 Mo. 36; Biggs v. Bailroad, 216 Mo. 310; Jackson v. Stanfield, 23 L. E. A. (Ind.) 598; Balston v. Kohl, 30 Ohio St. 92; 31 Cyc. 1661; Haekett v. Van Frank, 105 Mo. 399; 31 Cyc. 1275; M'cLaeklin v. Barker, 64 Mo. App. 522; Bowlin v. Creel, 63 Mo. App. 229; Fahy V. Orocery Co., '57 Mo. App. 73; Mayer v. Old, 57 Mo. App. 639; G-riswold v. Haas, 177 S. W. 728; Clark v. Clark, 55 Mo. App. 535., (3) The institution of the replevin suit in Oklahoma did not preelude or bar the plaintiff from' filing and maintaining the present suit and is no defense in this action. City L. & P. Co. v. Miachine Co., 170 Mo. App. 224, 231; Taylor v. Short, 107 Mo. 392; Otto v. Young, 227 Mo. 219; Steinbach v. Murphy, 143 Mo. App. 537, 540; Johnson v. Bank, 198 S. W|. 990; Meinershagen v. Taylor, 169 Mo. App. 12; Trust & Savings Bank v. Bloodworth, 174 Pac. 545'.
   RAILEY, C.

(1) The amended answer contains a general denial.

(2) It charges in substance that plaintiff sold the cattle in controversy to E. P. Jersig, and received from him in payment of same, a check on the Comfort State Bank of Kerrville, Texas, payable at a later date; that he delivered said cattle to Jersig in Texas, and thereby waived cash payment for same; and passed the title thereto to said Jersig.

(3) That he (defendant) purchased a certain number of cattle from Jersig, which were delivered to him by the latter, at Schulter, Oklahoma; that upon delivery of same, he paid part of the purchase price thereof;' that if Jersig had not paid for said cattle, defendant had no knowledge of that fact, nor whether they were the same cattle Jersig bought from plaintiff, etc.

(4) That about March, 1913, Jersig was indebted to him about $20,000, represented by notes, which were secured by chattel mortgage on certain cattle claimed to be owned by Jersig, then in Texas; that said notes are past due and remain unpaid; that Jersig represented to defendant that he could gather and deliver to him at Schulter, Oklahoma, about 350 head of cattle so mortgaged by him as security for defendant’s indebtedness aforesaid; that he had purchased and then owned about 300 head of other cattle which he desired to sell, being three and four-year-old steers, which he represented to be of a certain quality, weight and grade; and which he was willing to sell to defendant, at $45' for all four-yearolds, and $40 for all three-year-olds; that it was then agreed between them, that defendant would credit upon his indebtedness owing to him by Jersig, all of the cattle under mortgage aforesaid which should be delivered by Jersig, at Schulter aforesaid, at $50 per head; and should also credit upon said indebtedness, or the balance thereof, the other cattle which Jersig represented he owned, and which he proposed to sell to defendant at $45, for the fours and $40 for the threes; and if the total number of cattle so delivered, amounted, at the prices aforesaid, to more than defendant’s indebtedness, that defendant would pay the difference to said Jersig at Schulter aforesaid, upon the delivery of said cattle to' defendant at Schulter; that Jersig delivered to defend- and at said place, in May, 1913, in accordance with said agreement, 393 head of cattle, which, at the price aforesaid, less $939.70 paid by defendant for freight, amounted to $16,220.30', which was insufficient to pay the entire indebtedness of said Jersig to defendant Young, as aforesaid ; that ever since the delivery of said cattle as aforesaid, defendant has stood ready and willing to credit Jersig’s indebtedness to him with the full amount of the purchase price of the cattle, at the prices aforesaid.

(5) That if the cattle in controversy were sold by plaintiff to Jersig, and were to be paid for in cash, and if they were not paid for by said Jersig in cash, then plaintiff by his acts and conduct, has waived his right to demand payment in cash, and to retain the title to said cattle until paid for, and has ratified and confirmed the sale to said Jersig, especially in this, that he elected to sue for the purchase price thereof, and on June 5>, 1913, commenced an action in the District Court of Okmulgee County, Oklahoma, against defendant and said Jersig to recover the purchase price of said cattle and caused an. order of attachment to be issued out of said court, in said cause, commanding the sheriff' of said county to attach the property of said Jersig and this defendant; that thereafter, the sheriff aforesaid attached a number of cattle belonging to this defendant, under and by virute of said writ of attachment; that thereafter said attachment proceedings were dismissed at plaintiff’s costs.

(6) That after the dismissal of said cause plaintiff commenced, in said court in 1913, an action of replevin, wherein and whereby he claimed to be the owner and entitled to the immediate possession of the cattle so alleged to have been delivered to him by said Jersig, at Kerrville, aforesaid, and claimed to have been shipped by Jersig, and delivered to defendant at Schulter, Oklahoma, in May, 1913; that a writ of replevin was issued in said cause, placed in the hands of the sheriff, and by him levied on said, cattle; that defendant gave bond aud retained possession of said cattle, and filed an answer in said cause; that said cause Was called for trial, a jury impaneled, evidence heard, and plaintiff dismissed said replevin suit; that by reason of the acts and con-._, duct of plaintiff, as aforesaid, he has waived all rights, if any he had, to demand payment in cash for said cattle from Jersig, and to retain the title to said cattle until paid for, and has thereby ratified and confirmed the sale made by Mm to said Jersig, and estopped bimself from claiming either said cattle or the purchase price thereof from this defendant. "Wherefore, etc.

(1) The reply contained a general denial.

(2) It alleges that the cattle mentioned in petition were sold to defendant Young, through Ms duly authorized agent, E. P. Jersijg; that at the time of said sale, the latter had full authority from defendant to purchase said cattle at the price specified in petition.

(3) That at the time of said sale to defendant, through said agent Jersig, it was expressly agreed between this plaintiff and said Jersig, representing defendant, that the title to said cattle should be and remain in this plaintiff until the full amount of the purchase price agreed upon as set forth in the petition herein, had been paid to this plaintiff, which fact was known to defendant at and when he came into possession of said cattle.

(4) That defendant, well knowing that said cattle had not been paid for by him in person, or through his said agent Jersig, took and retained possession of said cattle, without paying anything in value whatsoever therefor; and for the purpose of placing title to said cattle beyond the reach of this plaintiff: and without plaintiff at that time receiving any consideration therefor, immediately executed and recorded a mortgage on said cattle to the firm of Smith & Ricker of Kansas City, Missouri. for the full value thereof.

("50 That it is the general law of Texas that one receiving personal property from another, under an agree: ment to apply the same, unon a past due indebtedness, receives such property, subject to all claims or equities o' third persons therein; and. that one so receiving and applying goods upon a pre-existing indebtedness without any other consideration passing therefor, is not a bonafide purchaser in good, faith for value, as against the rights of third persons in such propérty. Wherefore, etc.

To obviate repetition, the evidence, instructions and ruling’s of the trial couirt, as far as may be deemed necessary, will be considered in the opinion.

On December 15, 1915, the jury returned a verdict in favor of plaintiff for $11,357.41, and judgment was entered in due form thereon. Defendant, ■ in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled and the cause duly appealed by him to this court.

at^Law I. This is purely ah action at law, 'although it has been presented here, as though it were a proceeding in equity, which would warrant us in passing upon, contested facts. In view of the numerous decisions heretofore rendered, it has become elementary law, in this jurisdiction, that, unless reversible error was commit- ' ^e<i the tidal court in the admission or rejection of testimony, or in the giving or refusal of instructions, the verdict of the jury, if sustained by substantial evidence, is conclusive-as to the facts. [Franke v. Franke, 213 S. W. 41,-2; Bingham v. Edmonds, 210. S. W. 885; and cases cited; Boas v. Branch, 208 S. W. l. c. 86; Walker v. Roberts, 204 S. W. l. c. 18; Roloson v. Riggs, 274 Mo. 528; 203 S. W. l. c. 975; In re Lankford Estate, 272 Mo. l. c. 8, 197 S. W. 147.] Keeping in mind the law as settled in respect to foregoing matter, we will proceed to a consideration of the “Points and Authorities” presented by appellant, as containing the grounds upon which he relies for a, reversal of the cause.

conversion. II. It is insisted by appellant that his objection to the introduction of any evidence, under plaintiff’s petition, should have been sustained, for the alleged reason that the facts stated in the petition, if true, constitute a conversion of the property, while the prayer, is for i;he recovery of the contract price.

On page 14 of appellant’s brief, it is said: “The facts alleged in the petition in this case, if taken separately, are sufficient to state a cause of action on a contract, and also a cause of action in conversion.”

If the defendant was not certain as to what kind of an action the petition contained, and desired information on that subject, he should have moved the court to require the petition to be made more specific and certain. That question was not raised/ however, by motion or otherwise, as the objection made did not cover this subject. Tjhe petition contains a plain and concise statement of the facts constituting plaintiff’s cause of action. In substance, it charges that defendant, in May, 19lo, took possession of 246 head of cattle, at Schulter, Oklahoma, belonging to plaintiff, without paying the purchase money therefor; that said cattle, when received by defendant at Schulter, Oklahoma, were reasonably worth $9,865. The petition waives the tort of defendant in converting the cattle to his own use, and proceeds against him in assumpsit for thp reasonable value of' the cattle at the time they were converted by defendant, with interest thereon from May 12, 1913, at the rate of six per cent per annum. [Floyde v. Wiley, 1 Mo. 430 and 644; Tamm v. Kellogg, 49 Mo. l. c. 120; Gordon v. Bruner, 49 Mo. l. c. 571-2; Johnson-Brinkman Co. v. Central Bank, 116 Mo. l. c. 568-9; Clifford Banking Co. v. Donovan Com. Co., 195 Mo. l. c. 288-9 ; Bank v. Bank, 244 Mo. l. c. 581-2; Whitecotton v. Wilson, 197 S. W. l. c. 170; Pile v. Bank, 187 Mo. App. l. c. 65.]

The .above contention is devoid of merit and is accordingly overruled. ■ ,

III. Appellant’s second assignment of error, reads as follows: ‘ ‘ The court erred in refusing at the close of plaintiff’s case to give an instruction asked by the defendant, in the nature of a demurrer to plaintiff’s evidence. ’’ (Here follow the reasons for above contention).

Demurrer This assignment of error cannot he sustained for two reasons: First, because the evidence was amply sufficient to warrant the jury in returning a verdict for plaintiff, and, second, because appellant failed to stand on his demurrer, but presented his own evidence, thereby waiving! the demurrer, and requiring the jury to pass upon the entire case, as though no demurrer had been filed. [Lareau v. Lareau, 208 S. W. l. c. 243; Riley v. O’Kelly, 250 Mo. l. c. 660, 157 S. W. 566; Riggs v. Railroad, 216 Mo. l. c. 310, 115 S. W. 969; Hilz v. Ry. Co., 101 Mo. l. c. 42, 13 S. W. 946; McPherson v. Ry. Co., 97 Mo. l. c. 255, 10 S. W. 846; Guenther v. Ry. Co., 95 Mo. l. c. 289; 8 S. W. 371; Bowen v. Ry. Co., 95 Mo. l. c. 275-6, 8 S. W. 230.]

Kemenes°f IY. Appellant’s third assignment of error is in the following language: “If the present suit is on an alleged contract, to recover the price of the cattle, then the court erred in refusing to g;ive, at the close of plaintiff’s case, an instruction asked by defendant in the nature of a demurrer to the evidence, because the evidence of plaintiff disclosed that he had previously elected to claim the cattle and had brought and prosecuted a suit in replevin therefor, and is thereby barred from prosecuting this action.

The demurrer to the evidence, at the dose of plaintiff’s case, was properly overruled for the reasons assigned in the preceding paragraph. There is no merit in this contention for additional reasons. Plaintiff, a resident of Texas, was confronted with the proposition that his cattle were taken by defendant at Schulter, Oklahoma, a mortgage placed thereon, for the value of same, and the mortgage recorded, without the cattle having been paid for by defendant, and without plaintiff’s consent. The latter employed counsel, and upon their advice a suit by attachment was brought against defendant and Jersijg, for $9,840, the value of the 246 head of cattle belonging to plaintiff. This suit was dismissed by plaintiff without any judgment on the merits having been rendered. If the mere commencement of a suit, after-wards dismissed, is an election as to inconsistent remedies, which precludes the plaintiff from changing his position, as contended for by defendant, then the plaintiff would be held bound to proceed against defendant for the value of the cattle, as he is attempting to do in the present action. In other words, plaintiff proceeded against defendant in the attachment suit as owner of the cattle, and sought to collect the purchase price of same. In the present action, he is still proceeding' against defendant as the owner of the cattle, and seeking to recover from him the unpaid purchase price for same. There is no inconsistency, therefore,- between the attachment suit, and the present action, as to the ownership of the 246i head of cattle.

Appellant contends that as an action of replevin was afterwards brought by plaintiff, against defendant in Oklahoma, for the possession of said cattle, in which plaintiff claimed to be the owner thereof, he is bound by this election, although the replevin suit was also dismissed by plaintiff without any judgment having been rendered on the merits of the controversy.. The present petition, still claims, that plaintiff was the owner of the cattle, when taken by defendant at Schulter, Oklahoma, in May, 1913, but, as was done in the attachment suit, plaintiff waived the tort of defendant in converting to his own use the cattle aforesaid, without paying therefor, and proceeded against him for the reasonable value of the cattle thus taken.

Without undertaking to review the authorities cited by respective counsel, relating) to this subject, we simply quote the general rule, recognized in this State, as declared by Judge Marshall,, in Tower v. Compton Hill Imp. Co., 192 Mo. l. c. 393, relied on by defendant, wherein he quotes from Johnson-Brinkman Com. Co. v. Ry. Co., 126 Mo. l. c. 349, as follows:

“In the case lastjcited it was said: ‘It is well settled law that where a party has the right to pursue, one of two inconsistent remedies, and he makes his election, and institutes his suit, in case the action thus begun is prosecuted to final judgment, or the plaintiff has received anything of value under a claim thus asserted, he cannot thereafter pursue another and inconsistent remedy.’ ”

The principle of law declared in the above quotation is now well settled in this State. [Leonard v. Martin, 214 S. W. l. c. 971; Smith v. Becker, 184 S. W. l. c. 947; Otto v. Young, 227 Mo. l. c. 219.]

In Smith v. Becker, 184 S. W. at page 947, the rule is stated by Judge Trimble, in respect to this subject, as follows: ‘ ‘ The bringing of the suits which were dismissed before trial is not such an election as will prevent the plaintiff from bringing the present suit to recover the, stock itself.”

We are of the opinion, that there is no merit in the foregoing contention, and especially so, as defendant acquired and retained plaintiff’s cattle without paying him therefor.

üt<vbilLc<vkioii. Y. It is contended by appellants that: “The court erred in submitting to the jury in Instruction ‘B’ the theory of a ratification by defendant of acts and representations of Jersig, because there was no • «. • i-i . , .-i , i-i evidence m the case to support that theory. Nor was ratification pleaded.” Said instruction reads as follows:

“The court instructs the jury that if you find and believe from the evidence that on the —-— day of May, 1913, plaintiff delivered to Jersig the 246 head of cattle mentioned in evidence, upon the representation of said Jersig that he was buying the same for the defendant, O. G-. Young, and that said Young- would pay for same before title thereto would or should pass to him; that said cattle were shipped to and received by the said Young; that said Young did not pay for said cattle upon receipt thereof, but neglected and refused so to do; that said Young knew the terms and conditions of said shipment, including the price agreed to be paid therefor, or was thereafter informed of the terms and conditions under which said cattle were delivered for shipment as aforesaid, and the price to be paid therefor; that after being so informed and knowing' that said cattle were not paid for, and of the representations, if any, so' made to plaintiff by said Jersig, the defendant retained possession of said cattle, claiming title thereto, then defendant cannot deny the agency of Jersig in said transaction, and became and is bound by tbe terms and conditions under which, said cattle were shipped, and your verdict should be for plaintiff for the full amount of the contract price of said cattle, if any is proven, not to' exceed'the sum of $9,865>, to which you may add interest thereon at the rate of six per cent per annum from June 5,1913.”

It says nothing whatever about ratification. It authorized the jury if they found the facts submitted therein, in favor of plaintiff, to apply the doctrine of equitable estoppel, and hold defendant as the purchaser of the property, from plaintiff, and not from Jersig. Said instruction is not only based upon the allegations of the reply,’ but contains a correct statement of the law applicable to the facts of the case. [Railroad v. Bridge Co., 215 Mo. l. c. 297-8; Proctor v. Nance, 220 Mo. l. c. 114-5-6; Hector v. Mann, 225 Mo. l. c. 251; Railroad v. Kemper, 256 Mo. 279-290-1; State ex rel. v. Citizens’ Bank, 274 Mo. 60, 73, 202 S. W. 382.] The above assignment of error is accordingly overruled.

VI: Propositions six to twelve inclusive of defendant’s brief do not comply with that part of Rule 15 of this court, which reads as follows:

“The brief for appellant shall distinctly allege the errors committed by the trial court, and shall contain in addition thereto: (1) a fair and concise statement of the facts of the case without reiteration, statements of law, or argument; (2) a statement, in numerical order, of the points relied on, with citation of authorities thereunder, and no reference will be permitted at the argument to errors not specified, ’ ’ etc.

In view of this rule, we have not discussed the above propositions, as we did the others heretofore considered. We have, however, carefully read ,and re-read both abstracts of the record, and the respective briefs of counsel. We are of the opinion that the case was carefully and .properly tried; that no error was committed in the giving or refusal of instructions; that there is substantial evidence in the- record sustaining the verdict of the jury as to all the material issues in the ease, and that the judgment below was for the right party.

We accordingly affirm the judgment.

White and Mosley, CG., concur.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judg’es concur.