text:
    WILLIAM J. RABENAU et ux. v. R. Y. HARRELL, JACKSON-VREELAND LAND COMPANY et al., Appellants.
    Division Two,
    June 2, 1919.
    1. FRAUDULENT CONVEYANCE: False Representation: Opinions. False statements, in printed circulars and orally made by defendants’ sale agents, that an existing irrigation system was sufficient to furnish ample water for full productivity of certain crops to be produced on semi-arid lands in Texas, were not mere expressions of opinion, but false representations, and having been made to a plaintiff wholly unacquainted with irrigation, are sufficient grounds for setting aside a deed conveying his Missouri land in payment therefor.
    2. -: -: Emp'tor Caveat. The doctrine of caveat emptor, though based upon the theory of notice and opportunity to the buyer to judge for himself, has no application where distinct and positive representations of fact have been relied upon and have induced action.
    3. -: Rescission: Delay in Bringing Suit. If there is no evidence that the substantial rights of the vendee have been in< juriously affected by the vendor’s delay in bringing his suit to have the deed set aside on account of the vendee’s false representations, such delay is no impediment to a decree of rescission.
    4. -: -: Tender of Recoupment. It is not necessary that plaintiff, before he institute his suit to have annulled a deed conveying his Missouri land in exchange for Texas land, on the ground that he was induced by defendant’s false representations to make the conveyance, should tender a reconveyance of the Texas land. If he tenders a reconveyance in his petition and the decree conditions a rescission upon a deposit with the clerk of a proper deed of reconveyance, there is no reversible error in the plaintiff’s failure to file a formal deed of reconveyance with his petition.
    5. -: Wife as Witness: Interest in Litigation. A wife who is plaintiff with her husband in the suit to rescind their deed made in exchange for Texas land, and who is co-owner of the Missouri land and co-grantee of the Texas land, is substantially interested, and a competent witness.
    6. -: Agreement Against False Representations: Rescission. A provision in the preliminary agreement for the exchange of land by which plaintiff agreed that he would act upon his own investigations in making the exchange and that no promises, representations or agreements should be binding upon defendant unless included in such writing, did not preclude evidence that the agreement was procured and the deeds ultimately exchangee! because of defendant’s fraudulent and deceitful representations, which were relied upon by plaintiff at the time of making the agreement.
    Appeal from Christian Circuit Court. — Ron. John I. Moore, Judge.
    Affirmed,

      C. O. French and G. Purd Rays for appellants.
    (1) There is no proof that the alleged representations were not true. (2) The alleged representations did not amount to fraud. Loan & Investment Co. v. Trust Co., 175 Mo. App. 646; Younger v. Hodge, 211 Mo. 444; Anderson v. McPike, 86 Mo. 293; Cahn v. Reid, 18 Mo. App. 115; Funding & Foundry Co. v. Heskett, 125 Mo. App. 536; Cornwall v. McFarland Real Estate Co., 150 Mo. 377; Lee v. McClelland, 120 Cal. 147 ; Investment Co. v. Shafer, 91 Neb. 798; Morrison v. Koch, 32 Wis. 254; Wade v. Ringo, 122 Mo. 322. (3) The rule of' caveat emptor applies. 39 Cyc. 1279; Myers v. Summerville, 85 Mo. App. 187; Lewis v. Brookdalé Land Co., 124 Mo. 672; Cahn v. Reid, 18 Mo. App. 121; Dunn v. White, Admr., 63 Mo. 181; Clark v. Edgar, 12 Mo. App. 345; Langdon y. Green, 49 Mo. 368; Morse v. Rathburn, 49 Mo. 91; Anderson v. McPike, 86 Mo. 300; Shappirio y. Goldberg, 192 U. S. 232; Slaughters, Admr. v. Gerson, 13 Wall. (80 U. S.) 379; Southern Surety Development Co. v. Silva, 125 IT. S. 247; Fárnsworth v. Duffner, 142 U. S. 43; 2 Pomeroy’s Equity Jurisprudence, sec. 892; Churchill v. Farrar, 135 U. S. 609; Investment Co. v. Shafer, 91 Nebr. 798; Judd v. Walker, 215 Mo. 312. (4) A'party seeking to rescind a contract for fraud must act promptly. 39 Cyc. 1294; Lewis v. Brookdale Land Co., 124 Mo. 687-8; Taylor v. Short, 107 Mo. 384; Key v. Jennings, 66 Mo. 370; Hart v. Handlin, 43 Mo. 175; Cahn v. Reid, 18 Mo. App. 123; Estes v. Reynolds, 75 Mo. 563. (5) A party seeking rescission must return ■the consideration received by him. Bailey v. Gilman Bank, 99 Mo. App. 571; Lockwood v. Hannibal Ry. Co., 65 Mo. 233; Melton v. Smith, 65 Mo. 324; Woods v. •Straup, 63 Mo. 437; Cahn v. Reid, 18 Mo. App. 125; Hancock v. Blackwell, 139 Mo. 453; Jarrett v. Morton, 44 Mo. 275; Och v. Ry. Co., 130 Mo. 48; North v. Stevenson, 71 Mo. App. 432; (6) Plaintiff Grace Rabenau was not a competent witness, (a) Because she was the wife of the real party in interest. Layson v. 'Cooper, 174 Mo. 211; Roberts v. Bartlett, 190 Mo. 704; O’Bryan v.'Allen, 95 Mo. 73. (b) The evidence offered to qualify said plaintiff as a witness was incompetent. Crumb v. Wright, 97 Mo. 13; Turner v. Williams, 67 Mo. 617; Houck v. Patty, 100 Mo. App. 302. (7) Defendants acted in good faith. Funding & Foundry Co. v. Heskett, 125 Mo. App. 531; Wannell v. ¡Kern, 57 Mo. 478; McBeth v. Craddock, 28 Mo. App. 386. (8) Plaintiffs are estopped by the terms of the contract. Peterson v..Landahl, 86 Minn. 32; Anderson v. McPike, 86 Mo. 300; Cahn v. Reid, 18 Mo. App. 127; Myers v. Summerville, 85 Mo. App. 187; Lewis v. Brookdale Land Co., 124 Mo. 672; Wade v. Ringo, 122 Mo. 322.

      Boscoe Patterson for respondents.
    (1) The representations that the defendant had arranged with the Valley Reservoir & Canal Company for the irrigation óf the land in question within ninety days and that the irrigation facilities of said company were ample and adequate to irrigate said lands continuously as needed, is the representation of a material-existing fact and where relied upon, as in this case, may he made the basis for rescinding the contract and cancelling the deeds procured through such misrepresentation. Cottrill v. Krum 100 Mo. 397; Clinkenbeard v. Weatherman, 157 Mo. 105; Plerman v; Halí, 140 Mo. 270; McGee v. Bell, 170 Mo. 135; Pomeroy v. Benton, 57 Mo. 542; Williamson v. Harrison, 167 Mo. App. 347; Judd v. Walker, 215 Mo. 323; Stonemets v. Head, 248 Mo. 243; Burger v. Boardman, 254 Mo. 238; Laird v. Keithley, 201 S. W. 1142. Even where opinions are given upon matters capable of approximation to the truth and false statements are contained therein for the purpose of deception, and injury follows from reliance thereon, the party has been held liable. Brown v. South Joplin Lead & Zinc Min. Co., 194 Mo. 703; Stonemets v. Head, 248 Mo. 263; Wake-field v. Moore, 186 S. W. 1150. Even- a promise of something to be done in the future with no intention to perform it, but'with a fraudulent design to obtain a contract by giving the promise and then breaking it, is a ground of rescission. Laswell v. Handle Company, 147 Mo. App. 542; Bank of North America v. Crandall, 87 Mo. 208; Stonemets v. Head, 248- Mo. 263; Howard v. Scott, 225 Mo. 711. (2) The rule of caveat emptor has no application to the case at bar. Judd v. Walker, 215 Mo. 328; Stonemets v. Head, 248 Mo. 262. (3) Respondents acted immediately upon discovering the fraud. 3 Elliott on Contracts, sec. 2431, p. 589; 39 Cyc. 1427-1428; Cantwell v, Crawley, 188 Mo. 57; Hudson v. Cahoon, 193 Mo. 562; Maun Merc. Co. v. Levin, 189 Mo. App. 244. (4) The offer made by respondents in their bill to reconvey the Texas land received in the transaction is a sufficient tender to entitle them to rescission of the contract and cancellation of the deeds given by them. Smith, Law of Fraud, sec. 133, p. 152; 3 Elliott on Contracts, sec. 2436; Hancock v. Blackwell, 139 Mo. 453; Clinkenbeard v. Weatherman, 157 Mo. 105; Enterprise Soap Works v. Sayers, 55 Mo. App. 15. (5) The respondent Grace Rabenau was a competent witness, she being a party in interest. Steffen v. Bauer, 70 Mo. 404; O’Bryan v. Allen, 95 Mo. 704; Layson v. Cooper, 174 Mo. 223.
   BOND, C. J.

Plaintiffs, husband and wife, sue to set aside their deed for their farm in Missouri, given in part payment of certain Texas land conveyed to them by the corporate defendant and to recover damages for alleged fraud and deceit, on the part of said defendants in procuring said deed.

The husband, a doctor and farmer living in Webster County, Missouri, was induced to become one of a party of excursionists who were making a trip to Texas to see the lands which the' defendant corporation was endeavoring to sell to Missouri and Illinois farmers. These excursions were run at regular intervals, were personally conducted and were made up of persons who were provided, for a stipulated sum, with transportation and provision during such trips. Upon arrival of these parties in Texas, they were met with automobiles in „ charge of the defendant Jackson-Vreeland Land Company, which took them to see certain “show farms.” While visualizing these, the prospective purchasers were told that they' represented the average yield of such lands, if adequately "irrigated. A prospectus was furnished them, which, among other things, stated as to irrigation, the following:

“The Valley Reservoir & Canal Company was organized for the purpose of furnishing water to our lands. They have installed at the river one of the most modem and complete pumping plants to be found in the valley. To this. plant they are continually adding new pumps of the most modern type. . . .
“The natural conditions for irrigation are most ideal, as the land slopes back from the river, the altitude at the city of Edinburgh being but three feet higher than the Rio Grand River at low water stages, the surface of the ground lying so level and perfect that very little or no leveling or grading is necessary to irrigate our different tracts. ... »
“The most expert critics on irrigation, after examining our system, have pronounced it as nearly perfect as human ingenuity can devise.
“Each main canal is of sufficient width and depth, and these with the sub-laterals penetrate every portion of the lands we offer for sale.” '

While on his way home, on February 21, 1914, Rabenau entered into a contract to exchange his Missouri land for a tract of Texas land. This contract was afterwards abandoned, and on June 3, 1914, plaintiff and his wife entered into a final contract of exchange and executed a deed to their Webster County-farm and also a deed to a certain town lot at Fordland, Missouri,' subject to a deed of trust thereon.

Plaintiff W. J. Rabenau testified that defendant’s agents represented that the Texas land would produce from five to seven crops of alfalfa a year, and cabbages and onions in such quantities as to bring from two hundred and fifty to five hundred dollars an acre. He specifically testified that it was also represented to him by defendant’s agents that “they had the best system [for supplying water] in the valley; that they had more water than we could ever use, and the best pumping system in the valley;” that relying on these representations he purchased about seventy-two acres of land, in payment for which he and his wife deeded a town lot to a third party and conveyed their farm, as stated before; that upon his faith in the truth of these representations he became a sales-agent for defendant and sought to aid it in selling its lands to others; that during that time he spent more than five hundred dollars clearing thirty-two acres of the land he had purchased for himself and wife; that discovering later, through statements of Mr. Rutledge, a purchaser, and of defendant’s agent Mr. Baker, that the representations made to him as to the water supply and the productivity of the Texas land were false, within three days thereafter he brought the present action.

At the close of the evidence the court found the issues for the plaintiffs and decreed that the deed executed by plaintiffs for their Webster County farm should be cancelled and set aside, and that plaintiffs also recover, as the value of the lot which they had conveyed to a third person, the sum of $875' and costs, and that plaintiffs should deposit with the clerk of the court a deed of reconveyance in due form to defendant of the Texas land conveyed to them. Defendants duly appealed.

I. The first error assigned by appellants is that there was no proof of the falsity of the representations relied on by plaintiffs. It is undisputed that the crops failed for want of water. The only contention on this point of appellants ’is that this resulted -from bad management of the Reservoir Company. The evidence of witness Coghenour discloses, however, that it was caused on account of the small size of the 24-inch duplex pump and the ditch leading therefrom. We are satisfied from a careful review of the testimony in this case that the Valley Reservoir Company relied on by defendant corporation to water its forty-thousand acres of land, was not an irrigation system adequate for that purpose and that the representations to the contrary in the circulars of defendant and the testimony of its witnesses, were untrpe.

II. It is next insisted that the representations alleged did not amount to fraud in that they were mere expressions of opinion. The assertion by the defendant corporation through its circulars and through the oral statements °f its agents to prospective purchasers that the irrigating system provided for its land was sufficient to furnish an adequate amount of water for full productivity of the various crops referred to, was not the mere expression of an opinion, but was a plain statement of an existing fact and as such was the subject-matter of a false representation under all the authorities. [Judd v. Walker, 215 Mo. l. c. 323; Stonemets v. Head, 248 Mo. l. c. 243; Laird v. Keithley, 201 S. W. l. c. 1142.]

The fact upon which the prospective purchasers relied in this case was the adequacy of the irrigating system to water the wild, uncultivated portion of the semi-arid Texas land offered to them, for without such a supply of water it would be practically a desert, and hence it became essential for the defendant corporation to lodge in the minds of the persons whom it sought to attract an abiding conviction that it had provided ample irrigation for the land in question, for otherwise they would not buy. The representations bearing on irrigation were, therefore, necessarily intended to be averments as to an existing state of facts, and were not mere expressions of opinion, or future expectations of the corporation as to the adequacy of its water supply. We, therefore, overrule the contention of appellants that such representations, even if 'untrue, were not fraudulent.

III. It is' next insisted that the plaintiffs are-barred by the rule of caveat emptor. That doctrine is based upon the theory of notice and opportunity upon the part of the buyer to judge for himself: It, however, has no application “where distinct and positive representations of fact have been relied upon and have induced action.” [Judd v. Walker, supra, L. c. 328 and cases cited; Stonemets v. Head, 248 Mo. l. c. 262.]

IY. Neither is there any merit in the contention of appellants that plaintiffs unnecessarily delayed their suit to rescind. There is no evidence in the present record that the substantial rights of the defendant land company have been in any way affected by the delay in bringing the suit. [Burger v. Boardman, 254 Mo. l. c. 257; Davis v. Forman, 229 Mo. l. c. 46; Hayes v. Wyatt, 202 S. W. 1. c. 586.]

Y. It is further insisted by apellants that there was no tender of reconveyance prior to the institution of plaintiffs’ suit to rescind. The plaintiffs in this case tendered a reconveyance in their petition. This being a suit in equity, such tender was proper. The decree in plaintiffs’ favor is conditioned upon their depositing a reconveyance with the clerk. In these circumstances there was no reversible error in the failure of the plaintiffs to file a formal deed with their petition tendering a reconveyance. .

VI. It is insisted by appellants that the plaintiff wife was an incompetent witness. This was based upon a misconception. The record shows that she was a co-owner of the land conveyed in Missouri and co-grantee of the Texas land, and that she possessed, at least, inchoate- rights of dower. She was, therefore, substantially interested.

VII. It is finally insisted by appellants that in the contract for exchange plaintiff W. J. Rabenau agreed, in advance, that he acted upon his own investigations in making such purchase and that no promises, representations or agreements should be binding upon the seller unless included in said writing. This provision was contained in the preliminary exchange agreement between the husband and the defendant company and Would not be available even as to Mm to preclude evidence tending to show that the agreement was procured and the deeds ultimately exchanged because of fraudulent and deceitful misrepresentations upon the part of the seller which were relied upon by the buyer at the time of making Ms contract and his deed. The clause would suffice to make the writing the sole repository of the agreements of the parties, but it would not go beyond that and shut off proof that the written contracts themselves were obtained by fraud. Its insertion in the contract under review is not unlike (what has often happened in conveyancing) the statement in a grantor’s deed that -“this deed is not fraudulent. ’ ’ In construing instruments of that sort, courts of equity have held that such a recital in a deed was susceptible of such simster construction that, of itself, it would suggest that the deed was fraudulently made. However that may be, the terms of the provision in this case do not prevent any inquiry between the parties as to the fraudulent and deceitful character of the representations as to the irrigation system. There was no contradiction of plaintiff’s testimony that he was wholly unacquainted with the operation and capac-. ity of irrigating systems for reclaiming arid lands, and that he relied absolutely upon the misrepresentations as to that, made to him upon behalf of the defendant land company. We rule, therefore, that this clause does not debar the plaintiffs from the relief sought in this action.

The judgment of the trial court is manifestly correct and will be affirmed. It is so ordered-

Blair, P. J., and Graves, J., concur; Woodson, J., absent.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    CLAUDE KILPATRICK et al., Trustees, v. DOUGLAS W. ROBERT et al., Executors of EDWARD S. ROBERT, Interveners, Appellants.
    Division One,
    June 2, 1919.
    1 RES ADJUDICATA: Must Be Pleaded. Res adjudicata is an affirmative defense and should be pleaded; and unless the petition upon its face shows that the cause of action is in some way barred, or there is a plea of res adjudicata, the question of former adjudication is not for decision. An answer consisting of a general denial to a petition which upon its face does not show former adjudication is not sufficient to raise the. question.
    2. MOTION POR NEW TRIAL: General Assignments. The motion for a new trial set out in the opinion is held sufficient in all its general assignments.
    3. TRUSTEES: One Compensation. But one ‘compensation can be allowed for the management of a trust estqte, whether there be one or more than one trustee. If there be more than one and the work and responsibility have been divided, the compensation must be likewise divided.
    4. -: Amount of Compensation. In the absence of a statute fixing the compensation of trustees (as is the case in Missouri), the compensation should be a reasonable one, due regard being had for the services rendered to the estate; . for the kind and character of the services are potent factors. The question is not one of percentages, but the worth of the trustee’s services rendered the estate.
    5. -: -: Pive Per Cent of Gross Income. Where in the management of a very large estate, consisting largely of first-class interest-bearing securities and requiring little attention, the trustees at the end of each of the eighteen years of their stewardship appropriated at the end of each year five per cent of the gross income for the year, and distributed the balance, after paying all expenses, some of which were compensation to bookkeepers and agents who collected rents, to the beneficiaries, and they could have appropriated more if they had considered their services worth more, it will not be held that the executors of one of them, who died four years before the trust terminated, can, at the time of final distribution, go back and recover a larger compensation for the nine years that he served as trustee, the trustees having acted throughout on the theory that the annual payments were a fair and just compensation for their services.

      Appeal from St. Louis City Circuit Court. — Hon. Rhodes E., Cave, Judge.
    Affirmed.

      Dauglas V. Robert for appellants; P. Taylor Bryan, of counsel.
    (1) Trustees are entitled to a reasonable compensation for their services. Kent v. Foster, 22 Mo. App. 649; Maginn v. Green, 67 Mo. App. 620; Berry v. Stigall, 125- Mo. App. 268; Donaldson v. Allen, 182 Mo. 650; Barney v. Saunders, 16 How. 541; 2 Perry bn Trusts, sec. 918. And it is payable out of the corpus as well as the income. Ames v. Scudder, 11 Mo. App. 168, 83 Mo. 189; Re Berkeley’s Trust, 8 Ont. Pr. Rep. 193; In re Williams, 4 Ont. Law Rep. 501. (2) The estates of trustees who dié before the termination of the trust are entitled to a reasonable allowance out of the corpus of the trust estate as compensation for the services performed by the deceased trustee. Widener v. Fay, Admr., 51 Md. 273; Young v: Hughes, 39 Ore. 586; Whitehead v. Draper, 132 App. Div. (N. Y.) 799; Bentley v. Shreve, 2 Md. Ch. 215; In re Gill, 47 N. Y. Supp. 707; In re Allen, 96 N. Y. 327; Busier’s Estate, 161 Pa. St. 457; In re Leavitt, 97 Pac. (Cal.) 916; In re De Peyster, 4 Sandf. Ch. 511; In re Phillips, 4 Demarest, 299; In re Welscher Estate, 3 Walker, 241; 2 Woerner, Admr., sec. 531. (3) The proper time to claim commission from the corpus was when the estate was in course of distribution. Philios v. Burton, 107 Ky. 88; Wister’s Appeal, 86 Pa. St. 16)0; Albro v. Robinson, 93 Ky. 195 ; Penn-Gaskells Estate, 208 Pa. 342; Harland’s Accounts, 5 Rawle, 323. (4) In determining the amount of the compensation of trustees, the service, responsibility, labor, diligence, skill and amount of the estate are considered. Harland’s Accounts, 5 Rawle, 323; Re Harrison’s Estate, 217 Pa. 207; Gibson’s Case, 1 Bland, 138; In re Moffatt, 24 Hnn, 325. (5) The professional character of the trustee is also taken into consideration. Lowries’ Appeal, 1 Grant Cas. 373; Perkin’s Appeal, 109 Pa. 314. (6)' The one compensation should be divided amoung all of the trustees. Smart v. Fisher, 7 Mo. 580; 2 Woerner, Admr., sec. 531.

      Jesse A. McDonald, Nagel <& Kirby and James A. Seddon for respondent.
    (1) Full and liberal compensation has been paid to the trustees for all services rendered, as is clearly shown by the record facts, and Mr. Robert’s estate is not further entitled. Condict v. Flower, 47 Mo. App. 514; Gamble v. Gibson, 59 Mo. 585; 2 Perry on Trustees (6 Ed.), p. 1493; Parker v. Hill, 185 Mass. 14; Re Harrison’s Estate, 217 Pa. St. 207; Grimball v. Cruse, 70 Ala. 534; Urann v. Coates, 117 Mass. 41; Tidball’s Estate, 29 Pa. Super. Ct. 363; Dunne v. Coke, 197 111. App. 422; Berry v. Stigall, 125 Mo. App. 264; Beck v. Kinealy, 89 Mo. App. 418; Lukens’ Appeal, 47 Pa. St. 356; Abel v. Brady, 79 Md. 94; Wilder v. Hast, 29 Ky. Law Rep. 1181; Estate of Charles Dorrance, 186 Pa. St. 64. (2) The trustees, at the end of each year, rendered to the beneficiaries an account of the income collected in the year, deducted five per cent thereof for “trustees’ commissions” for the year, and paid over the balance to the beneficiaries. Such payments were not merely for “handling,” viz., collecting and disbursing the income of the year, but for account of all their services of the year rendered to the estate, and were received as full compensation for such services. Perry on Trusts (6 Ed.), sec. 919; In re Harrison’s Estate, 217 Pa. St. 207; In re Gibson, 1 Bland Chanc. 138; In re Perkins Appeal, 109 Pa. St. 314; Wagstaff v. Lowerre, 23 Barb. 209; In re Rothschild, 47 Pa. Sup. 234; In re Hemphill, 18 Pa. St. 303; Dixon v. Homer, 2 Mete. '420; Abell v. Brady, 79 Md. 94; Wilder v. Hast, 96 S. W. (Ky.) 1106; In re Spangler Estate, 21 Pa. St. 335; Parker v. Ames, 121 Mass 220; 'In re Schaefer, 165 N. V. S. 19. (3) If there was any question whether the annual payments of five per cent of the income were not intended to be in full of all the services of the trustees, and whether Robert’s estate was entitled “to some additional compensation,” the claim was due at his death, when his services as trustee terminated, and could have been included in the suit of Kilpatrick v. Fowler, to Feb. Term 1912, and by the decree in that case the question has become res adjudicata. Kopp v. Blessing, 121 Mo. 391; G-reenabaum v. Elliott, 60 Mo. 25; Epright v. Kaufman, 35 Mo. App. 455; Mason v. Summers, 24 Mo. App. 174; Anderson v. Sands, 40 D. C. App. 447; Hord v. Bradbury, 156 Ind. 30. (4) The motion for a new trial is so general in its assignments that there is nothing before this court for its decision. Polski v. St. Louis,- 264 Mo. 459; Disinfecting Co. v. Bates, 273 Mo. 300; Kansas v. Bush, 208 S. W. 625.
   GRAVES, J.

Leaving out of consideration the acrimony which has crept into some of the briefs on one side of this ease, a comparatively short statement will suffice to present the issue involved herein. The facts are few and simple. The appellants are the executors of the estate of Edward S. Robert, deceased. The respondents are the trustees and beneficiaries under the will of John E. Liggett, deceased. ^

John E. Liggett died testate November 23, 1897, leaving a very large estate in the City of St. Louis. His will was probated November 29,1897, and by the terms of the will Claude. Kilpatrick, John Fowler and Mitchell Scott were made trustees of the estate. These trustees were the husbands of John E. Liggett’s three daughters. These trustees served until December 8,- 1902, at which time Mitchell Scott died. - Early in February the two remaining trustees (as contemplated by the will) brought a proceeding in the circuit court of the City of St. Louis, asking the appointment of a successor trustee to Mitchell Scott, deceased. As a result Edward S. Robert was appointed as successor trustee on February 19, 1903, and continued to serve until December 12, 1911, on which .date the said Edward S. Robert died.

’Following the death of Mr. Robert, the surviving ’trustees, Kilpatrick and Fowler, brought another proceeding in the circuit court of the city, for the appointment of a successor to Mr. Robert, and this resulted in the appointment of Charles Wiggins, who was then the husband of Ella L. Scott, the former wife of the first trustee, Mitchell Scott.

In this last proceeding all the beneficaries of the trust created by the will were made parties defendant, as also were the executors of the estate of Edward S. Robert, deceased, being the same executors who are interveners in the instant case.

To the petition were three exhibits, viz., Exhibit A, the will; Exhibit B, a statement of the assets of the estate; Exhibit C, a statement of receipts and expenditures for the year past. The petition concluded with this prayer:

“Where plaintiffs pray the court to appoint a successor to the said Edward S. Robert; that it fix the amount of bond to be given by said successor and that the court approve the' accounts of the property in the possession of said trustees on the twelfth day of December, 1911, and grant such other and further relief as to the court may seem just.”

In Exhibit C, supra, appear, among many items of credits, the following: “Dec. 30, 1911, By C. Kilpatrick, Trustees’ Commission 1911, $5,434.66;” “Dec. 30, 1911, By E. S. Robert, Trustees’ Commission 1911, $5,434.67. “January 4, 1912, By John Fowler, Trustees’ Commission 1911, $5,434.67.”

Under the testimony in the case the trustees at the end of each year took out of the gross income of the estate for the year five per cent thereof and divided this equally among the trustees. This averaged Mr. Robert, during his incumbency about $5,600 annually. The estate was near a $6,000,000 estate. Under the terms of the will the trust created thereby terminated in April, 1916. From the beginning of the trust to the end thereof the five per cent of the gross income was taken out' of thq annual income each year, by the trustees for their services.

For nine years Mr. Robert was a party to this act. The trust ran for 18 years, but this five per cent of the income was taken before and after the incumbency of Mr. Robert, as well as during his incumbency.

In this present action the executors of Mr. Robert ask some- $57,000 additional compensation for him, to be allowed out of the estate funds. The income of the estate (exclusive of the trustees’ commissions aforesaid, and the expenses of the trust) was divided semi-annually between such of the beneficiaries as were entitled to immediate distribution. The present claim for the estate of Mr. Robert was by intervening petition, the trustees by their petition having sought to wind up their trust by having an approval of their stewardship and an order of distribution. Answers to the intervening petition were filed, and the issues thus raised are the matters for determination here.

I. Some preliminary questions appear, and must be disposed of before we reach the merits of the _ controversy. First, it is urged that the matter has been previously adjudicated. That is to say, res acljudicata is urged by repondents here. This is bottomed upon the item in the settlement in 1912 (set out in our statement) wherein it appears that Mr. Robert (after his death) was charged with $5,434.67 as his commission for 1911, his death occurring December 12,1911. We need not go into details on this matter. Suffice it to say that res adjudicata is an affirmative defense and should be pleaded. There is no such plea in this record. Here the claim, is made by an intervening petition. The answers to this intervening petition are simple general denials.- The intervening petition upon its face does not show former adjudication, and the answers make no such, defense. The question is therefore not in the record.

It is true that it has been ruled that where a petition upon its face shows former adjudication, the question being in the petition makes it demurrable on the ground that the petition fails to state an unadjudicated cause of action. [Givens v. Thompson, 110 Mo. 1. c. 443.] But such is not the status of this case. The applicable rule is thus well stated in Beattie Mfg. Co. v. Gerardi, 166 Mo. 1. c. 156, whereat it is said:

“Bes adjudicata is an affirmative defense, and like all other defenses of that character must be pleaded, unless the petition upon its face, shows that the cause of action sued upon is in some way barred, which cannot be said of the petition in this case. This question was passed upon by this court in the case of Kelly v. Hurt, 61 Mo. 463, in which it was said: 1 The point, that the validity of Hurt’s purchase has been heretofore settled by this court in favor of the defendant in the case of Hurt v. Kelly, 43 Mo. 238, can not be considered bv us now. There is no plea in this case that the subject-matter of this suit has become res adjudicata, and whether that suit is for any reason a bar to the present one, can not be determined on this demurrer. ’ [Mo. Pac. Ry. Co. v. Levy, 17 Mo. App. 501.]
“It may be that the former judgment-is a bar to a recovery in this action, but that question should be raised by a plea of res adjudicata, and supported by proof that the matters adjudicated in the former suit were the same that are now presented for determination in the suit at bar. It follows that the demurrer could not properly have been sustained upon this ground.”

See also Trimble v. Railroad, 199 Mo. l. c. 55, 56; Nelson v. Jones, 245 Mo. l. c. 590.

Under our rule, which is sound and well supported, the question of res adjudicata is not in the case.

II. A second preliminary question lies in a suggestion of counsel for respondents, wherein they say: “The motion for .a new trial is so general New°TrfaL assignments that there is nothing before this court for its decision.”

To present the matter clearly we should give the motion; We thought the matter fully settled, but some recent cases from the courts of appeals would indicate that our recent ruling has riot been fully understood, even by some of our own brothers. The motion in this reads:

“1. Because the court erred in admitting illegal and improper evidence offered by plaintiffs and defendants against interveners’ objection.
“2. Because the court erred in excluding competent and legal evidence offered by interveners.
“3. Because the finding and decree of the court is against the law and the evidence.
“4. Because the finding and the decree of the court is against the weight of the'evidence.
“5. Because the finding and decree of the court is not supported by the evidence arid was for plaintiffs and defendants and not for the interveners.
“6. Because the court erred in applying the law 'to the facts in the case.
“7. Because the court misconstrued the facts and erroneously misstated them.
“8. Because the court erred in dismissing interveners’ petition.
“9. Because the court erred in not finding inter- • veners entitled to an equitable proportion of a fee to be allowed out of the corpus of the fund in the hands of the trustees.”

Under our ruling in Wampler v. Railroad, 269 Mo. l. c. 476 et seq., this motion' is sufficient, under our practice, in all of its several assignments. The ■ case law is fully reviewed in the Wampler case by our Court in Banc, and upon the question here involved, six judges concur. Bond, and Revedle, JJ., concur in separate opinion, "but upon the sufficiency of the motion (one in general terms) in the Wampler case, they agree. As the Wampler opinion cites and reviews all, or at least many, of our cases upon the subject, further citation is not required here. This contention of the respondents must be overruled.

III. This brings us to the merits of this case. The estate was a large one, but one when first placed in the hands of the trustees largely composed of first-class interest-bearing securities, and required but little' attention except to clip and collect coupons, and distribute the income to the beneficiaries. The life of the trust was eighteen years, and Mr. Robert served' as trustee about half that time/ There were no vexatious questions or conditions in the entire course of the administration of the estate. Reinvestments were to be made, and sales of securities, but in- instances brokers were paid fees for such work. Shortly after Mr. Robert became a trustee large investments were made in several pieces of first class real estate in St. Louis, all of which were on or soon placed upon a good fixed and permanent rental basis, and a bookkeeper looked after many of the details of collecting and keeping the accounts of these rents. This man was paid out of the estate funds. So all-told the administration of the estate had no intricate or mean conditions.

Attempt is made to show by the figures that the corpus of the estate was increased in value by some $600,000, during the term of Mr. Robert, but the showing in this regard is by no means satisfactory, or, to say the least, far from conclusive. The claim of the Robert’s estate of $57,000, as his one-third of an additional compensation, would when applied to other trustees, and during the whole term of eighteen years, absorb more than one-half of the whole alleged increase.

It seems to be conceded that bnt one compensation can be allowed, whether there be one or more than one trustee. In other words that the compensation is a single compensation for the management of the trust. If there be more than one trustee the. work and responsibility have been divided, and the compensation is divided. Not only so, but in the absence of a statute fixing compensation of trustees (as is the case in Missouri) the compensation should be a reasonable one, having due regard for the services rendered to the estate by the trustee or trustees. [2 Perry on Trusts (6 Ed.), sec. 918; Barney v. Saunders, 16 Howard, 541.] So that the kind and character of services is one of the potent factors in fixing the compensation.

In the case of Re Harrison’s Estate, 217 Pa. St. 1. c. 209, it is said: “The compensation of a trustee, of any character, may be arrived at, aé a matter of convenience, by the way of a percentage on the amount of receipts and disbursements. But after all, on all authority, it is a question, not of percentage, but of compensation. When the court has fairly responded to the interrogatory how much has the trustee earned? it has discharged its whole duty in the premises. It, therefore, comes to nothing to say the percentage is large or the percentage is small as compared with the estate, if the executor has received neither less nor more than what his services are worth.” In the same case at page 210 it is said: “The safer rule, therefore, to be adopted and followed in remunerating a trustee for his services is the simple one that he be compensated, for the services performed and the liability incurred. It should be understood by trust companies as well as individuals that the position of a trustee is not to be sought nor granted for the. purpose of profit. Fair compensation to be ascertained under the rule suggested, is all that a trustee has a right to demand, and all that any court should award.” (The italics are ours.)

In 2 Perry on Trusts (6 Ed.), sec. 919, it is said: “The usual practice in relation to trusts is to allow trustees a commission upon the amount of the yearly income received and paid out "by them. This commission varies according to the rules in the various states.”

It is clear in this case that the trustees of this estate acted upon this usual rule stated by Mr. Perry. From the beginning to the end of the life of this trust (eighteen years) the trustees took out five per cent of the gross income| of this estate and appropriated it to their own use. Out of the remainder they paid the other expenses of the trust, and the net proceeds they paid over to the beneficiaries. For nine years Mr. Robert was a party to this proceeding. I have no doubt that Mr. Robert, as well as the other trustees, looked upon these annual payments to themselves as a fair and just compensation for the services they were rendering the estate. If they thought their services were worth more, the income was in their hands, and they would have taken out more. There is nothing in the record.to suggest the contrary. There were ample funds in the income with which to pay them each year for all their time, trouble and liability in the execution of this trust. They seem to have decided upon annual payments for their services, and fixed their own estimate of the value of those services. These facts no doubt went far toward influencing the chancellor, nisi, in the determination of the intervening petition and the claim presented therein. The whole course of conduct indicates that these trustees, including Mr. Robert, took what they thought to be a reasonable compensation for their services. And considering what they had to do, we think it was a reasonable compensation. So viewing the case, the judgment nisi should be and is affirmed.

All concur.


author: BLAIR, P. J.

text:
    ELSBERRY DRAINAGE DISTRICT, Appellant, v. CHRISTOPHER WINKELMEYER et al.
    Division One,
    June 2, 1919.
    1. DRAINAGE DISTRICT: Uniform Tax. Where the board of supervisors of a drainage district organized under the provisions of the Circuit Court Drainage District Act of 1913, as soon as elected and qualified, in September levied the uniform acreage tax authorized by Section 11 of said act and certified it to the County Collector, the tax was due and payable as soon as assessed, and became delinquent on December 31st of the same year, and there being no defect in the petition in a suit for this tax, a judgment for defendant on his demurrer thereto is wrong.
    2. -: Installment Tax. Where a board of supervisors of a drainage district organized under the Circuit Court Drainage District Act of 1913, after the decree rendered on September 2, 1914, confirming the report of the commissioners appointed to assess benefits and damages, on September 30, 1914, made the general levy thought to be necessary for the completion of the work, the annual installment tax subsequently levied and certified to the County Collector on November 5, 1914, did not become delinquent on December 31, 1914, nor can it be enforced as a tax for that year, for the board had no power, under the statutes, to impose an installment tax for the year 1914, but could only do so “each year thereafter.”
    3. -: -: Each Year Thereafter: Definition. The words “each year thereafter” used in Section 19 of the Circuit Court Drainage District Act of 1913, Laws 1913, p. 243, cannot be construed to mean “thereafter each year,” without doing violence to their context and the meaning and intent of the prior statutes out of which said Section 19 was evolved. By construing the words in their plain, ordinary and usual sense, as the statute, Section 8057, Revised Statutes 1909, requires, and by reading. • Section 19 in connection with other sections of the act, it is clear that the board of supervisors of a drainage district, where the decree confirming the report of the commissioners appointed to assess, benefits and damages is rendered in September, has no power to levy an installment tax for the same year.
    Appeal from Lincoln Circuit Court. — Hon. E. B. Woolfolk, Judge.
    Reversed and remanded.

      O. H. Avery and Wm. A. Dudley for appellant.
    (1) The tax book was properly filed later than the first day of September, 1914, the statute fixing the time being merely directory and the landowners not being prejudiced by the delay. "Westport- v. McGee, 128 Mo. 152; State ex rel. v. Railroad Co., 113 Mo.. 298; State ex rel. v. Wilson, 216-Mo. 287; 2 Page on Taxation by Assessment, sec. 1132; 1 Cooley on Taxation, p. 480, and note; State v. West Duluth Land Co., 75 Minn. 456; Bushwell v. Board of Supervisors, 116 Cal. 351; Taylor v. McEadden, 84 Iowa, 262; Sharp v. Engle, 2 Okla. 6'24; Walker v. Edwards, 197 Pa. St. 645; School Dist. v. Cumberland, 21 R. I. 576; Boody v. Watson, 64 N. H. 162; Anderson v. Mayfield, 93 Ivy. 230; Pond v. Negus, 3 Mass. 230. (2) The court erred in sustaining the demurrer as to the second count of plaintiff’s petition. Laws 1913, sec. 11, p. 238.

      Creech é Penn and Sutton & Huston for respondents.
    (1) The hoard of supervisors had no authority to levy an installment tax for the year 1914, against the benefits assessed to the lands of respondent. Sec. 18, Laws 1913, p. 242; Sec. 19, Laws 1913, p. 243; Pacific Railroad v. Watson, 61 Mo. 57. (2) When the Legislature confers on a tribunal power to levy taxes, such power must be exercised in strict conformity to the act conferring such power. City of Kansas v. Railroad, 81 Mo. 293; Noll v. Morgan, 82 Mo. App. 119; State ex rel. v. Railroad, 149 Mo. 644; St. Louis & S. F. Ry. Co. v. Apperson, 97 Mo. 306. (3) The second count of the petition was not called to the court’s attention at the time the demurrer was argued by counsel and sustained by the court and appellant did not ask for judgment on said second count.
   BLAIR, P. J.

This is an appeal from a judgment on demurrer to the petition in a suit begun to collect drainage taxes. The petition contained two counts: one for a tax imposed to pay organization and preliminary expenses (Sec. 11, p. 238, Laws 1913), and one to recover an annual installment tax (Sec. 19, p. 243, Laws 1913) levied by tbe board of supervisors in tbe fall of 1914.

I. The board of supervisors, as soon as elected and qualified, on September 13, 1914, levied tbe tax under Section 11 and certified it to tbe collector. Tbis tax was “due and payable as soon as assessed” and, not being paid, became delinquent “by Decem^er thirty-first of the year in which” it was levied, to-wit, 1914. We discover no defect in tbe count based on tbis assessment, and respondent does not contend there is any. He asserts tbis count was overlooked. Tbe record shows simply that tbe demurrer was sustained to the petition. Tbe judgment on tbis count is wrong and cannot stand. The tax became due and collectible in 1914 by plain provision of tbe statute.

II. Tbe count for tbe annual installment presents a different question. Tbe decree confirming tbe amended report of tbe commissioners was rendered September 2, 1914. Tbe general levy of the total tax (Sec. 18, p. 242, Laws 1913) thought to be necessary for the completion of tbe work was not made until September 30, 1914. Tbe drainage tax book was thereafter made up as tbe same section requires. Subsequently (Sec. 19, p. 243, Laws 3913) tbe board levied an annual installment tax and certified tbis to tbe collector on November 5, 1914. Tbe question on tbis branch of tbe case is whether, in tbe circumstances, this levy of an annual installment tax for 1914 can be enforced as a tax for that year, collectible in that year and delinquent December 31, 1914.

Tbis system of organizing drainage districts bad its origin in 1879. [Secs. 6207, et seq. R. S. 1879.] Under Section 6218, Eevised Statutes 1879, it was provided that as soon as the district had been organized, the board of supervisors, in order to pay all expenses, including cost of survey, construction, maintenance and administration, might “order the assessment of a tax, not exceeding fifty cents on each acre of land in the district, . . . for each and every year, and until no further expenditure of money in that behalf shall be necessary.” ibis tax was required to be certified to the clerk of the county court and by him extended on the general tax book like other taxes, and collected by the collector of the county. This section, except for the assessment, adopted the 'general taxing machinery in use under the general law. [State ex rel. v. Angert, 127 Mo. l. c. 463; Drainage Dist. v. Daudt, 74 Mo. App. l. c. 585.] Under this statute the' taxes were extended and the tax book delivered to the collector within ninety days after the correction of the book, which was made immediately after the county board of appeals and the state board of equalization acted, usually in April. [Sec. 6671-6676, 6748, E. S. 1879.] It is clear the first assessment under Section 6218 could not go on the tax book unless it was certified to the county clerk prior to the time he was required to deliver that book to the collector. The conclusion must be that Section 6218 contemplated that the first fifty-cent-per-acre assessment was to be extended on the tax book which was made up and certified by the county clerk to the collector next after the assessment was made by the board of supervisors. Had Section 6218 been in force in 1914 there can be no doubt a levy after September 30th of that year, as in this case, would not have been collectible before the fall of 1915. There would have been nothing upon which to base an earlier collection. In other words, Section 6218 would not have empowered the board to make an assessment in October or November, 1914, which could have been the basis of a tax collectible in that year. Section 6218 remained unchanged until 1905. [Sec. 6528, E. S. 1889; Sec. 8262, R. S. 1899.] Section 8203b (Laws.1905, p. 199), which amended Section 8262, Revised Statutes, 1899, provided that as soon as the decree confirming the report of the commissioners had been filed in the office of the county clerk, the board of supervisors should levy upon benefited lands a tax equal to the expense of organization and preliminary work and estimated cost of construction, administration, etc., and cértify this levy to the county clerk, whose duty it became to record it. Section 8263b (Laws 1905,. p. 200) closed with that provision. Section 8263c began thus: “The said board of supervisors shall annually thereafter determine, order and levy the amount of the installment of the tax named in the next preceding section, which shall become due and be collected during said year at the same time that state and county taxes are due and collected, which annual installment shall be ■ evidenced and certified by the said board not later than March 1st of each year to the county clerk,” etc. The form of the board’s certificate is set out and contains the following: “The said installment of tax shall be collectible and payable the present year,at the same time state and county taxes are due and collected.” The clerk was required to record the certificate in a drainage district book and to set out therein the names of owners, description of lands and dmount of the installment, and to certify this as “true copies of the certificates of total and annual --drainage district installment tax for the year A. D. 190 — and,” etc. This certified record the clerk was required to deliver “each year to the collector” at the time the collector commenced the collection of state and county taxes. Thenceforward the act retained in force the provisions of the general revenue law concerning collection of taxes. Section 8263g provided that the tax was to become delinquent December 31st of the year for which said taxes were levied. The principal change made by this act, affecting the question in this case, is the omission of the requirement that the county clerk should extend the drainage tax on the general tax book. For this it substituted the requirement that the clerk should make out a separate tax book and extend the taxes thereon. It is apparent that the Act of 1905 dealt with calendar years. It is certain it required the board to certify the tax. to the county clerk by March 1st, and required him to make up the drainage tax book thereafter an¡I by the time the collector commenced the collection of state and county taxes. The time for the extension of taxes by the clerk was fixed definitely, as it had been under the former law. The difference was merely in the book upon which .the extension was oto be made. Under this act a levy of an installment made in October by a district which had not earlier reached a stage in organization at which it could make such levy, could not have been certified to the clerk until after the time the collector was required to begin his collections of state and county taxes. Under that act, when a levy made in October or November was certified to the clerk “by March 1st” it would have been the clerk’s duty to make up a tax book for the calendar year following the levy. This is clear from the provisions of the act which have been quoted.

The acts of 1909 (Sec. 55Í9 et seq., R.. S. 1909) and of 1911 (Laws 1911, p. 213, et seq.) made no changes which materially affect the question in this case.

Section eighteen of the Act of 1913 (Laws 1913, p. 242) requires that the board of supervisors, after the recording of the decree of confirmation of the amended commissioner’s report, shall, without unnecessary delay, levy a tax equal of such portion of the benefits assessed as shall be necessary to pay the cost of construction and ten per cent. The secretary of the board is then required to make out a “drainage tax record.” Section 19 reads thus: “Section 19. The said board of supervisors shall each year thereafter determine, order and levy the amount of the annual installment of the total taxes levied under the preceding section, which shall become due and be collected during said year at the same time that state and county taxes are due and collected, which said annual installment and levy shall be evidenced and certified by the said board not later than September 1st of each year to the collector of revenue of each county in which lands and other property of said district are situate.” A form of certificate is then set out. This certificate states that the tax cerified is “for the year 19 — ” and that “said taxes shall be collectible and payable the present year at the same time that state and county taxes are due .and collected, and you are directed and ordered to demand and collect the said taxes at the same time you demand and collect the state and county taxes due on the same lands and other property,” etc.

It is to be remembered the decree confirming the commissioner’s report was rendered September 2, 1914, the levy of the total cost tax (Sec. 18), was made September 30, 1914, and the annual installment was levied after this was certified and recorded, and was certified to the collector November 5, 1914.

Appellant’s contention is that this first annual installment was due and collectible in and for the year 1914. To maintain this position it contends that the words “each year thereafter” should be-construed as if they read “thereafter each year.”

In construing statutes it is the duty of this court, “unless such construction be plainly repugnant to the intent of the Legislature or of the context of the State statute,” to construe words and phrases “in their plain, ordinary and usual sense.” [Sec. 8057, B. S. 1909.] If the words, in their natural sense, as used, and “in order of grammatical arrangement” in which they are used, “embody a definite meaning, which involves no absurdity and no contradiction between the different parts of the same writing,” that is the meaning it is our duty to ascribe to them. [State ex rel. v. Board of Curators, 268 Mo. l. c. 608, 609.] It is not contended the words “each year thereafter” do not have a plain and nsnal meaning which involves no absurdity, nor is it contended that if such meaning is given them appellant’s position can be maintained. The argument is that the proposed work would be delayed in some cases if the words were so employed; that the act is remedial, and the beginning of the work of improvement should not be thus postponed. The word “thereafter” in a connection like this ordinarily means “after that; afterward.” “The time or period following an event or date.” [Standard Dict.; Webster’s International Dict.; Century Diet.; State v. Ryan, 120 Mo. l. c. 93; State v. Murray, 237 Mo. l. c. 168.] Used in its ordinary sense the word “thereafter” in Section 19 refers to “the time or period following an event or date” previously fixed in'the same act. No such time or date is fixed in that part of Section 19 which precedes that word. It must refer to some time' or date fixed in a previous section. Section 18 provides for the levy of the general tax covering the estimated total cost of the proposed work. This levy is a step necessarily precedent to the annual levies contemplated by Section 19. Likewise the apportionment of the general levy to the respective tracts in the district and the filing in the recorder’s office, for lien purposes, of a certificate showing such apportionment (Sec. 23) are things required to be done prior to the levy of the annual installment, as is clear from Sections 18, 19 and 23 and the forms set out therein.

The Legislature was at no loss for language to provide for the immediate collection of a tax when it desired it to be so collected. In Section 11 of the same act it had, as pointed out, provided that “the board of supervisors ... shall, as soon as elected and qualified, levy a uniform tax of not more than fifty cents per acre,” and “such tax shall be due and payable as soon as assessed, and if not paid by December 31st 'of the year in which it has been levied, the same shall become delinquent.” This language is plainly effectual to accomplish, with respect to the acreage tax under Section 11, exactly what appellant argues was intended, with respect. to the first annual installment tax, under the quite different language of Section 19. The natural import of the words in Section 19 is different from that of the words quoted from Section 11. It would be a little remarkable if the Legislature could- be held to have intended to express the same thing by two formulas so divergent in their usual and natural meaning. There is nothing in the act which can be construed to conflict with the natural interpretation of the words “each year thereafter.” The danger of delay apprehended by appellant is obviated by a provision empowering the board to issue bonds (Sec. 42, p. 256, Laws 1913) and thus anticipate its revenue and provide at once a fund for the work of construction. The acreage tax (Sec. 11) provides for the preliminary expenses. Section 19 grew by amendment gradually out of Section 6218, Revised Statutes 1879. All along its course it carried the meaning which the usual and ordinary sense of the words “each year thereafter” gives to Section 19.

This is not a case in which an official has neglected to comply with some regulation designed to secure order, system and dispatch in proceedings for the assessment and enforcement of taxes (State ex rel. v. Phillips, 137 Mo. 259), but is one in which the question is whether the board had the ■power to impose an installment tax for a particular year.

When the words in Section ,19 are construed as the statute (See. 8957) requires, no obstacle to such construction appearing in this case, it is clear the board had no power to make a levy collectible in 1914. The delay was not due to the dereliction of any official concerned in the matter, but arose from the absence of statutory authority to make the levy. As already pointed out, the Legislature has provided means whereby the district board may avoid any consequent delay in the work of the improvement. This count stated no cause of action.

III. Because of the error pointed out in Paragraph I, the judgment is reversed and the cause remanded.

All concur; Bond, Jin the result.


author: BOND, C. J.

text:
    ANDREW KUENZEL v. CITY OF ST. LOUIS, Appellant.
    Division One,
    June 2, 1919.
    1. CITY: Governmental Capacity: Pavilion in Park. The establishment and maintenance of a park is the exercise of a proprietary function of a municipality, and in providing a pavilion in the park, furnished with a rest room and a women’s' toilet, in the passageway to which a visiting woman was injured, due to defective construction, the city was not acting in its governmental capacity.
    2. NEGLIGENCE: Fracture of Hip: Proximate Cause of Death from Pneumonia: Substantial Evidence. The appellate court will not rule that the fracture of the hip and other serious injuries to a woman above fifty years of age, received in a fall in July, were not the proximate cause of her death from pneumonia in September, if there was substantial evidence from experts that such physical injuries sometimes superinduce pneumonia, and the facts and circumstances disclosed at the trial were such as rendered it proper to submit the question to the jury.
    3. ' HYPOTHETICAL QUESTION: No Evidence: Refusal. Where the relevant evidence tended to show that the death of plaintiff’s wife resulted from bronchial pneumonia, it was not error to refuse a hypothetical question asked by defendant whether, upon the facts assumed, her death could have been caused by lobar pneumonia.
    4. NEGLIGENCE: Remedying Defective Construction. Where there was a passage way from the rest .room to the women’s toilet room, entered by a door, and in which were three descending steps, of which plaintiff’s wife had no knowledge, and there was no light in the passage way, and in passing from the rest room to the toilet she fell down these steps and was injured, it was not proper to permit plaintiff to show that a railing was subsequently placed on the side of the steps where the injury occurred: but it the only witness called to prove the fact that such railing was installed answered that he did not know, the question was harmless.

      Appeal from St. Louis City Circuit Court. — Eon. Kent K. Koerner, Judge.
    Affirmed.

      Charles E. Danes and Everett Paul Griffin for appellant.
    (1) The operation of a toilet room and a rest room, even though it is in a public park, is a governmental function for the health and comfort of the people of the city, from which the city derives no profit. These facts were established by plaintiff’s evidence, and the court should have given the instruction asked for by the defendant at the close of the plaintiff’s case, and renewed at the close of the entire case, in the nature of a demurrer to the evidence. Bolston v. Lawrence, 225 Mass. 387; Behrman v. St. Louis, 273 Mo. 578; Cassidy v. City of St. Joseph, 247 Mo. 197; 6 McQuillin, Mun. Corps, sec. 262'5, p. 5504; Wilkes v. Caruthersville, 162 Mo. App. 492; Thomas v. Kennett, 178 S. W. 254; • Mortaugh v. City of St. Louis, 44 Mo. 479; Ulrich v. City of St. Louis, 112 Mo. 138. (2) The evidence in the case showed that the plaintiff’s wife’s death was not caused by the defendant, but that her death resulted from pneumonia, which did not manifest itself until four days before she died, which was two months and one day after she sustained a fractured hip, after the splint had been taken off her leg, and after she was able to sit up in a chair, and after her fractured limb had to all appearances healed. The court should, under' this testimony, have given the instruction in the nature of a demurrer to the- evidence at the close of plaintiff’s case, and which was renewed at the close of the entire case.

      Muench, Walther & Muench for respondent.
    (1) The City of St. Louis holds its parks in its private and not in its political or governmental capacity. State ex rel. v. Schweickhardt, 109 Mo. 497; -Capp v. City of St. Louis, 251 Mo. 345; Carey v. Kansas City, 187 Mo. 715; 3 McQuillin on Municipal Corp. sec. 2678; Gartland v. N. Y. Zoological Soc., 120 N. Y. Supp. 24; Bartholdi v. Philadelphia, 154 Pa. 109; Weber v. Harrisburg, 216 Pa. 117; Silverman v. City of N. Y., 114 N. Y. Supp. 59; City of Denver v. Spencer, 34 Colo. 270; Canon City v. Cox, 133 Pac. (Cal.) 1040. Part of the building in which plaintiff’s wife was injured was rented out for a refreshment stand. The building was also used in connection with the lake, upon the bank of which it stands, and the boating privilege was let by the city. Therefore, even if the building had been used by the city for governmental purposes, yet by so renting out parts of the building, tbe city forfeited its exemption from liability for the proper maintenance of the property. Little v. City of Holyoke, 177 Mass. 114; Oliver v. Worcester, 102 Mass. 489; Denver v. Spencer, 34 Colo. 270. The public comfort building in question is provided for the convenience of the people frequenting the park and is merely an incidental use of the park. (2) The evidence established that the bronchial pneumonia which was the immediate cause of the death of plaintiff’s wife was superinduced by the fracture of her hip, caused by defendant’s negligence. The question of proximate cause of her death was for the jury. Lyons v. Railroad, 89 Hun, 374; Beauchamp, Admr., v. Saginaw Mng. Co., 50 Mich. 163;. Hartzler v. Railroad, 140 Mo. App. 665; Seckinger v. Mfg. Co., 129 Mo. 603; Hanlon v. Mo. Pac. Ry. Co., 104 Mo. 381; Thomas v. Railroad, 187 Mo. App. 420; Gray v. Railroad, 153 Wis. 648; Finer v. Nichols, 175 Mo. App. 541; Arnold v. Mary-ville, 110 Mo. App. 261; Luisi v. Ry. Co., 136 N. W. (Ia.) 322; San Antonio G. & E. Co. v. Ocon, 130 S. W. 846.
   BOND, C. J.

Action to recover damages for personal injuries resulting in the death of plaintiff’s wife,' due to the alleged negligence of the defendant.

The City of St. Louis, defendant herein, owns and maintains- a park in the northeastern part of the city known as O’Fallon Park. On the bank of a small lake in this park is a two-story pavilion used as a boathouse, and for shelter, rest and refreshment. Opening from a large room on the main floor used as a lounge, there is a passageway leading to the women’s dressing room. Above this doorway, in large letters, is the word “Women,” and 'three feet inside this doorway is a flight of three steps descending to th’e level of the women’s dressing and toilet room.

The evidence tends to prove that on the afternoon of July 12, 1914, about seven o ’clock and shortly before sunset, Francisca Kuenzel, plaintiff’s wife, a woman in her late fifties, accompanied by a friend, entered this passageway on her way to the women’s dressing room. Being unfamiliar with the building and having no knowledge of the steps inside the doorway, and the electric bulb that is placed in the ceiling to light the passageway being unlighted, she lost her balance and fell, .fracturing her hip and sustaining other serious injuries. She was thereafter confined to her bed until the 19th day of September, when she died after a six-day attack of pneumonia, which the medical experts stated sometime? follows a fracture.

Defendant’s answer was a general denial, coupled with a plea of contributory negligence.

The jury found for plaintiff and assessed his damages at the sum of fifteen hundred dollars, and from a judgment entered in accordance therewith defendant appealed.

I. The first point made by appellant is that the city was acting in its governmental capacity in providing a pavilion furnished with a rest room and ladies ’ toilet room in its public park. We think no^- These conveniences were, primarily, if not exclusively, for the benefit of persons who frequented the park. In fact, their existence in the park was essential to its use as a place of recreation and comfort. Without such necessities the park would be ill-adapted to the use of both sexes. [That the establishment and maintenance of the park is the exercise of a proprietary function of a municipality has often been decided in this State. [State ex rel. v. Schweickhardt, 109 Mo. l. c. 512; Carey v. Kansas City, 187 Mo. 715; Capp v. City of St. Louis, 251 Mo. 345.] There was no error on the part of the trial court in overruling appellant’s demurrer to the evidence based on the above contention.

II. The next error assigned is that there was no evidence that the death of plaintiff’s wife from pneumonia in September was caused by the fracture of her hip in July. Whatever might be our own view 0f the causative relation of these two happenA * ings, it is sufficient to say that the -facts and circumstances disclosed on the trial rendered it proper to submit to a jury the question of the relativity of the two events and whether the first was the proximate cause of the last, and their finding concludes this question of fact in this court.

III. Complaint is made of the refusal of the trial court to permit appellant to put a hypothetical question as to the cause of the death of plaintiff’s wife. The proposed- inquiry was whether upon the facts assumed her death could have been caused by lobar pneumonia. The court excluded the question because there was no evidence that this particular kind of pneumonia • caused her death. On that point the relevant- evidence tended to show that her death resulted from bronchial pneumonia. That ruling is sustained by the record and hence no error is predicable thereon.

IV. It is finally insisted that the court erred in permitting plaintiff to show that a railing was subsequently placed on the side of the steps where the injury occurred. This would have been error except for the fact that the witness called by plaintiff to make such proof, answered: “I do not know.” The question was thereby rendered harmless. •

Finding no reversible error in the record the judgment of the trial court is affirmed. It is so ordered.

Blair, P. J., and Graves, J., concur; Woodson, J., absent.


author: RAGLAND, C. PER CURIAM.

text:
    ALICE ECTON v. LILLIE TOMLINSON et al., Appellants.
    Division One,
    June 2, 1919.
    1. JURISDICTION: Divorce: Wife’s Dower in Land. The court in an action of divorce has no jurisdiction to compel the wife to relinquish her inchoate dower in her husband’s lands; and a judgment by which it attempts, by its decree, to adjudicate and settle all questions of property rights, both present and inchoate, by awarding to the wife certain personal property and money in lieu of dower, is void, for it is not merely an erroneous exercise of jurisdiction, but is a proceeding wholly without jurisdiction.
    2. ESTOPPEL: Alimony in Lieu of Dower: Acceptance. Notwithstanding that part of a judgment in the divorce suit which undertakes to award to a wife certain property in lieu of dower in her husband’s lands is void, yet if it goes further and decrees to her certain specific personal property of the husband and awards her a sum of money, and adjudges that they shall be in lieu of dower and other rights in his property, which shall thereafter be free of any claim on her part, and she acquiesces in the condition upon which the judgment declared she could have those things, and accepts and retains them, and thereby receives more than she would have done had not the decree taken into consideration her inchoate dower, she thereby estops herself from asserting, after his death, dower in lands which he owned during the marriage.

      Appeal from Audrain Circuit Court. — Hon. E. S. Gantt, Judge.
    Reversed.

      R. D. Rogers for appellants.
    (1) The court in the divorce case had jurisdiction over the parties, and the subject-matters, and the judgment there rendered even though erroneous, not being appealed from or set aside, became final and the plaintiff became bound thereby and cannot attack said judgment in this case. Murphy v. De France, 101 Mo. 151; State ex rel. v. Edwards, 192 Mo. App. 413; State v. McCord, 207 Mo. 519. (2) Plaintiff by accepting the decree in the divorce case and getting more property thereunder than she would have gotten if said decree had not taken into consideration her loss of inchoate dower, is estopped to now deny the validity of the judgment by virtue of which she acquired the property. Crews v. Mooney, 74 Mo. 26; 14 Cyc. 724, par. 4; Marvin v. Collins, 48 111. 156; Owens v. Yale, 42 N. W. 817; Adams v. Storey, 26 N. E. 582; DeWitt v. DeWitt, 66 N. E. 140; Pearson v. Pearson, 178 S. W. 1164; Delafield v. Brady, 15 N. E. 428; Storke v. Storke, 64 Pac. 578; Long v. Barton, 86 N. E. 127; Walton v. Walton, 77 N. W. 399;' Gallager v. Gallager, 77 N. W. 145; Linse v. Linse, 108 N. W. 8; Baird v.-Connell, 96 N. W. 863; Elmendorf v. Lockwood, 57 N. W. 322. (3) Even if this court should hold void that part of the decree in the divorce case, dealing with dower, yet as plaintiff accepted benefits thereunder, she is now estopped from asserting the decree was void. Storke v. Storke, 64 Pac. 578; 14 Cyc. 724.

      Fry & Fry for respondent.
    (1) A woman can be deprived of her dower in' Missouri in only two ways: First, by deed of conveyance executed and acknowledged by her jointly with her husband. R. S. 1909, secs. 2787, 2788 and 2789; Hord v. Taubman, 79 Mo. 101. Second, if the husband be divorced from the wife, for her fault or misconduct, she shall not be endowed. R. S. 1909, secs. 359, 358, 365. Neither voluntary nor involuntary alienation of husband’s title will defeat dower. Grady v. McCorkle, 57 Mo. 172; Hall v. Smith, 103 Mo. 289; McCreary v. Lewis, 114 Mo. 582. (2) The plaintiff was divorced from her husband for the fault and misconduct of said husband and ‘‘she shall not thereby lose her dower.” R. S. 1909, sec. 359. Therefore the decree, wherein it undertook to compel her relinquishment of her dower, “is without any force or vitality” and cannot be enforced. Davison v. Davison, 207 Mo. 702; Jordan v. Rudluff, 264 Mo. 129; Murray v. Scully, 259 Mo. 57; Seales v. Scales, 65 Mo. App. 292; Rannells v. Gerner, 80 Mo. 474; Sec. 358, R. S. 1909; Saunders v. Saunders, 144 Mo. 482. (3) There is no estoppel in this case. Rannells v. Gerner. 80 Mo. 474; Jordan v. Rudluff, 264 Mo. 129; Ridgley v. Stillwell, 27 Mo. 128; Dickey v. Heim, 48 Mo. App. 114; Blodgett v. Berry, 97 Mo. 273. The only possible kind of estoppel in the case would be estoppel in pais. Blodgett v. Perry, 97 Mo. 273. Estoppel in pais does not apply to married women, especially in matter of dower. Rannells v. Gerner, 80 Mo. 474.
   RAGLAND, C.

This is a suit for the recovery of dower and is here by appeal from the Circuit Court of Audrain County. The petition is conventional. The answer pleads the decree of divorcé hereinafter set out as a complete defense in that it operated to extinguish dower, as it is claimed, and also by way of' estoppel.

Respondent, a widow with two children, in 1901, married one William S. Ragsdale. In .1907 she secured a divorce from him for his fault and misconduct. The decree of divorce, as far as material in this case, is as follows:

“And the court doth further find that the said plaintiff is entitled to all of the household goods and furniture now in her possession and removed from the residence of the said defendant, and is also entitled to one diamond ring and one diamond stud heretofore táken into her possession from the defendant; it is therefore considered, ordered and adjudged by the court that the plaintiff be divorced from the bonds of matrimony heretofore contracted between the plaintiff and the defendant and that she have a judgment for alimony in addition to the property above described in the sum of $1500, and that the same be paid to her as follows: $500 on or before the first day of April, 1907, and $1000 on or before September 1, 1907, and that said $1000 payment bear interest from date at the rate of six per cent per annum,, and it is further adjudged by the court that said plaintiff take said property and said debts as alimony in gross and in lieu of all dower and other right in defendant’s property and that defendant’s property be free from any further claim by. said plaintiff. ’ ’

The trial court in the instant case, at the request of defendant, made the following special finding of fact:

“The court finds from the evidence that the alimony in gross awarded plaintiff in her suit for divorce amounted to about the sum of $2500, and that the decree of divorce was prepared and drawn by George Robertson, who was the attorney for plaintiff in the divorce suit, and that the court in the divorce suit in awarding alimony in gross intended to award a sum sufficient to include and compensate plaintiff for the value of her inchoate right of dower and gave plaintiff substantially more alimony in gross than would have bpen given her if the question of dower had not been considered in said decree of divorce, and the court further finds that the parties to said divorce suit and their respective counsel so understood said decree of divorce.”

Ragsdale had never been married before, and upon his marriage to respondent he provided a home, and fur-, nished it. Some months prior to the institution of the divorce suit by respondent she separated from her husband, and removed from his dwelling and took with her his household goods and furniture and the diamonds mentioned in the decree. This property that she took, together with the $1500 awarded to her as alimony, was equivalent to practically one-half of all the property owned by Ragsdale. Neither party took an appeal from the decree of divorce, and it became final as to each of them so far as each was concluded thereby. Respondent kept the personal property of her husband mentioned in the decree, and Ragsdale paid the money awarded as alimony. Ragsdale died in March, 1916, and respondent immediately instituted this suit to recover dower in his real estate.

No children were born of the marriage, and, consequently, Ragsdale left no descendents. One Goldie Ragsdale, and defendant Lillie Tomlinson, his nieces, were his only heirs. Goldie conveyed after her uncle’s death to her sister Lillie, who, upon the institution of the suit, was in possession of the lands in which dower is claimed. Defendant, Green Tomlinson, is the. husband of his codefendant and has no interest in said lands.

This case was tried to the court without a jury. At' the request of plaintiff, the court declared as a matter of law that that part of the divorce decree, to-wit, ‘ ‘ And in lieu of all dower and other rights in defendant’s prop- ’ erty and that defendant’s property be free from any further claim by plaintiff,” is absolutely void and of no effect and is not binding upon the plaintiff. The court found the issues for the plaintiff and rendered judgment accordingly. Appellants after an unavailing motion for new trial were duly granted an appeal to this court.

As the evidence indisputably shows that respondent was married to Ragsdale, that at a time during the marriage he was seized of an estate of inheritance in the lands in controversy, that she at no time joined with him in a deed or other conveyance of the same, that she obtained a divorce from him for his fault and misconduct, and that he has since died, she is entitled to dower unless the judgment in the divorce case, under the circumstances under which it was rendered and her subsequent acquiescence therein, operated to preclude her. That judgment decreed to her household goods and furniture and diamonds, the property of her husband, 'of the value of $1000, and in addition thereto awarded her alimony in the sum of $1500, the payment of a part of which was deferred and bore interest. The judgment then recites: “And it is further adjudged by the court that said plaintiff take said property and said debts as alimony in gross and in lieu of all dower and other rights in defendant’s property and that defendant’s property be free from any further claim by said plaintiff.” It is the theory of the respondent that the judgment in the respect that it attempts to deprive her of dower in the lands of her former husband is void, a mere nullity, and not binding upon her in any degree whatever. Appellants on the contrary contend, (1) that as the court had jurisdiction over the parties and subject-matter, the judgment, even though erroneous, not being appealed from or set aside, became final and binding and not subject to attack collaterally, and (-2) that plaintiff having accepted and taken all the property awarded her under that decree is estopped from repudiating any part of it, but is bound by all its terms.

I. That the jurisdiction of courts in this State to hear and determine suits for (livorce and alimony depends upon and is limited by the statutes is not. now an open question. [Chapman v. Chapman, 269 Mo. 663.] Because of such limitations a court in an action for divorce cannot decree to a wife as a part or all of her alimony specific personal property of the husband. [Aylor v. Aylor, 186 S. W. 1071.] For the same reason it cannot in such an fiction by' its

jur s 'ction. decree compel the relinquishment by the wife of her dower in her husband’s lands. [Davison v. Davison, 207 Mo. 702; Scales v. Scales, 65 Mo. App. 292.] In an action for divorce where the court attempts to take into account, adjudicate and settle all questions of property rights, both present and inchoate, between the parties, it is not in so doing merely erroneously exercising jurisdiction, it is proceeding wholly without jurisdiction. It follows, therefore, that its judgment in such respect is void. The judgment in question, in so far as it attempts to vest title in the wife to the husband’s specific personal property and cut off her dower is entirely beyond the scope of the pleadings and the relief prayed, and is for this additional reason void and open to collateral attack. It is necessary that a court have jurisdiction not only of the parties and the subject-matter, but it must also, have jurisdiction to render the particular judgment in the particular case. [State ex rel. v. Muench, 217 Mo. 124; Charles v. White, 214 Mo. 187.]

II. If it be conceded then that the judgment in the divorce case is void, is the respondent thereby estopped to claim dower? Ordinarily a void judgment cannot operate even as an estoppel. It has been said for all purposes a nullity, just as in-, effectual as though it had never been rendered. It would no doubt be true, that if the court in a given case after decreeing divorce and awarding alimony in gross-were to add that such alimony should be in lieu of dower, the wife might safely ignore the unauthorized addenda and accept the alimony without being put to her election. The judgment to the extent that it granted the divorce and awlarded alimony would be valid, and the condition imposed would be entirely nugatory. In such case the wife would be entitled to the alimony as a matter of absolute right without restriction of any kind, and there would be nothing inequitable in accepting and retaining it and rejecting the unwarranted limitation. In this case, however, the judgment goes further. It decrees specific personal property of - the husband to the wife, awards her a sum of money and adjudges that both shall be in lieu of dower ,and other right in the husband’s property which shall thereafter be free from any claim on her part. The decreeing the husband’s property to the wife, and the adjudging that it and the alimony shall be in lieu of dower, are but two mutually dependent features of a scheme that is an entirety. That scheme is an attempted adjustment and adjudication of the general property rights between the husband and wife growing out of the marital relation and for the reasons stated is invalid. So that the question is, can the wife accept and retain that part of the void judgment which is advantageous to her and repudiate the remainder?

When the respondent separated from her husband she took all his household goods and furniture and diamonds. The court in rendering judgment in the divorce case said to her in effect, I will award you alimony and you may also keep the personal property you have taken from your husband, which with the alimony is practically half of all he possesses, but upon the condition that you renounce all further claims to his property including your dower. She understood this and acquiesced as the trial court found. She kept and for aught that appears still has the property so adjudged her, but after the lapse of nine years, upon the death of her former husband, she would repudiate that part of the judgment that has become onerous. This she ought not be permitted to do. Having voluntarily accepted the privileges, benefits and fruits of the void decree she is estopped to dispute that part which debars her of dower. [Hamill v. Talbott, 81 Mo. App. 210; Richeson v. Simmons, 47 Mo. 20; Mohler. v. Shank, 93 Iowa, 273; Marvin v. Foster, 61 Minn. 154.]

Other points have been raised by appellants, but it is unnecessary to consider them. Under the views herein expressed the judgment below cannot stand and it is accordingly reversed.

Brown, C-, dissents; Small, G., concurs.

PER CURIAM.

The foregoing opinion of Rag-land, C., is adopted as the opinion of the court;

Blair P. J., and Bond and Graves, JJ., concur; Woodson, J., absent.


text:
    B. F. KEMPER et al. v. GEORGE LONG et al., Appellants.
    Division One,
    June 2, 1919.
    1. ESTABLISH: Definition. The particular sense in which the word “establish” is used must be determined by the context and the manifest intent and scope of the statute. It has been held to include power to rent.
    2. -: Consolidated School District: Erection of School Building. The Legislature, in declaring in Section 10869, Revised Statutes 1909, that the hoard of directors of a consolidated school district “may also establish schools of a higher grade,” that is, high schools', did not by using the word .“establish” mean to say that the board must acquire a site and erect a building. The erection of a building is not essential to the establishment of a high school, as that word is used in the statute; the board, may rent a building.
    3. . CONSOLIDATED SCHOOL DISTRICT: Renting High School Building, The hoard of directors of a consolidated school district is authorized by statute to provide a high school by renting one. If the district is duly organized, but refuses to vote funds to erect a high school building, the board cannot be enjoined from conducting a high school in a rented building.
    Appeal from Chariton Circuit Court. — Ron. Fred Lamb, Judge.
    Reversed.

      John Taylor for appellants.
    (1) All the laws applicable to the organization and government of town and city school districts as provided in Art. 4, Chap. 106, Revised Statutes 1909, shall be applicable to districts organized under the provisions of the Consolidated School District Law. Laws 1913, pp. 7 to 22, sec. 1. (2) The government and control of city, town and consolidated districts shall be vested in a board of directors of six members. Laws 1909, sec. 10866. (3) Boards of directors shall locate sites and establish and maintain primary and high schools in city, town and consolidated districts. Laws 1909, sec. 10869. The duty to maintain high schools under this section is mandatory. State ex rel. v. Jones, 155 Mo. 575. (4) The title to property owned and the control of property rented by school districts is vested in a board of directors in all districts. Laws 1909, see. 10833.

      Roy McKittrich for respondents.
    (1) Directors in consolidated school districts have no power to rent buildings for school purposes. Black v. Cornell, 30 Mo. App. 641; Fugate v. McManama, 50 Mo. App. 39. (2) They have no power to select a site for school buildings unless sufficient funds have been provided therefor. Young v. Consolidated School District, 193 S. W. 627; Sec. 10869, R. S. 1909. (3) To maintain a high • school, a building for that purpose should be erected. State ex rel. v. Consolidated School District, 195 Mo. App. 507. (4) The powers of a district as well as the powers of its directors are minutely prescribed and limited by law. Buchanan v. Hannibal School District, 25 Mo. App. 85; ' Thornburg v. School District No. 3, 175 Mo. 12. (5). The board of education of any consolidated school district performs the same duties and are subject to the same restrictions and liabilities as the boards of other school districts. Sec. 10871, R. S. 1909. (6) An injunction is the only-adequate remedy afforded the individual tax payer in preventing ■ directors of a school district from making an unlawful and unauthorized distribution of public school funds. Black v. Ross, 37 Mo. App. 257.
   BLAIR, P. J.

In a suit to enjoin the directors of Consolidated ■ School District No. 4, Chariton County, injunction was made final, and the 'cause appealed to the Kansas City Court of Appeals. That Court reversed the judgment (203 S. W. 632) a-nd certified the cause here because it deemed its opinion in conflict with Black v. Cornell, 30 Mo. App. 641, and Fugate v. McManama, 50 Mo. App. 39. '

The district was duly organized, but has refused to vote funds to erect a high school building. The directors rented a room in which they have caused a high school to be conducted and intend to continue this course. The real question is whether they have power to rent a building in these circumstances. The Court of Appeals held they had that power. The district has, since its organization, maintained four primary schools and a high school, and the latter is now duly accredited as a high school of the third class. [Sec. 10923, R. S. 1909.] It is not claimed the demands of the district do not require a high school, nor that the district funds are insufficient for its further maintenance. One of the declared purposes of the organization of consolidated districts is the maintenance of high schools (Sec. l, p. 721, Laws 1913) and one of the reasons for the emergency passage of the Consolidated School District Law is the “immediate need” of rural high schools. [Sec. 9, p. 724, Laws 1913.] In the same act it is provided that when a consolidated district is formed, “all the laws applicable to the organization and government of town and citv" school districts as provided in Article IY, Chapter 106, Revised Statutes 1909, shall be applicable.” The Act of 1913 does not require that a high' school building shall be erected by the district in every instance, though it holds out a substantial inducement (Sec. 7, p. 724, Laws 1913) to follow this, course. It speaks of the district providing an adequate building and for special aid when such building is provided, and a designated course of study is maintained. [Sec. 8, p. 724, Laws 1913.] This aid was given the Chariton County district by the State during the school year preceding this suit.

Section 10869 also gives the consolidated district power to establish a high school. The word “establish” has' a variety of meanings. £ £ The particular sense in which the word [establish] is used must be determined by the context and the manifest intent and scope of the statute.” [Armstrong v. George, 81 Kan. 1. c. 251.] The relevant portion of Section 10869 reads thus: “When the demands of the district require more than one public school building therein, the board shall, as soon as sufficient funds have been provided therefor, establish an adequate number of primary or ward schools, corresponding in grade to those of other public school districts, and for this purpose the board shall divide-the school district into school wards and fix the boundaries thereof, and the board shall select and procure a site in each newly formed ward, and erect a suitable school building thereon and furnish the same; and the board may also establish schools of a higher grade,” to-wit, high schools. In some circumstances the word establish may include the selection of sites ánd the erection of buildings thereon. We do not think it is so used in the section quoted. The Legislature declared .that in the case of ward schools, the board should establish an adequate number. For the purpose of doing so the hoard must divide the district into school wards and fix the boundaries. The provision for the selection of sites and the erection of buildings is an independent clause. The thing to be done for the purpose of. establishing such schools is the division into wards. The sites and buildings are also required, but are not enumerated as necessary for the purpose of establishing the schools. Had the section read, “And for this purpose the board shall divide the school district into school wards and fix the boundaries thereof and select and procure a site,” etc., the meaning would have been different. With respect to establishing high schools the section adds nothing to the simple authorization “and the board may establish,” etc. It is apparent the word is nsed with reference to the school rather than the site and building, and the latter are treated by the Legislature as not within the meaning of that word as used in this section. It is used in the same sense in other sections in this chapter. It is true a building is necessary, but what we are now attempting is to discover the meaning of a particular word as used in a particular connection by the Legislature. When given the meaning above pointed out, and when the absence of any requirement as to sites and buildings for high schools is noted, and when the Act of 1913, above referred to, is read in connection with this section, the most reasonable interpretation of the section is that the Legislature, did not intend to preclude an arrangement for high school buildings in such districts, in circumstances like those appearing in this record, by means other than the purchase of sites and the erection of buildings thereon by the district. Any other conclusion, as is apparent) would involve difficulties in construing the statutes referred to. The State Department of Education evidently has so construed the Act of 1913 and Section 10869, and approved the granting of state aid to this school. Other sections, it is true, provide means for .securing funds for "high school buildings, but this does not militate against the view that Section 10869 means that the erection of a building is not essential to the establishment of a high school, as that word is used in that section. In such circumstances, since a building is necessary,.and since the board is not confined by this section to' erecting a building, the board is left free, • so far as this section is concerned, to acquire one by other lawful means. The word “establish” has itself been held to include power to rent. [City v. Ledwith, 26 Fla. 192.]

Section 10833, Revised Statutes 1909, which is applicable to this ease, provides that title to school property shall be vested in the district “and all property leased or rented for school purposes shall be wholly under the control of the hoard of directors during such time; hut no hoard shall lease or rent any building for school purposes while the district school house is unoccupied.” This section clearly recognizes the power of districts of this hind to rent school buildings. It has granted the privilege (Sec. 10869) and imposed the duty (Laws 1913, p. 721) to “establish” and “provide” high schools in consolidated districts, and authorized state aid without requiring the erection of a building by the district. We think that when construed together the several acts require the conclusion that in a case like this the board of directors was authorized to provide a high school building by renting it.

We do not think the opinion of the Court of Appeals conflicts with Black v. Cornell, 30 Mo. App. 641, and Fugate v. McManama, 50 Mo. App. 39. These cases dealt with common school districts and involved other statutes. Besides, Section 10833 has been substantially amended since the decision in Black v. Cornell, and Fugate v. McManama was decided on grounds not relevant here and independent of Black v. Cornell. The judgment is reversed.

Bond and Graves, JJ., concur; Woodson, J., absent.