author: GRAVES, J. WOODSON, J.

text:
    REX W. DUNNINGTON, Appellant, v. MARY M. HUDSON et al.
    Division One,
    February 25, 1909.
    1. TAXES: Payment: Payment of Judgment. A payment by a purchaser at a tax sale of the judgment for taxes and costs is not a payment of taxes within the meaning of section 4268, Revised Statutes 1899. So that where judgment was rendered for the taxes for the years 1869 to 1876, and'the land was sold in 1881 thereunder for $4, and a deed made to the purchaser (a stranger), and no taxes were paid by him or his grantees thereafter or by the former owner after 1869, there was no payment of taxes within the meaning of the thirty-year Statute of Limitations.

      Held, by WOODSON, J., dissenting, that the State’s claim for taxes became merged in the judgment, and when the land was sold thereunder the State’s lien ceased and the purchaser took the land free from a claim for taxes for the years embraced in the judgment, and the thirty years in which no taxes were paid should be held to begin to run from the last one of those years.
    2. TAX SALE: Against Former Owner: Color of Title: Possession. A sale of land for taxes assessed against a former owner, when there was a later owner, whose deed was of record at the time the taxes were assessed and judgment rendered, and a_ deed made to the purchaser at such sale, creates a color of title in such purchaser; and if he entered into possession under such deed and remains in possession for seven years prior to the bringing of a suit by the record owner, and pays taxes, and such record owner had not paid taxes on the land for thirty years, such record owner cannot recover the land, though he had bought it at a former valid tax sale within thirty years before his present suit was brought.
    Appeal from Benton Circuit Court. — Hon. G. A. Den-ton, Judge.
    Affirmed.

      H. P. Lay and Wm. T. Johnson for appellant.
    (1) The sheriff’s tax,deed, which is the foundation of defendants’ title, did not convey any title, because the judgment was not against the owner of the land, and the trial court found that the proceedings resulting in the tax deed, which is the foundation of plaintiff’s title, were regular. Graves v. Ewart, 99 Mo. 17; Schulenburg v. Hayden, 146 Mo. 597. And, therefore, defendant was never at any time in the “lawful possession” of the land1 as required by Sec. 4268, R. S. 1899-, but was a trespasser. (2) The right of plaintiff and those under whom he claims to pay taxes or to claim possession originated in May, 1881, and that- being within the thirty years, section 4268 cannot apply. Howéll v. Jump, 140' Mo. 457; Collins v. Pease, 146 Mo. 141; Hall v. French, 165 Mo. 440- Graham v. Ketchum, 192 Mo. 25; Weir v. Lumber Co., 186 Mo. 396; Haarstick v. Gabril, 200 Mo. 243. (3) The following decisions of this court treat a purchase at a tax sale as a payment of taxes. The purchase under which plaintiff holds was in May, 1881, within the thirty years. White v. Shell, 84 Mo. 573; Allen v. Buckley, 91 Mo. 161; Pitkin v. Reibel, 104 Mo. 505; Taft v. McCulloch, 135 Mo. 595.

      W. S. Jackson for respondents.
    ,(1) The quitclaim deed from Petts and Anna M. Boeschen was in all respects sufficient to constitute color of title in defendants, and they were in “lawful possession” of the land within the meaning of Sec. 4268, R. S. 1899, and they were not mere trespassers. Pharis v. Bayless, 122 Mo. 124; Shumate v. Snyder, 140 Mo. 84; Hickman v. Link, 97 Mo. 488; Mansfield v. Pollock, 74 Mo. 186; Perkins Land and Lumber Co. v. Irvin, 200 Mo. 490. (2) Plaintiff derives his title from Waldo P. Johnson, who purchased at sheriff’s sale under an execution issued upon a judgment against Lucy S. Patrick for delinquent taxes for the years 1869 to 1876, inclusive. Johnson’s deed was filed for record May 7, 1881. The statute, section 4268, began to run against Lucy Patrick in the year 1869, and it has continued to run against Waldo P. Johnson and those claiming under him until the filing of this suit, because neither Lucy Patrick nor Waldo P. Johnson, nor those claiming under Johnson, had paid any taxes from 1869 until this suit was filed, at the March term, 1905; nor had either of them ever been in possession and defendants had gone into lawful possession more than seven years prior to the filing of this suit, in good faith under a bona fide conveyance; had continuously held possession; improved the land, and paid the taxes thereon. Rothrock. v. Lumber Co., 80 Mo. App. 510; Collins v. Pease, 146 Mo. 135; Shumate v. Snyder, 140 Mo. 77; Pharis v. Bayless, 122 Mo. 116; Fairbanks v. Long, 91 Mo. 628;. Campbell v. Greer, 209 Mo. 213; Binz v. Hyatt, 200 Mo. 299. (3) The purchase at the tax sale by Waldo P. Johnson was not a payment of the taxes. The costs in the tax proceedings were twenty-seven dollars and ten cents, and Johnson only paid the sum of four dollars for the eighty acres of land involved in this suit, and what he did pay under the law of this State should have been applied toward the payment of the costs, and not applied on the taxes. And this being the law, in the absence of evidence to the contrary, it will be presumed that the officers so applied, it, in other words, that the officers did their duty under the law. State ex rel. v. Smith, 13 Mo. App. 427; State ex rel. v. Wilson, 174 Mo. 511; State ex rel. v. Snyder, 139 Mo. 552.
   GRAVES, J.

By the first count of his petition the plaintiff sues in ejectment for the possession of eighty acres of land in. Benton county, in said petition particularly described. By a second count he asks the court to declare title as provided by section 650', Revised Statutes 1899.

Defendants answer each count separately. Answering the first count they first plead by way of general denial. Further answering said first count they plead that they are in the possession of said premises and went into the possession thereof in 1897 under a deed from Annie M. Boeschen and N. B. Petts to Mary M. Hudson, and during all said time were in the lawful possession thereof, and then invoke by appropriate terms section 4268, Revised Statutes 1899, being the thirty-year Statute of Limitations. The prayer was that the title be declared to be in Mary M. Hudson, and for all proper relief.

The answer to the second count was in terms the same as that to the first count, and the prayer the same.

By a third count in the answer the defendants pleaded that they had placed improvements on the premises in the sum of $200, and since the year 1896 had paid the taxes thereon, all of which had been done in good faith and under the belief that she was the rightful owner, and by prayer it is asked that in the event the court should find for the plaintiff she have judgment for such improvement and taxes.

Reply was general denial.

The trial court in entering its judgment made the following findings of fact, which accord with the evidence.

“Now on this day come the parties plaintiff and defendant by their attorneys, and a jury having been waived by both parties, plaintiff and defendants, this cause is now submitted to the court for final determination, and the court after hearing all the evidence adduced by both the respective parties and being fully advised in the premises doth find that Lucy S. Patrick is the common source of title. That she allowed the taxes to become delinquent upon the land in suit for the years 1869 to 1876 inclusive; that suit was brought by the collector of Benton .county, in the name of the State, to enforce the State’s lien therefor; that judgment was rendered for the amount of the taxes, and that on the 5th day of May, 1881, the land was sold by the sheriff, under a special execution for said taxes and costs; that at the said sale Waldo P. Johnson became the purchaser of said land for the price and sum of $4, and a deed was executed, conveying the said land to him. All the proceedings in this tax suit appear to be regular. The plaintiff claims title by mesne conveyances from the said Waldo P. Johnson. The defendant, Mary M. Hudson, claims title under a subsequent deed, executed by the sheriff of Benton county on a suit for delinquent taxes against the said Lucy S. Patrick, resulting from a sale in an action against the said Lucy S. Patrick, which suit was instituted several years after the deed to Waldo P. Johnson, plaintiff’s grantor, was recorded. I find that neither the plaintiff nor his grantors paid any taxes on said land for more than thirty-one years prior to the institution of. this suit. I find further that this land was uninclosed and unimproved, and not in the peaceable possession of any one until taken possession of by the defendant, Mary M. Hudson, in December, 1897, and that on that day the said Mary M. Hudson went into actual possession of the land under her tax deed, and has ever since, with her codefendants, been in actual possession of said land, claiming to own tbe same. I find that about the year 1894-5 one Henry P. Lay, as an agent for tbe grantor of tbe plaintiff, who at that time claimed to own tbe land, went upon tbe land and spent several hours thereon for the purpose of inspecting the land for his principal, and seeing that no trespass was committed thereon; that he, after going over the land, requested a neighbor to keep an eye on the land for the purpose of preventing trespass.”

The trial court found against the plaintiff upon both counts of the petition, and decreed the title to be in Mary M. Hudson, and adjudged the costs against plaintiff. After timely motion for new trial had proved unavailing, the plaintiff duly appealed, and hence the cause is here.

I.' The first question presented is as to whether or not there has been a payment of taxes by the plaintiff or his grantors within thirty years next preceding this suit. Lucy S. Patrick is the common source of title. May 5, 1881, under a judgment against Lucy S. Patrick for taxes for the years 1869 to 1876, inclusive, the property was sold and bought in by Judge Waldo P. Johnson for $4, the costs in the tax proceeding aggregating more than $27. It appears that no taxes were ever paid by Lucy S. Patrick or her subsequent grantees from a date prior to 1869 up to this suit, unless the payment of the $4 at this tax sale should be so held. If that was a payment of taxes, then defendants have no standing, and if not they may have, subject, however, to other questions raised.

Plaintiff cites us to several cases, of which White v. Shell, 84 Mo. 569, is a type, and contends that the court looks upon the payment made by a purchaser at a tax sale as the payment of taxes. These cases all construe the Revenue Act of 1872, under which there was no judgment of the character we have now in tax proceedings, nor as we had in 1881, when this sale was had. Here we have the nsnal tax sale under a special execution, and a deed from the sheriff. Here we have the purchaser buying at a sheriff’s sale, under a judgment of the circuit court, and under a provision of a statute, which says that the purchase price shall first be applied to the payment of costs, and then the surplus applied to the payment of the tax judgment. Under the law, in this particular case, there could have been no payment of taxes, because the amount paid and realized from the sale would not pay the costs.

But aside from that, under section 4268 we do not think that even the full payment of all costs and the judgment for taxes by a purchaser at a táx sale, by reason of his bid being equal to or in excess of the judgment and costs, is a payment of taxes within the meaning of the statute. This statute contemplates the voluntary payment of taxes by some person upon whom the moral and legal duty rests. It does not contemplate the payment by a stranger to the title and stranger to the moral and legal obligations, as is a mere purchaser at such a sale. A purchaser at a judicial sale is not paying taxes, but he is purchasing the judgment debtor’s interest in lands, and for all such interest he may pay many times the amount of the taxes, or as in this case much less than the judgment.

After he acquires the title and thus the obligation to pay taxes, such purchaser can stop the running of the statute by the payment of the taxes, but such is not this case. For twenty-four years after the sale, no effort was made to thwart the statute by the payment of taxes, either prior or subsequent, by Judge Johnson and his grantees. Under the facts of this case no taxes have been paid by either plaintiff or Ms grantors for much more than thirty years.

II. It is next contended that the defendants were never in the lawful possession of this land, and hence are not in a position to invoke section 4268. Plaintiff claims that by the tax deed to Judge Johnson in 1881, which was recorded in 1881, the record title to the land was in Judge Johnson, and that the later tax suit, under which defendants’ immediate grantors purchased, was not brought against the record owner, Johnson, but against Lucy S. Patrick, who was not the record owner, and hence no title passed to Boeschen and Petts, the purchasers at such sale, and they conveyed no title to the defendants, and hence there was no lawful possession. Boeschen died, but by will the property was left to the wife, and she and Petts for an expressed consideration of $100 conveyed to defendant Mary M. Hudson, and under this deed the defendants took possession. To our mind the question is, did this deed to defendant give color of title so as to make her possession lawful as distinguished from the act of a mere trespasser, rather than the question as to whether or not it conveyed a paper title? These statutes of limitations were passed to meet cases where there was no paper title in the person in actual possession. If the party enters under color of title, his possession is lawful, and his acts thereunder are not those of a mere trespasser, who enters without claim of title. The question then is, does this deed from Boeschen and Petts and the preceding sheriff’s deed show color of title? Under our holdings we think they do. In Hickman v. Link, 97 Mo. l. c. 488, we said: “Much is said in the books as to what will and what will not constitute color of title, and many of the cases are exceptional in their character. Generally, it may be said that any writing which purports to convey the title to land by appropriate words of transfer, and describes the land, is color of title, though the writing is invalid, actually void, and conveys no title. [Fugate v. Pierce, 49 Mo. 441; Hamilton v. Boggess, 63 Mo. 233.]” And along the same line are: Pharis v. Bayless, 122 Mo. 116; Shumate v. Snyder, 140 Mo. 77; Mansfield v. Pollock, 74 Mo. 185; Perkins Land & Lumber Co. v. Irvin, 200 Mo. l. c. 490.

We conclude that defendants entered under a conveyance which gave color of title. For several years they improved and claimed the property. Under such circumstances their possession was lawful, and was such a possession as is contemplated by section 4268. We then have the defendants in the lawful possession of the property for seven years, and we have no payment of taxes made by the claimant or any person under whom he claims for much more than thirty years. Nor has any claimant nor any person under whom he claims been in the possession of the property for much more than thirty years. To our mind it is a typical case under section 4268. This is a statute of repose passed for a beneficent purpose, and its purpose is fully exemplified in cases of the character of the one at bar. [DeHatre v. Edmonds, 200 Mo. 246.]

On the facts before us the judgment nisi was correct, and such judgment is affirmed.

Lamm, P. J., and Valliant, J., concur; Woodson, J., dissents in opinion filed.

DISSENTING OPINION.

WOODSON, J.

I dissent from the opinion herein for the reason that in my judgment when the State of Missouri brought suit against the land to foreclose its lien for taxes assessed against it, and secured a judgment of the circuit .court foreclosing that lien, then by that act the lien of the State for taxes became extinct and released from the land, and became merged in the judgment of the court, which was from that time on a judgment lien and not a tax lien, and that when the State had a special execution issued on that judgment and sold the land to Johnson in satisfaction of that judgment and made him a deed in pursuance thereof, conveying the land to him, he thereby took the land free of all tax and judgment liens, for the reason that the judgment absorbed the tax lien, and the sale under execution issued on the judgment satisfied the judgment lien, thereby leaving the land clear of all taxes.

Such is not only the plain meaning of the statute regarding the sale of real estate for the - collection of back takes, but it is the sensible and just view to be taken of those enactments, which must be taken and construed in connection with the thirty-year statute, which was designed to assist and facilitate the collection of taxes, and not to unjustly deprive the owner of his land by some interloper, under some pretext of right.

According to the majority opinion the judgment and sale of the land thereunder was not only a useless and farcical proceeding, but was also a trick and snare by which Johnson was tricked out of his money by the State. The Legislature realized that the land would not always sell for a sufficient sum to pay all the taxes due on the land, and expressly provided that in such cases the residue should be collected from the judgment debtor in the tax suit, thereby recognizing that the State had no further lien on the land.

Suppose Johnson, instead of having paid only $4 for the land, had bid a sum sufficiently large to-have paid all the costs, taxes and penalties, would it be seriously contended that he would be required to go further and pay the taxes again to the collector in order to prevent some interloper from stealing or taking possession of the land and holding it one year, and thereby rob him out of it under the guise of the thirty-year statute, aided by the trick aforesaid? I think not. There is not a particle of difference in the principle underlying the concrete case in hand and the supposed case.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE ex rel. CITY OF CARTHAGE, v. JOHN P. GORDON, State Auditor.
    In Banc,
    March 9, 1909.
    1. WATERWORKS BONDS: Special Election: Notice. The statute provided that, for the purpose of testing the sense of the voters upon the proposition to issue the bonds of the city to be used in the construction of a city waterworks system, the council should order a special election, and give notice by publication for fifteen days in a newspaper published in the city. The ordinance required notice by publication in a newspaper .and by posting in three public places in each ward, and no notice was posted in the wards. Held, that the statutory notice was sufficient, and that part of the ordinance that required the notices to be posted in each ward was unauthorized and invalid.
    2. -: Interest: "Not Exceeding,” Etc. The ordinance provided that the bonds should bear interest at the rate of five per cent per annum and the published notice said they would bear “a rate of interest not exceeding five per cent per annum,” and by the statute'the bonds were to bear “interest from date not exceeding eight per centum per annum.” Held, that the substitution of an indefinite rate of interest in the notices of “not exceeding five per cent per annum” did not make the election void, but the notice conformed to the statute, which controls.
    3. -: Redemption: At Option of City: Waiver. The bonds were all payable in twenty years, “with option of the city to pay $55,000 of said bonds in five years, $75,000 ten years after date, and $95,000 fifteen years after date.” The statutes required the bonds issued under its authority to be “payable in not less than five nor more than twenty years from the date thereof, at the option of the city.” Held, that the words “at the option of the city” were intended for the benefit of the city, and could be “waived, and the bonds are not void because they were not written into the contract.
    4. -; interest: Change of Rate. The city council has the authority, to change the rate of interest on the bonds (in this case from four and one-half to five per cent), within the statutory restriction and within the proposition approved by the votes of the people, at any time before any of the bonds are sold.
    5. -: Provision for Interest and Sinking Fund: Suspended by Resolution. Where the city council in due time enacted an ordinance declaring the proposition to issue the bonds carried at the special election and providing for the levy of a tax sufficient to pay the interest as it falls due and also to constitute a sinking fund for the payment of the principal of the bonds, that ordinance is not repealed by a subsequent resolution directing that that part of the ordinance be suspended or not enforced. The ordinance still remains in force, such resolution being a nullity. And consequently it cannot be said that no provision had been made for the collection of an annual tax sufficient to pay the interest and to create a sinking fund.
    6. -: -: -: Mandamus. But even if the council fails to provide a levy sufficient to pay the annual interest and a proportionate part of the sinking fund, that do.es not affect the validity of the bonds. The provision of the Constitution is self-enforcing, - and the council may be compelled by mandamus to make a levy, and if there is an accumulation of principal and interest unpaid, the council may by mandamus be compelled at any time to make one levy en masse sufficient to pay all principal and interest past due.
    7. -: Unreasonable Delay. Absent any showing that the voters of the city have revoked or intended to revoke the authority given to the city by an election held on March 12, 1907, to issue the bonds, the court will not hold that, because the bonds were not presented to the State Auditor until November, 1908, the time which had elapsed between the election and presentation was so long and unreasonable as to justify him in refusing to register them.
    8. -: Excessive Indebtedness. The existing indebtedness of the city was $40,534.37, the proposed issue of waterworks bonds to construct a system to be owned by the city was $220,000 and the assessed valuation of the taxable property within the city prior to the issuance of the bonds was $3,430,051. Reid, that a ten per cent maximum indebtedness, as a calculation will show, was not exceeded by the waterworks bonds, and they added to the existing indebtedness do not exceed the maximum indebtedness limited by the Constitution. The Constitution does not mean that waterworks bonds must not in any event exceed five per cent of the assessed valuation of taxable property within the city.
    Mandamus,

      Peremptory writ awarded.

      B. A. Hockensmith and Perkins & Blair for relator.
    (1) Notice of the election given for fifteen days previous to such election by publication in a newspaper published in the municipality is in compliance with the statute (R. S. 1899', sec. 6351), and is therefore sufficient. Where the statute is complied with, the notice is sufficient. Hamilton v. Detroit, 85 N. W. 933; see. 6351, supra. (2) The rate of interest is left to the discretion of the council by R. S. 1899, sec. 6353, to be fixed at “not exceeding eight per cent per annum,” and the notice of election fixing the rate at “not exceeding five per cent per annum” is within the statute and sufficient. The proposed bond issue is at the rate of five per cent per annum and is within the limit of the statute, which is controlling. Hamilton v. Detroit, supra; Cleveland v. Calvert and City of Bpartenburg (S. C.), 31 S. E. 872; Daily v. Columbus, 49 Imi. 169; Gibbons v. Mobile, 36 Ala. 410; Bank v. Omaha, 18 N. W. 63; Hillsboro Co. v. Henderson, 33 So. 997. (3) (a) The city council, at the time of the issuance of the bonds, directed that a tax levy sufficient to pay the interest and sinking fund be made, and this complied with the constitutional requirements in that regard. The mandatory provision of the Constitution (art. 10, see. 12a), with reference to waterworks bonds has been fully complied with by relator. At the time the council by ordinance declared the proposition carried it, by section 3 of the same ordinance, provided for the levy of a tax in pursuance of the constitutional provision. Subsequently the rate of interest was increased to five per cent and thereupon provision was made for a levy sufficient to cover the increased interest. The regular annual appropriation ordinance for 1908, passed August 7, 1908, by section 5 provided a levy to pay semiannual interest, and the amount realized therefrom ($13,720.20) is more than sufficient to pay the semiannual interest ($5,500) and semiannual portion of the sinking fund ($5,500). It would doubtless have been better to have provided at that time a levy sufficient to pay the annual interest and sinking fund, but that this was not then done does not invalidate the bonds, since the proceedings had at most were but the levy of an insufficient amount, and the levy and collection of an amount sufficient to pay the entire interest and sinking fund can be made en masse at any time under authorities cited in the next paragraph hereof. The council did by resolution direct that section 5 of Ordinance 1018 be not enforced, but such a resolution could not, nor did it attempt toj repeal the levy, so that in contemplation of law the levy remains as made, such a resolution being a mere nullity, as has been directly held in this State. Young v. St. Louis, 47 Mo. 492. (b) But even if the council has made an insufficient levy, or had failed to make any levy whatever, the bonds would not be invalidated for that reason, since under our Constitution such levy can be made at any time and if the city fails in its duty in this regard, mandamus will lie and such levy can be directed made at any time en masse for all past due interest and principal. East St. Louis v. Amy & Co., 120 U. S. 600; East St. Louis v. People ex rel., 17 N. E. 449; Marion Co. v. Coler, 67 Fed. 64; Wade v. Travis Co., 174 U. S. 499; Cleveland v. Calvert and City of Spartenburg, supra. (4) The present indebtedness of the city being but $40,534.37, and the assessed valuation prior to the issuance of the bonds being $3,430,051, the constitutional limitation of five per cent for general municipal purposes and five per cent additional for waterworks (at ten per cent maximum of indebtedness) is not exceeded by the proposed issue of $220,000 waterworks bonds. State, ex rel. v. Wilder, 197 Mo. 1; State ex rel. v. Allen, 183 Mo. 2,83; Metcalf v. Seattle, 25 Pac. 1010; Rochester v. Quintard (N. Y.), 32 N. E. 760.

      Elliott W. Major, Attorney-General, C. G. Revelle, Assistant Attorney-General, and C. F. Mead for respondent.
    (1) Did the council act within its constitutional and charter powers in ordaining • that not only the statutory hut additional and further notice he given in order that the public might be fully advised, and the sense of the voters properly tested? By virtue of the power given such cities by the organic law of the State and by statutory transmission, it had the power to so provide, and thus providing its ordinance became of the same force and effect and of' equal dignity with an act of the Legislature. Sec. 7, art. 9, Constitution of Mo.; secs. 5834, 5872, E. S. 1899; Sanders v. Eailroad, 147 Mo. 426; St. Louis v. Foster, 52 Mo. 516; State v. Kessels, 120 Mo. App. 233; St. Louis v. Bentz, 11 Mo. 62; State v. Cowan, 29 Mo. 330; St. Louis v. Schoenbusch, 95 Mo. 618; Ashville v. Webb, 134 N. C. 75; Bowen v. Mayor, 79 Ga. 714; State ex rel. v. White, 162 Mo. 533; St. Louis v. DeLassus, 205 Mo. 578. (a) A general enactment of the General Assembly granting to cities of a certain class certain powers is the charter of these cities, and whatever is contained therein has the full force of a legislative enactment. State ex rel. v. Telephone Co., 189 Mo. 99; St. Louis v. Foster, 52 Mo. 513; Eailroad v. Eailroad, 105 Mo. 562; Jackson v. Eailroad, 118 Mo. 199. (b) The Legislature has said the council shall have no power to submit a proposition unless it shall give not less than fifteen days’ notice by publication. This is a limitation and the Legislature is satisfied to leave the matter to the municipal powers, if the statutory notice is given, but it does not compel the municipal authorities to be satisfied with this notice. State ex rel. v. White, 162 Mo. 533; Luce v. Fensler, 52 N. W. 517; Bowen v. Mayor, 79 Ga. 709; Vance v. Ansill, 45 Ark. 400. The matter of giving additional notice is one of the purely local concern, affecting only the interest of the taxpayers of Carthage, and, in the absence of statutory prohibition, the council had the power to require that more complete and perfect information be given the voters' if they “deemed it expedient for the good government and welfare of the city, and its trade and commerce.” Water Co. v. Lebanon, 163 Mo. 260; Paving Co. v. French, 158 Mo. 534; Railroad v. Railroad, 105 Mo. 562; Jackson v. Railroad, 118 Mo. 199. (2) Section 5 of the ordinance referred to declares that the notice “shall specify the rate of interest.” Instead of this the notice given provided that the interest should be “a rate of interest not exceeding 5 per cent per annum, payable semiannually.” A mere statement that the interest to be paid is not to exceed a stated rate is not a compliance with the above requirement, as has been uni-formally held in all the adjudications. Athens v. Hemerich, 89 Ga. 674; Thompsonville v. Light Co., 50 S. E. 169; Bowen v. Mayor, 79 Ga. 709; Mercer County v. Railroad, 27 Pa. St. 389; Staven v. Genoa, 23 N. T. 449; Smith v. Dublin, 113 Ga. 833; State ex rel. v. School District, 15 Mont. 133; Elyria Water Co. v. City, 57 Ohio St. 374; Railroad v. Petersboro, 49 1ST. H. 281; Railroad v. Wells, 39 Ind. 539; State ex rel. v. Roggen, 22 Neb. 118; State ex rel. v. Woodson, 41 Mo. 230; Railroad v. Apperson, 97 Mo. 300. (3) Neither the ordinance, proclamation nor notice designated the newspaper in which the notice should be printed, nor did the printed notice recite the fact that the ordinance authorizing the election had been theretofore enacted. This, in similar matters, has been held to be fatal. State v. Baldwin, 109 Mo. App. 573." (4) Section 12, article 10, of the Constitution is an absolute prohibition, against the incurrence of an indebtedness until provision is made for the collection of- an annual tax sufficient for the purposes therein mentioned. Almost two years have now elapsed, and yet no adequate provision for that purpose has been made. This constitutional requirement having been ignored, the bonds should not be registered. State ex rel. v. Allen, 183 Mo. 299; State ex rel. v. Railroad, 149' Mo. 645 ; Wilkens v. Wainsboro, 116 G-a. 359; State v. Water Works Co., 106 Ga. 732. The conduct of the council and the acquiescence therein by the voters indicates that instead of intending to comply with the provisions of the law, and carry out the bond issue, the whole project had been abandoned some time ago, and the right to issue the bonds thereby forfeited. This suggestion seems of peculiar force when it is considered in connection with relator’s delay in exercising its alleged authority to issue the bonds in question. It is clear that the vote must lose its authority if not acted upon within a reasonable time, as it cannot be successfully argued that the voters intended giving their public servants a roving commission authorizing them to act without limitation, to abandon the project one year and revive it the next. The delay, when considered with relator’s other conduct, is unreasonable. (5) The assessed valuation, as equalized for the purpose of taxation of the relator, was, at the time mentioned, as follows: For 1906, $3,306,934; for 1907, $3,430,051. Computing the amount of the indebtedness which may be incurred as five per cent of the taxables, the total amount of the bonds which the city could issue would be $171,507.55; the amount of this issue is $220,000. The bonds are, therefore, prohibited by section 12 of article 10 of the Constitution of Missouri, unless the power of relator is enlarged by the amendment of 1902, the same being section 12a of article 10. In our opinion, such a construction should not be placed upon said amendment, but said amendment should be construed to restrict the debt for water and light to five per cent of the taxables, leaving the rest of the city’s contractual power for other corporate purposes.
   BURGESS, J.

This is an original proceeding by mandamus to compel the respondent to register waterworks bonds of the relator, the city of Carthage, Missouri, in the sum of $220,000, dated April 1, 1908, and bearing interest at the rate of five per cent per annum, payable semiannually on the first day of April and October in each year, said bonds to wholly mature within the period of fifteen years.

The relator is a city of the third class, having a population of about twelve thousand, and its present indebtedness, exclusive of the bond issue in controversy, is $40,534.37.

On the 28th day of January, 1907, the city council of said city passed an ordinance, numbered 873, providing for an election to authorize the incurring of an indebtedness of $220,000 to be used for the purpose of erecting a waterworks system, and to authorize the issuance of bonds in- that amount, to bear a rate of interest not exceeding five per cent, and the levy of a tax to pay the interest thereon, and to constitute a sinking fund for the payment of the principal; said bonds to be payable in twenty years from date, with option of the city to pay specified amounts in five, ten, and fifteen years.

Section 5' of said ordinance provided that the mayor give at least fifteen days’ notice of said election, and the proposition to be submitted thereat, by proclamation, to be published in the paper doing the city printing, and by notices posted in three public places in each ward of the city, specifying the amount of the debt, the length of time for which said bonds should run, the rate of interest, the object and purpose thereof, and the day on which said election should be held and the place of holding the same.

In due time a proclamation was issued by the mayor giving notice of the election, and it was published in the Carthage Evening Press, which was then doing the city printing, but no notice or proclamation was posted in any of the wards of the city, although such was provided for by said ordinance. Said published notice recited that the bonds were to bear “a rate of interest not exceeding five per cent per annum, payable semiannually,” but it did not recite the fact that an ordinance authorizing the election had theretofore been passed. The election was held March 25, 1907, in accordance with said notice, and the proposition submitted was favored by more than two-thirds of the votes cast.

On July 22, 1907, the city council passed an ordinance (No. 909), authorizing ánd directing the execution of $220,000 waterworks bonds bearing interest at the rate of four and one-half per cent per annum, payable semiannually, providing for a levy of taxes sufficient to pay the interest and to provide a sinking fund for the payment of the bonds; and on the same day another ordinance was passed providing for a tax levy of seventy-five cents on each one hundred dollars assessed valuation, for the purpose of providing for the interest and the sinking fund.

Thereafter, on December 24, 1907, the council adopted, and the mayor approved and signed, the following resolution:

“On motion it was ordered that the collection of tax for payment of interest and principal of waterworks bonds be stopped, and that repayment be made to such persons as have paid such tax of the amount paid thereof, for the reason that said bonds have not been sold and issued.”

On February 24, 1908, an ordinance was passed amending the original ordinance (No. 873), which amendment directed the issuance of $220,000 bonds bearing date April 1, 1908, said bonds to bear interest at the rate of five per cent per annum, payable semiannually, and on July 27, 1908, the council adopted another amendment providing for a tax levy sufficient to meet the payment of the interest at the increased rate of five per cent, and also the sinking fund. On August 7, 1908, the council passed a general levy ordinance (No. 1018), section 5 of' which provided for a levy of forty cents on each $100 assessed valuation, for the purpose of creating a sinking fund and paying the semiannual interest on said bonds, but, again, on September 18, 1908, said city council adopted resolution No. 222, directing that said levy be not enforced for the reason that said bonds had not been sold.

The bonds were issued under date April 1, 1908, and thereafter, in November, 1908, they were presented to the State Auditor for registration, who refused to register them. In his return, the respondent, as grounds for his refusal to register the bonds, assigns the following:

First. Because no notices of the election were posted in the various wards of the city of Carthage, although the ordinance authorizing the election specifically prescribed that such notices be so posted.

Second. Because the notice published in the newspaper did not specify the rate of interest that the bonds should bear, but instead provided that the interest should be “a rate of interest not exceeding 5 per cent per annum, payable semiannually,” although the ordinance specifically required that the rate of interest should be specified.

Third. Because neither the ordinance, proclamation nor notice designated the newspaper in which the notice should be published, nor did the notice recite that an ordinance authorizing the special election had been theretofore enacted.

Fourth. Because no provision was made at any time for the collection of an annual tax sufficient to pay the interest on the indebtedness as it falls due, and to constitute a sinking fund for the payment of the principal, although section 12, article 10, of the Constitution specifically requires same.

Fifth. Because relator had practically abandoned the issue of the bonds before presenting same to be registered, and because the -delay in so presenting same to respondent was unreasonable, and cannot now be said to represent or declare the will of the voters.

Sixth. Because the assessed valuation of the taxable property of relator was at the time of the election $3,306,934, and by reason thereof relator was authorized by the Constitution to issue bonds in an amount not exceeding $171,507.55, whereas the amount of this issue is $220,000.

limits petition the relator states that the assessed valuation of the taxable property of the city, in the year 1906, for the taxes of 1907, was $3,306,934, and that the assessed valuation in 1907, for the taxes of 1908, was $3,430,051.

Relator filed its motion in this cause for judgment on the pleadings, notwithstanding the respondent’s return, and insists that, although section 5 of ordinance No. 873' provides for notice not only by publication in a newspaper but also by notices posted in three public places in each ward of the city, notice of the election, given for fifteen days previous to such election, by publication in the newspaper published in the municipality, was a compliance with the statute, section 6351, Revised Statutes 1899, and therefore sufficient, and that the provision of the ordinance requiring the posting of notices in three public places in each ward of the city, in addition to the statutory notice, was superfluous and unnecessary to be complied with.

Section 6351, Revised Statutes 1899, provides: “For the purpose of testing the sense of the voters of any incorporated city, town or village, upon a proposition to become indebted or to increase the debt thereof, .. . the council, trustees or other proper authority of such municipality shall order a special election to be held, of which they shall give not less than fifteen days’’ previous notice, by publication in some newspaper published therein, or if there be no such newspaper, then by posting up ten written or printed hand-bills in ten public places in such city, town or village.”

It will be observed that this section requires the publication of the notice of election in a newspaper published in the municipality and, in the absence of such newspaper, then by posting up ten written or printed hand-bills in ten public places in such city, etc.

The statute of Minnesota is substantially the same as ours. It provides that every village in that State may issue its bonds for the purpose of raising money for any lawful public improvement by conforming to the provisions of the law, which specifies the proceedings to be had for such purpose, and provides that where the village council does not act of its own motion, a petition, signed by twenty-five voters and freeholders residing within the village, requesting the council to make the improvement designated therein, may be presented, and that upon the presentation of such petition, such council shall cause the proposition embodied therein to be submitted to the electors at the next annual election, or at a special election, as the council shall by resolution designate. In the case of Hamilton v. Village of Detroit, 83 Minn. 119, the village council of Detroit, upon petition duly presented, called a special election for the purpose of voting upon a proposition for the construction and equipment by the village of an electric light plant. The resolution calling' the election provided that ten days’ notice of the same should be given by posting notices in three of the most public places in the village, and also by publishing the resolution. The notices were duly posted as required, but the resolution was not published ten days before the election. It was held that the failure to publish the resolution ten days before the date set for the election was not fatal to the validity thereof, as the statute was fully complied with by the posting of the notices, and that the village council could not by resolution or otherwise add to or take from the statutory requirements.

As section 6351, supra, only requires fifteen days ’ previous notice of the election, by publication in a newspaper published in the city, which was done, that part of section 5 of said ordinance, requiring notices to be posted in three public places in each ward of the city, was unauthorized and invalid, and the notice, as published, well enough.

Respondent contends that as the ordinance in question specified the rate of interest that the bonds should bear, the substitution of an indefinite rate of interest, “not exceeding 5 per cent per annum,” in the published notice of election was not a submission to the people of the question proposed by the ordinance, and that the election was therefore, void. In support of his contention, respondent cites a number of cases from other States, but none of which, we think, are in point. Thus, in State of Nebraska ex rel. v. Roggen, 22 Neb. 118, a proposition was submitted to the voters of Butler county to authorize the issuance “to the Lincoln & Northwestern Railroad Company, or the Blue Yalley & Northwestern Railroad Company, fifty-three thousand dollars of the coupon bonds of Butler county,” etc. It was held that as the Constitution of that State required the proposed donee to be specifically designated, and as the proposition submitted to the voters failed to state what particular railroad the aid should be given to, but stated two railroads in the alternative, such proposition, even if adopted by the legal voters, was ineffectual to authorize the issuing of the bonds.

In the Florida case (Hillsborough County v. Henderson, 33 So. 997), cited by respondent, the statute required that the proposition to be submitted should specifically state the rate of interest.

In the case of City of Athens v. Hemerick, 89 Ga. 674, the statute required that the published notice of election should specify the amount of bonds, for what purpose and what interest they should bear.

In Mercer County v. Railroad, 27 Pa. St. 389, the statute authorized subscription only on the recommendation of the grand jury, who should specify in their recommendation the amount of the subscription advised, but they recommended a subscription of “not more than $150,000.” The court held that this did not comply with the statute, which required the amount to-be specified.

In Starin v. Town of Genoa, 23 N. Y. 439, the statute authorized the town officials to subscribe for stock in a railroad company, and pay cash therefor at the par value of the stock, to raise which money bonds might .be issued and sold, or a direct tax might be levied, as by a vote of the public might be determined. The town officials, instead of selling the bonds to raise the money, gave the bonds to the railroad company at par for the par value of the stock. Held, they could not do so, not being authorized so to do by the statute.

In the Montana case (State ex rel. v. School District No. 1, 15 Mont. 133), the statute required the notice to the voters to state that it was proposed to issue bonds to a certain amount, bearing a certain rate of interest, payable and redeemable at a certain time and place, and for certain purposes. The notice of election stated only the amount of the bonds and the purposes for which they were to be issued, omitting interest, time of payment, etc. Held, this was insufficient.

In Gas & Water Co. v. City of Elyria, 57 Ohio St. 374, the issuance of the bonds was enjoined on several grounds, and as being in conflict with the statute; but the question before us was not in that case. The same may be said of the case of Railroad v. Peterborough, 49 N. H. 281, cited by respondent.

In the case of Railroad v. Wells, 39 Ind. 539, a petition by the voters and freeholders of Grant county to the board of commissioners of said county, prayed said board to make an order for an election to determine whether a tax of a certain per centum should be levied upon all the taxable property in the county, to aid a certain railroad company in constructing a railroad through the county. The statute required that the petition should specify the amount to be appropriated, and not a per centum upon the taxable property, and the court held the petition insufficient.

It will be seen that the questions decided in the above cases were all controlled by statutory provisions, which is not the case here, the question here presented having to do with a city ordinance and the notice of election published thereunder; hence, the authorities cited are not controlling.

By our statute (section 6353, R. S. 1899), it is provided that, “Upon the result of such election being certified by the judges thereof to the council, trustees, or other proper officials of such city, town or village, such council or trustees, if the proposition for the incurring or increasing of such debt be carried, may by proper ordinance declare such result, and cause bonds of such city, town or village to be issued, covering the amount of such debt, . . . with interest from date not exceeding eight per cent per annum, payable semiannually; which bonds shall have interest coupons attached to conform to the face of the bond.”

The published notice of election recited that the bonds were to bear a rate of interest “not exceeding 5 per cent per annum,” which was within the restriction of the statute, and although the notice did not' comply with the ordinance, which provided that such notice should specify the rate of interest which the bonds should bear, it conformed to the statutory provision, which controls.

It is said for respondent that the bonds presented to the auditor for registration are not such bonds as are authorized by the statutes. The total amount of the issue presented to the auditor was $220,000, all payable in twenty years, “with option of the city to pay fifty thousand dollars of said .bonds in five years after date, seventy-five thousand dollars ten years after date,- and ninety-five thousand dollars fifteen years after date.”

Section 6353, supra, as amended by the Act of 1901 (Laws 1901, p. 83), requires that the bonds issued under its authority shall be “payable in not less than five nor more than twenty years from the date thereof, at the option of the city.” It is insisted that the words “at the option of the city” should be written into the contract. Evidently, this option is intended for the benefit of the city, and might be waived, as was done, without affecting the validity of the bonds.

It is also contended that the auditor was justified in refusing to register the bonds on the ground that no provision had been made for the collection of an annual tax sufficient to pay the interest and sinking fund demand. The mandatory provision of the Constitution (art. 10, sec. 12a), with reference to waterworks bonds, which declares that the municipality, “before or at the time of incurring such indebtedness,, shall provide for the collection of an annual tax . . . sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof,” was complied with, the record disclosing that the council in due season adopted an ordinance declaring the proposition carried, and providing for the levy of a tax, in pursuance of the constitutional provision. Subsequently the rate of interest was increased from four and a half to five per cent, and provision was made by ordinance for a levy sufficient to cover the increased interest. The council undoubtedly had the authority to change the rate of interest upon the bonds, within the statutory restriction, and within the proposition voted upon, at any time before any of the bonds were sold, for until then no vested interest could be acquired therein.

It seems that the regular annual appropriation ordinance (No. 1018), for 1908, passed August 7, 1908, provided by section 5 thereof for a levy to pay the semiannual interest on the bonds and the semiannual portion of the sinking fund, and that the amount realized from such levy ($13,720) was more than sufficient for such purposes, the semiannual interest and the semiannual portion of the sinking fund each amounting to but $5,500*. While it might have been better, as the relator concedes, to provide at .the time for a levy sufficient to pay the annual interest on the bonds and proportionate part of the sinking fund, we do not think that the failure to so provide had the effect to vitiate the bonds. Under our Constitution such levy may be made at any time, and if the city fails of its duty in this regard, it may be compelled by mandamus at any time to make such levy en masse for all principal and interest past due.

A question similar to that under discussion arose in the State of Illinois, and was passed upon by the Supreme Court of the United States in East St. Louis v. Amy, 120 U. S. 600. The Constitution of Illinois contains a provision (art. 9, sec. 12) substantially the same as section 12a, article 10, of the Missouri Constitution, above quoted. After the adoption of the Illinois Constitution, in 1870, the city of East St. Lotus issued bonds, and by the same ordinance made provision for the levy and collection of a special annual tax sufficient to meet the interest and principal as they respectively fell due, but the city authorities, believing that the city charter by one of its provisions prevented so large a levy, never did in fact levy a sufficient tax for such purposes. In passing upon the question, the Supreme Court of the United States held that the constitutional provision above referred to' was self-enforcing, and said: “In this case the Constitution limited the power of. the Legislature of Illinois in respect to the grant of authority to municipal corporations to incur debts, but it declared in express terms that, if a debt was incurred under such authority, the corporation should provide for its payment by the levy and collection of a direct annual tax sufficient for that purpose. Under this provision of the Constitution, no municipal corporation could incur a debt without legislative authority, express or implied, but the grant of authority carried with it the constitutional obligation to levy and collect a sufficient annual tax to pay the interest as it matured and the principal within twenty years. ... It was made by the people a part of the fundamental law of the State that every debt incurred thereafter by a municipal corporation, under the authority of law, should carry with it the constitutional obligation of the municipality to levy and collect all the necessary taxes required for its payment. ’ ’

Passing on the question whether the .court “ could compel a levy en masse to pay the whole debt and interest, when the Constitution only required the council to provide for the collection of an annual tax to pay the interest as it falls.due, and the principal within twenty years,” the court, in the course of the same opinion, said: “It only remains to consider the objection that a tax cannot now be levied sufficient in amount to pay the entire judgment at once. The judgment is for the entire amount in arrear, and a small amount of principal. The law required a tax to be levied annually sufficient to pay all interest as it accrued, and the principal when due. This was neglected, and consequently there is now a large accumulation of a debt which ought to have been paid in installments. Thus far the inhabitants have been allowed to escape taxation at the times it ought to have been laid, and to which they were under constitutional obligations to submit. The accumulation of the debt was caused by their own neglect as members' of the political community which had incurred the obligation. Such being the case, we see no reason why it was not in the power of the court to order a single levy to meet the entire judgment which was for all past due obligations. . . . The constitutional obligation of the city was not fully met by providing, when the debt was incurred, for the levy and collection of the necessary tax. It required as well the actual levy and collection when needed to pay the debt. This is an obligation that can be enforced by mandamus after judgment caused by a neglect to meet its requirements.”

That case was followed by the Supreme Court of Illinois, in East St. Louis v. People ex rel., 124 Ill. 655, in which it is ruled that the constitutional provision is self-enforcing, and that the levy and collection of a tax to provide a sufficient fund to pay both principal and interest of bonds, as in the case at bar, can and will be enforced by mandamus, such action being authorized by the constitutional provision regardless of whether the municipality has or has not made a levy and collection of taxes to pay the interest and provide a sinking fund for the bond issue.

"Where an act provided “that when bonds are signed and before they are issued” the county court •shall levy a tax to pay the interest and two per cent sinking fund every year, and no tax was levied until January, 1874, to pay bonds which were issued June 30, 1873, it was held that the failure to make provision before the issuance of the bonds for the levy and collection of a tax to pay the interest and. create a sinking fund did not invalidate the bonds. [Marion Co. v. Coler, 67 Fed. 60; Wade v. Travis Co., 174 U. S. 499.] Substantially the same rule is announced in Cleveland v. Calvert and City of Spartanburg (S. C.), 31 S. E. 871.

While the council did by resolution direct that section 5 of said ordinance 1018 be suspended or not enforced, it was not sought thereby to repeal the levy; consequently it remains in force as made, such a resolution being, a nullity, as was held in a similar case. [Young v. St. Louis, 47 Mo. 492.]

There is nothing disclosed by the record which indicates, or from which it can be conclusively presumed, that the voters of the city have revoked or intended to revoke the authority given by the election of March 12, 1907, to issue the bonds in question, or which would justify this court in holding that the time which has elapsed between the election and the presentation of the bonds for registration is so unreasonable as to- justify the auditor in refusing to register them.

It seems that the present indebtedness of the city is $40,534.37, and that the assessed valuation of its taxable property prior to the issuance of the bonds was $3,430’,051. . Therefore, as calculation will show, the constitutional limitation of five per cent for general municipal purposes and five per cent additional for waterworks (a ten per cent maximum of indebtedness), is not exceeded by the proposed issue of $-220,000 waterworks bonds. Respondent contends that waterworks bonds must not in any event exceed a sum equal to five per cent of the assessed valuation of the city, regardless' of whether or not the present municipal indebtedness reaches the five per cent maximum fixed by section 12, article 10, of tbe Constitution. This contention is not admissible in view of tbe decision of this court in State ex rel. v. Wilder, 197 Mo. 1. In that case tbe actual indebtedness was $30,700, and five per cent of tbe assessed valuation was $123,025. Tbe waterworks bond issue ($110,000) added to tbe previous actual indebtedness of $30,700, amounted to $140,700, but it was held that' tbe bonds were valid, although the then indebtedness would be $16,675 over the first five per cent.

The Constitution of the State of Washington provided a one and one-half per cent assessment limitation on indebtedness, which could be increased by vote to five per cent for general municipal purposes, and further increased an additional five per cent for waterworks purposes. The question of the validity of bonds was raised, and the court held that as water, sewers and lights were for municipal purposes, the expense of .construction and maintenance of waterworks could be paid either out of the current revenue or the first five per cent of indebtedness, as well as out of the additional five per cent specifically authorized for that purpose. [Metcalf v. City of Seattle, 25 Pac. 1010.] The court further said: “The three-fifths majority having been obtained, there is no further obstacle to the issuance of such bonds, although they amount to more than five per cent of the taxable property of the city, provided, with their issuance, the total indebtedness of the city is not increased to more than ten per' cent of such property.”

The New York Constitution limited municipal indebtedness for any purpose to an amount, including existing indebtedness, not more than ten per'cent of the assessed valuation of the real estate, except that an additional indebtedness might be incurred for waterworks purposes. Held, in the .case of City of Rochester v. Quintard, 32 N. E. 760, that the city is not required to avail itself of the exception where its total indebtedness, with, the addition of the proposed bonds, does not reach the prescribed limit of ten per cent.

We find no good and sufficient reason set up by respondent in his return to the alternative writ to justify his refusal to register the said waterworks bonds of relator.

Relator’s motion for judgment on the pleadings is sustained, and a peremptory writ of mandamus awarded, commanding the respondent, the said State Auditor, to register the said described bonds of said city of Carthage in a book or books provided therefor in his said office, and to- certify by indorsement on said bonds that all of the laws of this State have been complied with in the Issuance of said bonds, and that the conditions of the contract under which the said bonds were ordered to be issued by the city of Carthage have been compliéd with; and it is further ordered that relator recover its costs in and about this- proceeding laid out and expended.

All concur.


author: LAMM, J.

text:
    THE STATE ex rel. THOMAS WARD McMANUS v. HUGO MUENCH, Judge.
    In Banc,
    March 9, 1909.
    1. EQUITY JURISDICTION: Limited by Pleadings: Res Adjudicata: Collateral Attack. Jurisdiction of the subject-matter of a concrete case in equity or law is only acquired by a court through pleadings filed, process issued and served or appearance entered, and decrees entered within the lines of the issues framed by the pleadings. The courts cannot, of their own motion, set themselves in motion, nor have they power to decide questions except such as are presented by the parties in their pleadings. The parties by their attorneys make the issues, and what is decided within the issues is res adjudicate; anything beyond is coram non judice and void.

      2. - — : -: Trust Estate: Appointment of Trustee: Retaining Jurisdiction. Suit was brought in the circuit eourt'by the infant beneficiary under a will to have a new trustee appointed in lieu of the trustee named in the will, who had died, the will providing for no successor, but giving “said trustee, or his successors in trust, full power, with the approval of the St. Louis Circuit Court, to' sell any of the property subject to this trust.” The court appointed a trustee, but retained the ■ cause in court for the purposes of administration, and to that decree no exception was saved and from it no appeal was taken. Afterwards the court upon motion filed by the trustee and served on the other devisee (the relator), who made no answer, authorized the trustee to sell a part of the trust estate to pay debts, and refusing to grant relator an appeal from that order he asks for a writ of prohibition. Held, that the court had. no authority to retain control of the estate, the issues in that case being the appointment of a new trustee and the putting of that trustee in the shoes of the old one, — vesting him with title to the real estate devised by the will to the trustee for the use of the infant beneficiary. A trust estate once in chancery for any purpose is not always in court for all purposes, and a court cannot of its own motion hold it within its grasp for other purposes than those stated in the pleadings.
    3. -: -r-l Power Given by Will. The said will contemplated that the trust estate should be administered by a trustee, and not by the court. By it, a sale of real estate was to be approved, not made, by the court. But aside from all that, the subject-matter of the administration of the estate was not brought into court by the original procedure to .have a trustee appointed.
    4. -: -: Coram Non Judice: Collateral Attack: No Appeal. So much of any judgment as is void is subject to collateral attack. And where the court adjudicated a matter not embraced in the issues as made by the pleadings — for example, where the court retained jurisdiction in a case to have a new trustee appointed in the stead of the deceased trustee, for the purpose of exercising a control over the administration of the estate — that part of the judgment is coram non judice and void, and the fact that the decree was by consent and all parties then abided the judgment and did not appeal, does not affect the right of any of them from subsequently disputing its validity.
    5. -: -: Approval of Counsel. Nor does the fact that counsel of the non-complaining parties wrote their “0. K.” on the decree as prepared by other counsel and signed their names after those symbols, affect the court’s jurisdiction. Counsel employed in the matter of the appointment of a new trustee to administer a trust estate and to invest that trustee with the title the estate, do not thereby and without more hold a warrant of attorney from their client to confer jurisdiction on the court to administer the whole trust after the appointment of the new trustee.
    Prohibition.
    Rule made absolute.

      T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe for relator.
    On October 23,1908, the circuit court of the city of St. Louis had no jurisdiction over either the person of relator or the subject-matter of the decree. “Jurisdiction in the court is the power to hear and determine the particular case’ involved. If this power to hear and determine the particular case does not exist in the court in point of law, then there can be no jurisdiction in the case.” People v. Dist. Ct. of Lake Co., 26 Colo. 386; Jones v. Brown, 54 Iowa 74; Bingham v. Henrici (Pa.), 16 Atl. 618. In Andrews’ Stephen’s Pleading (2 Ed.), page 34, we find the following clear, •correct and succinct statement of judicial power in civil matters: “The judicial power can be set in motion in civil matters only by some person — using the word in the broadest sense — in a case against another person. The courts cannot, ex mero motu, set themselves in motion, nor have they power to decide questions except such as are presented by the parties in their pleadings. The parties by their attorneys make the record, and what is decided within the issue is res adjudicata; anything beyond is coram non judice and void.” And in support of the above propositions that appear to be axiomatic, the following decisions are cited: State of Georgia v. Stanton, 6 Wall. 76; Luther v. Burden, 7 How. 1; Fletcher v. Tuttle, 150 111. 41; Kerfoot v. People, 51 111. App. 409; Dicey v. Reed, 78 111. 261; United States v. Arredondo, 6 Pet. 709; People v. Liscomb, 60 N. Y. 559; Reynolds v. Stockton, 140 U. S. 254; Mnnday v. Yail, 34 N. J. L. 418; Jacobson v. Miller, 41 Mich. 90; Cromwell v. Sac. Co., 94 U. S. 351; Hope v. Blair, 105 Mo. 93. The writ of prohibition is available to keep a court within the limits of its lawful power in a given case, no less than to prevent its cognizance .of causes not committed by law to its jurisdiction. State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. Elkin, 130 Mo. 90; Railroad v. Wear, 135 Mo. 230; State ex rel. v. Wood, 155 Mo. 425.

      Leighton Shields and Wm. R. Orthwein for respondent.
    (1) In all cases of trusts the jurisdiction of a court of equity is complete. Brandon v. Carter, 119 Mo. 580; Bank v. Chambers, 96 Mo. 467; Church v. Robberson, 71 Mo. 326; Bridges v. Rice, 99 111. 417; Morgan v. Roberts, 38 111. 80; Krohn v. Williamson, 62 Fed. 877; Hamer v. Cook, 118 Mo. 489. (2) The question of jurisdiction is not limited to the pleadings alone, but must be tried by the whole record. Adams v. Cowles, 95 Mo. 506; State ex rel. v. Dearing, 180 Mo. 63; Orchard v. Bank, 121 Mo. App. 347; Hardware Co. v. Lang, 54 Mo. App. 152; Bell v, Brinkmann, 123 Mo. 277; Iledrix v. Hedrix, 103 Mo. App. 44; Hiles v. Rule, 121 Mo. 254; Armstrong v. Crooks, 83 Mo. App. 149. (3) The original action in the St. Louis Circuit Court was submitted on an agreed statement of facts, to which relator was a party, and which became part of the record of that action. (4) Where enough facts are alleged to disclose that the case falls within a class of proceedings which the court is lawfully authorized to hear and decide, the question of the sufficiency of the showing to set the court in motion is one for the determination of the court itself. State ex rel. v. Ross, 122 Mo. 470; Dowdy v. Wamble, 110 Mo. 285; Adams v. Cowles, 95 Mo. 509. (5) And should the court err in such determination, that is not a usurpation of judicial authority, but error for which the proper remedy of the party aggrieved is by appeal. Gazollo v. McCann, 63 Mo. App. 420; State ex rel. v. Seay, 23 Mo-. App. 630; State ex rel. v. Lubke, 29 Mo. App. 558; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 224; Hope v. Blair, 105 Mo. 85. (6) When a court of equity once acquires jurisdiction of a cause, it will not relax its grasp- upon the res until it shall have avoided a multiplicity of suits by doing adequate and complete justice between the parties. Real Estate Co. v. Collonious, 63 Mo. 295; Corby v. Bean, 44 Mo. 379; Keeton v. Spradling, 13 Mo. 321; Nelson v. Betts, 21 Mo. App. 232; Woodard v. Mastin, 10'6 Mo. 362; Reyburn v. Mitchell, 106 Mo-. 378; Leeper v. Taylor, 111 Mo. 321; Morrison v. Harrington, 120 Mo. 668; Harrison v. Craven, 188 Mo. 602; Martin v. Tidwell, 36 Ga. 345. (7) When the administration of an estate is removed into a court of equity for any purpose, or in any part, it is there in whole and for all purposes. Tygh v. Dolan, 95 Ala. 271; St. Louis v. Crow, 171 Mo. 280; Pearson v. Darrington, 21 Ala. 177; 1 Pomeroy, E-q. Jurisprudence, secs. 234, 235; Sanders v. Soutter, 126 N. Y. 183; Keeton v. Spradling, 13 Mo. 323; You-mans v. Youmans, 26 N. J. Eq. 154. (8) The will conferred jurisdiction on the circuit court to pass on all sales of the property of said estate, providing thereby that sales of said property must be with the consent of said court. (9) Rélator expressly agreed in the original decree therein, that the St. Louis Circuit Court retain jurisdiction of the- parties until further order of the court, in respect to all matters connected with trustees’ administration of said trust. (10) Jurisdiction cannot be conferred on a court by consent of parties, but where a court of equity first rightfully acquires jurisdiction of an action, jurisdiction of the court as to other questions arising in said action can be conferred on said court by the consent of the parties ; they thereby waiving all right to question in the Supreme Court the jurisdiction of the lower court. Stroud v. Yanzant, 30 Ark. 90.
   LAMM, J.

This is an original proceeding on the suggestion of relator for the State’s writ of prohibition directed to the Hon. Hugo Muench, circuit judge —the suggestion being within section 4448, Revised Statutes 1899 (q. v.). Passing a rule that respondent show cause, we let a preliminary writ go. On return coming in, relator moves for judgment on the pleadings and that the preliminary rule be made absolute.

Such is the issue at law up for détermination.'

The motion confesses the averments of the return. On the other hand, the return practically confesses the averments of fact in the petition. In this condition of things, borrowing from both, we make thé following statement of the case:

Camilla S. W. McManus died testate, seized of á great estate in realty in St. Louis, in November, 1905, making her granddaughter, Camilla S. W. Burrows, and her son, Thomas Ward McManus (relator), devisees under her will. To Thomas Ward, one-half of the estate was devised absolutely. One-third of the remainder went to the granddaughter, Camilla, absolutely, as we infer. However that be, two-thirds of the remainder was devised to William F. Crow in trust, said trustee to manage it, give bond and pay the net income over to the granddaughter, Camilla, during her life. If she died before Thomas Ward then the trust estate became his absolute property. If he died before her it became absolutely hers.

The will being probated, Crow qualified as trustee and took possession of the trust estate with the burden of administering it under the will. Among other provisions of the will was this: “I hereby give said trustee, or his successors in this trust, full power, with the approval of the St. Louis Circuit Court, to sell any of the property subject to this trust.” In that connection it provides that the trustee is authorized and directed to invest all moneys and the proceeds of all sales of the trust property in ways pointed out.

Mr. Crow died on December 3, 1907, leaving a brother of the half blood, and certain descendants of a brother of the full blood and sisters of the half blood, as his heirs.

The will nominating no successor to the trust, the cestui que trust, Camilla, thereupon brought suit in the circuit court of St. Louis against Thomas Ward McManus as deyisee, and said heirs at law of the said trustee. Her petition made averments only pertinent to the following relief and no other: First, the appointment of a trustee in place and stead of William F. Crow, deceased; and, second, to divest out of his said heirs the legal title to the trust estate, cast on them by the death of their ancestor, and to vest the same in the court’s appointee.

Camilla pointed out in her petition that the live duties of trustee called for not only fine integrity and business capacity but personal friendship towards her, as cestui que trust,, that she was primarily interested in the selection of a new trustee acceptable to her from such standpoints, and that Mr. Crow was selected by her grandmother for that fiduciary relation because he ideally filled the office of trustee. She suggested Henry F. Hafner as Mr. Crow’s successor, he possessing the qualifications alleged by her to be incident and necessary to administering the trust.

Thomas Ward admitted by answer all allegations of the petition material to the appointment of a new trustee and the divesting and vesting of the legal title to the trust estate. He joined issue only on those averments relating to the appointment of Mr. Hafner because of his alleged marked friendship to Camilla, averring that the trustee should stand neutral in that particular and he an impartial person as between him and her.

The adult defendants (heirs of Crow) answered confessing the allegations of the petition and consenting to the appointment of a successor in trust. A minor defendant (one of Crow’s heirs) answered through his guardian ad litem, averring ignorance of the facts, pleading his tender years, asking that strict proof be made and praying the court to protect his rights. « «4

Such other proceedings were had in that cause that it came to judgment on May 4,1908. At the trial, evidence was put in and admissions additional to those in the pleadings were made. Thereupon the court made a finding of facts substantially in accord with the allegations of the petition and spread its finding of record in its decree. Based on such findings, it was ordered, adjudged and decreed that Matthew Park, Esq., be appointed trustee as successor to William E. Crow, deceased, that the title to the trust estate vested in him by the will be divested out of his heirs at law and vested into the new trustee, who should thereafter have the rights and powers and be subject' to the duties and obligations defined in the grandmother’s will. The court fixed the trustee’s bond at the penal sum of $10,000, and provided for additional bond in certain contingencies. Adjudging costs, etc., the decree contains the following clause (Note: This clause lies- at the root of this controversy): “It is further ordered, adjudged and decreed that this cause shall he retained in this court, as to the plaintiff and defendant, Thomas Ward McManus, and as to said trustee, Matthew Park, until the further order of this court in respect to all matters connected with the qualifications of said Matthew Park, as trustee, and his administration of said trust.”

In that proceeding, Sim T. Price and R. M. Nichols were attorneys for Thomas Ward McManus; John B. Denvir, Jr., for the heirs of William F. Crow; and James P. Maginn, for the granddaughter, Camilla. It seems a draft of the decree was prepared and that such draft bears the following earmarks: “O. K. [signed] Sim T. Price, R. M. Nichols, attys. for Thomas Ward McMánus. O. K. (signed), John B. Denvir, Jr.”

On the 24th of July, 1908, the trustee filed a motion in the aforesaid cause, calling the court’s attention to the fáct that it had retained jurisdiction “on all matters pertaining to the administration of the trust herein” and showing to the court that the trustee had retaining counsel and, in and about the performance of legal services as such, they had rendered services for which they claimed a certain sum, and an order was prayed to allow and pay. Accompanying this motion was an itemized account of length and particularity, stating the dates on which services were rendered and their character and extent. Notice was given of the filing of this motion and, on a day later in July, the parties appeared by counsel. The court having indicated that the attorney’s fees should be paid out of the income and not out of the corpus of the trust estate, Thomas Ward McManus withdrew from the hearing, deeming that, on that view, he had no concern in it. Thereupon the court adjudged and decreed that the trustee pay a certain sum to his attorneys out of the income of the trust estate. It seems that the form of this decree was also drafted and .bears the following: “O. K. (signed); R. M. Nichols, attorney for Thomas Ward McManus.”

Neither the last judgment nor the original decree, divesting the title of the trust estate out of the heirs of the deceased trustee and appointing Mr. Park as successor in trust and vesting the title in him, was appealed from.

So matters stood until October, 1908. On tbe ninth day of that month a notice was served, entitled in the cause aforesaid and directed to Thomas Ward and Camilla, notifying them and each of them that the trustee would on the 12th day of October, 1908, present a petition in said cause requesting the court to empower him to borrow on the trust property a sum of money sufficient to pay off charges "against the estate, praying that directions be given as to the terms and manner of making the loan and that an order be made determining whether said charges against the trust estate in whole or in part should be paid out of its corpus or income. This notice was served on Thomas Ward on October 9, 1908. As we grasp it, the petition foreshadowed by such notice was filed in the principal cause on the 13th instead of the 12th of October. It sets forth that jurisdiction of the trust estate was retained by the court by its original decree. On such postulate it proceeds to show that notice was given to Camilla and Thomas Ward; it then sets forth a description of the trust property (which we omit) and the appraisement of certain parts of it, and avers it was allotted to the trustee by a judgment in a partition suit in the circuit court of St. Louis; that it was there ádjudged that the trustee should pay one-third of the taxes, general and special, existing as charges against the entire estate of Camilla S. W. MeMamis, testatrix; that said taxes had accrued to a large amount and were running at a punitive rate of interest; that the trustee had no funds to pay them; that the costs in said partition suit (inclusive of commissioners and attorneys’ fees), one-third of which was taxed against the trust estate, aggregated $33,614.45, which the trustee was unable to pay for lack of funds; that he had made efforts to sell the unimproved real estate, but that stringency in the money market and the weak demand for that kind of property had prevented a sale; that the trustee believed the financial sky would brighten and that, say, in a year, he conld obtain a reasonable price largely in excess of that now offered; that a present sale would result in waste and loss to the trust estate; that the attorneys and commissioners in the partition suit would wait no longer for their costs and fees, but proposed at once to sue out an execution on the partition judgment and knock off the property at sheriff’s vendue to satisfy it; that such sale, because of the prevailing money market, would work a great hardship on the trust estate by sacrificing it.

Wherefore, he prayed for power to borrow $20,000 to pay his pro rata of said costs and accrued taxes, to be secured by a trust deed on the corpus of the estate, due two years from date with current interest, and to pay commissioners for securing the loan “and that the court make such orders and grant him such relief as may appear proper in the premises.”

Continuing, the petition avers that certain attorneys have unliquidated charges against the trust estate for legal services rendered in the partition suit during the trusteeship of Mr. Crow; that part of the back taxes accrued in the lifetime of testatrix, part of them are special tax bills for street sprinkling and street improvement; that there is a controversy whether certain items should be charged against the' corpus or income of the trust estate.

Wherefore, petitioner prayed the judgment and direction of the court in that behalf.

To the foregoing notice Thomas Ward McManus paid no attention and to that petition he remained mute, answering not.

Presently, on the 23d day of October, 1908, the matter coming on for a hearing, the following decree was entered:

“The above matter coming on to be heard this day, upon the application of Matthew Park, trustee under the will of Camilla S. McManus, deceased, for permission, pursuant to the last will of Camilla S. McManus, deceased, to alienate part of the trust estate herein by mortgage or in such other manner as to the court might seem meet and proper in the premises, in order that said trustee may pay charges against said 'trust estate duly allowed by the St. Louis Circuit Court in a cause in partition, being numbered 43,345, in Division No. 4 thereof, and such other proper costs, expenses, and liens as this court may by proper order direct to be discharged therefrom, and the court having been fully and duly advised in the premises by counsel for trustee and other parties in interest, all of whom have been duly notified of said application as shown by the evidence; and this court having reserved the power in the original decree herein to make such orders in the administration of the trust as might be necessary, it is hereby ordered by this court by virtue of the power conferred by the will of Camilla S. Mc-Manus, deceased, that said trustee sell at public auction to the highest bidder the following described real es-. tate lying and being situate in the city of St. Louis, in lieu and stead of the tract of land in the petition described, belonging to and being part of the trust estate of which said Matthew Park now stands, seized as such trustee, to-wit: [Here follows a description of the real estate to be sold, which we omit.]
“It is further ordered that said sale shall be either for cash or at the option of the purchaser for one-third cash, and remaining two-thirds payable in one and two years from date of sale with interest from date at six per cent per annum, deferred payments to be secured by customary mortgage upon the property sold; said sale to be conducted at the east front door of the court house in the city of St. Louis, Missouri, at 12 o’clock noon on Monday, the 16th day of November, 1908; and that said trustee shall give public notice of said sale by advertisement thereof for twenty days in a daily newspaper printed in the English language in the city of St. Louis, the last insertion to he not more than two days previous to the day of sale.
“It is further ordered that said trustee shall further advertise said sale by erecting suitable sign boards on the above described property and by printed hand bills regarding the same and that he be authorized to spend a reasonable sum in whatever methods of advertising as to him may seem necessary.
“It is further ordered that successful bidders for said property shall be required to deposit with said trustee as earnest money, a certified check for at least ten per cent of the amount tó be paid for .said property; residue to be paid or secured as aforesaid immediately upon approval of said sale by this court.
“It is further ordered that said sales shall be subject to the approval of this court and that said trustee upon conducting same shall forthwith report said sales to this court for its approval.
‘ ‘ Said trustee is authorized to employ an auctioneer to conduct said sales and shall upon approval of court make and execute such conveyance or conveyances as may be necessary to fully invest title to'all said real estate in said purchasers. ’ ’

On November 4, 1908, relator filed an affidavit for an appeal from the decree and his appeal was denied. By virtue of the decree the trustee presently advertised the described real estate, putting the sale on November 16, 1908; and on November 12th, relator filed here his suggestion for prohibition, challenging the jurisdiction of the circuit court to render the decree ordering a sale.

The first and main proposition discussed by counsel is the right (affirmed on the one side and denied on the other) of the circuit court of the city of St. Louis to retain jurisdiction of the administration of the trust estate by its original decree, entered on the pleadings in the principal case. It will be observed there was a clause in that decree pointedly retaining such jurisdiction. The trial court evidently held that by virtue of that clause the administration of the whole trust was held in chancery. Accordingly, all subsequent proceedings are entitled as in that case and are by way of supplemental motions and petitions filed therein — hearings proceeding on mere notice without summons. The argument of respondent runs, first, that the circuit court on its equity side had inherent jurisdiction over the subject-matter of trusts, therefore (they argue) the decree was well enough; second, that the will of the grandmother (witness the clause heretofore quoted) contemplated that the trust, in so far as power was given to the trustee to sell real estate, should be administered under the supervision of a chancellor; third, that the original decree was entered by consent; and, fourth, that it was not appealed from. Hence, on one or all said grounds, it is immune from collateral attack.

But we are of opinion that learned counsel, through inadvertence, argue unsoundly in that behalf and that the preliminary rule in prohibition should be made absolute. This, because:

I. (a) Conceding that trusts and their administration are an ancient head of equity jurisdiction, yet in Missouri jurisdiction of the subject-matter of a concrete case in equity or law is only acquired by a court through pleadings filed, process issued or appearance entered, and decrees entered within the lines of the issues framed by pleadings. At the very old ftommon law, pleadings were oral and some court officer framed issues from these oral complaints. So, when Samuel judged Israel, or some Calif dispensed justice in Bag-dad, or some Jewish king sat in judgment at the gates of Jerusalem, mo form of pleadings was necessary to the hearing of a controversy, and questions of jurisdiction were scarce and of little or no bother. But in modern jurisprudence, a court remains passive until issues are framed in accordance with written law and their judgments must respond to such issues. A judgment is “the sentence of the law upon the record.” It is the application of the law to the facts and pleadings. Any other view would be illogical and tend to confusion and chaos in the administration of justice. [Black v. Early, 208 Mo. l. c. 313, and cases cited.] Speaking to the point, we quote with approval from a sound authority-: “The judicial power can be set in motion in civil matters only by some person — using the word in its broadest sense — in a case against another person. The courts cannot, ex mero motu, set themselves in motion, nor have they power to decide questions except such as are presented by the parties in their pleadings. The parties, by their attorneys, make the record, and what is decided within the issue is res adjudicata; anything beyond is coram non judice and void.” [Andrews’ Stephen’s Pleading (2 Ed.) p. 34; see, also, Reynolds v. Stockton, 140 U. S. 254.]

To the same effect are our own cases. “The subject-matter of a suit,” says Macfarlane, J., in Hope v. Blair, 105 Mo. l. c. 93, “when reference is made to questions of jurisdiction, is defined to mean ‘the nature of the cause of action and of the relief sought.’ [Cooper v. Reynolds, 10 Wall. 316.] ‘ Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case. To constitute this there are three essentials: First. The court must have cognizance of the class of cases to which the oneadjudged belongs. Second. Theproperpartiesmustbepresent, and, third, the point decided must he, in substance and effect, within the issue.’ [Munday v. Vail, 34 N. J. Law 422.] A court may be said to have jurisdiction of the subject-matter of a suit when it has the right to proceed to determine the controversy or question in issue between the parties, or grant the relief prayed. What the controversy or issue, in any case, is, can only be determined from the pleadings. When the court has cognizance of the controversy, as it appears from the pleadings, and has the parties before it, then the judgment or order, which is authorized by the pleadings, however erroneous, irregular or informal it may be, is valid until set aside or reversed upon appeal or writ •of error. ’ ’

Referring to the foregoing, let it be admitted, also, for the purposes of the case at bar, that “the question •of jurisdiction must be tried by the whole record.” [Hope v. Blair, supra, l. c. 94; Adams v. Cowles, 95 Mo. 506.]

Let it be further admitted, arguendo, that the scope of the pleadings and issues in a lawsuit may now and then be somewhat enlarged beyond the strict letter of the pleadings by the construction put upon them by court and counsel at the hearing, and that such theory will bind parties litigant not only on appeal but on a question of res adjudicata. [Bragg v. Railroad, 192 Mo. l. c. 358; Donnell v. Wright, 147 Mo. l. c. 646-7.]

Yet none of these admissions aid respondent in this case. There have been presented to us the admissions of fact and a running colloquy between court and counsel at the hearing of the principal case. It is claimed that said admissions and colloquy are part of “the whole record.” Conceding (without determining) that fact, yet we find the admissions and observations- made in the colloquy are strictly responsive to the plain issues framed by the pleadings in the original case and nothing else. Those issues we have stated. Briefly, they are the appointment of a new trustee and putting that trustee in the shoes of the old one— (i. e., vesting him with the title to the real estate devised in trust by the grandmother’s will). Such being the simple, sharp and only issues, the decree invoked thereby should have contented itself with deciding them, and, having set them at rest by the appointment of a hew trustee and providing for his bond, and having invested him with title, the power of the court in the subject-matter of that particular suit was exhausted and at end. This certainly is so unless we adopt the heresy that a court, sua sponte, may hold a trust estate in its grasp for all purposes of administration under some droll notion that once in chancery for any purpose whatsoever a trust estate is always in chancery for all purposes whatsoever.

A general doctrine, in point, is thus stated: “Upon the entry of a final order or one which becomes final by operation of law, the jurisdiction of the court in the suit in which such order is entered is exhausted, and further proceedings therein may be prohibited.” [16 Ency. Pl. and Pr., 1115.]

(b) It is argued that the will of the grandmother contemplated that a court of equity might be invoked to approve a sale of real estate by the trustee under the powers donated to him. But, in this connection, it must also be remembered that the grandmother’s will, ex vi termini, contemplated that a person, not a court, should manage the trust. The finger can be put on nothing in that will even squinting at a wish on the grandmother’s part that the execution of the trust raised should be subjected to the traditional delays and expenses of an administration in a court of chancery. The direction in that will that a sale of any of the trust real estate should not be effectual without the approval of a court, falls very far short of bespeaking the general judicial exercise of the large power of administering the trust through orders and directions of court. Not only so, but the subject-matter of the corpus of the trust estate, the subject-matter of the powers donated by the will, and the subject-matter of the administration of the estate under those powers, were not brought into court in the original proceeding for the purpose of administration then or thereafter; so that we are not called upon to decide whether the administration of that trust could be taken from the shoulders of a trustee selected by testatrix, or his successor named by the court, and put upon the shoulders of a chancellor in a direct proceeding leveled at that end.

(c) It is next argued that the original decree was by consent, and, finally, that no appeal was taken, therefore, the decree was effectual to hold the trust estate in administration. But if the chancellor, as we have held, reached out his arm too far and grasped a jurisdiction not within the issues, then that part of the decree outside the issues became cofam non judice and void. In that view of the case no appeal was necessary, and the void part of the judgment is subject to collateral attack.

Moreover, while it seems that counsel, uO. K.’d” the decree, whatever that may mean, yet we cannot agree to the doctrine that counsel, ostensibly merely employed in the matter of an appointment of a new trustee to administer a trust estate and to invest that new trustee with title to the estate, thereby and without more held a warrant of attorney from their client to confer jurisdiction on the court to administer the whole trust after the appointment of the new trustee, and all this by placing the hieroglyphic cryptogram, “O. K.,” on a decree prepared for entry presumably by counsel, whether in court or out does not appear. To put jurisdiction on counsel’s “0. K.” is to stand it on an apex instead of a base, to rest it on a sign or symbol, rather than on the pleadings, the issues and the evidence.

II. The decree of sale, singularly enough, is based on a petition directed to the avoidance of any sale whatever, through the expedient of borrowing money to tide over the pressing emergency confronting the trustee in his stewardship. That decree, in any event, is so foreign to the application made that it could only stand on the broad ground that the whole trust estate and its administration were already held in the hollow of the hand of the chancellor by force of the original decree, and that he could proceed, of his own motion, to administer the details of the trust. As we have already held that the chancellor had no such jurisdiction in this case, it would be unprofitable to consider the decree of sale from the viewpoint of standing on its own legs; because, the jurisdiction to order that sale being referred back to the clause in the original decree retaining jurisdiction of the whole trust, therefore, as that is the stem on which it grew, when that stem is cut down, its support is taken away and it falls to the ground.

Other questions are discussed with vigor and learning by counsel for respondent, but we deem them not vital to the deciding question in the case.

Let the preliminary rule in prohibition be made absolute and the final writ go. We will not adjudge costs against Judge Muench. Let the relator pay them. It is so ordered.

Valliant, G. J., Gantt, Fox, Woodson and Graves, JJ., concur; Burgess, J., dissents.